Commw. v. Robinson, 120799
| Decision Date | 07 December 1999 |
| Docket Number | P-1534 |
| Citation | 720 N.E.2d 480,48 Mass. App. Ct. 329 |
| Parties | (Mass.App.Ct. 1999) COMMONWEALTH v. FRANK M. ROBINSON. No.: 97- |
| Court | Appeals Court of Massachusetts |
Suffolk County
Verdict, Duplicative convictions. Waiver. Malice. Joint Enterprise.
Indictments found and returned in the Superior Court Department on July 25, 1995.
The cases were tried before Robert W. Banks, J.
Maxine Sushelsky for the defendant.
Stephen D. Fuller, Assistant District Attorney, for the Commonwealth.
Eugene Christopher Hayes, and Karla Hayes were tried with him as codefendants. Fitzpatrick
was charged with first degree murder and kidnapping; both Eugene Hayes and Karla Hayes were
charged with first degree murder, armed robbery, and kidnapping.
On September 19, 1996, the jury returned verdicts finding the defendant guilty of murder in the
second degree on a theory of felony-murder based on kidnapping and guilty of kidnapping. On
appeal, the defendant asserts the following: (1) the judge committed error in denying the motions
for required findings of not guilty; (2) the judge's instructions to the jury were flawed; (3) trial
counsel was constitutionally ineffective; and (4) the kidnapping conviction is duplicative of the
felony-murder conviction.
We summarize the evidence in the light most favorable to the Commonwealth. Kater v.
Commonwealth, 421 Mass. 17, 20 (1995). We note that the bulk of the Commonwealth's
evidence came from the testimony of Nancy Medeiros, who testified under a grant of immunity.
Sometime during the afternoon of June 13, 1995, Medeiros visited the defendant and his
girlfriend at their home in Stoughton. While there, the defendant informed Medeiros that the
victim, Maurice Vance, had telephoned him and told him that he (Vance) had stolen money and
drugs from a man in Boston and that there was a "hit" on him. Soon after, the victim arrived at
the defendant's home. The four played cards, and during the game the defendant repeatedly joked
that he was going to tie the victim to a tree by the neck and kill him.
At about 5:00 or 5:30 P.M., Medeiros went to her grandmother's house for dinner. At
approximately 7:30 P.M., Medeiros telephoned the defendant, who asked her if she would drive
him to Boston so that he could deliver a package. Medeiros returned to the defendant's home
where she found the defendant in the kitchen with Eugene and Karla Hayes. The defendant then
directed Medeiros to look out a window located on the porch. She saw a body lying on the
ground in the backyard with a rope tying its hands and feet. The head was covered with a
pillowcase which had blood seeping through it. Medeiros recognized the body as that of the
victim from the boots he had been wearing. She also recognized the rope as one that she had seen
earlier in the defendant's home.
The defendant told Medeiros that he had asked the victim to accompany him outside to shoot
squirrels with a BB gun. Once in the backyard, the defendant pulled out a gun; the victim fell to
his knees and begged for his life. According to the defendant, Karla Hayes put a rope around the
victim's neck. Subsequently, the defendant hit the victim with the gun, rendering him
unconscious. The defendant thereafter placed a gag into the victim's mouth, tied a pillowcase
over his head, and bound his hands and feet in a "hog-tied" fashion. The defendant told Medeiros
that he did not believe that the victim was dead and that he planned to deliver him to "Fitzy," (the
man in Boston who had ordered the "hit"), so that he, Fitzy, could "finish the job."
The defendant and Eugene Hayes covered the victim's body with a blanket and placed it in the
hatchback of Medeiros's car. The defendant, Medeiros, and Karla Hayes then drove to Boston
looking for Keith Fitzpatrick. After locating Fitzpatrick, he told the defendant that he would not
deal with the matter until it became dark. As Medeiros and Karla Hayes waited outside, Hayes
took a small gasoline container from an unidentified person.
Once it became dark, the defendant and Fitzpatrick left in Medeiros's car, leaving Medeiros
behind with Karla. About one hour later, the two men returned. Fitzpatrick told Medeiros that
"they" had stabbed the victim with a kitchen knife, poured gasoline over him, and set him on fire.
The defendant meanwhile had left again in Medeiros's car, but returned a short time later and
informed Medeiros that her vehicle had broken down. Medeiros, after noticing that her car had a
strong gasoline odor, had it towed to Stoughton.
That evening, at approximately 11:00 P.M., the Boston fire department responded to a report of
a fire in a field in Dorchester and, upon arriving, put it out. On June 16, 1995, at about 11:50
A.M., Boston police officers responded to a report that a body had been found in the field.3
The body was identified as the victim's by its fingerprints. Rope, a bloodstained portion of a
pillowcase, and pieces of clothing that contained gasoline residue were found near the body.
Rope fibers and grass samples found at the scene matched those obtained from Medeiros's car.
The medical examiner determined that the victim died from asphyxia. He testified that he arrived
at this determination by "exclusion . . . . There were no other causes of death, and the information
[he] received from the police was that a pillowcase had been placed over the airway of the
[victim]." The medical examiner later testified that either a "gag in someone's mouth" or a
"pillowcase over the face" could cause asphyxia.
1. Denial of motion for required finding of not guilty. The defendant claims that the judge erred
in denying the defendant's motion for a required finding of not guilty for three reasons: (a) the
kidnapping was not separate and distinct from the homicide; (b) there was insufficient evidence
to corroborate the immunized witness's testimony; and (c) the venue in Suffolk County was
improper. We find no error.
the pillowcase, or the rope, all of which were used to restrain him.
"[F]or a felony-murder conviction there must be a felony independent of the homicide."
Commonwealth vs. Quigley, 391 Mass. 461, 465 (1984), cert. denied, 471 U.S. 1115 (1985).
§ 26. Commonwealth v. Lent, 46 Mass. App. Ct. 705, 709-710 (1999). Thus, the essential
element of kidnapping is not the level of violence but rather the defendant's forcible or secret
confinement or imprisonment of the victim against his will.
that he was alive at the time that he was bound, and that the manner in which he was bound
would have rendered him incapacitated"). No further restraint was necessary to accomplish the
defendant's plan to kidnap the victim.
The medical examiner's opinion that the victim's death resulted from asphyxia caused by either
the gag in the mouth or the pillowcase over his head does not dictate that the kidnapping merge
with the murder. Those later actions which resulted in the asphyxia, although further means of
restraint, were not essential to the kidnapping and were separate and distinct physical acts of
violence that ultimately led to the victim's death. Therefore, the restraint used to accomplish the
kidnapping was independent of those acts of violence that brought about the homicide.5
b. Corroboration of the immunized witness's testimony. General Laws c. 233, § 20I, as
inserted by St. 1970...
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