Com. v. Griffin

• Decision Date: 04 January 1963
• Citation: 186 N.E.2d 909,345 Mass. 283
• Parties: COMMONWEALTH v. Walter G. GRIFFIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 909

186 N.E.2d 909

345 Mass. 283

COMMONWEALTH v. Walter G. GRIFFIN.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 3, 1962.

Decided Jan. 4, 1963.

J. Blake Thaxter, Jr., Asst. Dist. Atty., for the Commonwealth.

George F. Hurley, Boston, for defendant.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

SPIEGEL, Justice.

This is an appeal from a conviction of assault with intent to rape. The trial was held before a judge of the Superior Court, the defendant having waived his right to trial by jury, and was subject to the provisions of G.L. c. 278, §§ 33A-33G. Although there are fourteen assignments of error, only six of them have been argued. The remaining eight assignments of error are deemed waived. COMMONWEALTH V. D'AGOSTINO, MASS. 182 N.E.2D 133¹.

There was evidence that on September 24, 1961, the complaining witness, a seventeen year old girl, was 'baby sitting' at a home in Quincy, Massachusetts. She heard the doorbell ring a little after midnight. She 'answered the door' and saw the defendant, a nineteen year old youth, whom she had known for some time and who had visited her at this house on two previous occasions. 'He tried to push his way in.' She refused to allow him to come in, stating, 'The people will be home pretty soon.' The defendant then left but returned about fifteen minutes later accompanied by another young man, one Lyon. Both of them had been drinking. When the girl opened the door, in response to the ringing of the doorbell, they 'shoved in' and 'grabbed hold of' her. She 'struggled' but was carried into the living room, thrown upon a couch, and disrobed by the two men.

The defendant undressed from the waist down and, as the girl was struggling in her attempt to prevent the defendant from perpetrating a rape, the defendant called upon his companion to hold her. While Lyon held the girl she continued to struggle. She screamed once, whereupon Lyon put his hand over her mouth. They heard 'a car pulling up' and Lyon 'ran to see who it was.' The car 'stopped in front of the house,' whereupon both men 'ran out the back door.'

At approximately 1:30 A.M. that same morning a sergeant from the Quincy police department called at the defendant's home. After brief questioning the defendant, accompanied by his father, was taken to the police station where he was identified by the complaining witness. Shortly before 6 A.M. that morning the defendant signed a statement allegedly confessing to his part in the attack. The defendant had been told by the sergeant that 'it would be better for him to sign a statement.' There was conflicting testimony as to whether physical force was used on the defendant in order to obtain the signed statement from him. He testified that he was 'grabbed' by the sergeant, 'slapped * * * a couple of times,' and thrown in a chair. The defendant claimed that he was 'scared' at the time he signed the statement. The police officers testified that no hand was placed on the defendant and no threats were made to him.

A detective from the Quincy police department testified that at about one thirty in the afternoon of September 24, 1961, he met with the defendant and, in the presence of the complainant, repeated, in detail, the charges made by her and that the defendant admitted them to be true except for one minor detail. As to this confrontation, the defendant testified that he was 'still scared.'

Assignments 2, 4, and 10 relate to the refusal to the judge to rule that the alleged confessions made by the defendant were involuntary.

The written confession was merely marked for identification, was not offered in evidence and the judge did not rule on its admissibility. Furthermore, a...