Commonwealth v. Sullivan

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 768 NE 2d 529,436 Mass. 799
• Decision Date: 15 May 2002
• Parties: COMMONWEALTH v. RALPH J. SULLIVAN.

436 Mass. 799
768 NE 2d 529

COMMONWEALTH
v.
RALPH J. SULLIVAN.

Supreme Judicial Court of Massachusetts, Middlesex.

December 7, 2001.

May 15, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Wendy H. Sibbison for the defendant.

Eric R. Barber-Mingo, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

Ralph J. Sullivan appeals from his convictions of

436 Mass. 800

felony-murder, armed robbery, and several lesser offenses, arising out of three episodes in 1994: an armed robbery at A&K Jewelers in Stoneham on June 16; a fatal shooting at Ware Jewelers in Waltham on July 5; and a burglary of BJ's Wholesale Club in Medford on July 14.¹ He asserts numerous errors, including a claim that these indictments should not have been tried together. We affirm the judgments, and decline to exercise our power under G. L. c. 278, § 33E

1. Facts. We recite the facts as the jury could have found them, reserving certain details for discussion in conjunction with the issues raised.

a. A&K Jewelers. At about 6:30 P.M. on June 16, 1994, Marilyn Dillon, an employee of A&K Jewelers, "buzzed" the defendant and Anthony Miller into the shop. Both wore baseball caps, sunglasses, and surgical gloves. The defendant pulled out a gun, then proceeded to a back room where the owner and another employee were working and ordered them to the floor. He instructed Miller to "go for the diamonds." After Dillon unlocked the display cases, Miller filled a large green trash bag with jewelry. The defendant took the owner's wallet and yelled, "Let's get out of here." As they fled, the owner fired several shots at them with his own gun; he did not hit anyone, but shattered the front windows. The robbers escaped into a waiting, stolen Chevrolet Blazer vehicle with an accomplice at the wheel.

Later that night, the defendant and Miller carried a duffel bag into the kitchen of a pizza shop, and offered to sell some rings to "Mike the Greek" for $10,000. They also went to visit Miller's brother-in-law, Charles Lesage. Miller gave Lesage two rings identified as having been stolen from A&K Jewelers that night and several hundred dollars in cash. On June 17, the day after the robbery, the defendant paid $2,500 in cash for a used white Volvo automobile. On June 18, he gave Stephanie Zero a stolen A&K ring and $100 from a large wad of bills, and then took her shopping, spending $200 more on items for their son.

The defendant told Christina Fernandes that the reason she had not seen him for one week or so in middle to late June was

436 Mass. 801

that he had been "hiding out in New Hampshire because of a big shootout." He also asked her to hide his gun for him for a few days. From a photographic array of people wearing hats and sunglasses, the owner of A&K Jewelers tentatively identified the defendant on July 14 or 15, saying, "That looks like the robber, but I'm not certain."

b. Ware Jewelers. Less than two weeks after the A&K incident, the defendant asked to borrow Fernandes's car, telling her that his white Volvo "stood out too much" and he "had something staked out." On June 30, the defendant, Miller, and Lesage stole a blue Buick automobile to "save it for a score."

Later that day, the defendant and Miller took Linda Carney in the defendant's Volvo to the lot where they had left the stolen Buick. The defendant, who was wearing black leather gloves, gave Carney a pair of surgical gloves. Carney testified that he told her to drive him in the blue car while Miller waited in the Volvo. She drove a short distance and then stopped, saying she "wasn't going to do this." All three began to argue. Carney got out and walked back to the Volvo. Miller took her place in the driver's seat. Carney testified that as they were driving off, she heard Miller tell the defendant, "All you have to do is flash it." Nothing further appears in the record regarding whether a robbery took place that day.

On July 5, the defendant and Miller entered Ware Jewelers. Miller stayed in the front of the store where G. Richard Ware had been working. The defendant went to the back office, gun in hand. Mark Mariani was in that office watching the defendant's armed approach on the security camera. The defendant said Mariani "was going for a gun, so he smoked him." The defendant and Miller fled. Ware fired at them in vain as they climbed into a getaway car identified as the stolen blue Buick.

That evening the defendant and Miller visited Lesage. Both men seemed nervous. Miller took Lesage aside and said, "I think we shot someone, someone got shot." The defendant, who had been standing nearby, interjected, "What are you telling

436 Mass. 802

him for? Be quiet."² The defendant also expressed particular interest in the news report of the shooting, asking what had happened, whether police had a description of the car, and whether anybody had died. He offered that he did not think it had been a robbery: "It might have been a hit or something, because no one would just go in and rob a store and not take anything."

Michael Crippa testified that the defendant had told him about the attempted robbery and shooting when they were cellmates in March of 1996. Crippa reported that the defendant said, "I like to rob jewelry stores; that's what I do." The defendant also told Crippa that he had shot someone during a robbery attempt because the man had resisted instead of giving him the jewelry. The defendant said he was hoping to use as a defense that someone else had done it, because in all of his other jewelry store robberies he had taken something, but nothing had been taken this time. He also told Crippa that he had a private investigator who found out that the wife of the victim had been having an affair, "and they were going to make it out like he the wife's lover was the man who had committed the murder."

c. BJ's Wholesale Club. Nine days after the shooting at Ware Jewelers, on July 14 at 12:30 A.M., the defendant and Miller pried open the front fire door at BJ's Wholesale Club (BJ's) in Medford. Inside, a security camera videotaped the defendant jumping over the jewelry case and breaking the glass. Ten minutes later, a Medford police officer stopped the defendant's Volvo 150 yards from BJ's. The defendant, Miller, and a woman who had waited in the car while the men committed the burglary were in the front seat with the stolen jewelry; two computers, also taken from BJ's, were on the back seat. Also in the car were the tools used for the BJ's break-in, a box of green trash bags like the one used in the A&K Jewelers robbery, and a notebook that came from the blue Buick used in the Ware Jewelers incident.

2. Joinder. The defendant claims that the judge erred in permitting the larceny at BJ's to be tried together with the other two incidents, and that joinder of these three incidents in one trial was prejudicial to him. Joinder is governed by Mass R.

436 Mass. 803

Crim. P. 9, 378 Mass. 859 (1979),³ which provides that the trial judge shall join related offenses for trial unless joinder is not in the best interests of justice. See Mass R. Crim. P. 9 (a) (3). Thus, joinder requires first that the offenses are related, and second that joinder be in the best interests of justice. See Reporters' Notes to Mass. R. Crim. P. 9, Mass. Ann. Laws 83-84 (Lexis 1997). The propriety of joinder is a matter for the trial judge's discretion. See Commonwealth v. Wilson, 427 Mass. 336, 345 (1998), and cases cited

a. "Related" offenses. While "the goal of judicial economy will rarely be paramount to affording the defendant a trial as free from prejudice as possible," id. at 81, where offenses are related, there is "little danger" of such prejudice. Commonwealth v. Hoppin, 387 Mass. 25, 33 (1982). In Commonwealth v. Blow, 362 Mass. 196, 200 (1972), we explained that joinder is permitted where "the separate offences would be proved by `evidence connected with a single line of conduct, and grow out of what is essentially one transaction.'" Id., quoting Commonwealth v. Maloney, 348 Mass. 610, 614 (1965). The defendant relies on Blow, pointing to the facts in that case to argue that our holding there is dispositive of joinder here. In that case, the defendant was charged with robbery of one individual, and breaking and entering and larceny from two more; all of these events occurred on the same day, November 7, 1969. Joinder was not proper, we said, because the "diverse criminal activity" that occurred on that date was not the result of a "single line of conduct" growing out of "one transaction," and that severance should have been granted. Id. at 200-201.

The defendant argues that this case, like Blow, also involves robbery and burglary of several targets, and that the "evidence reveals no relationship" between the crimes. Id. at 200. The

436 Mass. 804

defendant's reliance on Blow is misplaced because that case was decided before our rules of criminal procedure were adopted. When Blow was decided in 1972, joinder was governed by G. L. c. 277, § 46 (repealed by St. 1979, c. 344, § 37), which stated: "Two or more counts describing different crimes depending upon the same facts or transactions may be set forth in the same indictment if it contains an averment that the different counts therein are different...