Com. v. Dirring

• Decision Date: 21 June 1968
• Parties: COMMONWEALTH v. John T. DIRRING (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 508

238 N.E.2d 508

354 Mass. 523

COMMONWEALTH v. John T. DIRRING (and a companion case).

Supreme Judicial Court of Massachusetts, Bristol.

Argued May 6, 1968.

Decided June 21, 1968.

Reuben Goodman, Boston, for defendants.

Peter B. Gay, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

SPALDING, Justice.

The defendants George R. Pinto and John T. Dirring were convicted under indictments charging each with armed robbery. The cases were tried pursuant to G.L. c. 278, §§ 33A--33G. Both appealed.

The evidence may be summarized as follows: On April 24, 1963, about five to ten minutes past 10 A.M. a robbery occurred at the Bristol County Trust Company in Taunton. Four bank employees were on the premises at the time. They testified that two men wearing masks entered the bank with guns drawn and proceeded to commit the robbery. None of the employees could identify the robbers. They were, however, able to describe their approximate height and weight and there was testimony that one of the robbers was larger than the other. One of the tellers also described the bag used by one of the robbers to collect money.

There was also testimony that the serial numbers of certain money were placed on a 'decoy list' and that the money was set aside at the teller's window in order to facilitate tracing the proceeds in case of a robbery. One of the employees heard the larger robber remark to the smaller, 'Did you look in here, John?' or 'Did you watch them, John?'

The sister of the defendant Pinto, Audrey Pinto (now Solomon), occupied an apartment in a housing project on DeWert Avenue in Taunton. Various neighbors of Audrey testified to the effect that about 8:10 A.M. on the day of the robbery George Pinto, John Dirring and one Joseph Gleason got out of a 1958 Buick with Rhode Island plates near the apartment. ¹ They were seen again about 10:30 to 11 A.M. walking to the apartment with clothing over their arms. The shorter man, who was identified as the defendant Dirring, was carrying a shopping bag that 'was real heavy' and matched the general description of the bag used during the robbery. About 12:30 P.M. someone was seen leaving the apartment carrying a box to an 'aqua and white' Chevrolet. Dirring was seen carrying a pink cardboard box to the Rhode Island Buick. He drove away about 1:05 P.M. At 1:50 P.M. Pinto was seen leaving in a taxi.

Walter McGuire, a taxi driver, testified that he was called by Audrey Pinto to her apartment about 1:45 P.M. on the day of the robbery to pick up a passenger named Olson. He was met at the door by two men, Joseph Gleason and Richard Martin, who were holding guns. McGuire also recognized the defendant Pinto. Gleason offered McGuire $100 a man to take the three men to Boston. McGuire refused and Gleason offered him $100 to take Pinto to Brockton. Gleason threatened McGuire with shooting if he told anyone of the incident. Pinto told McGuire to carry a suitcase which he said was light because it was filled with money. McGuire asked the men if they had robbed the Bristol County Trust Company, and this was denied. The men left in separate cars and subsequently met at a rendezvous off Route 114 where Pinto took leave of McGuire, throwing a $50 bill in the window of the cab and commenting: 'Don't forget. You haven't seen me for three months.' McGuire told his story to the police. Shortly thereafter he was threatened by Pinto who said to him, 'You'll be six feet under before this trial comes up.'

Audrey Pinto testified that Pinto, Dirring and Gleason came to her apartment at eight thirty on the morning of the robbery. They left the apartment and returned about 10:30 A.M. Audrey told them she had heard of the bank robbery and Gleason told her that they had done it. Audrey saw some money in the upstairs bedroom on the bed. She testified that the men left in a Chevrolet and in McGuire's cab and that she was told to call a particular attorney in Boston if the police inquired.

Officer Keough testified as to the arrest of Pinto in Boston about three days after the robbery. He had been following one Fagundes in connection with the robbery of a Boston bank. As Fagandes was entering his automobile in a parking lot he was arrested. Pinto and a woman, who were accompanying Fagundes, were also placed under arrest. Officer Keough did not know Pinto at the time of the arrest. Pinto was subsequently searched and a set of keys was taken from him. A paper containing a telephone number was also obtained from him which led the police to the apartment of one Claire Maslauskas at 106 Heath Street, Boston. A suitcase was found in the apartment which the police opened with one of the keys taken from Pinto. The suitcase contained $5,095. This money was subsequently turned over to Chief Bobola of the Taunton police department. Some of this money was later identified as having been taken from the bank. Additional evidence was also obtained at the apartment of one Geraldine McLeod in Brockton.

One Albert J. Martin testified that he knew Dirring; that he had dealings with a Tiny and Al's Diner in Providence in which Dirring appears to have been the owner; and that one of his employees had received three $1 bills as part of a payment for meat delivered at the diner. These bills had been taken from the bank.

The defendants Dirring and Pinto both testified. They denied that they had committed the robbery and sought to account for their whereabouts on the day of the crime.

1. The defendants urge that the court erred in denying their motions to remove manacles, chains and leg irons before they were taken into the court room in view of the jury. Assignment No. 3. They also complain that the security precautions were excessive because a guard with a shotgun was stationed in the court room in full view of the jury. Assignment No. 5. The court denied the motions because: 'In the opinion of the Special Sheriff in charge of the prisoners, and in the opinion of the Court, after investigation, it is believed that the public safety and proper conduct of the trial require that the defendant Dirring be present in Court properly secured.' A similar reason was given with respect to Pinto. In view of the information possessed and relied on by the judge taken together with the criminal records of the defendants, the court's discretion cannot be said to have been unreasonably exercised. ² See Commonwealth v. Agiasottelis, 336 Mass. 12, 16, 142 N.E.2d 386; Commonwealth v. Chase, 350 Mass. 738, 740, 217 N.E.2d 195.

It is difficult to see why the presence of a guard armed with a shotgun was needed in the court room and the better course would have been to have forbidden it. But we are not prepared to say that this constituted reversible error. It had been brought to the judge's attention that a co-defendant of Dirring and Pinto had escaped. The judge thus had some reason to believe that more than ordinary security precautions were required.

2. The defendant Dirring filed a motion setting out a list of sixteen questions designed to elicit, among other things, whether the jurors had read about the case and what their attitude would be toward a defendant appearing before them in manacles. This motion was denied. Assignment No. 2. The judge confined the question to those prescribed by G.L. c. 234, § 28. It is settled by our decisions that the questioning of jurors other than as required by the statute rests wholly in the discretion of the judge. Commonwealth v. Monahan, 349 Mass. 139, 156, 207 N.E.2d 29. The denial of the motion reveals no error.

3. The defendant Dirring assigns as error the denial of his motion for compulsory process of witnesses. Assignment No. 1. This motion was presented on the fifth day of trial and requested some thirty-two persons to be summoned from various States and penal institutions across the country. The motion appears to have been made by the defendant personally in writing and was argued by his counsel. The court took note of the numerous names and locations and asked why the motion should be allowed at that late stage in the proceedings, and further asked counsel what information the requested witnesses would supply. Counsel replied that the testimony would be primarily hearsay.

Requested witness No. 4 was the proprietor of the 'Columbus Wholesale House' in Providence, Rhode Island, who was to bring with him all records of sales to 'Tiny's and Al's Diner.' The motion was properly denied in toto by the judge as a matter of discretion and violates no constitutional or statutory rights of the defendant. Although the defendant was entitled to compulsory process under G.L. c. 277, § 66, for all 'witnesses who are necessary to his defence,' this right does not automatically extend beyond the territory of the Commonwealth. The provisions of the uniform law to secure the attendance of witnesses from without a State in criminal proceedings, which is in effect in both Massachusetts and Rhode Island (see G.L. c. 233, §§ 13A--13D, inserted by St. 1937, c. 210, § 1, and G.L. (Rhode Island) (1956), c. 16, § 12--16--1 et seq.), does not alter this result. ³

The defendant would have us read the word 'may' as 'shall.' This we decline to do. Some discretion must reside in the trial judge to prevent abuses. See United States v. Zuideveld, 316 F.2d 873, 881 (7th Cir.). This is particularly so in a case where a defendant tardily presents nothing more than a list of names of persons residing in all parts of the United States, and requests their presence without any prima facie showing that their testimony is relevant or competent. See Dirring v. United States, 353 F.2d 519, 520 (1st Cir.). It appears that Dirring was arraigned on the indictment on June 10, 1963; the trial commenced on April 6, 1964. Thus Dirring had approximately ten months in which to prepare for trial. In these circumstances the judge could very well have concluded that the motion...