375 Mass. 316 (1978), Commonwealth v. McColl

Citation:375 Mass. 316, 376 N.E.2d 562
Party Name:COMMONWEALTH v. David Bruce McCOLL.
Case Date:May 23, 1978
Court:Supreme Judicial Court of Massachusetts

Page 316

375 Mass. 316 (1978)

376 N.E.2d 562



David Bruce McCOLL.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1978

Argued April 3, 1978.

[376 N.E.2d 563] Jerry C. Effren, Dorchester, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for plaintiff.


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HENNESSEY, Chief Justice.

These are appeals under the provisions of G.L. c. 278, §§ 33A-33G, from two convictions of armed robbery, one of rape, and one of breaking and entering a dwelling house with the intent to commit a felony. The defendant was found guilty after a jury trial in the Superior Court. The judge imposed four life sentences, with two of the sentences to be served concurrently with each other, and the other two sentences to be served concurrently with each other from and after the terms first imposed.

The appeals were first entered in the Appeals Court. That court reported the case to this court without decision, stating that the Justices of that court were divided equally on the issue of the propriety of the prosecutor's closing argument to the jury.

The defendant now asserts error in the judge's charge to the jury as to the legal consequences of a verdict of not guilty by reason of insanity (the so called Mutina instructions, Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975)); in the judge's charge relating to the credibility of medical witnesses, the defendant contending that the instructions improperly conveyed to the jury the judge's own conclusions as to the credibility of witnesses offered by the defense; in a comment the judge made while excluding some proffered evidence as to a "paranoid schizophrenic in remission"; in the judge's denial of the defendant's request to be allowed sixteen peremptory challenges; in the judge's refusal to allow the defendant to file late a motion to suppress evidence; and in several allegedly improper statements by the prosecutor in his closing argument to the jury. We conclude that there was no error, and the judgments shall be affirmed.

[376 N.E.2d 564] The facts are as follows. On the night of April 5, 1972, the victims, Ms. C and Mr. W, returned home about 11 P.M. from an evening with friends in Framingham. As they

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walked toward their apartment building in Boston, they saw a man, later identified as the defendant, and a woman loitering outside, leaning against a tree.

Ms. C and Mr. W went into the foyer of their building. Mr. W checked the mailbox and then bent over to unlock the inner security door. While Mr. W was opening the door, the defendant and his woman accomplice entered the foyer. Ms. C saw that the defendant had a large black gun aimed at Mr. W and that the woman had a small silver gun drawn. Ms. C called out, and Mr. W turned around and found the defendant pointing a gun at his face and ordering him to "Shut up. Keep quiet and get in." Mr. W opened the security door. Once inside, the defendant and his companion, keeping in back of the victims, forced the victims at gunpoint up the staircase and into their third floor apartment.

Thereafter, the victims were tied up with cords by the defendant and his accomplice. They were held captive all that night. The defendant raped Ms. C repeatedly, and forced her to perform fellatio on him. The woman took Mr. W's watch, as well as a Master Charge card, a library card, a social security card, a selective service card, and a Hertz credit card. The defendant at one time grabbed Mr. W by the hair; Mr. W also suffered severe injuries to his wrists by reason of the tight bindings.

In the early morning, the defendant forced Ms. C, under threats, to persuade Mr. M, the unsuspecting occupant of a neighboring apartment, to join them. Thereafter, Mr. M was robbed of his billfold and was bound by the defendant and his accomplice. The two assailants ultimately departed, taking with them a radio, camera equipment, Mr. W's identification cards, some hashish, and some clothing from Mr. W's apartment. A cassette recorder, a player, a billfold, Mr. M's passport, driver's license, social security card, library card, and $8 were missing from Mr. M's apartment.

On July 12, 1972, a man later identified as the defendant, accosted one Mr. B with a black .44 magnum revolver on the lighted stairway of 5 Myrtle Street in Boston. Mr. B

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disarmed the defendant and gave the gun to Boston police Officer John J. Dennehy. Officer Dennehy testified that the gun at trial, exhibit 13, was the one that Mr. B gave him. Ms. C and Mr. M both testified that the gun at trial looked like the one the defendant used the night of April 5, 1972.

The defendant was arrested on August 16, 1972. While patrolling alone on Route 128, State Trooper Richard Savage observed a white 1963 Chevrolet convertible with a dark top, license number 65588N, parked at a rest stop. Since a vehicle with that description was noted in a police bulletin seeking the arrest of the defendant for several crimes, Trooper Savage stopped to investigate. With the information from the bulletin that the defendant was armed and dangerous, Trooper Savage approached the vehicle with his gun drawn. The...

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