Com. v. Berryman

• Decision Date: 01 April 1971
• Citation: 268 N.E.2d 354,359 Mass. 127
• Parties: COMMONWEALTH v. Paul R. BERRYMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 354

268 N.E.2d 354

359 Mass. 127

COMMONWEALTH v. Paul R. BERRYMAN.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 2, 1971.

Decided April 1, 1971.

H. Hoover Garabedian, Worcester (Alfred P. Farese, Everett, with him) for defendant.

Stanley J. Jablonski, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL and BRAUCHER, JJ.

SPALDING, Justice.

These are appeals under G.L. c. 278, §§ 33A--33G, from convictions on various indictments arising out of an alleged bank robbery.

There was evidence at the trial from which the jury could find that the defendant and another, while armed, robbed the Worcester Country National Bank and placed four of its employees in fear. There was also evidence that the two robbers made their escape in a stolen automobile with stolen plates. Berryman's codefendant pleaded guilty on all indictments during the trial. At the close of the Commonwealth's case, Berryman presented motions for directed verdicts which were denied. He then pleaded guilty to four indictments charging him with being an accessory after the fact. These pleas were accepted by the judge. The case was then sent to the jury on the other indictments. The jury found the defendant guilty on all but five indictments, four of these charging him with being an accessory before the fact. The defendant thereupon was sentenced on each indictment, the sentences to run concurrently. The longest was not less than fifteen nor more than eighteen years. On the guilty plea to the four indictments on accessory after the fact, he received a sentence of five to six years on each, to be served concurrently with the sentences on the other indictments. The sentences were imposed at the same time as the other sentences. On appeal the Appellate Division of the Superior Court determined that the defendant's sentence of two and one-half to three years for larceny should run on and after the fifteen to eighteen year concurrent sentences, and placed the four sentences for accessory after the fact 'On File.'

1. Relying on Commonwealth v. Haskins, 128 Mass. 60, the defendant contends that the jury verdicts should be set aside as inconsistent with the prior guilty pleas. In that case we held that where defendants were found guilty by a jury of both stealing property and receiving the same stolen property, no judgment can properly be entered on the verdict and a mistrial must be declared. The court reasoned: 'It is certain that the defendants could not be guilty upon both counts, because in law the guilty receiver of stolen goods cannot himself be the thief; not can the thief be guilty of a crime of receiving stolen goods which he himself had stolen.' Page 61. Likewise, under our law one cannot be both a principal in a crime and an accessory after the fact of the same crime. See G.L. c. 274, § 4. Therefore, had the jury returned verdicts of guilty of being both a principal and an accessory after the fact, the Haskins case would require that these verdicts be set aside. See Commonwealth v. Scott, 355 Mass. 471, 475, 245 N.E.2d 415. The case at bar, however, is readily distinguishable. The jury verdicts here were internally consistent. The only question raised is whether the judge should have allowed the jury to consider the indictments charging the defendant as principal after he accepted the defendant's plea of guilty to accessory after the fact. The transcript discloses the following exchange between the judge and the defendant before the guilty plea was accepted. THE JUDGE: 'Has anyone made you any promises about anything being done for you in the event that you pleaded guilty to these (accessory after the fact indictment)?' THE DEFENDANT: 'No, sir.' THE JUDGE: 'Four charges? Have you discussed this with your lawyer, * * * and with his counsel, you are doing this?' THE DEFENDANT: 'Yes.' THE JUDGE: 'You do not claim that this plea of yours to these four indictments in any way affects any of the other charges pending before you?' (emphasis supplied). THE DEFENDANT: 'No, sir' (emphasis supplied). THE JUDGE: 'All right.'

The defendant was not sentenced on the accessory after the fact pleas at this time, but only after the jury had brought in their verdicts on the other indictments. The record does not disclose any objection, exception or motion by the defendant's counsel to the judge's acceptance of the guilty pleas, the submission of the remaining indictments to the jury, or sentencing the defendant. Without such objection and exception the defendant must be deemed to have consented to this procedure and cannot now be heard to complain of it. See Commonwealth v. Chester, 337 Mass. 702, 703, 150 N.E.2d 914. Whether his intent was an attempt to convince the jury by his guilty plea to the lesser charge that this was the extent of his involvement with the robbery, or to employ a ruse to prevent the court from submitting the other indictments to the jury, the defendant voluntarily took the risks involved in this maneuver. 'A criminal prosecution is more than a game. * * *' ¹ The judge did not err in the circumstances in submitting the remaining indictments to the jury, in accepting their verdicts, or in...