Com. v. Balakin

• Decision Date: 29 December 1969
• Citation: 356 Mass. 547,254 N.E.2d 422
• Parties: COMMONWEALTH v. James BALAKIN, Jr. (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 422

254 N.E.2d 422

356 Mass. 547

COMMONWEALTH v. James BALAKIN, Jr. (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 3, 1969.

Decided Dec. 29, 1969.

Reuben Goodman, Boston, for defendants.

Francis K. Monarski, Asst. Dist. Atty., for the Commonwealth.

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

CUTTER, Justice.

Balakin and Robert Dussault were found guilty on indictments charging them with being accessories before the fact to confining for purposes of stealing from a bank. Kebarian was found guilty of being a principal in the commission of the crime. A fourth defendant, Donald L. Stout, was also found guilty of being an accessory. His case has already been heard on appeal. Commonwealth v. Stout, Mass., 249 N.E.2d 12. ^a

The cases are before us under G.L. c. 278, §§ 33A--33G. The evidence permitted the jury to find the facts described below.

On September 14, 1967, the Lowell police, because of information brought to their attention, kept the Lowell Institution for Savings (the Institution) under observation. They looked into the bank and saw Kebarian in the tellers' area. They entered the bank and arrested Kebarian and James Hunt, who was also in the bank. Paul Dussault, who was in an automobile outside, was taken into custody at the same time.

Kebarian and Hunt, each with a gun in his hand, had entered the bank about 9:15 A.M. and said, 'This is a stickup.' Kebarian approached the bank manager, Mrs. Constantine, with a gun in his hand. She was at her desk in a separate office across the lobby from the tellers' area. He asked her whether she had pulled the alarm. She said that she had not done so. Kebarian, whose gun was pointed at her head, directed her to move from her desk into the bank lobby. She did so because she was in fear. When in the lobby, she did not move from a spot near the number one teller's cage because she 'didn't want to get shot.' Kebarian jumped over the counter and started to open one of the tellers' drawers. The police then entered.

Paul Dussault, brother of Robert, pleaded guilty to offences connected with the Institution holdup project. He gave testimony concerning meetings in Robert's apartment on September 5 and again on September 12 and in his own apartment, when two meetings were held. At the September 5 meeting, the robbery of three banks was discussed. At the later meeting on September 12 the two Dussaults, Hunt, Kebarian, and John Crow were present. Later that day Balakin drove the two Dussaults and Kebarian around Lowell to look over a branch of the Middlesex County National Bank as a prospective holdup victim. There was conversation about the possibility of robbing this bank and the Institution on the same day.

On September 13, the Dussaults, Kebarian, and Hunt discussed the Institution robbery project; Balakin was not present. That evening Balakin called Robert Dussault's apartment and was told by Paul Dussault, who was there, that Robert wanted to see him at the Sac Club 'relative to a car.' Later Paul observed two automobiles drive up in front of Robert's house. Balakin stepped out of one automobile, a Cadillac, and drove away in the other vehicle. Balakin again called Paul by telephone a few minutes later. Paul told him that the Cadillac could not be left where it was. Balakin returned in another automobile and, following Balakin's lead, Paul drove the Cadillac to a hiding place. Balakin gave Paul two pairs of brown cloth gloves to use in avoiding fingerprints and told Paul to tell his brother Robert, that the Cadillac 'is $200 and $200 goes off the top,' which meant the expected proceeds of the planned robbery.

On the morning of September 14, 1967, Crow disappeared. Robert Dussault made checks in the area of the Institution and gave word by telephone to go ahead. On the night of the 13th, it had been definitely planned to rob the Middlesex County National Bank. The Institution project 'was up in the air.' On the 14th, Robert Dussault decided to make the Institution the 'target for the day.'

On the morning of the 14th, Balakin came to Paul Dussault's apartment and asked if the group had come back yet. He was told that they had not returned. He came to Robert's apartment that afternoon.

On September 5, 1967, when a bank robbery was being discussed, Balakin provided Robert Dussault, at the latter's place, with two guns for a robbery planned for the 6th. Stout was present. Balakin demanded $25 rental for each gun. Robert Dussault agreed to this. The project for the 6th was called off because too many police were around. The guns were retained until the 14th. ²

On November 7, at Balakin's request, Christopher Dussault, another brother of Robert, collected from Robert's wife a diamond ring and gave it to Balakin for use in obtaining bail for Robert Dussault. On that day Balakin and Stout warned Christopher to leave town because Paul Dussault was 'talking.' Other pertinent testimony is stated in connection with the discussion of specific assignments of error.

1. In his closing argument, the prosecuting attorney made comments about the numerous objections made by defence counsel during the prosecutor's questioning of Paul Dussault and Christopher Dussault about their motive in testifying. He quoted Paul as saying that the defendants threatened 'to kill my sister and her children.' He continued, 'If you recall, all four lawyers were up on their feet screaming at that time. Well, if we are really looking for the truth as to what motivated Paul to testify, aren't you entitled to know that?' Christopher was quoted as saying that the fear that the defendants 'planned to kill Paul Dussault, my brother' led him to testify.

If interpreted as criticism of the making of objections and the saving of exceptions by counsel, the argument was improper. See Commonwealth v. Coughlin, 182 Mass. 558, 562--564, 66 N.E. 207. See also Commonwealth v. McLaughlin, 352 Mass. 218, 229, 224 N.E.2d 444. It also made somewhat inaccurate references to the circumstances. There was, however, no objection and exception when this argument was made. In the absence of an exception nothing is before us on review. Commonwealth v. Myers, Mass., 252 N.E.2d 350. ^b In any event, the judge later charged that arguments were not evidence and that objections and exceptions by counsel were not to form the basis of any jury inference. There was no such significant possibility of prejudice as was considered in Commonwealth v. Freeman, 352 Mass. 556, 563--564, 227 N.E.2d 3.

2. In argument, the assistant district attorney suggested that some of the defendants, including Robert Dussault especially, were far more reprehensible than others. He said, '(I)n the absence of the masterminding plan by Robert Dussault and in the absence of the guns and bullets (furnished) by * * * Stout, it would appear * * * that Paul Dussault, Kebarian, and Hunt would have remained petty criminals: stealing automobiles, breaking into stores.' ³ Upon objection by Kebarian's attorney, the judge promptly said, 'We are not going into breaking in stores' or 'stealing automobiles.' He denied a mistrial, subject to Kebarian's exception. Kebarian had not taken the stand, so no past record had been introduced to impeach his credibility. Cf. Commonwealth v. Stone, 321 Mass. 471, 472--474, 73 N.E.2d 896 (evidence of specific prior impropriety wrongly admitted). Cf. also Commonwealth v. Crehan, 345 Mass. 609, 610--612, 188 N.E.2d 923 (news account of specific criminal records); Commonwealth v. Welcome, 348 Mass. 68, 70, 201 N.E.2d 827 (judge hearing a criminal case without a jury actually improperly received evidence of prior offences of the same type as that involved in the case then before the court); Commonwealth v. Nassar, 351 Mass. 37, 45, 218 N.E.2d 72 (evidence of admissions of prior offence of same type improperly received). The argument, while improper, did not go so far as to charge Kebarian or any other defendant with having any specific criminal record, although it might have been misunderstood as doing so.

As has been noted, the judge promptly cut short the line of argument and later charged that arguments were not evidence, that the jury must rely on their 'collective memory * * * of the evidence,' and that guilt is to be determined 'only upon evidence.' The judge was not asked to expand his instructions on the point. See Commonwealth v. Cabot, 241 Mass. 131, 146--151, 135 N.E. 465. See also Commonwealth v. Ladetto 349 Mass. 237, 248, 207 N.E.2d 536; Commonwealth v. Belton, 352 Mass. 263, 269--270, 225 N.E.2d 53. We think that the judge adequately dealt with the situation in the circumstances.

3. In his argument, the assistant district attorney stated that there had been testimony that should the police chase the robbers, Paul Dussault was 'under orders from Robert * * * to slow * * * the getaway car so that Hunt and Kebarian * * * could shoot it out with the police.' The testimony in fact was that Kebarian and Hunt gave these instructions. There had been other testimony that, on September 6, Robert Dussault had expressed a desire to shoot it out with police found around the bank that day. This may have led to confusion concerning the person giving the instructions. The testimony also permitted the inference that whoever had given instructions about shooting had done so when Robert Dussault was present. The judge declined to correct the assistant district...