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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Tracey 27 Mass.App.Ct. 455 (1989)
Appeals Court of Massachusetts,
No. 88‑P‑763.
Argued
Decided
Further Appellate Review Denied
Brownlow M. Speer,
Elliot R. Levine, for Patrick Tracy.
James Lang, Asst. Dist. Atty., for the Com.
Before [27
Mass.App.Ct. 455] DREBEN, SMITH and
WARNER, JJ.
DREBEN, Justice.
A few
minutes before
Tracy,
the owner of the Ford, and Magee, the driver, were arrested. They were each charged with armed robbery,
carrying a firearm, and receiving stolen property. At trial,
Each
defendant raises a number of issues. We
shall first discuss those separately argued by Magee. Where relevant, additional facts, which the
jury could have found, will be supplied.
Magee's Appeal.
[1]
1. Claim of insufficient evidence. Relying on Commonwealth v. Fickett, 403 Mass. 194, 196‑198, 526 N.E.2d
1064 (1988), Magee correctly points out that to support his conviction on a
theory of joint venture, the Commonwealth had to prove that he knew that Tracy
had a gun. He claims there was
insufficient evidence to show such knowledge and hence to warrant his
conviction of armed robbery and of carrying a firearm. (FN2)
Unlike
the situation in Fickett, however,
where the victim was intoxicated and hence an easy target for a robbery without
a weapon, a robbery of a store is a different undertaking. It can be expected that a number of people
will be present and that a means must be found to persuade the intended victim
to part with his money. See Commonwealth v. Ferguson, 365 Mass. 1,
9, 309 N.E.2d 182 (1974) ("a person joining in a robbery under conditions
like the present, and apprehending that the intended victim might resist, could
suppose that the other actor[ ] might be furnished with [a] weapon[
]"). See also United States v. Sanborn, 563 F.2d 488, 490 (1st Cir.1977).
There
was other evidence from which the jury could infer knowledge of the gun. Magee was the driver of the getaway vehicle
after the armed robbery. In such
circumstances, both [27 Mass.App.Ct.
458] the Supreme Judicial Court and
this court have been "unwilling to adopt a rule which would create
artificial barriers against inferences of complicity which may naturally be
drawn against one found present in a getaway car during or shortly after an
armed robbery." Commonwealth v. Giang, 402 Mass. 604,
609, 524 N.E.2d 383 (1988), quoting from
Commonwealth v. Drew, 4 Mass.App.Ct. 30, 32‑33, 340 N.E.2d 524
(1976). Such inferences are even more
natural where, as here, the defendant engaged in a high‑speed police
chase, and the gun and some of the money were thrown from the car. In addition, Magee and Tracy were long‑time
friends and had spent the afternoon together prior to the robbery, a time when
they had an opportunity to plan the undertaking. Tracy, who had driven to the store, did not
park in front of the market or in its parking lot, but left the vehicle, with
Magee inside, farther away where the Ford could not be seen by persons in the
market. In effecting the robbery, Tracy
wore (in May) a heavy pea coat and white garden gloves and carried the gun into
the store hidden in, or under, a paper bag.
The .38 caliber Smith & Wesson weapon was in evidence, and the jury
saw its size.
While
there was no direct evidence that Magee knew of the gun, we consider the
evidence sufficient, under the standard of
Commonwealth v. Latimore, 378 Mass. 671, 676‑678, 393 N.E.2d 370
(1979), to warrant findings by the jury that Magee actively participated in the
venture, knew what Tracy was wearing, and knew that a gun was involved. The judge did not err in denying Magee's
motion for a required finding of not guilty.
[2]
There is also no merit in Magee's contention that there was insufficient
evidence against him in light of the other verdicts returned by the jury. That one defendant is found to be insane does
not shield a responsible participant,
Commonwealth v. McGrath, 358 Mass. 314, 321, 264 N.E.2d 667 (1970), and
inconsistency will not render verdicts of guilty erroneous. Commonwealth v. Sherry, 386
Mass. 682, 698, 437 N.E.2d 224 (1982).
2. Extraneous matter on booking slip. After Magee was arrested and brought to the
Needham police station, Officer Hunt, the policeman on duty, filled out a yellow
booking slip for each defendant. The
slips were admitted in evidence over [27
Mass.App.Ct. 459] objection. The Commonwealth urged that Tracy's slip was
relevant to show that, despite his claim of insanity, Tracy could, within half
an hour of his arrest, answer questions with clarity. Counsel for Magee objected on the ground that
he had not been shown the slips and that since Magee's slip contained his
statements, there was a breach of the pretrial discovery agreement. (FN3)
Magee claims that he was prejudiced by this breach and that, in any
event, the introduction of the slips was so fundamentally unfair that his
motion for a new trial should have been allowed.
The
slips listed the defendants' answers to routine questions such as name,
address,
height, etc. The Commonwealth
had agreed in a pretrial conference report to provide the "written or
recorded statements of defendant."
The conference report also stated that the Commonwealth would allow the
defendant to inspect material and relevant physical evidence and documents
"at Needham Police Dept. at mutually agreeable time." The booking slips were not delivered to the
defendants prior to trial and it does not appear that either defense counsel went
to the police department to inspect any material.
Magee's
booking slip, a copy of which is set forth in the appendix to this opinion,
caused the defendant a twofold problem.
The first difficulty, elicited by his own counsel, relates to the words
"Coolidge House," written on the side of the slip. On cross‑examination Officer Hunt
testified that Coolidge House was a halfway house. At counsel's request, the judge gave a
cautionary instruction that the jury were not to draw an unfavorable inference
from the address and that there are many reasons why people are residents of
halfway houses. (FN4)
[3] [27 Mass.App.Ct. 460] The second, and more serious, was not
noticed by counsel until three days after the jury returned their verdict and
was the basis for Magee's motion for a new trial. On the slip, in the space listed for offense,
after setting forth in large bold letters "C. 265 § 17 ARMED ROBBERY WITH
A DANGEROUS WEAPON," there appears interlineated in much smaller and much
less legible writing the following notation:
"2 (FN5) c. 265
§ 18B committing an offense while using a firearm (2nd offense)."
The
difficult question is whether a new trial is required. Quite apart from any prejudicial material, it
was error to admit Magee's booking slip in evidence as it was not relevant to
any issue at trial. But that ground was
not urged prior to its admission, see note 4, supra, nor, of course, was there any objection to the then
unnoticed offending material.
Contrary
to the defendant's contention, the Commonwealth was not in violation of the
discovery agreement to produce the defendants' statements. Even if the routine answers on the booking
slips are characterized as statements of the defendants, the notation at issue
was not such a statement. While it might
have been better practice to produce the slips, the failure to do so was not a
breach of the pretrial agreement.
The
defendant claims that the slip clearly shows that Magee had a criminal record,
and "[i]t is all too easy for a jury to surmise that if a defendant
earlier committed a crime, he probably committed the crime for which he is
being tried, particularly if the crimes are similar." Commonwealth v. Guilfoyle,
396 Mass. 1003, 1004, 485 N.E.2d 679 (1985).
In sum, he claims the trial was fundamentally unfair.
The
standard for our review is whether there is a substantial risk of a miscarriage
of justice as no correct ground for the exclusion of the booking slip was given
to the trial judge. See [27 Mass.App.Ct. 461]
Commonwealth v. Clark, 23 Mass.App. 375, 381, 502 N.E.2d 564 (1987). See also
Commonwealth v. Ford, 397 Mass. 298, 302, 490 N.E.2d 1166 (1986), where a
specific objection to the extraneous material on a conviction record was
made. See same case in this court, 20
Mass.App.Ct. 575, 579, 481 N.E.2d 534 (1985).
Since Magee also moved for a new trial, we consider, as well, whether
the judge abused his discretion in applying the standard under
Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979) ("if it appears that justice
may not have been done"). See Commonwealth v. Stout, 356 Mass. 237,
242, 249 N.E.2d 12 (1969).
The
question, therefore, is the degree of prejudice. Although counsel may not have had much time
to look at the booking slip prior to its introduction, he extensively cross‑examined
Officer Hunt about the addresses on it.
His motion for a mistrial was not made until the next day, and then only
on the basis of the halfway house reference.
He thus had ample time to examine the slip, yet as Magee's appellate
counsel states in his brief, the "prejudicial notation escaped defense
counsel's observation until after the conclusion of the trial."
Had
the prejudice been as obvious as counsel on appeal posits, it is unlikely to
have escaped the attention of trial counsel for Magee, who, throughout the
trial, diligently objected to any reference to Magee's prior record. Its import also escaped the attention of
counsel for Tracy (FN6) and the prosecutor, (FN7) despite their focus on the
admission of the booking slips.
Not
only was the reference unnoticed by experienced counsel, but the "2nd
offense" notation does not unambiguously indicate a prior criminal record
to a lay jury. What followed the first
listed offense was written in smaller, less legible, letters, and appears to
have a number "2" in front of it.
The [27 Mass.App.Ct. 462] offense was not one on which Magee
was indicted and was not before the jury.
The Commonwealth, in its brief, urges that it is unlikely that a lay
jury would have concluded from the notation that Magee had a prior criminal
record "because there is a more readily apparent 'innocent'
explanation," namely that the term "2nd offense" refers to a
second offense with which Magee was being charged as a result of the armed
robbery of the supermarket.
An
analysis of the facts of another case where the Supreme Judicial Court, because
of the equivocal nature of an allegedly prejudicial statement, found that there
was no abuse of discretion by the trial judge in denying a mistrial may be of
assistance in considering the prejudice here.
In Commonwealth v. Simmonds,
386 Mass. 234, 240‑241, 434 N.E.2d 1270 (1982), the defendant was
charged, among other crimes, with assault with intent to rape. A police officer, in response to questioning
concerning a conversation he had had with the defendant after a lineup,
responded that the defendant knew that "he had already been picked out in
the lineup as an individual that had assaulted one party and raped her and
attempted....[1]" (FN8)
In holding that the denial by the trial judge of the defendant's motion
for a mistrial was not an abuse of discretion, the Supreme Judicial Court
stated, at 241, 434 N.E.2d 1270, "Since one of the crimes involved in this
case was assault with intent to rape and since this comment is an obscure one,
we are not convinced that its admission 'could have appreciably influenced the
jury or tainted their verdict.' Commonwealth v. Vanetzian, 350 Mass. 491,
495, [215 N.E.2d 658] (1966). Commonwealth v. Billings, 6 Mass.App.Ct.
884 [376 N.E.2d 1252] (1978)."
In
the case at bar, the notation on the booking slip is no less obscure. We note, too, that the slip was one of
eighteen exhibits and that the notation was never mentioned at trial, its
import having escaped all counsel.
In
assessing whether there is a substantial risk of a miscarriage of justice, we
also
consider the evidence against Magee, [27 Mass.App.Ct. 463]
see part 1,supra, and the nature of
his defense. Neither he nor Tracy
testified at trial, but the psychologist and psychiatrist, see note 2, supra, recounted Tracy's version, which
was that he had forced Magee, at gunpoint, to drive the escape vehicle. The argument, put forcefully by Magee's
counsel in closing, was that Magee "was terrified of a crazy guy with a
gun" and "what followed thereafter was a panic."
The
jury rejected the coercion story, influenced no doubt by the significant fact
that midway through the almost five‑mile chase, the gun was thrown from
the car. In view of this problem with
Magee's coercion defense, the obscure meaning of the notation, and the fact
that it escaped the notice of all counsel, we "are not convinced that [the
booking slip's] admission 'could have appreciably influenced the jury or
tainted their verdict.' " Commonwealth v. Simmonds, 386 Mass. at
241, 434 N.E.2d 1270. We conclude that
there is not here a substantial risk of a miscarriage of justice.
There
was also no abuse of discretion on the part of the motion judge in denying the
motion for a new trial. Mass.R.Crim.P.
30(b). Since he had also been the trial
judge, he was entitled to use his knowledge of the trial and his evaluation of
the witnesses and evidence to assess the nature of the prejudice claimed. See
Commonwealth v. Markham, 10 Mass.App.Ct. 651, 652, 411 N.E.2d 494 (1980).
3. Magee's telephone conversation. Before trial, Magee filed a motion in limine
to exclude evidence of his statements in a telephone call he placed from the
booking area of the police station on the day of his arrest. The motion was denied, and Officer Droney who
had overheard the conversation testified as follows to Magee's side of the
conversation:
"I
heard suspect Magee say into the phone, 'Hi, Ma. I'm in big trouble.' There was a pause. He then stated, 'At the Needham Police Station.' There was a pause again, he stated, 'A
supermarket, but I didn't go in the store.
I stayed in the car.' A pause
again and he stated, 'Just a fluke.'
Again a pause, 'I'll find out Monday, and I'll probably be going behind the wall at Concord " (emphasis
supplied).
[4][5] [27 Mass.App.Ct. 464]
Magee urges that the italicized statement indicates that he had a prior
criminal record. In this instance, too,
the words are ambiguous. Even if, as the
defendant urges, they imply a prior record, they were relevant to show Magee's
consciousness of guilt, Commonwealth v. Montecalvo,
367 Mass. 46, 52, 323 N.E.2d 888 (1975); Commonwealth v. Roberts, 378 Mass. 116,
125, 389 N.E.2d 989 (1979), and therefore admissible. In any event, the defendant, without any
request or desire for privacy, chose to make statements on a telephone which
was located within earshot of the police.
The statements were thus made voluntarily and were admissible.
Commonwealth v. Signorine, 404 Mass. 400, 409, 535 N.E.2d 601
(1989).
Tracy's Appeal. (FN9)
4.
Jury selection process. Tracy
argues that he was prejudiced by the judge's sua sponte change in the method of
questioning jurors. He also claims that,
contrary to the requirements of
Commonwealth v. Dickerson, 372 Mass. 783, 795, 364 N.E.2d 1052 (1977), the
judge, without reason, dismissed two prospective jurors.
[6] 4(a).
On the first day of jury empanelment, the judge asked each of the venire
members, individually, questions, apparently requested by Tracy, concerning the
juror's attitude toward an insanity defense and toward the Vietnam War. When the first venire was exhausted, in order
to speed the selection process, the judge questioned jurors in groups of five
over the objection of both defendants.
Recognizing that Commonwealth v. Estremera, 383 Mass. 382, 388, 419 N.E.2d 835
(1981), holds that a defendant does not have the right to require pretrial
questioning concerning the defense of criminal
responsibility, and that a judge may modify the empanelment process to speed up
the proceedings, id. at 389, 419
N.E.2d 835, Tracy attempts to show prejudice.
He claims that he "likely would have exercised" fewer
peremptory challenges on the first day had he known that, due to the group
questioning, he would have less opportunity to observe the jurors on the second
day. However, as pointed out in Commonwealth v. Campbell, 378 [27 Mass.App.Ct. 465] Mass. 680, 696, 393 N.E.2d 820
(1979), "the deprivation of an opportunity for observing a prospective
juror's demeanor" because of collective questioning "lacks legal
significance." Moreover, the claim
of prejudice also fails because Tracy still had a number of unused peremptory
challenges after the selection of jurors was completed.
[7] 4(b). Commonwealth v. Dickerson,
372 Mass. at 795, 364 N.E.2d 1052, emphasizes "the importance of a trial
judge's establishing on the record the cause for excusing a juror." Here, contrary to the defendants'
contention, the cause appears. Both of
the excused venire members had heard a third prospective juror question the
validity of the insanity defense. The
judge obviously thought that the remaining two prospective jurors may have been
adversely influenced by hearing this statement.
The dismissals were within the "substantial range of
discretion" of a trial judge in determining the suitability of prospective
jurors.
Id. at 794, 364 N.E.2d 1052.
(FN10)
[8] 5.
Prosecutor's misstatement. Tracy's
defense, it will be recalled, was insanity by reason of the mental disease of
post‑traumatic stress disorder.
His experts referred to a diagnostic manual (DSM‑III‑R) in
which the criteria for diagnosis of this disease appear. That manual contained a cautionary
instruction, set forth in the margin, (FN11) which was read to the jury by the
Commonwealth's psychiatrist on redirect examination.
In closing argument, the prosecutor
asked:
"And do you remember I gave him that
book and he turned to a page and I said 'Would you read it to the jury?' And he read to you that this book, this
Bible of [27 Mass.App.Ct. 466] the profession, should not be used if
you're going to make a diagnosis that's going to be used in a legal
proceeding. Should not be used in a
legal proceeding."
The prosecutor continued:
"Well, I submit to you this is a
legal proceeding. Those men knew they
shouldn't use the book. They went ahead and
did. Dr. Kean [Tracy's psychologist
expert] says he wrote part of the book.
He knew that book should not be used in a legal proceeding and he went
ahead and did it. His diagnosis came
from there. Dr. Kalb's [Tracy's
psychiatric expert] diagnosis came from there.... Let me leave that with you."
At the conclusion of the prosecutor's
argument, Tracy's counsel requested that the judge permit counsel to make a
reasonable interpretation of the manual's cautionary instruction to the jury or
that the judge do so in his charge. Both
requests were denied. Assuming the
prosecutor's remarks were improper, the error was harmless. The whole thrust of Tracy's expert testimony
was that Tracy had a sudden "disassociated state." According to the experts' testimony, Tracy
had left the automobile to buy cigarettes at the supermarket. While walking to the store from his car, he
passed a funeral parlor which triggered a flashback reminding him of his
experience folding flags for the caskets of men killed in Vietnam. This memory revived other memories which, in
combination with current stressful events, (FN12) caused him to be in a
"disassociated state" and hence incapable of controlling his actions
when he entered the store and committed the armed robbery. The experts did not testify that Tracy was
constantly in a "disassociated state." To the contrary, this was a sudden, albeit
recurring, syndrome.
[27
Mass.App.Ct. 467] The carrying of
the stolen gun was not part of the sudden flashback. Tracy carried the gun when he left the
vehicle. There was evidence from his
former girlfriend that he had had a gun for at least two weeks prior to the
robbery, and the owner of the gun testified that the gun had been stolen more
than six months prior to the supermarket incident.
The jury acquitted Tracy of armed robbery
by reason of insanity but found him guilty of carrying a gun and receiving
stolen property (the gun). Since the
insanity defense did not seriously purport to cover Tracy's actions at times
when he was not in a "disassociated state," we consider the
prosecutor's mischaracterization of the cautionary instruction harmless.
6.
Value of the gun. Although the gun
was in evidence, there was no testimony as to its value. In addition, the judge in his charge did not
instruct the jury that they had to find that the gun's value was in excess of
one hundred dollars. We do not consider
that the common experience of jurors enables them to assess the value of a gun,
compare Commonwealth v. Hosman, 257
Mass. 379, 386, 154 N.E. 76 (1926), and Tracy did not admit that its value
exceeded $100. Compare Commonwealth v. Camelio, 1 Mass.App.Ct.
296, 302, 295 N.E.2d 902 (1973).
[9][10] The value of the property stolen
determines the punishable offense under G.L. c. 266, § 60. Even in the absence of a request, the jury
must be instructed on this point. Commonwealth v. Walters, 12 Mass.App.Ct.
389, 394, 425 N.E.2d 382 (1981).
(FN13) For the reason that there
was no evidence of value, and on the additional ground that there was no
instruction that the jury must find that the value of the gun exceeded one
hundred dollars, it was error to sentence Tracy for the more serious
offense. The defendant must be
resentenced. Id. at 395, 425 N.E.2d 382. See
Commonwealth v. Lawless, 103 Mass. 425, 432‑434 (1869). See also
Commonwealth v. Kelly, 24 Mass.App.Ct. 181, 185 & n. 4, 507 N.E.2d 777.
[27
Mass.App.Ct. 468] The judgments as
to Magee are affirmed. As to Tracy, the
judgment on the indictment for unlawfully carrying a firearm is affirmed, but
the judgment on the indictment charging him with receiving stolen property is
vacated, and the case is remanded to the Superior Court for resentencing of
Tracy upon a verdict of guilty of receiving stolen property not in excess of
one hundred dollars.
So
ordered.
[27 Mass.App.Ct. 469] APPENDIX
TABULAR
OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE
(FN1.) One of the companion cases is against
Tracy and two are against Thomas A. Magee.
(FN2.) Magee did not move for a required
finding of not guilty until the close of the defendants' cases. We may, therefore, draw on all the evidence
presented at trial. See Commonwealth v. Kelley, 370 Mass. 147,
150 & n. 1, 346 N.E.2d 368 (1976); United States v. Buras, 633 F.2d 1356, 1359
(9th Cir.1980). While neither defendant
took the stand, Tracy's experts, a psychologist and a psychiatrist, testified
(without objection) as to Tracy's account.
(FN3.) He also made a Miranda claim which is not pursued in this court.
(FN4.) Officer Hunt testified at the end of
the third day of trial. The next day
counsel for Magee unsuccessfully moved for a mistrial, joined in by Tracy, on
the ground that the evidence as to a halfway house, together with the other
evidence discussed in part 3 below, indicated that Magee had a prior
record. At that time, counsel also made
a fleeting reference to relevance. Magee
does not claim error in the denial of a mistrial, apparently recognizing that
the judge's cautionary instruction was sufficient to cure any evidence
erroneously elicited in Officer Hunt's testimony and that there was no abuse of
discretion in the denial of the mistrial.
See Commonwealth v. Hoffer,
375 Mass. 369, 372‑373, 377 N.E.2d 685 (1978); Commonwealth v. Simmonds,
386 Mass. 234, 241, 434 N.E.2d 1270 (1982).
(FN5.) The notation may begin with a 2 in a
circle but that is not clear. See
appendix.
(FN6.) Counsel for Tracy joined in the motion
for a mistrial, see note 4, supra, on
the question of the reference to a halfway house, arguing that Tracy, too, was
hurt by any suggestion that Magee had a criminal record.
(FN7.) We assume the prosecutor did not
deliberately withhold knowledge of the notation, thereby risking a reversal or
a new trial. It appears from the
transcript that he, too, had not seen the booking slips until brought to court
by the police the morning the slips were introduced in evidence.
(FN8.) The court's footnote 1 states: "A woman, seventy‑six years old,
who had been raped earlier the same night as the attack on the victim had
picked out the defendant's photograph, identifying him as her
assailant." 386 Mass. at 240, 434
N.E.2d 1270.
(FN9.) Magee also joins in those parts of
Tracy's appeal which claim error in the jury selection process and in the
prosecutor's argument.
(FN10.) We also note that neither defendant
objected to the dismissal of the two jurors.
(FN11.) "The reader is directed to the
cautionary statement appearing following this introduction that amplifies three
points. The proper use of the DSM‑III‑R
requires specialized clinical training.
Conditions not included in the DSM‑III‑R classification may
be legitimate subjects of treatment and research efforts. And the clinical and scientific
considerations that were the bases of DSM‑III‑R classification and
diagnostic criteria may not be relevant to considerations in which DSM‑III‑R
is used outside of clinical or research settings, e.g., in legal
determinations."
(FN12.) Tracy's girlfriend had ended their
relationship on the day before the robbery, and the day of the robbery was the
exact anniversary of Tracy's "DEROS date," that is, his expected date
of return from overseas.
(FN13.) Examination of the record in Commonwealth v. Walters indicates there
was no objection to the failure to charge on the value of the property in that
case. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc.,
2 Mass.App.Ct. 868, 868‑869, 316 N.E.2d 625 (1974) (court may take
judicial notice of the record of a case)