Commonwealth v. Tevlin

• Decision Date: 09 November 2000
• Citation: 433 Mass. 305,741 NE 2d 827
• Parties: COMMONWEALTH v. SCOTT TEVLIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 305

741 NE 2d 827

COMMONWEALTH v. SCOTT TEVLIN.

Supreme Judicial Court of Massachusetts, Plymouth.

November 9, 2000.

January 30, 2001.

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

Michael J. Traft for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

COWIN, J.

A Superior Court jury found the defendant guilty of three offenses: murder in the first degree based on felonymurder, armed robbery, and assault and battery by means of a dangerous weapon. On appeal, the defendant asserts the following: (1) the trial judge erred in denying his motion for a required finding of not guilty on the charge of armed robbery, because, in the circumstances of this case, as a matter of law, the use of a sneaker in the perpetration of a robbery cannot constitute the use of a dangerous weapon for purposes of armed robbery; (2) the judge erred by denying his motion for a required finding of not guilty on the charge of felony-murder with armed robbery as the underlying felony because the act that is the basis of the dangerous weapon element of armed robbery, the use of a shod foot, is the same act that caused the death; (3) the judge erred in her instructions on felony-murder by failing to include an instruction that death had to be the natural and probable consequence of the felony and by permitting the jury to infer that the circumstances involved in this case were inherently dangerous; (4) the defendant was deprived of the effective assistance of trial counsel because his counsel waived a motion to suppress an out-of-court identification of the defendant; (5) the judge erred in allowing in evidence as an excited utterance a statement made by the victim at the hospital more than one-half hour after the incident and after she had spoken with the police and medical personnel; (6) the judge erred in admitting statements of the defendant made to an informant inmate; and (7) a retrial on any homicide charge would violate the defendant's constitutional right to be free from double jeopardy. He also asks us to invoke our extraordinary power pursuant to G. L. c. 278, § 33E, to order a new trial, or to direct entry of a verdict of a lesser degree of guilt as to the murder verdict. We affirm the convictions and decline to exercise our power under G. L. c. 278, § 33E, to order a new trial, or to reduce the murder conviction to a lesser degree of guilt.

The following is a recitation of the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). As we consider certain issues raised by the defendant, we shall recite such additional facts as are pertinent to those issues. On March 2, 1996, just before 7:30 A.M., the defendant assaulted seventy-four year old Angela Lyons in the parking lot of a Shaw's supermarket in Brockton, attempting to steal her purse. Lyons resisted, and the defendant tugged on her purse straps, knocking her down and dragging her across the pavement. He then stomped on her stomach. Once he wrenched the purse loose, he fled the scene in a white car.

Cecelia Peterson, an eyewitness, assisted Lyons following the attack. Lyons told Peterson that the assailant had stomped on her stomach. Lyons was upset and experiencing pain when she said this; she was also losing sensation in her legs.

Shortly thereafter, Officer Steven Williamson of the Brockton police department arrived. Lyons told him that a young white male had attacked her. Peterson described the assailant to Officer Williamson as approximately twenty years old, five feet ten inches tall, and 150 pounds. According to her, he had black hair, a mustache, and a goatee.¹ Peterson saw the assailant drive off in a white car with a registration plate that she remembered as 214 ZPF.²

Officer Williamson requested an ambulance, and Lyons reluctantly agreed to go to the hospital. At the hospital, Lyons appeared anxious and in pain. About one-half hour after the incident she explained to Dr. John Steinmetz that a young man had attacked her, trying to steal her purse, and stomped twice on her stomach. Lyons's aorta was crushed, just above her navel, and the aorta remained crushed because it was calcified with cholesterol plaque. This impaired the blood flow to her spinal cord and lower extremities. Her condition deteriorated, and gangrene began spreading in both her legs. Despite surgery to repair her damaged aorta, she died three days later. The cause of death was complications due to blunt abdominal trauma.

Four days after the attack, police found a white Pontiac Bonneville automobile parked outside an apartment complex in Brockton. It had been stolen from the owner's home in Fall River some time between 8:30 P.M., March 1, 1996, and 8:30 A.M., March 2, 1996. A fingerprint on the wiper control lever matched the defendant's left thumb print. Peterson later identified a photograph of the Pontiac Bonneville, with registration plate 214 ZPV, as the car in which she had seen the assailant.

Peterson worked with State Trooper Scott Berna to prepare a composite sketch of the assailant on March 4, 1996, and a second sketch four days later. She met with Trooper Berna on March 5, 1996, to review an array of photographs. Peterson identified hair in one of the photographs as being similar to the assailant's hair. The defendant's photograph was not among those shown to Peterson.

On March 10, 1996, Trooper Berna showed Peterson a series of eighteen photographs. Included was a photograph of the defendant from three years earlier. Peterson did not make an identification. The next day, Peterson reviewed eight more photographs, one of which was a photograph of the defendant taken that morning. Peterson could not positively identify the assailant, but she believed that he resembled number six and number eight. The defendant's photograph was number seven.

On March 12, 1996, Peterson saw a picture of the defendant in a newspaper that reported that he was the man arrested for the attack on Lyons. Peterson telephoned Trooper Berna. She was concerned that the police may have arrested the wrong man because she did not recognize the defendant's picture as the man she remembered as the assailant. The picture, however, was blurred and showed the defendant's profile.

Peterson met with Trooper Berna on March 13, 1996. She asked him if he had any pictures of the defendant, and he showed her about one dozen photographs of him. She did not make, nor was she asked to make, an identification of the assailant that day. The two discussed the case and Trooper Berna told Peterson that police had found the defendant's fingerprint in the Pontiac Bonneville.

On March 15, 1996, Peterson called Trooper Berna and told him that she was confident that the defendant was in fact the assailant. Peterson explained that when she saw the assailant's face on the day of the attack, he was grinning. She said that initially she looked for that same expression in the pictures Trooper Berna showed her. Once she removed that grin from her mind, she realized that the defendant was the assailant. She also identified the defendant at trial as the man she saw attack Lyons.

At the time of the attack, the defendant was living with his girl friend at an apartment complex in Fall River, approximately a five-minute walk from where the Pontiac Bonneville had been stolen. About 6 A.M. on March 2, 1996, the defendant stopped by the Brockton home of John Reggiani, described as the defendant's "surrogate" stepfather. (He had lived with the defendant's mother when the defendant was a child.) While there, the defendant smoked a piece of crack cocaine. He stayed for about forty-five minutes and, before leaving, mentioned that he wanted to get more crack cocaine.

The defendant returned to Reggiani's home at about 8 A.M. He told Dorothea Hustus, who lived with Reggiani, that he and a friend were involved in robberies at Shaw's supermarkets in Easton and Abington. He also said that he had stolen a car that was "real hot." On hearing this, Hustus asked the defendant to leave, but he wanted to wait a few minutes until things "calmed down." He then counted his money; he had seventeen dollars, and he asked to borrow three more from Hustus. A piece of crack cocaine costs twenty dollars. The defendant was acting nervous and repeatedly looked out the windows. The defendant had been to Hustus's home many times before and generally arrived in a stolen car. However, he did not usually appear so nervous. Before leaving, he asked Hustus to check outside for police, which she did. He then walked over to a white car parked down the street, paced back and forth for about twenty minutes while he looked around the area, and finally got into the car and drove off.

The defendant returned to Hustus's home in the white car about twenty minutes later. He told Hustus that he had gotten into an accident and needed a place to stay because the police might be looking for him. He stayed with Hustus until about 10 A.M. The following week, Hustus was taken to the Brockton police department and recognized a white car in the police garage as the car the defendant drove to her house on March 2, 1996. She identified a photograph of the Pontiac Bonneville as the car she saw at the police station.

The defendant was arrested on March 11, 1996. When he was arrested, he told the police that he probably had been at his girl friend's house in Fall River on the night of March 1, 1996. He also said that he had gotten the sneakers he was wearing within the last week from someone he met on the street. His girl friend testified that the defendant had received the sneakers from his sister in January, 1996. After his arrest, while incarcerated at the Plymouth County house of correction, the defendant admitted his involvement in the crime to an inmate, Michael Dubis.

1. Sneakers as dangerous weapon. The defendant claims that the judge erred in denying his motion...