Opinion
14-P-83
05-18-2015
COMMONWEALTH v. ROGER BEATTIE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Roger Beattie, appeals from his conviction by a Superior Court jury of two counts of perjury. G. L. c. 268, § 1, as amended by St. 2006, c. 48, § 2. The defendant argues that the trial judge erroneously denied his motion for required findings of not guilty and limited his closing argument. We affirm.
Background. We summarize the facts the jury could have found, taking the evidence in the light most favorable to the Commonwealth. Commonwealth v. Linton, 456 Mass. 534, 536 (2010).
On August 27, 2010, the defendant lived at 382 Salem Street in Medford with his girlfriend Vera Leder. Several other people rented rooms in the multifamily residence, including Christopher Toppi and Andrea Spears. The defendant and a group of people including Toppi spent the evening of August 27 and into the early morning hours of August 28 drinking and socializing around Boston, ending up at Lansdowne Street near Fenway Park. The defendant and Leder left Lansdowne Street and returned to 382 Salem Street, where they discovered that Spears had a male guest in the room she previously had shared with Toppi. The defendant called Luke Brennan, whom he knew to be driving Toppi to Toppi's mother's house in Cambridge, and asked to speak with Toppi. The defendant told Toppi about the male in Spears's room, and Toppi ordered Brennan to return to 382 Salem Street.
Toppi and Spears had broken up approximately one week before.
Toppi arrived at 382 Salem Street, went directly to the third floor, and kicked in Spears's door. He then beat the male, later identified as Brian Fahey, to death. The defendant and Leder were in the doorway swearing at Spears while the beating occurred. The defendant eventually pulled Toppi off of Fahey and out of the room, while Leder called 911. Toppi told Brennan to take him to his mother's house in Cambridge, which Brennan did. Brennan returned to 382 Salem Street the next day and spoke with the defendant about the attack. The defendant told Brennan that Toppi had sent him a text message asking the defendant "to get rid of the lock." The defendant later told Toppi's mother that someone may have passed her son a padlock wrapped in a towel or pillowcase during the attack.
The Commonwealth alleged that a padlock was the murder weapon.
A grand jury was convened "to begin an investigation into the facts and circumstances surrounding a death that occurred in Medford on August 28 of 2010." At that point, Toppi had been arrested and charged with murder in the first degree. On September 2, 2010, the defendant testified before the grand jury that he had not seen Toppi after leaving Lansdowne Street early in the morning of August 28, and that he had no communications with Toppi after the telephone call he made telling Toppi about Spears's guest. In February, 2011, the defendant was indicted on two counts of perjury in violation of G. L. c. 268, § 1.
Discussion. "The crime of perjury in a judicial proceeding occurs whenever one 'wil[]fully swears or affirms falsely in a matter material to the issue or point in question.'" Commonwealth v. Geromini, 357 Mass. 61, 63 (1970), quoting from G. L. c. 268, § 1. The defendant does not dispute that his statements to the grand jury were false. However, he claims that his motion for required findings of not guilty should have been allowed because his false statements could not have been material to a first-degree murder indictment that had not yet issued. The defendant contends that his statements may have been material to the grand jury's investigation, but that the Commonwealth's failure to include "investigation" in the indictment renders the proof at trial insufficient. We review the judge's denial of the defendant's motion for required findings of not guilty to determine "whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged." Commonwealth v. Campbell, 378 Mass. 680, 686 (1979).
The indictments in this case set forth "the time, place and circumstances of the [defendant's] alleged perjury." Commonwealth v. Baron, 356 Mass. 362, 365 (1969) (Baron). They alleged that the false statements were made after the defendant "was lawfully sworn as a witness before the Middlesex County Grand Jury on an issue within the jurisdiction of said tribunal[,]" "said issue" being "a capital case to wit: 1st degree murder." The indictments conformed with the statutory form, see G. L. c. 277, § 43, and were sufficient. See Baron, supra at 364. See also Commonwealth v. Pikul, 407 Mass. 336, 338 (1990), quoting from Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979) ("To be sufficient, '[a]n indictment . . . shall contain . . . a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof'").
We note that the defendant did not move for a bill of particulars, which he could have done "[i]f there were confusion" about the wording of the indictment. Commonwealth v. Valleca, 358 Mass. 242, 244 (1970).
Insofar as the defendant claims his statements could not have been material to an indictment that had yet to issue, there is no dispute that "[t]he focus of the grand jury's investigation was whether" the circumstances surrounding Fahey's death constituted murder in the first degree. Commonwealth v. Silva, 401 Mass. 318, 325 (1987). The grand jury had to decide whether there was sufficient evidence to establish the identity of the person accused of killing Fahey and probable cause to arrest him, Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), and "[t]he questions asked of the defendant during his testimony were obviously material to th[at] . . . investigation . . . ." Baron, 356 Mass. at 366. It was for the jury to decide whether the defendant's statements that he had not seen Toppi at 382 Salem Street on the night of the murder or communicated with him thereafter "either 'directly or circumstantially had a reasonable and natural tendency' to influence the decision whether to bring [an] indictment[]" for murder against Toppi, id. at 366, see id. at 365, and because "[a] rational trier of fact could have found that the defendant's [statements were] 'material' to the grand jury's investigation of [murder] . . . the trial judge did not err in denying the defendant's motion for a required finding on the issue of materiality." Commonwealth v. Silva, supra.
We have reviewed the defendant's remaining claim, that the trial judge impermissibly restricted defense counsel's closing argument, and find it to be without merit. The defendant argued the evidence as he intended, notwithstanding the judge's ruling to the contrary.
Judgments affirmed.
By the Court (Trainor, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 18, 2015.