COMMONWEALTH vs. DANIEL R. CONNOLLY (and a companion case)
Supreme Judicial Court of Massachusetts
January 28, 1970
356 Mass. 617
Essex. October 6, 1969. — January 28, 1970. Present: WILKINS, C.J., SPALDING, CUTTER, KIRK, SPIEGEL, & REARDON, JJ.
Nothing appeared in a murder case to support a contention by the defendants that exclusion from the jury of prospective jurors who expressed opinions against capital punishment but who were not shown to have been unable to make a fair determination of guilt resulted in a jury which was prosecution prone and so was incapable of rendering a fair verdict and deprived the defendants of due process of law [622]; nor was there merit in a contention by the defendants that the exclusion resulted in a jury which did not constitute a true cross-section of the community and so denied them due process of law and equal protection of the law [622-623].
A confrontation of defendants arrested for murder by shooting and an eyewitness wounded during the shooting, in a hospital room shortly after the murder and the arrest and while the defendants were without counsel, in the circumstances was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to deprive the defendants of due process of law, and there was no error in the admission of the eyewitness’ testimony that in such confrontation she had identified the defendants as the murderers, irrespective of whether her wounds were then so critical that haste in identification was essential. [623-624]
A search of the basement of an apartment house by police with a warrant to search an upper floor apartment of the building, but not its basement, was lawful where the basement was a common area available to all tenants and the search was made pursuant to permission given by a tenant. [624]
In a criminal case, the legality of a search by police was not presented to this court upon appeal from the defendants’ conviction where there was
The burden on the defendants in a criminal case of showing that a seizure of articles found in a search under a warrant was, as they alleged, illegal on the ground that such articles were not mentioned in the warrant was not sustained where the warrant was not introduced in evidence. [625]
Hearsay testimony by a ballistics expert at a trial for murder by shooting, that pellets found in the victim‘s body were taken from his chest cavity, was merely cumulative of testimony by the medical examiner who performed an autopsy and did not prejudice the defendants. [625]
At a murder trial in which a police officer testified that he knew the victim, there was no error in the exclusion of a question to the officer on cross-examination as to whether he “knew . . . of . . . [the victim‘s] vicious propensities.” [625-626]
At a criminal trial in which a defendant took the stand, there was no error in permitting the prosecutor, while seeking on cross-examination to impeach the defendant‘s credibility, to read to the jury in its entirety a record showing not only that the person named therein had been convicted of and sentenced for assault and battery upon a plea of guilty thereto but also that the charge against such person had been rape, and to ask the defendant if he was such person. [626-627] KIRK, J., dissenting.
At a murder trial, where great latitude was afforded defence counsel in their cross-examination of a woman who was the only eyewitness to the homicide, there was no abuse of discretion in excluding questions to her, to establish bias, allegedly relating to various details of her amorous involvement first with one of the defendants and then with the victim. [627-628]
At the trial of two defendants for murder in the first degree, evidence that one of the defendants, in the presence of the other defendant, fired a gun five times point blank at the victim, who then managed to crawl into his automobile, that the defendants left the scene in their automobile and returned a few minutes later, that the same defendant then shot the victim again through the window of his automobile, that the victim had been conscious during part of the shootings, and that the victim sustained extensive gunshot wounds and died as a result thereof warranted submission to the jury of the issue whether the murder was committed with extreme atrocity or cruelty. [628]
At the trial of two defendants for murder in the first degree, conviction of one defendant as a principal was warranted by evidence that he drove in his automobile with the second defendant to another State and there assisted him in the purchase of a rifle, that the next day the first defendant was driving his automobile around with the second defendant and his rifle in it when they encountered the victim in his automobile and both automobiles stopped, that the first defendant got out of his automobile with the second defendant and stood by and
TWO INDICTMENTS found and returned in the Superior Court on January 8, 1968.
The cases were tried before Thompson, J.
Alfred P. Farese (Ignatius R. J. Piscitello with him) for the defendant Cote.
Joseph Sax, for the defendant Connolly, submitted a brief.
Howard J. Camuso, Assistant District Attorney, for the Commonwealth.
SPALDING, J. Under indictments charging them with the murder of one John Chwalek, the defendants, Daniel R. Connolly and Richard J. Cote, were found guilty of murder in the first degree, with a recommendation that the death sentence be not imposed. The defendants appealed.
The evidence relating to the homicide came from one Sylvia E. Haggar, an eyewitness, whose testimony in substance was as follows. On the evening of November 30, 1967, while riding with Chwalek in a motor vehicle on Water Street, Lawrence, she observed a green car containing the two defendants and a third person unknown to her. The car was driven by Cote. Chwalek sounded his horn to signal to the driver of the green car to pull over. The two cars turned into Mason Street and stopped, Chwalek‘s car being a few feet behind the green car. Chwalek got out of his car and approached the green car. The three occupants of the green car also got out and words were exchanged. One of the occupants of the green car (not identified) took a gun out of the trunk. Connolly, who was then holding the gun, said to Chwalek, “I am going to shoot you.” Thereupon, Connolly stepped back two or three feet and fired about five times at Chwalek, who fell to the ground. Connolly then went over to Chwalek‘s car and fired two
There was medical evidence that Chwalek died of multiple gunshot wounds of the chest and extremities, with extensive destructive wounds of the heart and lungs.
Connolly‘s version of the shooting differed materially from that just recited. According to him, Chwalek had threatened Connolly with a gun several times prior to November 30, the date Chwalek was shot, and on one occasion had struck him in the face with a revolver and had punched his wife in the face. On the night of the shooting, Chwalek, after forcing the green car over to the side of the road, approached with a shotgun and ordered Connolly out of the car. Connolly picked up a .22 calibre rifle and got out of his car. Chwalek then fired his shotgun at Connolly but missed him. Connolly tried to “duck behind the car” and in doing so his gun “went off.” A struggle ensued over the possession of the shotgun and during it the shotgun went off. The defendants then drove away and did not return.
The defendant Cote did not take the stand. There was evidence that he participated in the purchase of the .22 calibre rifle used to shoot Chwalek, was the owner and driver of the green car, was present throughout both shootings, and drove Connolly back to the scene after the initial shooting.1
The police arrived shortly after the shooting. Officer Ouellette, after talking with Sylvia Haggar, arrested the defendants in a third floor apartment at 39 May Street,
1. Both defendants assign as error the denial of their motions for mistrial because of the composition of the jury. Eight veniremen were challenged for cause after expressing opinions against capital punishment. In the case of one, the judge did inquire specifically into the impact of his belief on his ability to assess guilt and found that he did not stand indifferent. Four of these veniremen were excused after it became clear that their opinions would impede an objective consideration of the appropriate sentence; there was no inquiry, however, as to whether guilt determination would be likewise impaired. Three of the eight veniremen, however, were excused without any attempt to relate their opinions to the matter of either guilt determination or sentencing.
The defendants’ second argument is that there is an equal protection right to be tried by a jury composed of a cross-section of the community. When, it is argued, persons who have opinions against capital punishment are excluded, the resulting jury does not constitute a true cross-section of the community. Objectors to capital punishment, we are told, constitute a significant segment of the community. The defendants thus are asking us to adopt a rule of jury selection based on equal protection grounds, which forbids exclusion of veniremen solely because of their opinions against capital punishment, regardless of a showing of actual prejudice in the verdict. We know of only one case which lends support for a holding that an opinion on capital punishment could constitute a class of persons who could not be excluded consistently with equal protection. In Crawford v. Bounds, Warden of Central Prison, 395 F. 2d 297 (4th Cir.), decided by seven judges sitting en banc, two of
2. The defendants allege a denial of due process and the right to counsel in the admission, subject to their exceptions, of Sylvia Haggar‘s testimony concerning her identification of the defendants in a hospital room immediately after their arrest without counsel being present. Since no question is presented about the validity of an in-court identification when preceded by a tainted prior identification, United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, are inapposite. Rather the question is whether the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendants were denied due process of law. Stovall v. Denno, Warden, 388 U. S. 293. As in the Stovall case, the identification occurred in a hospital room shortly after arrest. We deem it immaterial whether Sylvia Haggar‘s wounds were so critical that haste, as in the Stovall case, was essential if any identification at all was to occur, for as we
3. The defendants contend that the admission of a rifle, testimony pertaining to its seizure, and evidence of Cote‘s purchase of the rifle were excludable as fruits of an illegal search. A search warrant had been issued to search the third floor apartment, but not the basement, of a house on 39 May Street. The rifle was found under the stairs during a search of the basement. It appears that a tenant of 39 May Street gave permission to a police officer to search the basement. Since the basement was a common area freely available to all the tenants, one tenant could give permission to its search. “One having equal authority over premises may authorize a search of them.” Drummond v. United States, 350 F. 2d 983, 989 (8th Cir.). United States v. Sferas, 210 F. 2d 69, 74 (7th Cir.). Teasley v. United States, 292 F. 2d 460, 464 (9th Cir.). The search, therefore, was lawful and there was no error in admitting this evidence.
4. The defendants also object to the introduction of evidence relating to the seizure of .22 calibre shells from the defendant Cote‘s car. A police officer noticed the shells on the floor and in the glove compartment of the automobile. A search warrant, it is asserted, was procured for the purpose of searching the car, and listed as items to be seized a 12-gauge shotgun and a .22 calibre rifle, but failed specifically to mention the shells. We do not reach the question of the legality of the search, for the point is not properly before us. The defendants made no motions to suppress the evidence before the trial commenced. See Rule 101B of the Superior Court (effective June 1, 1965). Nor did they seek a voir dire
5. One Hallice, a ballistics expert called by the Commonwealth, testified on direct examination that two pellets found in Chwalek‘s body were taken from the “chest cavity.” On cross-examination the witness admitted that his reference to the “chest cavity” was based on what he had been told by another witness. The defendants then moved that Hallice‘s testimony be struck; this motion was denied, subject to the defendants’ exceptions. The defendants argue that Hallice‘s testimony was outside his field of competence and was based on hearsay. These arguments do not merit extended discussion. The autopsy in which the pellets were discovered was performed by Dr. Luongo, the medical examiner, in the presence of Hallice. Moreover, Dr. Luongo had previously testified to having found the pellets in the chest cavity. Thus Hallice‘s testimony was merely cumulative and could not have prejudiced the defendants.
6. Captain Schiavone of the Lawrence police department testified that he knew Chwalek. On cross-examination Connolly‘s counsel asked him the following question: “Officer, knowing him that well and having had some experience with him you knew, did you not, of his vicious propensities?” This question was excluded, subject to
7. The defendant Connolly took the stand. During his cross-examination by the Commonwealth several records of convictions were offered to impeach his credibility. In each case the prosecutor, reading from the record, asked Connolly if he were the person named in the record, and, after establishing that he was, introduced the record. After several such instances, the prosecutor asked the following question: “Sir, are you the same Daniel Connolly . . . [as to whom it was charged that] on the 29th day of July, 1963, . . . [he] did assault Beverly Neubert with intent to commit rape upon her and her, the said Beverly Neubert did commit rape upon, and . . . [who] on September the 12th — . . . in Essex Superior Court, number 53742, . . . pleaded not guilty, and during the trial on October the 11th, 1963, . . . retracted the plea of not guilty, and pleaded guilty to assault and battery . . . and . . . [was] sentenced to two years in the House of Correction, are you that same person, sir.” While the question was being asked counsel for Connolly objected but the court allowed the question to be completed. Counsel for both defendants then moved for a mistrial. The judge denied the motions subject to their exceptions.
The defendants argue that the question was prejudicial because it informed the jury that Connolly had been charged with the crime of rape, but had actually been convicted of
To impeach credibility by showing convictions for past crimes the only evidence admissible is the record of the conviction itself. This rule is recognized in the statute governing the subject of impeachment by convictions, which speaks of the “record of his conviction” and by our decisions construing the statute. Commonwealth v. Homer, 235 Mass. 526, 536. Commonwealth v. Danton, 243 Mass. 552, 554. Commonwealth v. Hayes, 253 Mass. 541. It is obvious that the prosecutor was attempting to show a conviction by the only method available to him, namely, by reading the record of the conviction, and upon the defendant‘s admission that he was the person named therein, by introducing it in evidence. The defendant Connolly does not contend that the prosecutor was not reading from the record, or that the matter objected to was not contained in it.1 What the prosecutor was attempting to do was in compliance with the law and the judge did not err in allowing the question.
8. The defendants excepted to the exclusion of fourteen questions asked during an extensive cross-examination of the witness Sylvia Haggar, the only eyewitness to the homicide. These questions are alleged to relate to various details of Sylvia Haggar‘s amorous involvement first with Connolly, and then with Chwalek. The defendants argued that the exclusion of these questions was erroneous because they tended to establish a bias in the witness against the defendant Connolly. Nothing would be gained by a minute examination of these questions2 and their relationship to the weight of Sylvia Haggar‘s testimony. In a cross-examination which consumes more than 600 pages of the transcript, defense counsel had full opportunity to establish bias on the part of Sylvia Haggar and, in particular, to
9. One of the issues submitted to the jury was that of murder by extreme atrocity or cruelty. The defendants argue that there was no basis in the evidence for submitting this issue, and excepted to that portion of the charge which permitted the jury to pass on it. The fact, to quote from the defendants’ briefs, that Chwalek died by “what is probably the most common and ordinary means of producing death, i.e., a gunshot wound,” is not determinative of this question. To authorize the submission of this question to the jury, “the evidence must be of such a character as to show that the crime was committed under circumstances indicating something more than ordinary atrocity or cruelty.” Commonwealth v. Knowlton, 265 Mass. 382, 388. Since any destruction of human life invariably includes some atrocity or cruelty, one cannot easily separate degrees of cruelty or atrocity by precise legal rules. Our cases have usually looked to the consciousness and degree of suffering of the victim, the disproportion between the means actually needed to inflict death and those employed, the instrumentalities employed and the extent of physical injury. The final determination of whether extreme atrocity or cruelty exists, however, must be decided by the jury, who, as the repository of the community‘s conscience, can best determine when the mode of inflicting death is so shocking as to amount to extreme atrocity or cruelty. Here, one of the defendants fired a gun five times point blank at the victim, who then managed to crawl back into his automobile. The defendants then returned, and one of them shot the victim again through the window of the car. Medical testimony showed that the chest wall and heart were fragmented and widely dispersed throughout the body. The extent of these wounds, the repeated shooting of the victim, during part of which he was conscious, warranted the submission of this question to the jury. Commonwealth v. Devlin, 126 Mass. 253. Commonwealth v. Feci, 235 Mass. 562, 571. Commonwealth v. Devereaux, 256 Mass. 387, 387, 388. Commonwealth v. Knowlton, supra. Commonwealth v. Doherty, 353 Mass. 197.
10. At the close of the Commonwealth‘s case, and again at the conclusion of the defendants’ case, Cote moved for a directed verdict of not guilty. The motions were denied, subject to Cote‘s exceptions.
Cote argues that the evidence was not sufficient to warrant a submission of his case to the jury. We disagree. One who does not commit a crime with his own hands, but was present, aiding and abetting in the commission thereof, is guilty of the crime as a principal in the second degree. Commonwealth v. Knapp, 9 Pick. 495, 516-518. Commonwealth v. Locke, 335 Mass. 106, 111. Perkins, Criminal Law, 570. On the day before the shooting Cote drove Connolly to New Hampshire, and assisted him in the purchase of a rifle. On the day of the shooting, Cote was transporting Connolly in his automobile which contained the rifle. After standing by and watching Connolly shoot Chwalek five times, and then shoot Sylvia Haggar twice, Cote drove Connolly from the scene, returning shortly thereafter when Connolly fired again at Chwalek. He then assisted Connolly in making his escape from the scene of the shooting. It was open to the jury to find that Cote‘s conduct was not that of an innocent bystander but rather the conduct of one whose actions facilitated the killing of Chwalek pursuant to a common design. We are of opinion that the judge rightly submitted the question of his guilt to the jury.
11. We have considered all of the questions argued by the defendants and have dealt with such of them as require discussion.
12. We have, in accordance with our duty under
So ordered.
There was, however, in my judgment, no error committed by the judge. The case before us was far from a typical case. The trial took twenty-one trial days. It was marked by erratic, unpredictable and obstreperous conduct by Connolly‘s counsel, a lawyer of experience, culminating in
The transcript discloses the following circumstances attending the admission of the records of conviction. Connolly took the stand on the eighteenth trial day. On direct examination he testified that he was guilty of whatever crimes he had been convicted of, naming some of them.2 On cross-examination, commenced toward the close of the day, the prosecutor offered to show the certified records of conviction to Connolly‘s counsel who said he did not want to see them. Later he said that he wanted to see each one. Still later he said that he would object to the reading of them but said that he would give no reason. On the following morning the prosecutor read, despite frequent interruptions by counsel, five records of conviction in each of which it appeared that Connolly had pleaded guilty to the offence as charged in the indictment. Then followed the reading of the record of conviction as recounted in point 7 of the majority opinion and counsel‘s demand that a mistrial be declared.
The transcript shows that the judge had reason to believe from defence counsel‘s statements that he was familiar with his client‘s records of conviction. He had reason to expect in the absence of any seasonable notice to the contrary by counsel that the witness would acknowledge a plea of guilty to the crime as charged in the sixth record as he had to the five which preceded it.3 Having in mind that counsel had earlier said that he would object but would give no reason, the transcript reasonably is susceptible of the interpretation that counsel did know of the objectionable feature, permitted it to be read, and thereupon hoped to get the mistrial which he explosively demanded on the nineteenth day of trial. In these circumstances it should not be said that there was prejudicial error.