*1 Mass. 197 197 Doherty. Commonwealth v. do not
(1964) оf a nondiserimina- prevent imposition State use tax with tory to a situation or transaction respect a which national bank has become the and user purchaser of tangible Similar considerations seem personal property. to me to of a State permit nondiscriminatory imposition sales tax a transaction in which a national respect bank is the of tangible I con- purchaser personal property. cur the result of the court on this ground opinion seems me to be in what the of the implicit opinion court about says the use tax. In my there is view, no occa- sion to decide whether the legal incidence of the Massachu- sales setts tax is such a national bank as a retail upon pur- chaser or its vendor. upon Doherty. vs. William R.
(and four cases1). companion February Suffolk. August 22, 1967.
Present: C.J., Wilkins, JJ. Cutter, Spiegel, Whittemore, Kirk, & Accessory. Pleading, Criminal, Indictment, Practice, Bill of Particulаrs. Criminal, proceeding, “John Doe” Disclosure evidence before jury, witnesses, Access together. Trial of indictments Homicide. Evidence, discretion, Judicial Collateral matter. preceding following by shooting Evidence of events a homicide killing of the actual a couple’s apart- circumstances in married ment, the two to which murderers been called to furnish wife husband, armed assistance to did not warrant a conviction under being accessory for against an indictment an fact hus- band, prompted the call personal peril who murderers in fear of asleep but from the victim who disarmed him while he was aon couch gave gun present my of his family,” to one to “Protect and left killing [203-204]; before the but the did scene evidence warrant accessory under an indictment conviction an before the fact wife, present apartment who when the murderers fully arrived, was of their intentions and did aware not inform them disarmed, pointed that the victim had been out the victim one the murderers who then shot him. [204r-205] opinion. are in the text of the The cases described *2 accessory to a murder being after the fact an charge of on a A conviction the by that acts of 274, 4, the fact c. under G. L. precluded not § was wife, the defendant’s also assisted assisting murderers the defendant murder. accessory the fact to the being before charged with an was who Where At the trial of - unknown,” particular Doe filed a motion represented been against a named corrected indictment, was held John a person], not and for and that the that the the returned ants policy of tion of 207] [205] she had perjury,” hearing at which no the Commonwealth testimony an indictment testimony in the no error designated as John Doe was it had been unable arrested Doe accessories Kirk & appeared court could her orders . the indictments that given on direct secrecy the has been description of the together with indictments murder it that one indictments testimony read “Court . after which she person defendants showed which to Spiegel, the defendant that a before substitute the name . of in indictment, . the discovered to be act on such denial [that described in the she had grand jury blank, to secure filed a motion to held in before the grand return that JJ., evidence and after resulting had name] examination, and that she had “committed of the motion to “and John trial, . . dissenting. and that under the prosecutor, given said protective custody, given that of having an representation, that the indictment proceedings, was the from a John informative the the returned two be entered on record the before particularized . . differed against of a testimony indictments, Doe, introduced and particular determined fact, that court quash and dismiss the . grand juries outweighing Doe murder, where [thе particular person, a the a quash by presenting an indictment for grand jury G. from the being allowed the a later interview, name of the true husband and wife before L. with whom later the person need and for that c. to grand jury, name testimony the said the the name John dismiss. the for an as true were then true name a differed from admitted motion after named and more key docket § grand jury the defend- prosecutor particular who motion, murder murder a witness name,” inspec- jurors which [205- later, there was had that for en- of inspect grand jury judge’s super- under the trial
titled minutes Where vision. it developed at the trial [210] of indictments resulting from a murder inspect defendants were
that the entitled to the minutes of two juries testimony to the witness, relation before them of trial prosecutor had copy one minutes of earlier for the inspection available defendants’ copy the minutes grand jury, judge later the trial said to defence counsel get “Ton can . . grand jury testimony] witness’ later in evi- [thе by getting [grand dence ... jury] that defence stenographer,” but pursue did counsel indicated, prejudicial the course there was no in denial of by error inspection motions for of such defendants testimony. [209, dissenting. JJ., 210] Kirk Spiegel, & in denial of motions in a criminal case There was no reversible error who said for the Commonwealth the defendants to interview a witness say anything” “I don’t wish to asked if he wished when [209, discuss the ease with defendants’ counsel. 210] If a witness the Commonwealth at the trial of criminal eases grant requests several defendants for interviews defendants’ elects to counsel, separately each entitled talle with the witness counsel is presence police without the officers. [211] There was no reversible error in a criminal case denial motions key held defendants to interview a witness for protective custody, previous whom a interview concluded unproductively prosecutor’s becausе of the insistence defendants’ question respect counsel could not the witness with to her *3 grand juries, before where the circumstances of the ease rendered it unlikely that, judge sug- even if the had made remarks to witness gested by defendants’ counsel neutralize what the said, the witness would have altered her decision to be interviewed. [207-208, 210, dissenting. ICirk & JJ., 211] Spiegel, There was no error in a murder shot, appar- case in which the victim was ently by in blood, shotgun cold chest, a held in to his denial of a motion to strike particulars from bill of furnished the Common- specification wealth a spurted that “blood out of . . [the victim’s] At the At a trial in which two defendants were convicted of murder merit in a contention against a woman paired the mitting degree, there was no reversible that the a shotgun to aroused or atrocity second and then on his or her behalf. testify go.” [212-213] chest like water from a faucet.” trial defendants or defendants then tоgether attempted cruelty constitutional jury victim’s chest and there wasn’t a as within found the victim find that the accessory indictments the defendants that denial of a dragged arouse G. L. e. right [212] before and after the error sound,” him, him [211-212] killing shot each sleeping on that to a and § was committed with extreme to have other eodefendants 1, stairway the victim mortally two men for murder and part one where there was evidence dozing of the fact, wounded “woke aon couch and murderers there severance there was no up him, “let the first for per- him and put im- At the trial of At the trial of an apartment, to the to his call and while he was not fied on in evidence. matter sion on cross-examination of night tending that she had never known the victim direct examination his talk indictments he was killed, there was [214] indictment discredit the witness’ with the resulting resulting certain admissible evidence of police from a under when from a murder testimony. arrest murder, reversible error in the exclu- came was properly where a witness testi- [213-214] in the defendant’s there in a collateral admitted response prior Doherty. Superior returned in the found and
Five indictments August Court on Paquet,
Preliminary Tauro, C.J., heard matters were cases were tried before J., Tomasello, J., and the Tomasello, J.
Joseph Landry. Balliro J. for the defendant Doherty. M. Charles M. Burnim for the defendant Janice Twohig James J. for defendant Connor. E. P. Farese the defendant William
Alfred Murray (James Attorney M. Reiser, P. Assistant District McDonough, Attorney, Legal District with Assistant to the him), for the Commonwealth. (Ema Landry) Landry Donald E. J. Whittemore, guilty (indicted Doe) Connor as found
James J. John were degree of Eobert Davis. There murder the first W. shortly committed evidence to show that the crime was May a.m. recommended 1,1965. Doherty the death E. penalty imposed. not be William guilty Doherty, ac- wife, were found Janice M. degree first cessories before the fact to murder imposed. not be penalty recommendation that the death *4 guilty Dohertys accessories Both were also found after fact to murder. subject 33A to 33G §§ trials L. 278,
The were held to G. c. regarding pre- testimony events inclusive. Most of the following given by ceding Elizabeth and the homicide Dohertys and and boarded with the Moore. She had lived top years year or in the third their four child for two old apartment dis- Street in the Dorchester floor at 116 Dakota actual as to the of the trict of Boston. Most Hayes, killing a friend of who been Donald had came from companion years on who was her for and Moore several night homicide. Friday evening, April testified that Moore Dohertys, Hayes, drank beer company she Hayes, she, Dorchester. Later, Cafe in at Sportsman’s (the deceased), Donald Dohertys, and his friend Davis Doherty com- gathered apartment. at the Edwards served. Beer kitchen. in the supper of six had pony den. went into the Doherty the kitchen and Davis left gun Hayes a that Davis saw Upon reappearance, their instruc- cryptic left on Davis’ his Edwards then belt. queen,” get payroll” pick up and “Go tion to “Go testimony, Doherty’s (according “payload” to Mrs. “payroll”). while
Hayes room, the latter’s and Moore went to door opened Moore noise and commotion. there heard Doherty making Davis and call. telephone and saw Mrs. Doherty summons, den. his wife’s had returned to the On Doherty again the tele- den and continued came out Doherty re- which was not overheard. phone conversation Doherty telephone Mrs. took the to the den. then turned while “Ema,” and, made a asked room, call, Moore’s guns Hayes waiting, two at Davis had told and Moore that get Doherty’s him. help and that she had to someone head Doherty telephone. this statement on the repeated She again “Janice, said to his then the room wife, entered Bobby guy if some- me, who’s tell her this Davis bring get thing they him and tell up, happens “ [B]ring get Doherty said, here.” Mrs. up and to piece ’’ Dohertys your call the left Upon completion piece. the room. Doherty returned, Mrs. five minutes later
Approximately
telephone
said, “Hello, Emo,
another
call and
what’s
made
going
you
long Why
you
taking
here ? He’s
up
so
?
aren’t
[Doherty].
you
Billy
Take
up?
come
please
kill
Will
Doherty
Mrs.
Emo.
at
Dakota Street.”
cab,
We’re
Hayes
money
Moore and
for the cab
and told
asked Moore
going
to he trouble.
had better leave.
There’s
‘ ‘
gun.
[H]e
big
coming
has a
. . .
Emo is
and he
up,
. .
*5
go
you
[I]
ahead.
.
.
f
to leave,
knows
to use it.
want
how
Hayes
Moore
declined to leave.
and
out
here.”
Get
cab.
there
to meet the
While
Moore went downstairs
returning in Edwards’ car with another
she saw Edwards
Delaney
Delaney.
away.
re-
Edwards drove
Adrian
man,
a cab come
with
who then saw
on the porch
Moore,
mained
After Moore away guns sleeping. from who was Davis, the two take Doherty Lugers. gave guns one. He kept were Both (Doherty’s) Hayes fam- protect and told him to other ily. Doherty From porch downstairs. the front went get Hayes out of one cab, men a flоor saw two third gun carrying a stopped case. About the same car time, Hayes gunshot house on the heard front of the *6 Doherty. Hayes by grabbed porch. “Connors” came upstairs, against Hayes pushed him wall. saw no throat, Hayes your weapon on Connor. “I’m on side. him, told ’’ you. nobody. Doherty . . I’m with I know Mrs. came into room arid “Not the one on the couch.” said, him; Hayes coming heard someone the stairs and also heard up something shotgun “bolt action or action or like that.” Landry Hayes. came in and pointed a “rifle” at Mrs. Doherty Landry “Not said, the one on the couch.” him; gun belly,” “hey, hey” “put the in Davis’ said twice, and ‘‘ ’’ belly. Doherty running shot him in the Mrs. came into Landry the room and him said, “Get out here.” dragged Connor picked Davis up, “one under each arm,” ’’ doorway go. Shortly him to the and “let him afterwards, Hayes left premises. He blood spattered observed the front stairs and passed Davis was “sprawled who out Hayes got on thе porch.” front into his car, drove around Luger dropped corner, into a .the sewer and went home. shooting Doherty, Moore testified that after the his wife, Moore, and Baker Mrs. met in the Baker apartment where including it was decided all, Moore, that would tell guys police “that two up came here and broke in and Doherty, shot him.” Moore said to “I’ll be a witness for ’’ you, Billy. you Doherty I know didn’t shoot him. called police. police When the arrived about a.m. on Satur- day, May Doherty standing was on the porch, beside body: Doherty Davis’ police told the that he had been in a fight, body had run from the porch found Davis’ when Subsequently, he returned. the medical examiner reported shotgun that Davis died of a wound the chest. assignments relating discuss We first error Dohertys’
the denial of the filed at motions, close guilty. evidence, directed verdicts of not evidence to warrant a verdict of insufficient guilty against Doherty charge aсcessory on the an before the fact to murder. The Commonwealth’s evidence Doherty’s only had imperiled showed Davis life. The by Doherty words used his wife while she telephon- to. ing Bobhy guy Davis who’s this “tell her were, *7 they get something him and tell up, me, before happens if get bring here,” his and “Tell Emo piece up to and to Doherty’s [that] words were, if I killed.” Davis did it am if call to used needed. Before help most, at for armed any Doherty who was asleep. Davis help arrived, disarmed changed Doherty for from the situation had one Thus, security in his own dwell peril imminent to one defensive ’ Lugers Hayes ing giving his of Davis as indicated one my Doherty family.” had with then “Protect words, gone he encountered porch downstairs to the front where gun Delaney awaiting who was pointing a at Moore, Doherty’s that of the armed Moore testified help. arrival fight bodily ensuing Delaney from protect was her with Doherty while he was in and that she had written harm, jail testimоny shows life. The that he had saved her Doherty during was had after a shot fired left the scene fight Doherty Delaney. with It is what would speculative on or on the scene porch had he remained have done Landry his Common companion until arrived. The beyond a reasonable doubt that wealth failed to establish Doherty the murder of Davis. L. procured counseled or Gr. guilty di of not should have been 274, § c. 2. A verdict Doherty charging him for on indictment with rected accessory being Common the fact to murder. an before O’Brien, 393, 305 Mass. 401. wealth v. Fancy, Commonwealth v.
Carter, 306 Mass. 147. 201. Mass. error in the denial of there was no hand,
On the other Doherty’s on the motion for a directed verdict indict- Mrs. being accessory charging an fact ment her to the Common- to murder. The most favorable evidence the calls for armed placed assistance, wealth shows that she help arrived, was in the when the armed present apartment Hayes. gun directly Landry at The pointing and saw prior and from her state- evidence, could from this find Landry’s fully in- aware ments to that she Moore, Landry explain tentions. made effort She Commonwealth v. changed since she had
companion that circumstances Eather, placed the for armed assistance. telephone calls Landry, she out who then killed Davis. pointed Davis to guilty finding The as evidence that she an warranted a accessory before the fact to murder. Dohertys’
There was likewise no error the denial charge motions for acces- directed verdicts Doherty’s sories after brief does the fact to murder. Mrs. Doherty’s argue ground expressly point. any Doherty motion was to constitute acts of sufficient the offence so he had a were directed toward his wife, charges defence under L. c. The indictment GK 274, § *8 prin- that he “did assist” the harbor, maintain and conceal, felons. assisted his cipal The fact that acts also the same charged accessory the does wife, fact, with an preclude conviction under the indictment. validity challenge of the We now turn to Connor’s by charging the indictment him with As returned murder. August mur- indictment for the on the 4, 1965, against Landry ran name and Doe, der “and the true John being to a more of the said John Doe particular description jurors August said 9 the Common- the unknown.” On by substitu- a motion the indictment filed to amend wealth ting for A hear- the name of Connor John Doe. James J. ing The introduced. held at no evidence entry August the docket 1965, 10, motion was allowed. On August Com- read as follows: was “corrected so as to Court . . amend indictment. monwealth files motion to having has been Doe name John determined that true name James orders Connor, discovered to be James J. as true name.” entered on record Connor to be J. quash motions to filed Connor September 10, 1965,
On grounds mo- for The and to dismiss the indictment. nothing in the indiсtment is tions inter that there were, alla, grand to the described indicate that Doe was ever John by indicted any been has never manner, that Connor nothing jury, in the warrant is there any way upon based to indicate indictment was Connor. After to be arrested “John Doe” intended hearing denied ex- the motions were September 24, on ceptions taken. There was error. “If the name of Laws e. provides 277, §
General grand jury, may he be an accused is unknown to the person by any practicable a fictitious or other described name allegation is un- that his real name description, with an or defendant a fictitious known. An indictment ground if but abatement; name shall not be erroneous any subsequent stage his true name proceedings at may be on the record it shall be entered discovered, subsequent a reference to the proceedings, used men- description name fact that he was indicted ’’ tioned the indictmеnt. entering [of on name the rec “The the true procedure required by analogous ord] specifications is somewhat right L. must furnished as matter of 40, which 277, § G. c. must indictment for a full and which be read with the charged.” Commonwealth v. Ged description of the crime zium, allowance motion 457. The finding by court of all the facts essen “presupposes injustice any be done defendant” tial thereto to (ib end that no 461). could act the dis p. id, *9 By attorney’s of presentation trict the representations. man in the testi these were that the described the motion, designated jury mony grand as Doe the and John before required, not a statement Connor. evidence was While was attorney implications of express the to make the district affidavits, or of or the of presentation the motion, and desirable. appropriate have been would the of in blank. In context This an indictment was name and other indictments the murder indictment the Lаndry person associated Doe” identified “John May Dohertys The murder 1,1965. crime of and the in the Landry Landry Emo of “Donald alias was indictment E. [and] inference that the Doe.” The inescapable John killing of to, facts and related Davis complicated of, jury. grand of The “John Doe” before the placed were 207 Commonwealth v. man was the who acted a indictment particular Gedzium case, it is no Under longer
described part. itself give the indictment “the best necessary descrip Common to be arrested.” tion person possible Crotty, wealth Allen, 405. 404, There was no viola asserted “great tion of the Declaration of principle no man shall . that Eights . . answer criminal put evidence criminating until him has charge been laid have grand jury found probable — the Gedzium case Com cause” from quoted 459) (p. monwealth Holley, Gray, 458, 459-460. Connor became of to the indictment August 4, 1965, answerable when his entered name on recоrd on August 9, On 1965, a the indictment August was sent to 10, copy on is a sheriff service Connor. This case stronger its facts than the Gedzium case where all three defendants under were indicted fictitious names.
3. The defendants Landry and Mrs. as- Doherty have errors based on their signed inability interview the wit- ness Moore advance trial, and three of the defendants have assigned similar errors argued based on their inability interview witness All Delaney. the de- fendants have as assigned error the refusal of the trial them to the testimony given permit inspect Moore before the which was sitting June, 1965, and before another sitting in August, 1965. We treat these assignments together. error
Prior the witness trial, Moore held in protective In custody by to a motion prosecution. response filed allowed, counsel Landry’s at the court house appeared at Boston on November for the of inter- purpose Moore. The and an viewing assistant and a were attendanсe. stenographer
At the outset Moore interview, stated that she had *10 of the knowledge facts circumstances of the charge Landry’s against Landry. counsel then asked the witness: Q. “And have testified you concerning those matters be- fore Jury?” the Grand Before the witness could answer colloquy In the question, interrupted. prosecutor clear made the prosecutor which followed, counsel between right Landry’s had no would counsel his position question to respect witness with to be permitted grand jury. As a re- anything before place which took colloquy, interview concluded attempted of this sult questioning.2 further without February appeared Moore the witness 9, 1966,
On Landry’s her suppress motion in connection court judge as follows: testimony. the witness addressed The submitting Court [W]ith interview, reference to you questions any you put to answer not order . . does may you. You decide by is toup decision Now, them. ’’ did you that she The witness answered to do. what want Doherty’s go mo Mrs. time.” intо it at this not “care to similarly dealt The with. the witness to interview tion brought Landry’s judge counsel motions. denied both judge’s of the at transcript of the copy attention an which was 16, 1965, on November interview tempted argued witness’ state that the to his motion. He nexed of the and directions to the interference was due mind should be neutralized prosecutor questions counsel. defence Landry during hearing, pre counsel the same
Later, grand jury writing of the for inspection a motion in sented part, ground in was, for the motion The stated minutes. inability witness Moore. an interview with the to obtain argued should be denied motion that the safeguarding He these witnesses.” “in the interest of gave I the wit [o]ne of the assurances stated that proceed they is that in the went nesses only ings secret, and that the would be any worry about have would time are her “Anything this witness sel The interview ended right. any questions except what went on no one to toe Landry: You don't to do with the is concerned.” say what “I feel own questions with the Grand you this witness.” Assistant are I can or following Jury exercising in the Grand district secret.” cannot ask this witness. exchange Assistant duress attorney: Jury.” between district collusion, Counsel: counsel. “You can ask attorney: as You far as “You Coun have *11 197 209 Doherty. Commonwealth v.
would be in the courtroom the course of the during open matter of trial.” The denied the motion as discre judge tion and counsel for Landry excepted.
The first counsel question defence had to opportunity during Moore came one month later their cross-examination of her at the trial in It then March, 1966. developed Moore had her be- given testimony perjured appearance grand fore the June Moore under cross- jury. admitted examination that which she had testimony given in June, was different from the testi- grand jury mony which she given had before the August, 1965, and was different from the she had given on direct examination to the triаl She admitted that jury. she had at least two different stories of given the events taken at 116 Dakota Street on May 1,1965. place She testified that she had “told the District of- Attorney’s fice” that when she was before the first grand jury she had “committed perjury.” this eliciting testimony, defence counsel requested
Upon an given to examine the testimony opportunity Moore given by before the two juries. grand The judge declined so to order. All the defendants duly excepted. then judge ascertained that had one prosecutor of the minutes of the first grand copy jury copy the minutes of the second grand jury. He said to defence counsel: can . . get “[Y]ou . in evidence ... [this] getting He instructed the stenographer.” to inform defence counsel who the was. To stenographer ‘‘ defence counsel he . said, ou can . him [Y] . have avail- able and the minutes only relation to . . . this witness.”
In interviews with witness respect attempted told the Delаney, witness that he himself was to decide whether he wished to discuss the case with counsel for the defendants. “I don’t wish Delaney to say replied, anything.”
There was no error the defendants’ denying motions of Moore’s This inspection grand jury testimony. VOL. 353.
Commonwealth v.
granting
court has held
to examine
permission
judge.
minutes rests in the discretion of the
Balliro,
v
349 Mass.
See
*12
Galvin,
Giacomazza, 311Mass.
456, 462;
v.
v.
alleged
is
that an inconsis
205,
323 Mass.
211. Where it
tency
testimony
a witness’
at the trial and
exists between
testimony
grand jury,
it is appropriate
judge to
if
is
the trial
read the minutes
determine
there
inconsistency,
if
is
permit
an
it
found to
de
and,
exist,
testimony.
grand jury
counsel
fendant’s
to examine the
Mass.
cert. den. sub
Kiernan,
29, 36,
Commonwealth v.
Common
Massachusetts,
nom.
v.
A need particularized jury grand so inspect minutes, entitled to counsel were super- the reasonable and under relevant, far as available judge. minutes of first of the The vision trial ruling, judge’s how- appears, it available. The were, any of access to of the deprive not the defendants ever, did Having not failed prejudiced. were minutes to. may pre- indicated, defendants the course pursue motions to in- to the denial exceptions in their vail spect the minutes. of the denial respect
Nor do
discern reversible error
we
Delaney.
The de-
to interview Moore
motions
lay
the witnesses.
with
cision whether to be interviewed
informed
addi-
them,
could have
appropriately
(2)
might
tionally,
(1)
the defend-
have counsel,
each
not be
witnesses and'-should
to interview
ants
entitled
were
(3)
or capriсe,
prior
whim
deprived
opportunity
and con-
of the witnesses before
with,
attorney
versations
the district
were not reasons for
declining
(4)
to talk
each
counsel,
with defendants’
give
might
weight to
risk of self-incrimination or per-
deciding,
danger
sonal
However,
whether to talk.
much
judge,
must he left to the discretion of the
who
saw
heard the witnesses.
If a witness
interviewed,
elected to be
’
we think the defendants counsel
entitled to talk
were
separately
witness, each
and without the presence
police officers. See Commonwealth v.
Balliro,
The circumstances
protective
strongly suggest the risk of intimidation and other im-
proper pressures.
pressures
That
such
would be ex-
*13
suggested by
erted or
counsel would not relieve the witness
very unlikely
all
by
of
concern. We think it
that remarks
judge
requested,
as
to
neutralize what the
Moore’s,
may have
have
said, would
altered
decision
keep
still and
possible
avoid
trouble. The
must take rea-
only
sonable
steps
protect not
the witness but also the
integrity
may
Commonwealth and the
of its case. He
require
any
discretion
that a stenographer be present at
custody.
interview
awith witness in protective
Doherty
4. Counsel for Mrs.
moved before trial
2
by
paragraphs
and 3 of
particulars
the bill of
filed
by
Doherty3
prosecution
response to motions Mrs.
excepted
struck, and
to the
of
denial
the motion. Counsel
Landry
for the principals
and Connor, who were tried
jointly
Doherty, correctly
with Mrs.
anticipating that the
Doherty’s
filed in
particulars
response to Mrs.
motions
would be read with the indictments and
be usable
would
also
them,
moved
strike
2
paragraphs
and 3 of
the bill of
particulars
excepted to the denial of their
motions. We discern no error in the denial of the motions.
[that]
The specifications described “blood
spurted out of
’
his chest like water from a fauсet.
In this and some other
attorney
represented
Doherty
who
particu
Mrs.
when the motions for
appointed by,
not
eligible,
lars were filed was
appointment by,
was not
Superior Court under Rule
of
Superior
the
court
,(1954).
Court
The motion
by
Doherty’s
filed
appointed
strike was
Mrs.
counsel
5. The defendants Connor judge’s their motions for severance. One the trial denial of grounds by Landry and Connor for sever- advanced filed in particulars is the which the prejudicial ance effect Doherty’s upon motions had their trials. response Mrs. disposed ground is what we have said re- That particulars. spect the bills by Landry ground for severance
The other advancеd Doherty mistrial, for a and Mrs. her motion Connor, right to have other co- is the denial of their constitutional during testify Bach con on their trial. behalf defendants granted, other defendants if severance were tends that testify during his her This trial. be available to would necessarily sufficient reason for follow, and does not requiring States, 313 F. 2d v. a severance. Gorin United (1st Cir.) United States den. 379 U. 645-646 cert. S. (2d Cir.) cert. den. 385 U. Kahn, 366 2d 263-264 S. F. granted was within the should be 948. Whether severance Fancy, judge. discretion *14 was no 196, 204-205. There error. Dohertys Landry contend 6. The defendants judge in permit erred that the that the evidence was such atrocity ting finding killing or extreme a that the was with com cruelty. "Murder provides: 265,§ 1, General Laws c. aforethought, deliberately malice premeditated mitted with cruelty, atrocity murder in the or ... or with extreme was stated degree.” issue to the applicable The first law following language, judge Com in unexceptionable 253, Devlin, Mass. monwealth v. testimony how it was done of the murder
The
being
testimony
as was
Hayes.
given by
accepted,
That
beyond
guilt,
doubt
necessary
finding of
established
for a
unnecessary,
deliberately
think it
We
action.
premeditated
therefore, cruelty that callous of Davis was unconscious of all the arousing or to sleeping murderers a attempting arouse shooting dozing range, or then him victim, and at close go,” dragging doorway “let[ting] him to the him and there jury that dropping is, as could him down the infer, Hayes stairs. that “woke a up testified Davis for second ’’ and then there wasn’t a sound. The did not fix time exact of death. The medical examiner testified gunshot death the “result of of a wound chest hemorrhage.” through with massive shot The tore aorta. The could conclude that Davis had some awareness what was to him. done discern We no reversible error. Devereaux, See Commonwealth v. (shooting, 256 Mass. or three two blows a gun butt); Commonwealth Knowlton, 265 Mass. (beаting rape). In the Knowlton held case, we ‘‘degree atrocity cruelty .. . must be considered aggravated question
as and extreme. The nature largely this is such kind it that must be left to the deter- jury. [T]he [however] mination of the . . evidence must justify submitting jury.” sufficient . . . the case to the 7. Moore testified on direct examination that she had night never known Davis prior he was killed. Coun- Landry sought sel for to introduce evidence that there was at the holdup office where Moore was employed while Moore was out to lunch, Moore asked her employer permission to him accompany police station, that at the police station employer her out Davis as picked man and holdup had shown his picture and that Moore, expressed Moore had some picture. interest All of days this took place three before Davis was shot death. credibility. The evidence was offered to attack Moorе’s refused to admit All the evidence. the defend- excepted. Only argued ants the defendant Connor has *15 the exception. While the are reason- defendants entitled to able latitude in developing inconsistencies in a witness’ testimony, the extent which collateral shall be to matters judge. We think the is in discretion of the
explored error. evidence was admissible but we see reversible Doherty’s nothing- talk see 8. We the contention response house came police with the at his when ' not under arrest. The his call was inadmissible. He was him what police happened. asked against Doher:ty judgment an acces- 9. The judgment sory is reversed and before the fact to murder is underlying Doherty indictment. The to enter for on the judgments ar.e affirmed. other
So ordered (dissenting) I un- and are Spiegel Mr. Justice J. Kirk, majority agree opin- expressed able to with the views rights heavily anof the fundamental upon ion which bear (1) interfеrence the prosecutor’s accused. We believe Moore, interview attempted with the defendants’ (2) judge’s withholding testi- of Moore’s judgments require mony all that the from the defendants fur- set aside. We cases be and the verdicts reversed (3) indictment under Doe” ther believe that “John quashed. must be which Connor convicted this Balliro, 1. In Commonwealth Eights citing of our 12 of Declaration court, art. for a should “counsel defendant Constitution, stated right, pro- to interview an opportunity accorded, be as of custody Common- held in the spective witnesses belong to the Commonwealth wealth. Witnesses neither. plain “It is too (emphasis supplied). nor to the defence” interviewing witnesses prospective labored that the for trial.” of a case essential part preparation an Id. at 517-518. Moore was made interview attempt
The defendants’
During
Balliro case.
four months
our decisión in the
after
permitted
the dеfence was
attempted interview
question
any
from
an answer to
elicit
Moore
in prin-
no difference
see
did not
We
approve.
grant,
refusing
access
physical
ciple between
defendant
*16
215
Mass. 197
353
Doherty.
v.
Commonwealth
(Commonwealth Balliro,
516) as was done in the permit defendants, to get questions answers to to the present put to wit- case, right to the witness is case, ness. In either the interview by unwarrantably prosecution. controlled hearing At court which followed the abortive inter- justify by prosecutor attempted view, the actions un- allegations danger supported that Moore was constant reprisals from the defendants. That this is anot sufficient right reason for of his depriving defendant interview a clearly was prospective witness stated in the Balliro case, merely alleged where the risks the witnesses were not but were evidenced acts of past the defendants: “That argues, as witnessеs, were ‘victims’ of the acts of the defendants does not alter the defendants’ Mass, rights.” at 518. believe,
We therefore, where, as in present cases, it appears that the prosecutor has interfered with the de- fendants’ attempts to interview witness protective cus- tody, judge duty is under an affirmative to neutralize the effect of prosecutor’s interference appropriate judge action. The granting could done have so the de- requests fendants’ pre-trial examine Moore’s testimony. We are now, left to speculate however, what posture of the defence would have been if the prosecu- tion had not interfered with the defendants’ efforts to in- terview the or if witness, had taken appropriate action to counteract the prosecutor’s interference. Com- monwealth Balliro, 517. In our view, the defendants have been so prejudiced in the preparation presentation require of their defence as that new trials granted.
2. The defendants were entitled to examine Moore’s grand jury testimony. key At trial, Moore witness for the prosecution. The fate of all the defendants hung testimony. inconsistency on her between Moore’s grand jury testimony testimony and Moore’s trial was not merely alleged, but proved in open court. Cf. Com- Engr. 578-579. Mass. 568, Abbott Inc. 351 monwealth v. perjury public she committed confession that Her of her does not establish the truth *17 jury. circumstances, In the defend trial these before the grand Moore’s inspecting need” for “particularized ants’ consequent right jury testimony to do so is self- and their 244- Ladetto, v. Commonwealth evident. 22. Giles, ante, 1, 18-19, 245. See Youngblood, (2d Cir.). 2d 365 States 379 F. United affording Nothing oppor counsel fair less than defence grand jury tunity testi Moore’s to examine and evaluate may mony of what be “The determination could suffice. effectively be made cаn properly useful the defense only by States, 384 U. S. Dennis v. United an advocate.” 855, 875. judge, per- is whether the issue, therefore,
The narrow
mitting
merely
stenographer,
to call
the defendants
equivalent
they
granting
were
of what
the defendants the
judge
requested.
not. The
We think
entitled to and
requests to examine
repeatedly denied the defendants’
judge
grand jury testimony.
au-
did
When the
Moore’s
expressly
he
stenographer,
to call the
thorize the defendants
grand jury
to coun-
minutes available
refused to make the
though
for
need
particularized
sel
the defendants’
even
hardly
there-
said,
It
be
them had
established.
can
been
judge,
to call
the defendants
permitting
fore, they
thereby
should be able
intended that
stenographer,
denied them.
accomplish
expressly
what he had often
required
that to
less than
accept
defendants were not
Having seasonably
they
saved their
entitled.
were
Moore’s
exceptiоns,
should now be entitled
examine
grand
of a retrial.
purposes
Connor’s
We believe there was error
the denial
days
quash
prior
which,
motion to
the indictment
several
Doe,
to Connor’s
was returned
“John
arrest,
said
description
true name and a more particular
recog-
jurors unknown.” We
John Doe
to the said
quash
under-
motion
nize that the
who
denied
Commonwealth v.
holding
standably
v. Ged
relied
upon
that the Gedsium
opinion
zium,
is, first,
Tested constitutional the in principles, dictment under which Connor was tried and convicted was fatally grand jury’s defective. The averment under oath in the indictment that no better description of the person intended to be indicted was known to them than the name “John Doe” they forecloses possibility that knew the identity they of the person intended to indict. The name gives identity. Standing “John Doe” no clue to alone it is synonymous anonymity. The indictment of John Doe is anyone. the indictment of anyone The indictment of the indictment of no one. The indictment of no is an one indictment in blank. The indictment as returned, there subjected fore, Connor to a public trial before the jury had determined in the first instance probable cause existed to charged believe that he committed the crime in the indictment. Because the defect is apparent Masa. 197 353
Commonwealth v. objection properly raised face indictment the quash. motion to L. c. 278, § G. § do not authorizes the 277, 19,
We believe G. L. c. followed in Connor’s case. We think the stat procedure clearly only applies ute where indictment shows grand jury whose intended to indict a particular person although may identity name was known to them true e.g., Dedham, See, not have been known. Commonwealth v. Turns 141; Lewis, 151; 16 Mass. Met. v. Commonwealth v. Butler, 6 Met. Commonwealth, 235; Commonwealth Darcey, 12 539; Com Allen, Allen, 4; 199. To hold that the Fredericks, monwealth v. tried and Doe” indictment under Connor was “John effec 277, § is authorized L. c. would convicted G. tively nullify con proceedings limitations on criminal would procedure permit tained in L. 63. The 277, § c. G. had return an whenever indictment committed a crime been cause to believe that probable any inquiry It into who committed the crime. without longer committed a who has person sufficethat would forth in time set period crime remain undetected necessary acts that the § L. c. It would also be 277, 63. G. constituting pre for the not detected crime likewise be period. scribed satisfy any indictment to failure
In the event, grand jury requirement determine that the constitutional believe cause existed to probable first instance in the charged cured cannot be the crime that Connor committed by It L. c. 19. any allegedly 277, § by authorized G. action guaranty be eradi cannot a constitutional axiomatic that is [the may legislature change by . . “The cated statute. change of its indictment] the substance but cannot in form, constitutional upon impinging without material averments ’’ Terry, original). (italics 109 Mо. guarantees in State 614. in- Doe” the “John to respect we said with have What ap- and convicted tried Connor was under dictment equal Doe” “John indictment the force to plies Motorists Ins. Co. Nasis American court In the the ease, v. Gedzium. Gedzium by statement constitutional barrier the felt able leap [of name motion to the true that “Such allowance enter finding record] upon defendant presupposes the facts to the end the court of all essential thereto 461). injustice any In the (p. no done to defendant” be justify our there that would us, case evidence reality indulging a in such stark statement. The situation is that we have an indictment for murder returned grand jury leaving later blank, it to the charged, identify person name, enter his acquiescence judge, with the on the record.
Because the Doe” “John indictment under which Connor fatally has been tried was all taken proceedings defective, say upon reliance the indictment that a are void. To guilty verdict petit rendered de- cures the fatal right every destroy fect in the indictment would citi- zen the interposition of a in the instance, first guaranteed by Bights. art. of the Declaration of Con- timely objection Accordingly, nor made to the procedure. judgment in the case Connor the should be reversed, quashed. aside, verdict set and the indictment another vs. American Motorists James & Nasis Company Insurance & another. May
Worcester. August 25, 1967. Present: Wilkins, C.J., Spalding, Kirk,' Spiegel, JJ. Reardon, & Insurance, liability Motor vehicle Vehicle, insurance. Motor Registration. Equity Pleading and Practice, Case stated, Appeal. It A registered motor vehicle from which the owner removed plates and which he on *20 reference to his decision or findings. agreed duty appeal facts constituting a ease stated to order the of a this court considered the questions involved without rendered. inoperable Superior [221] Court by breaking all its windows hearing correct suit registration decree, equity