Commonwealth v. Levesque
| Decision Date | 10 January 2002 |
| Citation | 436 Mass. 443,766 NE 2d 50 |
| Parties | COMMONWEALTH v. THOMAS S. LEVESQUE (and eleven companion cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Christopher P. Hodgens, Assistant District Attorney (Harry D. Quick, III, Assistant District Attorney, with him) for the Commonwealth.
Louis P. Aloise (Michael C. Wilcox with him) for Julie Ann Barnes.
Edward P. Ryan, Jr., for Thomas S. Levesque.
A grand jury in Worcester County returned six indictments against each defendant for involuntary manslaughter, G. L. c. 265, § 13. The indictments were based on grand jury testimony concerning the defendants' conduct in starting by accident and then failing to report a fire in the Worcester Cold Storage factory building (warehouse), which took the lives of six Worcester fire fighters. The defendants moved to dismiss the manslaughter indictments on grounds that (1) the evidence presented to the grand jury was insufficient to justify the return of indictments for involuntary manslaughter, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982); and (2) the integrity of the grand jury proceeding was impaired, see Commonwealth v. O'Dell, 392 Mass. 445, 446-447 (1984). A judge of the Superior Court allowed the motions to dismiss based on the first ground, that the evidence before the grand jury was insufficient to support the indictments, because the defendants had no legal duty to report the fire and their failure to act did not satisfy the standard of wanton and reckless conduct required for manslaughter charges. The Commonwealth appealed, and we granted the defendants' joint application for direct appellate review. Because we conclude that the evidence before the grand jury is sufficient to support the defendants' prosecution for manslaughter, we reverse the order of the Superior Court.
The evidence presented to the grand jury, viewed in the light most favorable to the Commonwealth, indicated the following.2 See Commonwealth v. Catalina, 407 Mass. 779, 781 (1990). For several months prior to December 3, 1999, the defendants lived in a room on the second floor of the vacant five-story warehouse. The warehouse was a cold storage building and, as such, had brick walls, wood framing, and a compartmentalized floor plan with many small windowless rooms insulated with cork and styrofoam. The second floor where the defendants stayed had some windows, but those windows were boarded up. The room occupied by the defendants contained a bed, closet, and personal effects, including clothing, blankets, a radio, a wooden end table, and a kerosene heater. The defendants had an operable cellular telephone, food, and pets. Because there was no electricity, a flashlight, candles, and a heater were used for light. On more than one occasion, the defendants had an overnight guest in these quarters.
Approximately one month before the fire, a K-9 police officer with his dog responded to a complaint about the conditions in the warehouse and found signs of occupancy. The officer encountered an overwhelming odor of "rotting garbage, feces and urine." One room contained A "makeshift bedroom" was discovered, containing a bed, clothes, and a closet with a box "overflowing with cat feces." Unable to move without stepping on rotting garbage or feces, the police officer terminated the search out of concern for the health and safety of his dog.
On the afternoon of December 3, 1999, between 4:15 P.M. and 4:30 P.M., the defendants had a physical altercation in their bedroom at the warehouse that resulted in the knocking over of a lit candle. A fire started and the defendants tried unsuccessfully to put the fire out with their feet and a pillow. The fire spread rapidly until everything in the room began to burn. The defendants searched for the cat and dog that lived in the warehouse with them but the search was futile. The defendants left the warehouse and did not report the fire to the authorities.
After leaving the warehouse, the defendants passed several open businesses and shopping mall stores where public telephones were available. Between 4 and 5 P.M., the general manager of Media Play store saw the defendants in his store and heard Julie Barnes say, Thomas Levesque replied, After leaving Media Play, the defendants walked around the mall until they left to get dinner. They returned to the mall where they first went back to Media Play to listen to more music, and then went to a Sports Authority store to get a job application. The defendants subsequently went to Regina Guthro's house where Levesque remained until the next morning.3 Barnes spent the night with Bruce Canty at a hotel where both Barnes and Canty viewed the ongoing warehouse fire from their hotel room window.
Levesque made three telephone calls from his cellular telephone the day of the fire. One call was made at approximately 6 A.M. The record is unclear whether the other calls, at 11:20 and 11:28 (made to the hotel where Barnes was staying), were made in the morning or the evening. The next telephone call was placed from Levesque's cellular telephone four days after the fire.
The fire was not reported until 6:13 P.M. that evening, when an emergency caller reported the fire. Sergeant O'Keefe, an expert in arson and fire investigations, stated that "the significance of the delay in reporting [the fire] ha[d] a great deal to do with what kind of fire the Worcester Fire Department got to that day." After arriving on the scene, fire fighters were informed that there might be homeless persons inside the warehouse. The fire fighters entered the warehouse in an effort to locate any persons that might have been inside, and to evaluate their tactics to combat the fire. It was during these efforts that six fire fighters went into the building and never returned. Rescuers recovered their remains during the eight days that followed.
A joint investigation by the Worcester fire department, the Massachusetts State police fire and explosion investigation section, and the United States Bureau of Alcohol, Tobacco and Firearms revealed that the warehouse fire, which originated in the defendant's second-floor "makeshift" bedroom, was most likely accidental and the result of an open candle flame in contact with combustible material. Remnants of the defendants' belongings, including plastic milk crates, an outline of a bedtype structure, the remains of a dog and cat, a candle, and a telephone calling card, were found among the debris.
Standard of review. Our inquiry here is limited to whether the evidence presented to the grand jury was sufficient to support the defendants' indictments for involuntary manslaughter. Commonwealth v. Catalina, 407 Mass. 779, 790 (1990). We consider only whether "the grand jury [heard] sufficient evidence to establish the identity of the accused ... and probable cause to arrest [them]" for the crimes charged (citations omitted). Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Probable cause requires sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed, see Commonwealth v. Catalina, supra at 790, citing Carroll v. United States, 267 U.S. 132, 161 (1923); this standard requires considerably less than that which is required to warrant a finding of guilt. Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). Where, however, the Commonwealth has not produced any evidence of the defendant's criminal activity, see Commonwealth v. McCarthy, supra at 162-164, or has impaired the integrity of the grand jury by knowingly using false testimony to procure an indictment, see Commonwealth v. Salman, 387 Mass. 160, 166-168 (1982), or has provided evidence that gives a distorted picture of its probative force, see Commonwealth v. O'Dell, supra at 446-452, the indictment must be dismissed. Commonwealth v. Brien, 19 Mass. App. Ct. 914 (1984).
Sufficiency of the evidence. Because Massachusetts has not defined manslaughter by statute, its elements are derived from the common law. Commonwealth v. Godin, 374 Mass. 120, 126 (1977). Involuntary manslaughter is "an unlawful homicide, unintentionally caused ... by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." Commonwealth v. Catalina, supra at 783, quoting Commonwealth v. Campbell, 352 Mass. 387, 397 (1967). The defendants argue that the evidence presented to the grand jury is insufficient to constitute probable cause that they have committed the crime of manslaughter. Specifically, the defendants contend that they did not have a duty to report the fire, thus rendering the evidence insufficient to demonstrate wanton and reckless conduct, and that the evidence does not support a finding that the fire fighters' deaths were caused by their failure to report the fire.
Duty to report the fire. Wanton or reckless conduct usually consists of an affirmative act "like driving an automobile or discharging a firearm," Commonwealth v. Welansky, 316 Mass. 383, 397 (1944). An omission, however, may form the basis of a manslaughter conviction where the defendant has a duty to act. Id. at 397. See also Commonwealth v. Twitchell, 416 Mass. 114, 117 (1993) (). For example, in Commonwealth v. Welansky, supra, we upheld the manslaughter convictions of a nightclub owner where patrons of the establishment died in a disastrous fire. Id. at 393. The...
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