Commonwealth v. Bennett

674 N.E.2d 237, 424 Mass. 64, 1997 Mass. LEXIS 9
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 8, 1997
StatusPublished
Cited by16 cases

This text of 674 N.E.2d 237 (Commonwealth v. Bennett) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bennett, 674 N.E.2d 237, 424 Mass. 64, 1997 Mass. LEXIS 9 (Mass. 1997).

Opinion

Marshall, J.

On November 15, 1993, Michael Bennett was convicted following a trial by jury on one indictment charging first degree murder by reason of felony-murder (G. L. c. 265, § 1 [1994 ed.]), one indictment charging armed burglary (G. L. c. 266, § 14 [1994 ed.]),1 and one indictment charging larceny (G. L. c. 266, § 20 [1994 ed.]). Bennett was sentenced to serve concurrent life terms on the murder and [65]*65burglary convictions; his larceny conviction was placed on file with his consent and is not part of this appeal.

The underlying felony on which the Commonwealth based its felony-murder charge was armed burglary. On appeal Bennett argues that the Commonwealth failed to present sufficient evidence that the crime was committed in the nighttime (one of the elements of the crime of armed burglary, see note 1, supra), so that he was entitled to a required finding of not guilty. Bennett also argues that the trial judge’s imposition of concurrent sentences for both first degree felony-murder and the underlying felony of armed burglary is duplicative. Finally, Bennett requests that this court exercise its authority under G. L. c. 278, § 33E (1994 ed.), to order a new trial or to reduce the verdict to a lesser degree of guilt. We vacate both the judgment of conviction and the sentence for armed burglary. We affirm the judgment of conviction of murder in the first degree. We conclude that there is no reason to exercise our power under G. L. c. 278, § 33E.

1. We review the relevant evidence in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). On October 15, 1986, at approximately 4 p.m., Joan Marino returned to Logan International Airport from a trip to Florida. She had telephoned her husband, Ernest Marino, between 5:30 and 6:30 on the evening before to arrange for him to meet her and drive her to their home on Cape Cod. When her husband failed to arrive at the airport, she telephoned home approximately every fifteen minutes for some three hours, with no answer. She found this unusual because an answering machine customarily picked up incoming calls. Finally, at 8 p.m. that evening, she took the last flight to the Barnstable Municipal Airport. When she arrived there, she telephoned home, and again there was no answer. She then telephoned a friend, Olivia Marie Johnson, who transported her home.

When Mrs. Marino and Mrs. Johnson arrived at the house at approximately 9 p.m., Mrs. Marino noticed that all of the exterior and interior lights of the house were on. After entering the house, she discovered her husband’s body on the stairs leading from his bedroom to his office. His chest was coated with very thick, dried blood, and his body was cold and “as hard as a rock.” When she hugged his body, no blood stained her white blouse.

[66]*66Because Mrs. Marino and Mrs. Johnson discovered that all the telephones in the house were inoperable, Mrs. Johnson left the Marino home and called the Barnstable police from a local restaurant. The police arrived at approximately 9:40 p.m., determined that entry to the house had been forced, and that the telephone wires to the house had been cut. Police rescue personnel determined that the victim was dead and that rigor mortis had set in. The next morning the Commonwealth’s medical examiner performed an autopsy on the victim’s body and determined that the cause of death was a shotgun wound to the left shoulder and neck region. He analyzed photographs taken at the crime scene and observed the apparent state of the body’s rigor mortis. When questioned about the estimated time of the victim’s death, the medical examiner said that he applied the “12-12-12 rule”2 and that the state of rigor was consistent with the death of the victim occurring between 2 a.m. and 5 a.m. on October 15.

Paul Tawa, an acquaintance of Bennett, testified that he had telephoned the Barnstable police, anonymously, in January, 1987, to identify Bennett as the individual who had killed the victim. Tawa testified that Bennett had offered to sell him a handgun identified by other witnesses as belonging to the victim,3 and that Bennett told him that he had acquired the gun during a robbery of a drug dealer.4 Tawa said that Bennett sold him the victim’s gun four or five days after the murder. Tawa further said that Bennett told him that he did not think anyone was at home when he entered the dealer’s house, but that the victim appeared on the stairwell armed with two handguns. When confronted by Bennett, the victim “flinched”; Bennett shot him and then took one of his guns.

[67]*67Michael Dubis, a witness for the prosecution, testified that in January, 1993, while he and Bennett were both incarcerated in the Barnstable house of correction, Bennett told him that “one night” he went to rob a dealer who had “burned him on a couple of deals,” but that the dealer “ended up dead,” shot on the stairs in his home. When Dubis asked Bennett whether he had killed this man, Bennett replied, “Don’t ask me that question, and I won’t tell you no lies.” Dubis also said that Bennett told him that he had found a briefcase with “hash oil” in the dealer’s home, but that when he left the house “that night” he threw the briefcase into “some river” because he “didn’t want anything to connect him to the guy that ended up dead that night.”5 Several weeks after this conversation, Dubis spoke to a State trooper, James Plath, about his conversation with Bennett. A week later Bennett threatened Dubis in jail, telling him, “Hey, Dubis, I killed Ernie Marino, and I’ll kill you too, if I ever hear you mention my name to a cop.”

2. We decide first whether there was sufficient evidence from which the jury could find beyond a reasonable doubt that the crime was committed in the nighttime, for it is on this ground alone that Bennett challenges his conviction of armed burglary.6 See note 1, supra. Evidence of the burglary of the Marino home is circumstantial, but the Commonwealth’s failure to provide direct evidence of the time of the crime is, of course, not fatal to the Commonwealth’s case; circumstantial evidence is competent evidence to establish guilt. Commonwealth v. Rojas, 388 Mass. 626, 629 (1983), and cases cited. See Commonwealth v. Turner, 28 Mass. App. Ct. 909, 911 (1989) (direct evidence of time of break-in not required to prove that crime was committed during nighttime). Several of the Commonwealth’s witnesses gave testimony relevant to establishing the time of the crime. Mrs. Marino said that she had last spoken to her husband between 5:30 and 6:30 p.m. on October 14, 1986, the day before she found him. She said that there was no answer when she [68]*68telephoned her home on her arrival in Boston at approximately 4 p.m. on October 15, 1986, or for several hours thereafter. Eric Johnson, a friend of the Marinos, testified that he had been at the victim’s house at approximately 2 p.m. on October 15, 1986, that he had rung the door buzzer, but that the victim did not answer. When Mrs. Marino finally arrived home on October 15, it was dark and she noticed that all of the exterior and interior lights of the house were on. She also testified to the condition of her husband’s body when she discovered it on the evening of October 15.

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Cite This Page — Counsel Stack

Bluebook (online)
674 N.E.2d 237, 424 Mass. 64, 1997 Mass. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bennett-mass-1997.