Com. v. Sousa

Decision Date14 April 1966
Citation215 N.E.2d 910,350 Mass. 591
PartiesCOMMONWEALTH v. Gerald SOUSA.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

James A. Heaney, Fall River (Robert L. Hill, Somerset, with him) for defendant.

Roger F. Sullivan, Asst. Dist. Atty., for Commonwealth.

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

REARDON, Justice.

About 1 A.M. December 28, 1963, three men entered Padden's Cafe in Fall River. There were already five people in the establishment, including the proprietor, Jean Thibeault, an employee, Albert Brulotte, and a customer, Barbara Ferree. The newcomers asked for beer and were advised that the bar wa closed. They then requested change for cigarettes and were told that the cash had been put away. They next sought the use of the 'men's room' and two of them entered it singly, the second returning with a stocking mask over his face and carrying a gun. There was testimony that this was the defendant Gerald Sousa. One of his companions, one Petetabella, then announced, 'This is a stickup,' and ordered Thibeault and Brulotte to go into the kitchen and lie on the floor face down. The third intruder, Joseph Robideau, commanded Barbara Ferree 'to get down' and held a knife to her abdomen. Several shots were then fired by one of the men in the kitchen. One of the shots hit Thibeault in the right chest causing his death. In addition, he sustained two head wounds which a medical witness ascribed to blunt force injury. Another shot grazed the right shoulder of Brulotte sufficiently close to leave a hole in the sweater which he was wearing. Brulotte's wallet was then extracted from his left hip pocket. After the shots the three left the establishment. As they left, Barbara Ferree's wallet was taken by one of the men; in the process she was clubbed on the head and left with injuries requiring a week's hospitalization.

The defendant was indicted for the murder of Thibeault in company with Petetabella and Robideau, as well as for armed robbery while masked of Thibeault, Brulotte, and Ferree, and assault and battery with a dangerous weapon on Ferree. He was convicted on all of these indictments. Since the jury made a recommendation that the death sentence be not imposed on the murder charge, he was sentenced to life imprisonment. Sentences for terms of years to be served concurrently with his life sentence were imposed for the other crimes of which he was convicted. In addition to the three principals, all of whom received life terms, Manuel Aguiar and two other individuals, who took part in conferences with the principals before and after the crimes for which they were convicted, were charged as accessories. The case is here on appeal under G.L. c. 278, §§ 33A--33G, as amended, with a summary of the record, a transcript of the evidence, and assignments of error. While the assignments of error are numerous, we shall deal solely with those which have been dealt with in the defendant's brief and argued before us. Notwithstanding that the defendant has not contended that the evidence was insufficient to warrant the verdict, we have given careful review to the evidence in light of the responsibility which is ours under G.L. c. 278, § 33E. Commonwealth v. Cox, 327 Mass. 609, 614, 100 N.E.2d 14; Commonwealth v. Chester, 337 Mass. 702, 713, 150 N.E.2d 914; Commonwealth v. Kerrigan, 345 Mass. 508, 509, 510, 188 N.E.2d 484.

We move to a consideration of the assignments pressed by the defendant.

1. The defendant has urged that the judge admitted certain evidence which was incompetent, immaterial and irrelevant and that he was thereby prejudiced. We do not so view the testimony to which he objects. All of the six admissions but one were relevant and material to the determination of the defendant's innocence or guilt. The admission of a hotel's business record to show the whereabouts of Robideau the night before the crime tended to show that he was in Fall River. The admission of a taxi dispatcher's testimony and records to indicate that on the night of the crime at 12:42 A.M. he received a call for a cab to come to a corner close to the apartment where the crime was planned tended to show that it was the cab that had been hired by the three principals immediately prior to the commission of the crime. The testimony of the cabdriver indicating where it was that he had picked up the three men who said they had called for the cab, where he dropped them, and his subsequent observation of footprints in the snow leading to Padden's Cafe was relevant in that it tended to show that his passengers were the individuals who committed the robbery. The testimony of a policeman who observed the same footprints was likewise admissible. The testimony by Brulotte indicating that a certain silk stocking was the type of stocking which he saw on the face of the defendant inside the cafe tended to show that the stocking was the one employed that evening and to illustrate to the jury how little or how much the witness might have seen through it. While there was little relevance in a witness's testimony as to whom he had understood Robideau and Petetabella to refer when they stated they were waiting for 'Jerry,' no harm would appear to have resulted from the admission of that testimony. Commonwealth v. Sheppard, 313 Mass. 590, 600--601, 48 N.E.2d 630; Commonwealth v. Palladino, 346 Mass. 720, 725, 195 N.E.2d 769.

2. In the absence of the jury, Aguiar was allowed to change his plea of not guilty to guilty, following which the jury were recalled and he took the stand for the Commonwealth. The judge then advised him that in view of his plea of guilty to the offences with which he had been charged he must answer questions regarding them but that he would not be compelled to testify regarding 'any matter * * * not the subject of any of the indictment.' Sousa's counsel thereupon addressed the judge at the bench, following which the judge acknowledged that he had not intended that the jury learn of Aguiar's change in plea in this fashion. The judge then instructed the jury, '(Y)ou are entitled to know that the prosecution against Mr. Aguiar has terminated by a plea of guilty. But his plea is not to be considered in any was as evidence against the other defendants; and you should dismiss from your minds any thought that the plea might create as to the truth of the facts alleged in the indictments against the other defendants. In no way are you to consider Mr. Aguiar's plea unfavorably to any of the other defendants.' Sousa then moved for a mistrial and his motion was denied.

There was no error in the denial of this motion. It was in the discretion of the judge to accept the change in plea in the presence or absence of the jury. That he chose originally to accept it in the jury's absence was no indication that he felt that the communication of the change to the jury would require a mistrial. 'Whether the plea * * * was accepted in the presence or absence of the jury, the fact that * * * (Aguiar) had pleaded guilty could hardly have been kept from the jury.' Commonwealth v. Giacomazza, 311 Mass. 456, 466, 42 N.E.2d 506, 512. The instruction of the judge to the jury was entirely proper. See Commonwealth v. Fuller, 260 Mass. 329, 334, 157 N.E. 588.

3. It is claimed that it was error for the court to allow the introduction of an exhibit which was a photographic process of an 'H' acid test of a sweater allegedly worn by Brulotte. The defendant contends that the introduction of the result of the test was not proceded by a description of it so complete as to enable the judge to determine whether there was an evidentiary foundation sufficient to make the test admissible. However, we perceive no error in the admission of the test which was completely and intelligibly described by the witness of the Commonwealth who had performed it. The test as described consisted of coating a piece of paper with a solution of 'H' acid, letting it dry, placing the garment to be tested over it, coating another cloth with 'acidic' (sic) acid and placing it over the garment, then adding a third cloth and passing a hot iron over it. It was testified that the heat precipitated the acid through the garment and in the area where gunpowder existed the powder's nitrites became nitrous acid and left a purple stain on the coated tan paper underneath. The defendant suggested that since the exhibit, the treated paper, 'was not the same * * * as it was after the test was allegedly made' the evidence and exhibit should have been struck. The Commonwealth's witness testified, however, that while the color of the unreacted background on the paper had changed somewhat the purple area demonstrating the dimensions of the powder burn had not altered. There was no abuse of discretion in the judge's allowing the use of the test results. Commonwealth v. Chin Kee, 283 Mass. 248, 260, 186 N.E. 253; Commonwealth v. Plissner, 295 Mass. 457, 462, 4 N.E.2d...

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