Thе defendant was charged with fifteen counts of second degree murder and one count of burning a dwelling house. His first trial ended in a mistrial because of prosecutorial misconduct. At his second trial, he was convicted by a jury of all charges. The defendant filed a motion for a new trial, which was denied without a hearing.
On appeal from his convictions and the denial of his motion for a new trial, the defendant claims the trial judge erred as follows: (1) in denying his motion for a new trial without a hearing; (2) in making certain evidentiary rulings; (3) in instructing the jury that there was no evidence tying a particular witness, whose testimony at the trial had been impeached, to the crimes; (4) in failing to instruct the jury on consciousness of guilt; (5) in failing to instruct on involuntary manslaughter; (6) in refusing to dismiss the indictments on double jeopardy grounds or to preclude the use of evidence uncovered after the first trial; and (7) in revoking the defendant’s original sentences and imposing in their place sentences which carried a later parole eligibility date. We affirm the convictions and the denial of a new trial.
We summarize the pertinent evidence presented at the trial. Fifteen people died in an early morning fire on July 4, 1984, at the Elliott Chambers rooming house in Beverly. An arson investigator, who inspected the scene on July 9, 1984, determined that the fire began in the alcove adjacent to the front entrance to the rooming house. He concluded that the
In the early evening on July 3, 1984, the defendant was at work at the Atlantic House of Pizza, which is near the Elliott Chambers rooming house. In the alley adjacent to the defendant’s work place, he encountered Rick Nickerson, who lived at the-Elliott Chambers rooming house. The defendant warned Nickerson that if he continued to date the defendant’s former girl friend, Lisa Maggiacomo, he would kill him and burn his house down. At about 1:15 a.m. on July 4, 1984, the defendant told a friend that he was upset because he had broken up with Lisa and that he wanted her baсk. Between 3:00 a.m. and 4:00 a.m., a cab driver observed the defendant standing in front of the rooming house and saw a car which fit the description of the defendant’s car parked adjacent to the rooming house. Around 4:00 a.m., Florence Michaud, who delivered newspapers in the neighborhood, saw a man standing in the entry way to the rooming house leaning over a stack of newspapers. She could not identify the defendant as the man she had seen. At about the same time, Harold Eastman was delivering papers to the drug store adjacent to the rooming house and saw a man standing in the doorway to the rooming house smoking a cigarette. He testified that the defendant was not this man. The fire broke out at about 4:18 a.m. The defendant’s parents testified that the defendant was at home asleep at that time. In the months that followed the aftermath of the fire, the defendant made a number of incriminating statements, including an admission to two friends that he had set the fire.
1.
Motion for a new trial.
The defendant argues that the judge erred in denying his motion for a new trial without a hearing. “The choice of deciding the motion on the basis of affidavits or hearing oral testimony is left largely to the sound discretion of the judge.”
Fogarty
v.
Commonwealth,
2. Evidentiary rulings.
a.
Evidence of satanic cult activities.
The defendant contends that the trial judge erroneously excluded evidence of satanic cult activities, which the defendant claimed was material in proving his defense that someone other than the defendant set the fire as part of a satanic ritual. Although a defendant may introduce evidence that someone else committed the crime charged or had the motive and intent to com
Here, the defendant’s claim was based on the judge’s refusal to allow defense counsel to elicit information about satanic cult activities from three witnesses. The defendant asked a prosecution witness, Thomas Page, whether he was aware that Lisa Dion was involved in satanic culture or engaged in satanic rituals. Defense counsel informed the court that the evidence wаs relevant, for he intended to offer evidence that Lisa Dion had admitted that she had set the fire as part of a satanic initiation. However, at that juncture of the trial no evidence tying Lisa Dion to the fire or showing that the fire was set as part of a satanic ritual had been presented. Moreover, the judge did not preclude the defendant from offering this evidence later on in the trial if the defendant established its relevanсy.
Similarly, the judge acted within the bounds of his discretion in refusing to allow the defendant to inquire of the deputy fire chief what materials were found in an adjacent building at the time of the fire. The defendant sought to show that the building contained books, weapons, and photographs associated with a cult activity. The defendant’s offer of proof failed to establish that the witness had any personal knowledge of what the building contained and failed to show how those materials were related to the case being tried.
Finally, after a resident of the rooming house, Blanche Poor, testified that there were writings on the walls of her floor of the rooming house including an upside down cross, all of which had been removed “away back” and before the fire, the judge precluded the defendant from inquiring
b.
Evidence of defendant’s past falsehoods.
The defendant claims that the judge erred in refusing to allow defense counsеl to inquire of a prosecution witness whether the defendant had lied to her in the past to gain her sympathy. Christine Coletti had testified on direct examination that in October, 1984, the defendant told her he set the Elliott Chambers fire. On cross-examination, the judge precluded defense counsel from inquiring whether the defendant had lied to her in the past to gain her sympathy. The judge properly sustained the objection, because the question called for a mere opinion or speculation as to another person’s state of mind.
Commonwealth
v.
Millyan,
c.
Redirect examination of Lisa Maggiacomo.
The defendant alleges that the trial judge erred in allowing the proseсutor on redirect examination to question a Commonwealth witness (1) as to whether she had gone before a Superior Court judge to determine if she had to talk to the defendant’s attorney or have anything to do with the defendant and (2) as to whether she had refused to disclose her address to the defendant. To both questions, the witness answered in the affirmative. There was no objection by defense counsel. The prosecutor then inquired why she did not want the de
The defendant now argues that the judge should not have permitted this line of inquiry, because it prejudiced the defense by creating the impression that the witness had good reason to fear the defendant. Since the defendant did not object to the line of inquiry, our review is limited to determining whether there is a substantial risk of a miscarriage of justice.
Commonwealth
v.
Freeman,
The prosecutor’s line of inquiry was prompted by the defendant’s cross-examination concerning the witness’s reluctance prior to trial to talk to defense counsel. In an attempt to rebut the inference that the witness was biased in favor of the Commonwealth, the prosecution sought to show that she chose not to speak with defense counsel because she feared the defendant.
Assuming that the jury cоuld infer from this evidence that the witness feared the defendant, we conclude nonetheless that there was no risk of a miscarriage of justice. The jury would have been warranted in drawing the same conclusion from her prior testimony that the defendant, when she refused to see him, threatened to burn down the shelter where she was living.
d.
Exclusion of evidence of defendant’s acquittal on a complaint for threats.
The defendant argues that he should have been permitted to introduce evidence that he had been acquitted of making threats to burn a shelter called Project Rap, where Lisa Maggiacomo lived temporarily. The Commonwealth introduced evidence that the defendant had told a worker at the shelter, “I’ll burn your place, just like I did in Beverly.” The defendant wished to offer evidence of his acquittal of making threats. The judge ruled that he would exclude this evidence. A judge has discretion to admit a defendant’s earlier acquittal of a crime shown by the evidence.
Commonwealth
v.
Mayfield,
3.
Instruction to the jury that there was no evidence tying Lisa Dion to the fire.
The defendant argues that the judge invaded the faсt-finding province of the jury when he instructed them that “there is absolutely not a particle of evidence before you that Lisa Dion set the fire in this case.” The defendant did not object to the instruction. Consequently, our review is limited to whether there was a substantial risk of a miscarriage of justice.
Commonwealth
v.
Freeman,
The judge’s instruction was prompted by the improper argument of defense counsel to the jury that Lisa Dion could have set the fire, because she had confessed to doing so. Lisa Dion was called as a witness by the defendant. During her examination by defense counsel, she denied ever telling Lori Brennan that she set the rooming house fire as part of a Satanic ritual. To impeach her testimony, the defendant offered the deposition of Lori Brennan that Lisa Dion had told her she set the fire. Since the alleged confession was admitted for impeachment purposеs only, see
Commonwealth
v.
Rosa,
The defendant also contends that even if the instruction was proper to remedy defense counsel’s impermissible statements, the instruction was too broad and precluded the jury from considering other evidence tying Lisa Dion to the fire.
4.
The judge’s failure to instruct on consciousness of guilt.
During his closing argument, the prosecutor argued that certain aspects of the defendant’s behavior indicated his consciousness of guilt, namely, that he appeared moody and confused and was pacing about on the morning after the fire and that, although he already knew about the fire, he feigned surprise when told about the fire a second time. Although the defendant did not make any objection to these remarks or request an instruction on consciousness of guilt and the caution to be exercised in considering consciousness of guilt evidence, he now complains that it was error for the judge to omit such an instruction. There is no requirement that a judge sua sponte instruct the jury on consciousness of guilt.
Commonwealth
v.
Booker,
5. Failure to give an involuntary manslaughter instruction. The judge did not give an involuntary manslaughter instruction. During the charge conference, defense counsel informed the judge that he was not inclined to request an instruction on involuntary manslaughter and would advise the defendant that he “ought to go for all or nothing.” Nothing more was said by defense counsel, and he did not object to the judge’s instructions.
6. Motion to dismiss or to preclude introduction of evidence discovered after mistrial. The defendant claims that the indictments should have been dismissed on double jeopardy grounds or, in the alternative, the Commonwealth should have been barred in the second trial from introducing evidence discovered after the first trial ended in a mistrial. We disagree.
During the first trial, the judge declared a mistrial at the request of the defendant based on the failure of the Commonwealth to disclose two police reports to the defendant until midway in the trial. One report contained an interview
As a general rule, a mistrial granted at the request of the defendant is not a bar to retrial on double jeopardy grounds.
Oregon
v. Kennedy,
Here, the judge made no finding that the objective of the delayed disclosure was to goad the defendant into moving for a mistrial. Nor is one warranted by the record. In
Commonwealth
v.
Lam Hue To,
Nevertheless, the defendant claims that the judge erred in refusing, as a sanction, to bar the Commonwealth from introducing incriminating evidence discovered after the declaration of the mistrial. This evidence surfaced independently of the material contained in the delayed disclosed reports, and there is no basis for concluding that the prosecutor’s miscon-
7. The sentences. The defendant argues that the judge erred in revoking the sentences imposed upon the defendant and imposing in their place more severe sentences. Initially the judge imposed a fifteen to twenty year State prison sentence on the arson conviction and life sentences on each of the fifteen murder convictions, to be served concurrently with each other but from and after the sentence on the arson charge. After the clerk read the sentences, the prosecutor advised the judge that the sentences imposed were illegal. The judge then revoked the sentences and imposed a life sentencе on count 1 of the murder indictment and a fifteen to twenty year sentence to State prison on the arson charge to run concurrently with the life sentence imposed on count 1. He then imposed concurrent life sentences on the remaining murder convictions to be served from and after the life sentence imposed on count 1 of the murder indictment.
The first sentence on the arson charge was unlawful. “[W] hen ever the possibility exists that a jury might have reached a verdict of murder ... on the basis of a felony-murder theory, a consecutive sentence may not be imposed for the underlying felony.”
Commonwealth
v.
Wilson,
There is no merit to the defendant’s argumеnt that the judge could not, in revising the sentences, increase their severity.
1
Aldoupolis
v.
Commonwealth,
Judgments affirmed.
Order denying motion for new trial affirmed.
Notes
Under the original sentences, the defendant would have been eligible for parole in twenty-five years; under the revised sentences, he would be eligible for parole in thirty years. See G. L. c. 127, §§ 133-133A. See also 120 Code Mass. Regs. §§ 203.01, 203.04, & 203.08 (1990).