|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Dyer, 389
Supreme Judicial Court of Massachusetts,
Argued
Decided
Henry D. Katz,
Jeremiah Sullivan, Sp. Asst. Dist. Atty. (Carol Anne Fagan and Thomas F. Reardon,
Asst. Dist. Attys., with him), for the Commonwealth.
Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN
and O'CONNOR, JJ.
[389
The
defendant, Bryan A. Dyer, was convicted by a jury on four indictments for
murder in the first degree and on indictments for armed robbery and unlawful
possession of a firearm. The defendant
appeals from these convictions on the grounds that the trial judge committed
reversible error in instructing the jury on the law of joint enterprise and in
admitting unreliable identification evidence.
We find no merit in the defendant's contentions and no ground for
reversal under G.L. c. 278, § 33E. We
affirm the convictions.
The jury
could have found the following: Shortly
after
Just
before the bodies were discovered, John Flynn and Michael Fabbri
left their home in Brighton and proceeded to drive east on Soldiers Field Road
toward downtown Boston. Soldiers Field
Road is a four‑lane highway, two lanes in each direction. The traffic was light and the weather was
clear. Fabbri
drove at a speed of from thirty‑five to forty miles an hour. Flynn sat in the front passenger seat.
At
approximately 8:10 A.M., they approached Sammy White's Brighton Bowl which was
on their right. Flynn saw a green
automobile being accelerated from the rear of the bowling alley parking lot
toward the road. As Flynn and Fabbri approached the exit of the parking lot, the green
car pulled out in front of them, heading in the same eastward direction. Both cars swerved from the right eastbound
lane to the left eastbound lane. The
green automobile then pulled back into the right lane.
[389 Mass. 679] Flynn and Fabbri, while still in the
left lane, pulled up beside the green car.
The cars were about five feet apart and remained parallel for about five
seconds. Flynn had intended to make an
obscene gesture, but after he looked at the other driver for about three
seconds Flynn said to Fabbri, "Let's not screw
around with this guy." The green
car disappeared off the highway onto an exit ramp to the right.
The
following day, having heard of the murders committed at the bowling alley,
Flynn called the Boston police to describe the incident on Soldiers Field
Road. He described the driver of the
green car as "a white male, looked weird, dark hair, frizzy, dark
complexion, possibly Italian or Greek, hair was close cropped, age somewhere
between 30 and 40 years, having a stubble beard." He described the car as large and light
green, possibly a Ford. Two days later,
the police called Flynn for another description, at which time he described the
color of the car as "lighter than pea green."
On the
evening of October 1, Flynn was watching a news program on television at home
when he saw the defendant's picture on the screen as part of the coverage of
his arrest. Flynn immediately called to Fabbri in the next room and said, "There's the guy who
cut us off." The next morning,
Flynn read various newspapers in which he saw the defendant's picture. He telephoned the police. Two officers interviewed Flynn at work and
showed him thirty to forty photographs.
He selected two of them as being photographs resembling the man whom he
had seen in the car outside Sammy White's Brighton Bowl. Both were of the defendant. Sometime after Flynn first telephoned the
police on September 23, but before October 2, he learned that there was a
reward posted for information leading to the arrest and conviction of the
perpetrator(s) of the crimes.
In 1973,
the defendant had been employed as a maintenance worker at the bowling alley,
the same position held by Brian and David Cobe at the
time of their deaths. The defendant had
been seen at the bowling alley in August, 1980, and also three days before the
murders, at which time [389 Mass.
680] he spoke with the victim Doroni about regaining his employment there.
At the
time of the robbery and murders, the defendant was employed as a driver for the
Green Cab Company of Somerville. He
owned a dark green 1977 Buick automobile, and lived in the Somerville Y.M.C.A. The police searched the defendant's car and
room, pursuant to warrants. They
discovered an undischarged bullet in the glove
compartment of the car and a pink money band in the trunk. They took a pair of sneakers from the
defendant's room.
The four
victims died as a result of bullet wounds.
The bullets were removed from the bodies and compared with the bullet
found in the defendant's car. They were
of
the same caliber and
design: .38 caliber, copper covered,
hollow point bullets. Microscopic
examination revealed that they had an identical pattern of striated
markings. All guns imprint a unique
pattern of markings on bullets that pass through them, with the exception that
the markings made on a bullet manually cycled through a gun are less prominent
than those imprinted on a bullet that has been fired from a gun. The jury could infer that the defendant was
in possession of a bullet that had been in the murder weapon. The defendant was seen with a .38 caliber
automatic handgun in August, 1980, and again on September 18 or 19. Another driver employed by the Green Cab
Company had purchased fifty hollow point bullets for him within two years
before the murders.
The pink
paper money band found in the trunk was microscopically and visually identical
to those used at Sammy White's Brighton Bowl to wrap the money stolen from the
safe. Roofing tar adhered to the sole of
one of the defendant's sneakers. The tar
was the same type as that found on the ground outside the bowling alley.
Early on
the morning of the robbery and murders, the defendant did not drive his car to
work, as was his custom. He was driven
to work by a fellow taxi driver. The
jury could infer that the defendant left his car at the Somerville
Y.M.C.A. Later, at about 7 A.M., the
building superintendant[389 Mass. 681] at the Somerville Y.M.C.A. heard radio
transmissions and a dispatcher's voice emanating from a Green Cab taxi parked
in the Y.M.C.A. parking lot. Sometime
between 8:15 A.M. and 8:45 A.M., the superintendent was outside the building,
trimming the hedges, when he saw the defendant drive up in his car. Thus the jury could also infer that the
defendant had earlier exchanged his taxi for his car at the Y.M.C.A., and was
in possession of his green car at the time of the robbery and murders. Soon the defendant entered the Y.M.C.A., from
which he emerged fifteen to twenty minutes later carrying a plastic trash bag
which he threw into the trunk of his car, and drove away. The superintendent went inside at about 9
A.M.
The log
book of the Green Cab Company did not indicate that the defendant took any
fares from 6 A.M. to 8:18 A.M. on the morning of the murders. Between 8:15 and 8:20 A.M., he radioed the
dispatcher to indicate that he was at the Davis Square taxi stand. However, the defendant was not at that
location at that time.
At
approximately 9 A.M., the defendant turned in his taxi, although he ordinarily
worked until 4 P.M. He told the
dispatcher he was sick, but told another driver that he had something to do. Before he left his taxi, the defendant was
seen checking the front and back seats.
Afterward he was seen walking down the street toward the Y.M.C.A., which
was about one mile from the dispatcher's office.
The
defendant almost never took a day off from work, and usually arrived
early. However, he did not record a fare
until 7:28 A.M. on the morning of September 19, which was the morning he talked
to Doroni at the bowling alley. On September 18, the defendant had asked the
owner to allow him to take the next day off and when she refused he became
enraged.
In
addition, the defendant took the day off on September 23, and was late for work
each day he worked until his arrest on October 1. When questioned by the police, the defendant
denied owning a car and having been at the bowling alley on September 19.
[389 Mass. 682] On three occasions during the two weeks before the robbery and
the murders, the defendant had paid only a portion of the $28 daily rental fee
for his taxi, owing the company the balance.
The defendant did not make a full payment on his automobile loan for the
month of August. The September payment
was due on the eighteenth and was made on the twenty‑fourth, two days
after the robbery and murders. During
the week before his arrest the defendant paid two additional weeks' rent at the
Y.M.C.A. in advance, and bet on races at the Wonderland race track in
Revere. He paid a fellow taxi driver for
a ride to the dispatcher's office and he inadvertently revealed two or three $100 bills in his
hand. At least two $100 bills were
stolen from the bowling alley.
The
defendant's primary argument on appeal is that the judge committed reversible
error in instructing the jury on the law of joint enterprise. This portion of the defendant's argument is
twofold. He argues first that a joint
venture charge never should have been given in this case because there was no
evidence that more than one person was involved in the crime. Secondly, he argues that the charge itself
was an erroneous statement of the law.
[1] A jury
instruction on joint enterprise was appropriate. Each of the victims had been shot in the head
and also had been beaten on the head with a blunt instrument. After drawing attention to these facts during
cross‑examination of two expert witnesses called by the Commonwealth,
defense counsel repeatedly asked the witnesses whether more than one person was
involved in committing the crimes. He
asked one of the witnesses, "[I]s it not more probable to conclude that
the crime was committed by more than one individual?" Neither witness offered an opinion on the
subject.
Nonetheless,
during his charge to the jury, the judge commented that, "some suggestion
has been made that perhaps these crimes were committed by more than one
person. This raises the concept known as
the law of joint enterprise." He
then instructed the jury as follows:
"In order to find the defendant guilty of a crime or crimes, under
this theory of the law, the Commonwealth must prove two things beyond a
reasonable[389 Mass. 683]
doubt. First, that the defendant
associated himself with a criminal venture.
And, second, that the defendant participated to some extent in the
commission of the crime or crimes. In
short, in order to convict a defendant of the crimes with which he is charged,
you must find beyond a reasonable doubt that he actively or that he was
actively engaged in committing these crimes, irrespective of whether other
persons were or may have been involved."
Because
the nature of the evidence may have suggested to the jury the possibility that
there was more than one assailant, the judge was justified in giving a joint
enterprise instruction. It was
appropriate for the judge to explain to the jurors the legal significance of
whether the assailant acted alone or in concert with others, and to tell them
that it was not essential to the Commonwealth's proof of the crimes charged
that the defendant acted alone.
The
elements of the crimes with which the defendant was charged are not determined
or influenced by whether the defendant was the sole perpetrator or only one of
several participants in the crimes. The
evidence was sufficient to show that the defendant was at least a participant,
even if he was not the sole perpetrator, and that he possessed the state of
mind required for guilt. Nothing further
was required for conviction. The fact
that the evidence did not warrant a finding that others participated in the
crimes, therefore, has no significance.
[2] [3]
The defendant argues not only that a joint enterprise instruction should not
have been given, but also that the instruction that was given permitted the
jury to infer that they could convict the defendant of crimes without finding
that he acted with the legally requisite intent. The "charge is to be read in its
entirety. It is the impression created
by the charge as a whole that constitutes the test." Commonwealth v. Pinnick, 354 Mass. 13, 15, 234 N.E.2d 756 (1968). The concept of intent may be conveyed to the
jury in a variety of ways. Commonwealth v. Whitehead, 379 Mass. 640,
650‑652, 400 N.E.2d 821 (1980).
The judge did not explicitly mention intent in the portion of the charge
that dealt with joint enterprise.
However,[389 Mass. 684]
elsewhere in the charge the judge accurately explained the mental state
required for the several crimes, and, in discussing joint enterprise, he
explained that the Commonwealth had the burden of proving that the defendant
associated himself with the crimes, that he participated in them, and that he
was actively engaged in committing them.
In the context of this trial, the charge as a
whole was sufficient to convey to the jury that in order to convict the
defendant they had to find that he acted with criminal intent. There was no error in the charge.
[4] We
turn now to the defendant's assertion that the identification testimony of John
Flynn should have been suppressed. The
defendant filed a motion to suppress Flynn's identification of the defendant on
the ground that he "was identified by [Flynn] through the television media
during pre‑trial proceedings which [were] so unnecessarily suggestive and
conducive to irreparable mistaken identification" that admission of that
evidence was unconstitutional. At the
hearing on the motion, the defendant attempted to show that the television and
newspaper coverage of the defendant's arrest was prompted by the police, and
argued that such prompting constituted police misconduct, justifying
suppression of the identification. The
judge found no police misconduct, and thus declined to suppress the
testimony. The defendant does not
challenge the judge's findings. In the
absence of police misconduct the judge's ruling was correct.
Commonwealth v. Venios, 378 Mass. 24, 26‑27,
389 N.E.2d 395 (1979). Commonwealth v. Botelho,
369 Mass. 860, 866, 343 N.E.2d 876 (1976).
[5] The
defendant argues for the first time on appeal that even in the absence of
police misconduct the judge should have ruled that Flynn's identification was
unreliable, and therefore inadmissible, and that failure to have done so constituted
a denial of due process. He argues that
Flynn's testimony was unreliable because he had neither the opportunity nor the
motive to examine the other driver on Soldiers Field Road, that Flynn was
motivated to manufacture the identification because of the reward offered in
the case, and [389 Mass. 685] that Flynn had an opportunity to
manufacture the identification of the defendant as a result of having seen his
picture on television and in the newspapers.
Because
these contentions are presented for the first time on appeal, we consider them
only in conjunction with our duty under G.L. c. 278, § 33E, to consider the
whole case to determine whether justice requires a new trial of the indictments
for murder in the first degree or the entry of verdicts of a lesser degree of
guilt on those indictments. We have
reviewed the whole case. We conclude
that Flynn's reliability was for the jury, and that no basis for relief under G.L.
c. 278, § 33E, has been demonstrated.
Judgments affirmed