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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Valliere, 366
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Efrem A. Gordon,
John T. McDonough, Asst. Dist. Atty., for the
Commonwealth.
Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY
and WILKINS, JJ..
BRAUCHER, Justice.
The
defendant appeals under G.L. c. 278, ss 33A‑‑33G, from convictions
of the murder of two employees of a bank in
We
summarize very briefly the evidence supporting the convictions, omitting
statements by the defendant. About
Several
witnesses saw the robber in the vicinity of the bank shortly before or after
the crimes, but their descriptions varied and none could identify the defendant
as the man seen. One witness, Shelton,
identified the robber as a man who was driving a green 1960 or 1961 Mercury
Comet with Massachusetts license plate 8, blank, blank, 51L. A day or two after the crimes he added
another digit to make it 86, blank, 51L.
The defendant sold a green 1960 Mercury Comet, license 86051L, in
Worcester, late in the afternoon of the crimes.
When the car was located on January 18, 1971, the same witness
identified it as the car he had seen.
There was
expert testimony that the bullets recovered from the scene of the crimes were
fired from an Italian 7.35 calibre Mannlicher Carcano rifle. The defendant owned such a rifle, but it was
not found. The defendant also owned a
hooded jacket similar to that worn by the robber, but it was not found. In the defendant's home the police found a
pair of construction boots like those mentioned in some of the descriptions of
the robber.
On January
5, 1971, there was a $2.62 balance in a joint account of the defendant and his
wife in a Springfield bank. On January
9, 1971, the defendant did not have enough money to make a customary $1 bet at
a bowling alley. On January 11, 1971,
about twenty minutes after the crimes, he made a $300 drive‑in deposit at
the Springfield bank. Later that
afternoon he paid $295 in cash, when he traded in the 1960 Mercury for a 1965
Chevrolet in Worcester. Change of $5 was
due him, but the office where change was available was three miles away, and he
told the salesman to keep the change.
Later that evening, back in Springfield, he paid in cash a debt of $430,
and he gave his wife about $55. Three or
four days later he had fifty and hundred dollar bills in his wallet.
An inquest
was held in May, 1971, and a grand jury returned four indictments against the
defendant on September 13, 1971. He was
arrested on September 23, 1971, on [366
Mass. 483] an indictment
warrant. The jury verdicts were returned
June 21, 1972, and he was sentenced the same day. His motion for a new trial was denied
November 14, 1972.
1. The inquest report. On March 23, 1972, in the course of a hearing
on a defense motion for a continuance, the judge said that the inquest
transcript and inquest report were available to counsel for the defendant,
and added, 'I have one in my lobby which I just got through reading.' Thereafter the defendant moved for a change
of venue, for a rehearing of his motion to suppress (considered below), and for
disqualification of the judge, on the ground that the judge had read and become
familiar with the transcript and report of the inquest. Each motion was denied, and the defendant
assigns as error that his right to a fair trial was prejudiced by the reading. 'The appearance of judicial detachment,' the
defendant says, 'has certainly been destroyed by the trial Court's curious
absorption of extra‑judicial material.'
[1][2] We
agree with the defendant that inquests are not part of any criminal proceedings
which may ensue, ans that although some evidence at an inquest may be
admissible at later criminal proceedings, in accordance with usual principles
of the law of evidence, the inquest decision itself is not admissible. See Kennedy v. Justices of the Dist. Court of
Dukes County, 356 Mass. 367, 374, 252 N.E. 201 (1969). It does not follow, however, that a judge who
has read the inquest report is disqualified from acting in the criminal case,
where the case is tried before a jury.
Judges acting on pre‑trial motions are often exposed to evidence
not admissible at trial, and judges must often hear inadmissible evidence in
order to rule that it is inadmissible.
As to jury waived trials, see Commonwealth v. Brown, ‑‑‑Mass.
‑‑‑, ‑‑‑, fn. 20 ([FNB]), 305 N.E.2d 830
(1973). There is no indication that the
judge improperly relied on the inquest transcript or report in ruling on issues
arising before or at the trial. The
assignment of error is not well taken.
Cf. the Kennedy case, supra, at 379; Commonwealth v. Leventhal, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNC]), 307 N.E.2d 839 (1974).
2. The motion to suppress. The defendant moved before[366 Mass. 484] trial that any statements
by him which the Commonwealth intended to use as evidence be suppressed because
he was not properly warned of his constitutional rights before making the
statements. Extensive testimony was
given at the nine‑day hearing on the motion by nine police officers, the
defendant and several others. The judge
filed twenty‑three pages of findings with respect to claimed 'violation
of defendant's Miranda rights.' See
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He denied the motion, and the defendant
claims error.
We
summarize the judge's findings. On
January 12, 1971, the day after the crimes, policemen visited the defendant's
home in Springfield, saw in the yard a Chevrolet bearing the numbers they were
looking for, and were told by the defendant's wife that a Mercury had been
traded in when the Chevrolet had been purchased. On January 18, 1971, police officers again
went to the defendant's home, and thereafter he made statements on five
separate occasions on January 18 and 19.
The judge made separate findings as to each.
(1) Four
police officers arrived at the defendant's home about 6 or 6:30 P.M. on January
18, 1971. They were conducting a general
inquiry or investigation into unsolved crimes, and suspicion began to focus on
the defendant only after they learned from a bill of sale that the defendant
had traded in his Mercury for the Chevrolet in Worcester on January 11, 1971,
and learned from the defendant that the transaction was consummated 'about
dark.' One of the officers immediately
read Miranda warnings to the defendant from a card, and the defendant
understood his rights and knowingly and intelligently waived them. He was not in custody or otherwise deprived
of freedom of action in any way, but freely accompanied the officers to the Chicopee
police station.
(2) Two of
the officers questioned the defendant at the station about 8:15 P.M. on January
18. They did not give him Miranda
warnings, but had been present when such warnings were read to him less than
two hours before. His previous waiver
carried over, he was not in custody or [366
Mass. 485] otherwise deprived of his
freedom in any significant way, and the information given by him was given
freely and voluntarily.
(3) About
10:30 P.M. on January 18 the defendant was questioned at the station by the
chief detective, who first read Miranda warnings from a card. The defendant understood his rights and knowingly
and intelligently waived them before any questioning began. He was not in custody or otherwise restrained
in doing anything he desired, and the information given by him was given freely
and voluntarily.
(4) About
12:20 A.M. on January 19 another officer told the defendant that he had just
returned from Worcester, that the defendant's Mercury had been absolutely
identified as the car seen at the scene of the crimes, and that the defendant
was the chief suspect. The officer then
read Miranda warnings from a card, and the defendant understood his rights and
knowingly and intelligently waived them before any questioning began. The defendant was not in custody or otherwise
restrained, information freely and voluntarily, and was taken home about 1 A.M.
(5) About
1:30 P.M. on January 19 two officers went to the defendant's home. They gave him Miranda warnings before any
questioning, and he understood his rights and intelligently and knowingly
waived them. After conversation with the
defendant and his wife for about an hour, he went to the police station with
them and indicated that he was willing to go with them to Brattleboro,
Vermont. He went with them to
Brattleboro, and pointed out a place where he said he had dropped a rifle in
three pieces from a bridge onto the river.
The river was frozen, and a search was made for the rifle parts, but
they were not found. A telephone call
was made to Chicopee about 5 P.M. An
attorney tried to reach the defendant at the Chicopee police station shortly
after 5 P.M., and the defendant was put in contact with the attorney by the
police as soon as it was possible to do so, on his return that evening. He was then driven home. He was not in custody or limited in his
action to any significant degree during the period before, during, [366 Mass. 486] and after the Brattleboro trip, and the information given by him
was freely and voluntarily given.
The
defendant attacks several of these findings, relying in part on evidence which
was apparently not believed by the judge.
He asserts that the investigation had definitely focused on him before
the police went to his home on January 18.
Treating the knowledge of one police officer as the knowledge of all, he
argues that the composite knowledge of the police created probable cause to
arrest him before he disclosed the date and place he sold his Mercury. He further argues that his liberty was
restrained when four police officers were in his kitchen with him and his wife. Even after Miranda warnings were given, he
says, there was no waiver of rights by him.
He also attacks the sufficiency of the warnings given, and he claims
that the bulk of the Commonwealth's evidence at the trial, including the
ballistics evidence as well as the identification of the car, was the fruit of
improper interrogation.
' [3][4]
We cannot properly be asked to revise a judge's subsidiary findings of fact,
where they are warranted by the evidence, or to review the weight of the
evidence related to the findings.'
Commonwealth v. Murphy, ‑‑‑Mass. ‑‑‑,
‑‑‑ ([FND]), 289 N.E.2d
571, 577 (1972) (concurring
opinion of Hennessey, J.). We think the
judge's findings were warranted by the evidence before him. As to the initial interrogation, the case
closely resembles United States v. Hall, 421 F.2d 540, 545‑‑546 (2d
Cir. 1969), cert. den. 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970). Here, as there, it is 'altogether too easy to
fall into the error of allowing the . . . (initial) interrogation to be
significantly collored by what developed later.' The police were 'conscientiously
interviewing' an apparently respectable homeowner in his home, a man 'who was
under considerable suspicion' but whom they did not think they could lawfully
arrest, and 'sedulously abstaining from any threat that they would.' 'Focus' alone does not trigger the need for
Miranda warnings, nor indeed does probable cause to arrest. The test is 'custodial interrogation,'
meaning 'questioning initiated by law emforcement officers after a person has
been taken into custody or otherwise deprived of [366 Mass. 487] his
freedom of action in any significant way.'
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d
694 (1966). United States v. Hall,
supra, 421 F.2d at 543‑‑545, and cases cited. People v. Rodney P. (Anonymous), 21 N.Y.2d 1, 10‑‑11,
286 N.Y.S.2d 225, 233 N.E.2d 255 (1967).
Contrast Orozco v. Texas, 394 U.S. 324, 325, 89 S.Ct. 1095, 22 L.Ed.2d
311 (1969); United States v. Bekowies, 432 F.2d 8, 12‑‑14 (9th Cir.
1970).
[5][6] If,
contrary to the judge's findings, there was custodial interrogation at some
point, Miranda warnings were then required.
Compare United States v. Scully, 415 F.2d 680, 683‑‑684 (2d
Cir. 1969), with Bendelow v. United States, 418 F.2d 42, 47 (5th Cir. 1969),
cert. den.400 U.S. 967, 91 S.Ct. 379, 27 L.Ed.2d 387 (1970). Once the police knew where and when the
defendant had sold his Mercury, they gave warnings. The judge found, with warrant in the
evidence, that the warnings were properly given. He also found that the defendant understood
his rights, knowingly and intelligently waived them, and made his statements
freely and voluntarily. Explicit
statements that he understood his rights and waived them were not essential. Commonwealth v. Murray, 359 Mass. 541, 544,
269 N.E.2d 641 (1971). United States v.
Hayes, 385 F.2d 375, 378 (4th Cir. 1967).
United States v. Frazier, 155 U.S.App.D.C. 135, 476 F.2d 891, 897
(1973). People v. Johnson, 70 Cal.2d
541, 557‑‑558, 75 Cal.Rptr. 401, 450 P.2d 865 (1969), cert. den.
395 U.S. 969, 89 S.Ct. 2120, 23 L.Ed.2d 758 (1969). Cf. United States v. Phelps, 443 F.2d 246,
248‑‑250 (5th Cir. 1971).
Contrast Commonwealth v. Cain, ‑‑‑ Mass ‑‑‑,
‑‑‑ ‑ ‑‑‑, ([FNE]) 279 N.E.2d 706
(1972).
As to
carrying over the waiver at home to the first interrogation at the police
station see United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir. 1970),
cert. den. 401 U.S. 1013, 91 S.Ct. 1253, 28 L.Ed.2d 550 (1971). The Commonwealth does not contend that the defendant
was not prejudiced if there was a Miranda violation, nor could it. Although the defendant did not confess to the
crimes, his statements were used against him and were damaging. But we think there was no Miranda violation.
[7]
3. Jury selection. The defendant assigns as error the excusing
of six prospective jurors. Although they
had expressed views against capital punishment, he claims that they had not
indicated that those views would preclude them from doing their duty as
impartial triers of fact. See [366 Mass. 488] G.L. c. 278 s 3; Witherspoon v. Illinois, 391 U.S. 510, 522, 88
S.Ct. 1770, 20 L.Ed.2d 776 (1968); Boulden v. Holman, 394 U.S. 478, 482, 89
S.Ct. 1138, 22 L.Ed.2d 433 (1969); Maxwell v. Bishop, 398 U.S. 262, 265, 90
S.Ct. 1578, 26 L.Ed.2d 221 (1970). If
error was committed in this respect, it affected only the
determination of the proper punishment.
Commonwealth v. McAlister, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, ([FNF]) 313 N.E.2d 113
(1974) and cases cited. Since we reverse
the judgments in so far as they impose death sentences, we need not consider
this assignment further.
4. Rulings on evidence. The defendant assigns as error a number of
rulings admitting or excluding evidence.
We consider first those admitting Commonwealth evidence, then those
limiting cross‑examination by the defendant, and finally those excluding
defense evidence.
(a)
Equivocal statements by the defendant. A
police officer, testifying to the interrogation of the defendant at the
Chicopee police station on January 18, 1971, said: 'We asked him if he
committed the murder and bank robbery at the S.I.S. bank, he says he didn't
know, he could have done it, he was high on Mescaline and brandy. We asked him where he picked up the Mescaline
from and he said he was driving around the city and he got it from Playtown on
Main Street.' In addition to his Miranda
contentions discussed above, the defendant argues that if he lacked knowledge
of his own actions by reason of lack of memory due to physical incapacity or
the effects of alcohol and Mescaline, his statement was mere conjecture,
speculation and hearsay.
[8][9][10]
The defendant concedes that equivocal statements by a criminal defendant are
generally admitted in evidence. See,
e.g., Commonwealth v. Burke, 339 Mass. 521, 532, 159 N.E.2d 856 (1959); Commonwealth
v. McGrath, 351 Mass. 534, 538, 222 N.E.2d 774 (1967). He does not contend that he lacked competence
at the time he made his statements. Cf.
Commonwealth v. Masskow, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNG]), 290 N.E.2d 154 (1972). Extrajudicial admissions of a party to
litigation are not necessarily limited by the same rules as testimony at
trial. See Stone v. Stone, 191 Mass.
371, 376, 77 N.E. 845 (1906) (opinion); LaPlante v. Maguire, 325 Mass. 96, 98,
89 N.E.2d 1 (1949) (indefinite characterization);[366 Mass. 489] Wigmore, Evidence (Chadbourn rev.) s 1053
(1972); McCormick, Evidence, ss 263‑‑264 (2d ed. 1972); Hughes,
Evidence, ss 513‑‑515 (1961).
True or false, the quoted statement of the defendant was relevant to his
whereabouts on the date of the crimes.
There was no error.
(b)
Refreshing recollection. The same
witness refreshed his memory from written notes. The defendant asserted at a bench conference
that the notes were not admissible until the memory of the witness was
exhausted, and moved that the notes be removed from the sight of the jury and
the witness. The judge said that he
would not let the prosecutor refer to the notes except by way of identification
and that the notes 'will be taken away so the jury doesn't get any idea of what's
happening.' The defendant argues that
there was 'mis‑application of clearly established rules of evidence with
respect to use of memoranda to refresh memory,' citing Commonwealth v.
Hartford, 346 Mass. 482, 486‑‑487, 194 N.E.2d 401 (1963). We are unable to ascertain from the
defendant's argument or the case cited what error is claimed or how it is
claimed to be prejudicial. Cf.
Commonwealth v. Pickles, ‑‑‑Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNH]), 305 N.E.2d 107 (1973). Possibly the defendant confuses the rules on
leading questions with the rules on using memoranda to refresh memory. In any event, no reversible error is shown.
Tip to
salesman. The salesman with whom the
defendant traded cars testified that the defendant gave him $300, and that
'there was a five dollar difference back.
I told him I would have to go to the main office to get it back and his words to me were, 'Keep it for the work that
you have done. '' Over objection, the
salesman then testified that he had never received tips before, and the
defendant claims error. We think the
evidence was admissible to show a reason for him to remember the transaction
and thus was 'within the rule that a trial judge may in his discretion allow a
witness to testify to facts and circumstances corroborative of his
testimony.' Commonwealth v. Galvin, 310
Mass. 733, 747, 39 N.E.2d 656, 664 (1942).
Palmer Russell Co. v. Rothenberg, 328 Mass. 477, 482, 104 N.E.2d 433
(1952).
Police
'experiment.' The defendant told the
police[366 Mass. 490]
that he had dropped a rifle in three pieces from a bridge over the
Connecticut River on January 13, 1971.
On January 19 he went with two officers to Brattleboro in an
unsuccessful attempt to find the rifle parts.
Another officer testified without objection that he participated in a
further search on January 20, and that as many as seven officers were standing
on the ice on the river at one time in a group.
Over objection, he was then permitted to testify that he weighed approximately
280 pounds. The defendant claims error
in the admission of this evidence of an 'experiment' in the absence of proof
that conditions on January 13 were similar to those on January 19 and 20. The absence of such proof was fully disclosed
to the jury on cross‑examination, and we cannot believe that the evidence
of the officer's weight had any significant impact. The Commonwealth argues that there was no
experiment, but only an unsuccessful investigative effort. We agree.
Deletions
from police notes. During the
defendant's cross‑examination of the chief detective, the defendant
offered in evidence the officer's notes, and they were admitted without
limitation or objection. The prosecutor
then suggested that the witness read only notes compiled by him, defense
counsel agreed, and some of the notes were read to the jury. The next day the judge had photostatic copies
prepared for the jury, with the portions deleted which were not compiled by the
witness. The defendant excepted and
argues that it was error to make the deletions.
We think that the defendant acquiesced in them, and that in any event
the matter was properly within the judge's discretion.
(f) Motor
vehicle identification. The defendant
claims that his cross‑examination of prosecution witnesses with respect
to the identification of the defendant's Mercury was unfairly limited by the
judge at several points. First, an
officer who participated in the search for the car testified that he was
looking for a green Plymouth Valiant or Mercury Comet, about 1960 model, and
that he could tell a Valiant if he saw one.
He was asked about the appearance of various parts of the Valiant,
including the trunk. Defense [366 Mass. 491] counsel then sought to use a trunk lid in the cross‑examination,
stating that it came from a $1965 Valiant. The judge refused to permit questions about
the trunk lid unless it was identified by a witness, and refused to interrupt
the Commonwealth's case to permit such identification. The police officer was asked whether he could
tell whether a trunk lid came from a Comet or a Valiant, and the officer said
he could not.
Second,
another officer testified that he accompanied the witness Shelton to a used car
lot where Shelton identified the defendant's Mercury. On cross‑examination he testified that
he did not know whether there were two Comets on the lot at the time. The question, 'Did you take any steps to
provide Shelton with two or more Comets to choose from?' was then excluded as argumentative. A little later the officer testified that he
had some talk with Shelton, and the question, 'And did Shelton tell you that he
was looking for a daisy decal?' was
excluded in the absence of testimony by Shelton to such a statement.
Third, on
the twenty‑sixth day of trial the same officer was recalled as a defense witness.
He gave repetitive testimony about a signed written statement by Shelton
on January 12, 1971, mentioning 'a daisy flower sticker' on the car. He then gave repetitive testimony about the
identification of the car on January 18 and the fact that it bore a decal which
was not in the shape of a daisy. A
number of questions were excluded as cumulative and argumentative. Later he testified that Shelton had picked a
picture of a 1961 Comet out of a book that did not contain a 1960 Comet. Objections were then sustained to questions
why the officer put 1960 in the statement, who put 1960 in the statement,
whether the officer was conscious of the fact that Shelton and said 1961, and
whether he knew what Shelton had said about the year when they were at the lot
on January 18, on the ground that the questions were argumentative and
repetitive.
[14] The
defendant was allowed very great latitude in cross‑examination in a trial
lasting thirty‑one days, despite repeated objections by the prosecutor
that testimony was [366 Mass. 492] being given by defense counsel rather
than by the witnesses. It seems clear
that most of the questions now in issue sought testimony which, in the words of
defense counsel, would be 'corroborative of other testimony and possibly
cumulative,' and 'part of the emphasis on my case.' We think that his emphasis was fully
communicated to the jury, and that no abuse of discretion by the judge was
shown. See Commonwealth v. Underwood,
358 Mass. 506, 513, 265 N.E.2d 577 (1970).
Interference
with witness. On cross‑examination
of the chief detective, the defendant asked him about a conversation between
defense counsel and another Commonwealth witness in the corridor during the
trial. A question in the form, 'why did
you interfere?' was excluded. Thereafter the chief detective testified that
he said to the other witness, 'you don't have to talk to the defense attorney
if you don't want to. We can't stop you from
talking, but you don't have to talk to him if you don't want to.' There was no error in excluding the 'why'
question before there had been testimony to the event.
Condition
of motor vehicle. The chief detective,
recalled as a witness for the defendant, testified how the defendant's Mercury
was stored by the police and answered a series of questions about compression
tests conducted in his presence by the defendant's mechanic. An objection was sustained to a question
whether the chief detective was present when a gauge was put on the third
cylinder and read zero, and the defendant took an exception at that point. The mechanic later testified at length about
the tests, conducted in June, 1972, including the zero reading. Error is assigned that the defendant was
precluded from showing the condition of the car at the time of the crimes, and
it is argued that the failure of the prosecution to preserve the car in
substantially the same condition prejudiced the defense. The assignment of error is not well taken in
view of the seventeen month interval between the crimes and the tests. We find no exception or assignment of error
which brings to us any question relating to preservation of the car.
[366 Mass. 493] The defendant's
money. To rebut evidence that he had
more money after the crimes than before, the defendant sought to show that some
time after the crimes he did not have enough money to pay a lawyer $500. The judge properly sustained objections that
the questions were immaterial and leading.
The defendant had previously been permitted to show that he had acquired
funds from various sources before the crimes.
Demonstration. The defendant argues that the denial by the
judge of three useful demonstrations was an abuse of discretion. Only one is properly brought before us by an
assignment of error, a demonstration calculated to illustrate the physical improbability of the defendant's
having been identified by a witness. The
witness in question had never identified the defendant; he had stated only that
the car, seen near the bank on the day of the crimes and later identified as
the defendant's car, was driven by a man dressed in a certain manner. There was no abuse of discretion. Commonwealth v. Flynn, ‑‑‑Mass.
‑‑‑, ‑‑‑, ([FNI]) 207 N.E.2d 420 (1972),
and cases cited.
[19]
5. Criticism of counsel. On the tenth day of the trial, on recross‑examination
of the witness Shelton by the defendant, defense counsel restated Shelton's
earlier testimony on a point not reopened on redirect examination. The prosecutor objected on that ground, and
the judge said, in front of the jury, 'Unless you're going to uncover something
new, Mr. . . ., we're just wasting time and I think confusing it for
everybody.' Defense counsel asked for
and obtained a bench conference, and objected and took an exception to the
judge's remark.
On the
twenty‑third day of trial, the chief detective was recalled as a defense
witness. The defendant asked him a
series of questions intended to bring out that a hand gun had been found on the
person of one of the deceased bank employees.
At a bench conference defense counsel asserted, 'This is a discovery
procedure on cross‑examination,' and the judge said, 'I told you, Mr. . .
., once before, I wasn't going to let you go on any fishing expedition.' No exception was taken.
[366 Mass. 494] The defendant now argues that these comments were prejudicial,
and that they 'exemplify the cumulative bias and prejudice which is abundant in
(the) record.' We think there is nothing
in this argument. See Commonwealth v.
French, 357 Mass. 356, 395, 259 N.E.2d 195 (1970); Commonwealth v. Haley, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNJ]), 296 N.E.2d 207
(1973).
[20]
6. Arguments of counsel. Discussing 'reasonable doubt' in his argument
to the jury, defense counsel said, 'What it means is the Commonwealth has to
satisfy you beyond a reasonable doubt before this boy is strapped in the
electric chair.' On objection by the
prosecutor, there was a bench conference.
It was made clear that defense counsel could ask for a recommendation
that the death penalty be not imposed, but the judge instructed him not
otherwise to comment on the penalty.
There was no error. See
Commonwealth v. Davis, 271 Mass. 99, 100‑‑101, 170 N.E. 924 (1930);
Commonwealth v. O'Connell, 274 Mass. 315, 323, 174 N.E. 665 (1931).
[21] The
prosecutor argued to the jury that the crimes had been committed by a 'pretty
cool guy,' and that they could take account of the demeanor of the
defendant. He then asked, 'Who's the
coolest, calmest, (most) collected person in this courtroom? . . .
Who is cool‑‑who is calm‑‑who is suggesting
questions‑‑who is reading transcripts?' No objection was made or exception
taken. The judge charged the jury at
length that they were the judges of the facts and that statements of counsel
were not evidence. In this situation the
only question before us is whether a miscarriage of justice has occurred. Commonwealth v. Nordstrom, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNK]), 303 N.E.2d 711 (1973). We
conclude that there has been no miscarriage of justice. The jury were entitled to observe the demeanor
of the defendant during the trial, and the comment by the prosecutor did not
suggest that he had knowledge the jury did not share. Commonwealth v. Dunker, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNL]), 298 N.E.2d 813 (1973). See
Wigmore, Evidence (3d ed.) s 274 (1940).
It would of course be improper to suggest that reading transcripts and
suggesting questions to counsel show consciousness of guilt, but it is not
irrational to suggest that such actions bear on [366 Mass. 495]
coolness under stress. Cf. Commonwealth v. Balakin, 356 Mass. 547,
551, 254 N.E.2d 422 (1969).
7. 'Return' of jury. The defendant contends that the judge erred
by coercing a verdict from the jury in violation of G.L. c. 234, s 34. ([FN1])
The jury left the court room to commence deliberations at 9:12 A.M.,
June 20, 1972. They came into the court
room at 3:25 P.M., and at their request the judge read again the portions of
his charge dealing with circumstantial evidence and reasonable doubt. They went out to resume their deliberations
at 4:06 P.M. They came into the court
room again at 10:33 P.M., and the judge inquired 'whether or not a few more
hours this evening of deliberating would be helpful or fruitful to your
deliberations?' On receiving a negative
answer from the foreman, the judge sent the jury to a motel.
The
following morning, June 21, the jury sent to the judge a question as to the
effect on a witness's testimony of a written statement by the same
witness. About an hour later the foreman
sent the judge a note, 'I do not feel that any more progress can be made
regardless of time.' Thereafter, in a
lobby conference with counsel, the judge decided to answer the question before
taking action on the note, and denied the defendant's motion for a
mistrial. The jurors came into the court
room at 12:13 P.M., the judge answered their question, and they left at 12:20
P.M. At 3:37 P.M. the judge received a
further communication from the jury, 'further discussion useless.' He informed counsel, denied a renewed motion
for a mistrial, and brought the jury into the court room at 4:47 P.M. After instructing them further, he sent them
back for further deliberations without asking their consent.
[22] The
defendant argues that the fourth statutory 'return [366 Mass. 496] to
court' occurred on the afternoon of June 21.
We disagree and hold that that was the first such 'return.' There is no showing that the returns on June
20 were 'after due and thorough deliberation.'
The fact that on their first return the jurors asked from the judge a
further explanation of the law was a very strong indication that they thought
their deliberation was not yet 'due and thorough.' Ct. State v. Simon, 126 S.C. 437, 444, 120
S.E. 230 (1923). Moreover, as the judge
pointed out, the case was complex; it rested on circumstantial evidence, the
testimony of seventy‑eight witnesses, and over 250 exhibits. In view of the complexity of the case, we
think it was open to the judge to determine at the end of the day that
deliberation had not yet been 'due and thorough,' even though thirteen hours
had elapsed since deliberation began.
As for the
events of June 21, the judge thought the foreman's note beginning, 'I do not
feel,' could be read as a personal opinion, and distinguished the communication
on the afternoon of June 21 as a collective decision of the jury. We think the distinction is supported by the
fact that the earlier note was sent while a question from the jury remained
unanswered. Hence the first return of
June 21 did not bring the statute into operation.
[23] We
have said, 'It is too clear for discussion that the mere statement to the
officer in charge that they could not agree was not a foundation for the
application of this statute.' Dixon v.
A. J. Cunningham Co., 257 Mass. 63, 71, 153 N.E. 257, 258 (1926). We think it equally clear that a return to
court to receive answers to questions asked by the jury does not bring the
statute into operation. The cases cited
to us as supporting reversal under comparable statutes of other States seem to us to involve
circumstances more coercive than those shown here. State v. Kelley, 45 S.C. 659, 663‑‑666,
24 S.E. 45 (1895). State v. Simon,
supra, at 445‑‑446, 120 S.E. 230.
See State v. Albers, 174 N.W.2d 649, 652‑‑656 (Iowa, 1970);
Wilke v. Milwaukee Elec. Ry. & Light Co., 209 Wis. 618, 625‑‑626,
245 N.W. 660 (1932).
8. The Tuey charge; polling the jury. When the jury returned to court on the
afternoon of June 21, the judge gave them the so called Tuey charge, omitting
the portion [366 Mass. 497] on reasonable doubt, on which he had
previously given a repeated charge, See Commonwealth v. Tuey, 8 Cush. 1, 2‑‑3
(1851). There was no error. Commonwealth v. Rollins, 354 Mass. 630, 636‑‑639,
241 N.E.2d 309 (1968). He, of course,
did not have the benefit of our recent opinion in Commonwealth v. Rodriquez, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ([FNM]) 300 N.E.2d 192
(1973). Cf. United States v. Angiulo,
485 F.2d 37, 40 (1st Cir. 1973).
[24] The
judge refused to permit the defendant to poll the jury after verdict. No abuse of discretion is shown. Commonwealth v. Fleming, ‑‑‑Mass.
‑‑‑, ‑‑‑ ‑ ‑‑‑,
([FNN]) 274 N.E.2d 809 (1971).
[25]
9. Section 33E. On appraisal of the whole record, we find no
occasion to disturb the convictions under G.L. c. 278, s 33E. But the death sentences cannot stand under
Furman v. Georgia, 408 U.S. 238 (1972), and the defendant is entitled to be
resentenced to life imprisonment.
Commonwealth v. LeBlanc, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ ([FNO]), 299 N.E.2d 719
(1973).
The
judgments, in so far as they impose death sentences, are reversed, and the
cases are remanded to the Superior Court, which is to resentence the defendant
to imprisonment for life.
So
ordered.
(FNA.)
Mass.Adv.Sh. (1973) 1091, 1104‑‑1105.
(FNB.)
Mass.Adv.Sh. (1973) 1639, 1648,
fn. 20.
(FNC.)
Mass.Adv.Sh. (1974) 269, 272‑‑273.
(FND.)
Mass.Adv.Sh. (1972) 1679, 1685.
(FNE.)
Mass.Adv.Sh. (1972) 373, 376‑‑377.
(FNF.)
Mass.Adv.Sh. (1974) 941, 944‑‑945.
(FNG.)
Mass.Adv.Sh. (1972) 1817, 1821‑‑1822.
(FNH.)
Mass.Adv.Sh. (1973) 1557, 1562‑‑1563.
(FNI.)
Mass.Adv.Sh. (1972) 1579, 1594.
(FNJ.)
Mass.Adv.Sh. (1973) 687, 693‑‑695.
(FNK.)
Mass.Adv.Sh. (1973) 1461, 1463‑‑1467.
(FNL.)
Mass.Adv.Sh. (1973) 981, 988‑‑989.
(FN1.)
'If a jury, after due and thorough deliberation, return to court without
having agreed on a verdict, the court may state anew the evidence or any part
thereof, explain to them anew the law applicable to the case and send them out
for further deliberation; but if they return a second time without having
agreed on a verdict, they shall not be sent out again without their own
consent, unless they ask from the court some further explanation of the law.'
(FNM.)
Mass.Adv.Sh. (1973) 1181, 1196.
(FNN.)
Mass.Adv.Sh. (1971) 1569, 1572‑‑1573.
(FNO.)
Mass.Adv.Sh. (1973) 1091, 1104‑‑1105.