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Commonwealth v. DiSanto, 8 Mass.App.Ct. 694 (1979)
Appeals Court of Massachusetts,
Argued
Decided
[8 Mass.App.Ct. 695] David A. Mills,
Jeffrey E. Rossman,
Thomas J. Mundy, Jr., Asst. Dist. Atty., for the
Commonwealth.
Before [8
Mass.App.Ct. 694] HALE, C. J., and
GRANT and KASS, JJ.
[8
Mass.App.Ct. 695] GRANT, Justice.
In the
early afternoon of
[8 Mass.App.Ct. 696] Thomas E. DiSanto, James F. Brady, III, Richard W. Gadsby and
Kenneth Wightman were each separately indicted for armed robbery while masked,
armed assault with intent to murder the two detectives and the bystander,
assault and battery on all three persons by means of a dangerous weapon, and
the unauthorized use of an automobile.
All the indictments were tried together in the Superior Court, where a
jury convicted each defendant on every indictment against him. DiSanto's and Brady's appeals are now before
us. (FN2) The appeals were argued together, but we
shall discuss them separately because each defendant has argued different
points. (FN3)
DiSANTO'S APPEAL.
1. DiSanto
complains first of the denial of his motion to suppress certain articles which
were seized in his apartment during the afternoon of the day of the robbery and
shootings. The following is a summary of
the relevant evidence at the pretrial hearing on that motion.
Other
police officers discovered the detectives who had been shot within minutes
after the incident. Those officers
obtained brief descriptions of three of the four men who had climbed into the
getaway car, including the fact that
one of them had been wearing dark clothing, as well as a description and the
registration number of the getaway car.
The first police radio broadcast of the shootings, which included those
descriptions, occurred at 1:42 P.M. At
1:55 P.M. another broadcast advised that the getaway car had been discovered at
the end of a dead‑ end [8
Mass.App.Ct. 697] road leading into
an abandoned quarry located near Cummins Highway in the Hyde Park district of
Boston and known as Barry's Ledge. A man
who lived at the end of that road informed the police that he had seen three young
white men abandon the car, one of them carrying a case of a kind suitable for
carrying a gun. The police were advised
of the direction in which the men had fled, and Lieutenant (now Superintendent)
Connolly of the Boston police assumed command of approximately 100 men, fifty
vehicles and a State police helicopter which had joined the search for those
who had entered the quarry.
The back
window of the getaway car had been shot out.
Connolly and some of his men examined the interior of the car,
discovered that the ignition lock had been removed, and observed bullets, spent
shell casings and a cotton work glove.
Connolly, who was then communicating with his forces by walkie‑talkie,
ordered officers to enter the quarry from all the dead end roads leading into
its perimeter. He and several officers
under his immediate direction then entered the quarry, where they followed a
trail consisting of several cotton work gloves similar to the one found in the
car, a package of cigarettes, discarded clothing (including a blue denim
jacket), a chrome plated revolver, a carrying case for a rifle or a submachine
gun, and a holster. No one was
found. The geography and terrain of the
quarry, the locations of the dead end roads, the direction of the trail of
objects which had just been found and the positioning of his forces that
Connolly had already ordered were such that he reasonably concluded that the
pursuit should be continued straight ahead in the direction of the extension of
the American Legion Highway, which by then was the nearest public way not
already covered by Connolly's forces. On
the near side of the highway there was a Bradlee's store with its parking lot;
on the far side was a complex of apartment buildings surrounded by secondary
roads. Connolly radioed directions that
both areas [8 Mass.App.Ct. 698] be checked. Having in mind that he had discovered a denim
jacket, Connolly specifically alerted the searchers to the possibility that one
of the men they were looking for might be bare chested or wearing a T shirt. Every one had already been advised that the
men in question were armed and dangerous.
Within
minutes two police officers who had heard all the relevant radio broadcasts and
who had already checked the Bradlee's parking lot arrived at the apartment
complex. They encountered and questioned
two young boys to whom they gave the broadcast descriptions, including the
possibility that one of the men in question might be bare chested or wearing a
T shirt. The boys advised that they had
seen two men such as those described (one of them bare chested) running in the
direction of an apartment building which faced on Navarre Street and contained
four doors approximately at ground level.
The officers drove their cruiser to the parking lot adjacent to the four
doors, where they encountered a handyman who had seen no one running but who
advised that persons meeting the broadcast descriptions lived in apartment 33A.
The door
to 33A was flanked by two windows with the blinds drawn. One of the officers knocked on the door and
rang the bell twice; there was no response.
Both officers looked through a broken peephole in the door; they
observed that lights were on in the apartment and heard the sound of a radio or
stereo, but no person or movement was detected.
Believing that the persons they wanted were inside, the officers
dispatched two other officers who had just arrived to find the apartment
manager and a pass key. The manager
advised those officers that the apartment had recently been leased to DiSanto
and proceeded to the apartment with a pass key.
Meanwhile, two detectives had arrived. The manager unlocked the door, and the first
two officers and the two detectives entered.
[8 Mass.App.Ct. 699] The entry was made without a warrant approximately ten minutes
after the first two officers had arrived at 33A, approximately twenty minutes
after their receipt of Connolly's order to check the apartment complex, and
approximately one hour and twenty minutes after the first broadcast of the
shootings. No one was in the apartment,
but the officers observed in plain view on the kitchen table some ammunition, a
dent puller and the cylinder of an automobile ignition lock. (FN4)
A search warrant was promptly obtained, and the police then seized the
items already described, as well as other incriminating items which were
received in evidence at trial. (FN5)
[1] The
findings and rulings of the judge who heard and denied the motion to suppress
conclude with the following: "The Court finds that the police had probable
cause to believe that desperate armed men could be in 33A and that under the
exigent circumstances the Commonwealth has satisfied its burden of proof that
the initial entry into Apt. 33A without a warrant was justified. The Court finds the entry was made in the course
of fresh pursuit. The Court rules the
initial entry and subsequent entry and seizure under the warrant obtained were
not unreasonable under the Fourth Amendment to the (United States)
Constitution." DiSanto's attack is
directed to the finding of exigent circumstances and to the ruling that the
initial entry was not unreasonable.
(FN6)
Subsequent
to the decisions of the United States Supreme Court in Warden, Md. Penitentiary
v. Hayden, 387 U.S. 294, 298‑300, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and
Vale v. Louisiana, 399 [8
Mass.App.Ct. 700] U.S. 30, 90 S.Ct.
1969, 26 L.Ed.2d 409 (1970), a plurality of the Supreme Judicial Court, in
Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717 (1975), opined that
"(t)he Fourth Amendment prohibits a warrantless entry into a dwelling to
arrest in the absence of sufficient justification for the failure to obtain a
warrant" (367 Mass. at 806, 329 N.E.2d at 722) and formulated a pragmatic
check list of factors to be considered in determining whether a particular
warrantless entry into a dwelling has been reasonable in the Fourth Amendment
sense. For present purposes the factors
on that list may be enumerated as follows: (1) the crime in question was one of
violence and the suspect had been reported to be armed and dangerous; (2)
probable cause to believe that the suspect has committed a felony and strong
reason to believe the suspect is in the particular dwelling; (3) the entry has
been made peaceably (preferably in the daytime); (4) a likelihood that the delay
attendant upon securing a warrant would facilitate the destruction of evidence
or property; (5) a likelihood that the suspect would escape if not promptly
apprehended; and (6) some showing of a reasonable basis for believing that
delay would subject the officers or others to physical harm (367 Mass. at 807,
329 N.E.2d 717). A majority of the court
have subsequently adhered to the Forde decision in determining the validity of
warrantless entries to arrest. See
Commonwealth v. Moran, 370 Mass. 10, 12, 345 N.E.2d 380 (1976); Commonwealth v.
LeBlanc, 373 Mass. 478, ‑‑‑ ‑ ‑‑‑,
367 N.E.2d 846 (1977); Commonwealth v. Boswell, 374 Mass. ‑‑‑,
‑‑‑, ‑‑‑, ‑‑‑ (FNA), 372
N.E.2d 237 (1978); Commonwealth v. Franklin, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, ‑‑‑ ‑
‑‑‑, ‑‑‑ (FNB), 385 N.E.2d 227 (1978).
There is
no real question as to the existence of any of the factors enumerated as (1)
through (3) above. DiSanto, however,
points to the agreed fact that the police were able to secure a search warrant
within approximately an hour after their initial entry (see (4) above), and we
note on our own that delay was not likely to facilitate the destruction of
weapons. DiSanto also points to certain
uncontradicted evidence at the hearing which is not reflected in any of the
judge's findings of [8 Mass.App.Ct.
701] fact, namely, testimony to the
effect that the officers were not afraid of anyone's escaping from the
apartment because they had learned from the handyman that the door through
which they entered was the only means of entering or leaving the apartment (see
(5) above) and testimony to the effect that none of the four officers who
entered the apartment drew his weapon until after they had allowed the
apartment manager (a woman) to step in front of them, unlock the door and turn
the knob (see (6) above). DiSanto argues
from those supposed deficiencies that the Commonwealth has failed to sustain
its burden of proving justification for a warrantless entry to arrest. (FN7)
It must be understood, however, that the Supreme Judicial Court has
never expressly required the coexistence of all the factors enumerated above in
order to validate a warrantless entry to arrest. It should also be understood that the court
has expressly recognized the possibility that cases decided by the Supreme
Court since the Vale case may impose less rigorous requirements than those
enunciated in the Forde case. See
Commonwealth v. LeBlanc, 373 Mass. at ‑‑‑ n. 2 (FNC), 367
N.E.2d 846. Accordingly, we turn to
those decisions.
In United
States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the
Supreme Court, after careful review of the relevant authorities (including the
decision of the Supreme Judicial Court in Rohan v. Sawin, 5 Cush. 281, 284‑285
(1850)), held that an officer having probable cause to believe that a suspect
has committed a felony may constitutionally arrest the suspect, even in the
absence of exigent circumstances, if he makes the arrest in a public place (423
U.S. at 414‑424, 96 S.Ct. 820). In
United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976),
the Supreme Court concluded that when an officer with such probable cause is in
hot pursuit "a suspect may not defeat an arrest which has been set in [8 Mass.App.Ct. 702] motion in a public place, and is
therefore proper under Watson, by the expedient of escaping to a private
place" (427 U.S. at 43, 96 S.Ct. at 2410).
It must be acknowledged that in both cases the Court purported not to
reach the question whether the Fourth Amendment requires a warrant for an
arrest in a dwelling on probable cause.
The majority in the Watson case did, however, cite with approval (423
U.S. at 418 n. 6, 96 S.Ct. 820) s 120.6(1) of the American Law Institute Model
Code of Pre‑arraignment Procedure (1975), (FN8) which expressly approves
a warrantless entry into a dwelling in order to make an arrest in circumstances
strikingly similar to those of the present case.
If we
accept all the deficiencies in the Commonwealth's proof which have been
asserted by DiSanto, they would not be decisive of the result which should be
reached in this case. It was only by
entering the apartment that the police could determine whether they had control
of all the weapons which could be used against them. Compare Warden, Md. Penitentiary v. Hayden,
387 U.S. at 298‑299, 87 S.Ct. 1642.
It was only by such entry that they could determine whether the chase
had ended or whether their efforts should be promptly redirected into some
other part of the apartment complex. See
by analogy Commonwealth v. Bumpus, 354 Mass. 494, 500, 238 N.E.2d 343 (1968),
cert. denied, 393 U.S. 1034, 89 S.Ct. 651, 21 L.Ed.2d 579 (1969); Commonwealth
v. Denault, 362 Mass. 564, 566, 289 N.E.2d 863 (1972); Commonwealth v. Barnett,
371 Mass. 87, 92, 354 N.E.2d 879 (1976).
And it cannot be denied that there are many circumstances in which a
peaceable entry [8 Mass.App.Ct. 703] in the daytime can be less intrusive
than a massive and lengthy stakeout. See
Commonwealth v. Boswell, 374 Mass. at ‑‑‑ (FND), 372 N.E.2d
237. Contrast Commonwealth v. Hall, 366
Mass. 790, 803‑804, 323 N.E.2d 319 (1975) (entry to search rather than
arrest).
In light
of all the circumstances, we conclude that the warrantless entry in the present
case was reasonable within the meaning of the Fourth Amendment and hold that
the motion to suppress was properly denied.
[2] 2.
There was evidence at trial from which it could have been found that one of the
robbers had been struck by the detectives' car, when it was driven up onto the
sidewalk, and had been temporarily pinned against the wall of the bank
building; that one of the robbers had fallen as he limped toward the getaway
car and had to be helped into it by one of his companions; that human blood had
been discovered on the armrest of the right rear door of the getaway car and on
the blue denim jacket which the police found in the quarry; that DiSanto was
limping when he surrendered to the police on the morning of the second day
following the robbery and shootings; but that he had walked normally on the day
prior to those incidents. DiSanto was
given the Miranda warnings immediately upon his surrender and was later taken
to Carney Hospital, where it was discovered that he had two broken bones in his
left foot and abrasions on his right arm.
While at the hospital and in the presence of a Boston police officer and
an investigator from the District Attorney's office DiSanto was asked by a
medical historian how the injuries had occurred and responded that he did not
know how he had injured his foot. His
response was admitted in evidence subject to his objection and exception.
No
question was raised below as to the voluntariness of DiSanto's response;
nothing in the record supports his present contention that he was in too much
pain to be capable of formulating a rational answer to the question. The concession in his brief before us that
the question was [8 Mass.App.Ct. 704] asked for a valid medical reason and
without prompting by the police removes any doubt as to the admissibility of
the response. Commonwealth v. Martin,
357 Mass. 190, 193, 257 N.E.2d 444 (1970).
Commonwealth v. Roberts, 6 Mass.App. ‑‑‑, ‑‑‑
(FNE), 376 N.E.2d 895 (1978).
[3] 3.
DiSanto complains of the admission in evidence of so much of his hospital
record as contains estimates by a resident in orthopedics to the effect that
the bones in DiSanto's left foot had been broken within the previous twenty‑four
to forty‑eight hours and that the abrasions on his right arm had been
suffered within the previous twenty‑four to thirty‑six hours. The first complaint is that there was a
violation of so much of G.L. c. 233, s 79, as amended through St. 1974, c. 225,
(FN9) as forbids the admission of any part of a hospital record which "has
reference to the question of liability."
There was nothing in the record which even remotely suggested how or
where any of the injuries had been sustained. Compare Cowan v. McDonnell, 330 Mass. 148,
149, 111 N.E.2d 759 (1953); Wadsworth v. Boston Gas Co., 352 Mass. 86, 93, 223
N.E.2d 807 (1967). "If the
notations relate(d) to liability at all, . . .
they (did) so only incidentally to the medical history and thus their
admission does not require reversal."
Commonwealth v. Concepcion, 362 Mass. 653, 656, 290 N.E.2d 514, 516
(1972). There is nothing to the contrary
in Bouchie v. Murray, 376 Mass. ‑‑‑ (FNF), 381 N.E.2d 1295
(1978).
[4]
DiSanto also urges error in the admission of both time estimates because the
hospital record contains a statement by the resident that he was " asked
to evaluate (patient's left) foot for estimation of time of injury." The contention (which finds no evidentiary
support in the hospital record or in the trial record) is that the estimates
were requested by the police for use at trial.
There was no error. Commonwealth
v. Franks, 359 [8 Mass.App.Ct. 705] Mass. 577, 578‑579, 570 N.E.2d
837 (1971). If relevant under the
statute, it was well within the judge's discretion to determine that one who
had been appointed as a resident in orthopedics at Carney Hospital was
professionally qualified to formulate the estimates objected to.
[5] 4. In
the days following the robbery and shootings, and while the defendant Wightman
was still at large, investigators in the office of the district attorney
conducted various wiretaps pursuant to a warrant issued by the Superior Court
and obtained tapes of two telephone conversations between Wightman and his
brother which the prosecutor wished to use at trial. Transcripts of the tapes were seasonably
supplied to counsel for DiSanto in the course of pretrial discovery, but the
judge who heard all the pretrial motions suppressed any use of the tapes
against DiSanto because of the prosecution's inadvertent failure to make any
service on DiSanto of the type or in the manner required by G.L. c. 272, s 99 O
1, as appearing in St. 1968, c. 738, s 1.
The trial judge allowed redacted versions of the tapes to be received in
evidence at the trial, with an explicit instruction to the jury that they
should limit their consideration of the tapes to the case against
Wightman. There was nothing in the
portions of either of the tapes heard by the jury which referred to DiSanto or
implicated any defendant other than Wightman in the commission of any of the
offences charged in any of the indictments.
(FN10) Compare United States v.
Bailleul, 553 F.2d 731, 733 (1st Cir. 1977).
DiSanto
now asks us to find reversible error in the admission of the tapes, primarily
because of what he asserts[8
Mass.App.Ct. 706] was a violation of the last sentence of s 99
O 1. (FN11) Several interesting questions have been
argued in the briefs. (FN12) We find it unnecessary to answer any of those
questions, even if they are viewed as having constitutional dimensions, because
on a careful perusal of the entire record we are satisfied that any error under
the statute (if there was one) was harmless beyond a reasonable doubt. See such cases as those cited in Commonwealth
v. Baker, 368 Mass. 58, 77, 330 N.E.2d 794 (1975).
5. For
like reasons we are not persuaded that the admission of the tapes against Wightman
required a mistrial or a severance of the case against DiSanto. See Commonwealth v. Clark, 5 Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNG), 369 N.E.2d 468
(1977).
BRADY'S APPEAL.
[6] 6. One
of the Commonwealth's early witnesses was an attendant in a gas station near
the bank building who identified Brady as the driver of the getaway car as it
sped off in the direction of Cummins Highway.
On cross examination he was asked by Brady's counsel whether he had been
fired from the gas station at some time subsequent to the date of the robbery
and shootings. The answer was excluded
on objection by the prosecutor.
Counsel's offer of proof was as follows: "If asked, this witness
will admit that on May 24, 1977, in the presence of (counsel for DiSanto), he
made the statement, 'I don't [8
Mass.App.Ct. 707] need a
lawyer. I am going to testify in the
case against Brady.' It is my Suggestion
to the Court that it is proof of some offer, reward or inducement that has yet
to be disclosed to the defendant, and that it is highly critical to the cross‑examination
of the credibility of this very crucial witness" (emphasis supplied).
There was
no offer to show that the witness had in fact been fired, that he had been
fired for any reason that would be of interest to the police, that the police
were aware of the reason for his being fired, or that the police suspected him
of having committed some offence, so as to give rise to an implication of bias
in favor of the prosecution. Compare Commonwealth
v. Santos, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNH), 384 N.E.2d 1202 (1978). Contrast
Commonwealth v. Ferrara, 368 Mass. 182, 185, 187, 189, 330 N.E.2d 837 (1975);
Commonwealth v. Graziano, 368 Mass. 325, 327, 330, 331 N.E.2d 808 (1975);
Commonwealth v. Hogan, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNI), 396 N.E.2d 978 (1979); Commonwealth v. Cumming, 6 Mass.App. ‑‑‑
(FNJ), 376 N.E.2d 1231. It is clear from
his ruling that the judge was "only directing (his) attention . . . to this particular question," and there
is nothing to indicate that he intended to foreclose all inquiry as to the
possibility of bias in favor of the prosecution. He allowed great latitude in questions as to
the witness's apparent willingness to cooperate with the prosecution and his
refusal to be interviewed by defense counsel.
(FN13) Counsel never returned to
the subject of the excluded question. We
think this a clear case of the judge's having properly exercised his discretion
in favor of excluding a prejudicial question and of counsel's having chosen not
to pursue the point. See and compare
Commonwealth v. DeBrosky, 363 Mass. 718, 726‑727, 297 N.E.2d 496 (1973);
Commonwealth v. Cheek, 374 Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ (FNK), 373 N.E.2d 1161 (1978).
[8 Mass.App.Ct. 708] 7. It will be helpful to a consideration of Brady's remaining
assignments of error to have a brief outline of the general course the
prosecution's evidence took throughout the trial.
It was
clear from undisputed testimony introduced at the very outset that there were
four individuals who had acted in concert in executing the robbery, that all
four had been present during the shootings, and that all four had escaped
together. The prosecution's basic
problem was not so much one of proving the existence of a joint venture in
order to fasten vicarious liability on particular defendants as it was one of
identifying the participants in the venture.
To that end the prosecution employed both nonhearsay testimony which
directly implicated each defendant in the venture and hearsay evidence of the
acts and declarations of the various defendants during the course and in furtherance
of the venture which tended indirectly to implicate each defendant as one of
the venturers. Commonwealth v. Pleasant,
366 Mass. 100, 103‑104, 315 N.E.2d 874 (1974), and cases cited. The judge was frequently called upon to, and
did, give limiting instructions as to the particular defendant or defendants
against whom various items of evidence could or could not be considered by the
jury. The judge explicitly advised the
jury that it was for them to determine what weight should be accorded those
items.
The
evidence which directly implicated Brady as one of the members of the venture
may be summarized briefly. A young blond
male (FN14) was seen in the company of other young males in the immediate
vicinity of the bank building minutes prior to the robbery and shootings; as
already indicated, Brady was visually identified as the driver of the getaway
car; his palmprint was found on the rearview mirror of that car, which had been
stolen only a few hours prior to the robbery and shootings; residents[8 Mass.App.Ct. 709] in the vicinity of the
quarry saw either two or three young men, one of them blond, running through
their backyards shortly after the car was abandoned; a brief time later Brady
entered a home near the quarry where he was known to the occupants; he was then
out of breath and gratuitously advised the occupants that he was being chased;
while in the home he used the telephone to call someone to come and pick up
"Tommy" (i.e., DiSanto) and himself; and he was picked up by a car a
few minutes later.
[7] On a
number of occasions during the course of the trial Brady objected and excepted
to the judge's refusal to give the jury limiting instructions which would have
prevented their considering the acts and declarations of the other defendants
in the case against him. No useful
purpose would be served by detailing the specific items of evidence objected
to. There is no genuine contention that
any of the items was not relevant to at least one issue in the case or that
when the items were admitted the independent evidence was insufficient to
warrant a finding that Brady had been a member of the joint venture. The true basis of Brady's objections, as
summarized in his brief, is that the admission of all the various items
"dramatically and improperly increase(d) the danger that the jury would
find (him) guilty by association."
See Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965);
Commonwealth v. Szemetum, 3 Mass.App. 651, 653‑654, 338 N.E.2d 850 (1975). The judge expressly cautioned the jury
against any such finding. On analysis,
Brady's argument dissolves into a series of laments as to the strength of the
Commonwealth's case and as to the rules of evidence which permitted a
demonstration of that strength. No
further discussion is necessary.
[8] 8. At
one point in the trial the judge took under advisement a series of separate
requests by counsel for all the defendants for limiting instructions with
respect to the particular defendants against whom various items of evidence
could be considered by the jury. On the
following[8 Mass.App.Ct. 710]
morning the judge instructed the jury on the operation and effect of
limiting instructions, gave them a brief explanation of the theory of
responsibility for participation in a joint venture or common criminal
enterprise, and explained his duty with respect to requests for limiting
instructions as follows: "The judge has to make a determination at
different stages of the case whether evidence should be limited to the one
against whom that evidence is directed, or whether there is enough evidence
which would allow the court to say to the jury, 'You may consider, under that
theory, that the act of one is the act of another.' " The judge then announced his rulings on
all the pending requests and saved the defendants' exceptions to those
rulings. Finally he said, "I am
going to add one other word to what I have just said to you about limiting
instructions; and that is, of course, this in no way interferes with the absolute
right of the jury to make its determination as to what weight it will give to any evidence
whatsoever. The mere fact that's
admissible doesn't interfere with your right, with your obligation to determine
the weight of that evidence, if any."
Brady took
no exception to any of the foregoing instructions. He now urges that the judge "improperly
invaded the province of the jury by expressly informing (them) that he had
denied the defendant's request for limiting instructions at the same time he instructed
them on common enterprise."
Specifically, he points to that part of the discussion in Commonwealth
v. Beckett, 373 Mass. ‑‑‑, ‑‑‑ n. 3 (FNL),
366 N.E.2d 1252 (1977), in which the court said that a judge should not
disclose his rulings on limiting instructions to the jury. The principal difficulty with the argument is
that Brady and all the other defendants had voiced their requests for limiting
instructions in the presence of the jury, with the result that the only
practical means of avoiding confusion in the minds of the jurors was for the
judge specifically to advise them just what ruling he had made on each
particular request. Nor do we see that
the judge did anything more than tell the
[8 Mass.App.Ct. 711] jury that
he had determined that they could consider the evidence as limited by him and
that they should decide for themselves what weight should be accorded to the
evidence. There was nothing in any of
the instructions which even remotely suggested that the judge had formed an
opinion on the factual question whether Brady had been engaged in a common
criminal enterprise with any of the other defendants.
In the
circumstances, we perceive no error in any of the actions of the judge which
are now complained of. If there is
anything more to Brady's contention, it has not been made clear to us.
[9] 9. In
the portion of his charge which was devoted to the subject of joint venture the
judge instructed the jury as follows: "A joint venture, or common
enterprise, occurs when two or more persons act together in order to commit a
crime or crimes. In order to find that a
person was part of a joint venture, you must find, Based upon the evidence that
you have heard, that a person rendered aid in the furtherance of that act"
(emphasis supplied). Somewhat later the
judge said, "I have given you limiting instructions many times, and I do
that under the theory that a man is responsible for that which he does; and in
regard to that, there was certain evidence that was introduced by the
Commonwealth directly against only one of the defendants, and that was limited
to him because it was introduced against him.
But You may have (sic) In your overall view of what you have heard,
accepting the limiting instructions, nevertheless, the existence or the non‑existence
of a common or joint venture" (emphasis supplied). At the conclusion of the charge Brady
requested for the first time (see Commonwealth v. Benders, 361 Mass. 704, 707,
708, 282 N.E.2d 405 (1972)) an instruction that "the existence of a joint
enterprise and the participation of each individual defendant in a joint
enterprise must be initially established to the satisfaction of the jury by
independent non‑hearsay evidence which is applicable and limited to that
defendant only before any [8
Mass.App.Ct. 712] acts or admissions
of codefendants may be applied to any of the individual defendants." No such instruction had been given during the
course of the trial or in the charge, nor was the subject matter of the request
mentioned in the supplemental charge.
There is
no question that Brady was entitled to the substance of his request (FN15) (see
Commonwealth v. McDermott, 255 Mass. 575, 581, 152 N.E.2d 704 (1926);
Commonwealth v. Flynn, 362 Mass. 455, 476‑477, 287 N.E.2d 420 (1972);
Commonwealth v. White, 370 Mass. 703, 708 n. 6, 352 N.E.2d 904 (1976);
Commonwealth v. Beckett, 373 Mass. at ‑‑‑ n. 3, ‑‑‑
(FNM), 366 N.E.2d 1252), particularly in light of the fact that the portions of
the charge which have been italicized above elided the essence of the request. The critical question on this branch of the
case is whether Brady was harmed by the judge's failure to give the requested
instruction. We have carefully reviewed
all the various acts and declarations of his codefendants which are relied on
by Brady in his brief in support of the proposition that he was so harmed. None of that evidence implicated Brady as one
of the participants in a joint venture or had any tendency to corroborate other
evidence which did. (FN16) When we weigh the evidence adverted to by
Brady against the direct evidence of his participation in the joint venture
which has been summarized in part 7 hereof we are not persuaded that the jury's
verdicts were influenced by the absence of the requested[8 Mass.App.Ct. 713] instruction. Compare United States v. Bailleul, 553 F.2d at
733‑734. See also Commonwealth v.
McDermott, 255 Mass. at 582, 152 N.E.2d 704; Commonwealth v. Shea, 323 Mass.
406, 415, 82 N.E.2d 511 (1948).
CONCLUSION.
The
judgments on all the indictments against DiSanto and Brady which were not
placed on file are affirmed.
So
ordered.
FN1. Six of
the companion cases are against Thomas DiSanto and seven are against James F.
Brady, III.
FN2. Gadsby's appeal has not yet reached
us. We are informed that Wightman's appeal
was dismissed by the Superior Court following his escape from the Massachusetts
Correctional Institution at Walpole, to which all the defendants were
sentenced.
FN3. We do not consider the convictions of
unauthorized use of an automobile because the indictments for that offence were
placed on file by consent.
FN4. There was evidence at trial from which
it could be found that the dent puller had been used to extract the ignition
lock from the getaway car when the car was stolen several hours prior to the
robbery and shooting.
FN5. Among those items was a photograph of
DiSanto holding a chrome plated revolver such as the one the police found in
the quarry.
FN6. It is common ground that the search
warrant is meaningless if the initial entry was constitutionally
prohibited. See Commonwealth v. Forde,
367 Mass. 798, 807, 367 N.E.2d 717 (1975), and cases cited.
FNa.
Mass.Adv.Sh. (1978) 177, 184, 185, 186.
FNb.
Mass.Adv.Sh. (1978) 3181, 3183‑3186,
3195‑3197, 3201.
FN7. It has not been argued that the
officers' failure to find anyone in the apartment is of any materiality. See People v. Eddington, 23 Mich.App. 210,
221 (1970), aff'd 387 Mich. 551, 565 (1972).
FNc.
Mass.Adv.Sh. (1977) at 2121 n. 2.
FN8. "Demand to Enter and Entry onto
Private Premises to Make an Arrest. If a
law enforcement officer has reasonable cause to believe that a person whom he
is authorized to arrest is present on any private premises, he may, upon
identifying himself as an officer, demand that he be admitted to such premises
for the purpose of making the arrest. If
such demand is not promptly complied with, the officer may thereupon enter such
premises to make the arrest, using such force as is reasonably necessary,
subject to the provisions of Section 120.7 regarding the use of deadly
force." This section was also cited
with approval in the concurring opinion of Mr. Justice White in the Santana
case (427 U.S. at 44, 96 S.Ct. 2406).
FNd.
Mass.Adv.Sh. (1978) at 184.
FNe.
Mass.App.Ct.Adv.Sh. (1978) 694, 694.
FN9. "Records kept by hospitals . .
. may be admitted by the court, in its
discretion, as evidence . . . so far as
such records relate to . . . treatment
and medical history . . . but nothing
therein contained shall be admissible as evidence which has reference to the
question of liability."
FNf.
Mass.Adv.Sh. (1978) 2727.
FN10. The conversations were concerned with
such things as a "wanted" poster the police had circulated concerning
Wightman, the identities of possible informers (not including any of the defendants),
a disguise Wightman had assumed, the return of a gun Wightman had borrowed from
his brother, and plans for the two brothers to meet.
FN11. "Failure by the commonwealth to
make (the required) service . . . shall
render such evidence illegally obtained for purposes of the trial against The
defendant; and such evidence shall not be offered nor received at the trial
notwithstanding the provisions of any other law or rules of court"
(emphasis supplied).
FN12. Neither party has addressed the question
whether someone who is not a participant in a wiretapped conversation and who
is not implicated in any offence by any aspect of the conversation has standing
to object to the admission of the conversation in evidence against a
codefendant.
FNg.
Mass.App.Ct.Adv.Sh. (1977) 1161, 1163‑1166.
FNh.
Mass.Adv.Sh. (1978) 3221, 3228.
FNi.
Mass.Adv.Sh. (1979) 2453, 2454.
FNj.
Mass.App.Ct.Adv.Sh. (1978) 627.
FN13. The judge had earlier advised the
witness in the presence of all counsel that the witness was to decide for
himself whether he wished to discuss the case with defense counsel, and the
witness had said that he did not wish to do so.
See Commonwealth v. Doherty, 353 Mass. 197, 209‑211, 229 N.E.2d
267 (1967), cert. denied, 390 U.S. 982, 88 S.Ct. 1103, 19 L.Ed.2d 1280 (1968);
Commonwealth v. Carita, 356 Mass. 132, 142‑143, 249 N.E.2d 5 (1969).
FNk.
Mass.Adv.Sh. (1978) 649, 650‑652.
FN14. Several portions of
the transcript raise an implication that Brady is blond.
FNl. Mass.Adv.Sh. (1977) 1922, 1930 n. 3.
FN15. We do not understand
Brady to suggest that a particular defendant's own extrajudicial admission of
participation in a joint venture cannot be considered by a judge or a jury in
arriving at a preliminary determination of the question whether that defendant
was one of the venturers.
FNm. Mass.Adv.Sh. (1977) at 1930 n. 3, 1934.
FN16. The evidence relied
on in the brief consisted of extrajudicial statements of the codefendants such
as: a statement by DiSanto regarding a change of clothing he had secured on the
afternoon of the day of the robbery and shootings; the statement by DiSanto
which is considered in part 2 of this opinion; statements by Wightman
describing the crimes; statements by DiSanto and Wightman in the course of
planning an escape from the Charles Street Jail; and the wiretapped
conversations which are referred to in part 4 of the opinion.