Com. v. Brown

• Decision Date: 14 February 1975
• Citation: 323 N.E.2d 902,367 Mass. 24
• Parties: COMMONWEALTH v. Enfrid BROWN, Jr., et al. (and five companion cases). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 902

323 N.E.2d 902

367 Mass. 24

COMMONWEALTH v. Enfrid BROWN, Jr., et al. (and five companion cases).¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 2, 1974.

Decided Feb. 14, 1975.

Monroe L. Inker, Boston (Stephen R. Katz, Boston, with him), for defendant Brown.

Robert J. Ciolek and Martin K. Leppo, Boston, for defendants Johnson and others.

Thaddeus R. Beal, Jr., Asst. Dist. Atty., and Roger A. Emanuelson, Special Asst. Dist. Atty., for the Commonwealth.

David A. Barry and John Reinstein, Boston, for Civil Liberties Union of Massachusetts and Anthony G. Amsterdam, Stanford, Cal., and Jack Himmelstein of New York City, for NAACP Legal Defense and Education Fund, Inc., joined in a brief as amici curiae.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

These murder appeals bring to us numerous assignments of error. We reverse the convictions because the judge's 'dynamite charge' to the jury went beyond that approved in Commonwealth v. Tuey, 8 Cush. 1 (1851). Cf. Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1890). We also pass on the questions likely to recur at a new trial.

The victim, Allen Donaldson, also known as Hakim A. Jamal, lived in a third-floor apartment in Roxbury with five other people. They were all in the apartment about 11 P.M. on May 1, 1973, when four or five men stormed into the apartment, shot the victim three, four or five times, and killed him. The three defendants were arrested early in the morning of May 2, 1973, and later were indicted for murder and for entering a dwelling being armed and making an assault with intent to commit a felony. Trial began July 16, 1973, and was completed August 2, 1973. Each defendant was convicted of murder in the first degree and sentenced to death. Each was also convicted on the armed entry charge and sentenced to life imprisonment. Each appealed under G.L. c. 278, §§ 33A--33G.

We discuss first those assignments of error which if sustained would require judgments of not guilty. Next we discuss the Tuey issue, on which we reverse and remand for a new trial. We then consider issues as to suppression of evidence which are likely to recur at a new trial. Finally, we refer briefly to other issues which need not be decided in view of our disposition of the cases.

1. Brown's motions for directed verdicts. The defendant Brown argues that his motions for directed verdicts were erroneously denied. In part this claim rests on an attack on testimony of the witness Griffin, originally a codefendant, as to statements by Brown. Wholly apart from Griffin's testimony, however, Linda Jacobs, one of the surviving occupants of the invaded apartment, testified that she had known Brown for a year and recognized him as one of the intruders. In view of testimony that a band of armed men burst into the apartment and shot and killed the victim, there was no need for testimony that Brown had a gun or that he fired a shot. Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642 (1968). Commonwealth v. Connolly, 356 Mass. 617, 629, 255 N.E.2d 191 (1970). There was no error in denying the motions.

2. Correction of verdicts. On the afternoon of the second day of their deliberations, the jury returned verdicts of not guilty on the three murder indictments and guilty on the three indictments for armed entry. The verdicts were affirmed by the jury and recorded, and the jury were discharged and allowed to retire. Four minutes later the jury returned to the court room and were permitted to correct the verdicts. The foreman said, $'The way the Clerk read the charges to us, or the indictments, was not the same as the form that we were using in the case. . . . We had written down 'not guilty' of the intent of entering to murder. But we did find him guilty of murder in the first degree on the charge of a felonious murder.' Corrected verdicts of guilty of murder in the first degree and guilty of armed entry were then returned, affirmed and recorded, and the jury were again permitted to retire. The defendants assign error in permitting the jury thus to change their verdicts.

The judge held an evidentiary hearing after the trial, and testimony was given by two court officers and the clerk. He found that there was no indication of displeasure or disapproval of the initial verdicts by anyone, that the two alternate jurors left the court room first, followed by a court officer and then by the twelve jurors, and that as they reached the top of the stairs leading to the jury room the foreman said to the court officer, 'There is something wrong in the verdict.' There had been no commingling of the jurors with any members of the general public and no conversation between the jurors and the alternate jurors. The judge was promptly informed, and the jury were brought back into the court room. Despite the announcement of their discharge, the judge found, they remained an undispersed unit still within the control of the court and in the custody of the court officers, and they were not subject to any judicial or extra-judicial influence before they returned to the court room to announce the true verdicts. He denied the defendants' motions for a mistrial.

Before a verdict has been affirmed and recorded, the judge may set it aside or instruct the jury and send them out for further deliberation. Commonwealth v. Green, 302 Mass. 547, 557, 20 N.E.2d 417 (1939), and cases cited. That power terminates when the verdict is affirmed and recorded. Commonwealth v. Haskins, 128 Mass. 60, 61 (1880). James v. Boston Elev. Ry., 213 Mass. 424, 426--427, 100 N.E. 545 (1913). Moreover, once the jury have been discharged, they have no further power to deliberate or to agree to a verdict. Commonwealth v. Townsend, 5 Allen 216, 218 (1862).

Nevertheless, we hae allowed juries to correct formal and clerical errors in the recording of verdicts to which they had properly agreed. Capen v. Stoughton, 16 Gray 364, 367 (1860). Randall v. Peerless Motor Car Co., 212 Mass. 352, 386--388, 99 N.E. 221 (1912); Lapham v. Eastern Mass. St. Ry., 343 Mass. 489, 492--493, 179 N.E.2d 589 (1962). We think that principle applies to deny finality to the original verdicts here, since the jury, by their own action and without any suggestion from the judge or any one else, immediately indicated that the verdicts reported did not state what they had agreed to. Cf. Commonwealth v. Rego, 360 Mass. 385, 393 ^a, 274 N.E.2d 795 (1971); Summers v. United States, 11 F.2d 583, 586 (4th Cir. 1962), cert. den. 271 U.S. 681, 46 S.Ct. 632, 70 L.Ed. 1149 (1926); Anderson v. State, 231 Miss. 352, 360--361, 95 So.2d 465 (1957). We distinguish cases where the change reflects further deliberation or where there has been an opportunity for outside influence. People v. Rushin, 37 Mich.App. 391, 396--400, 194 N.W.2d 718 (1971). State v. Brandenburg, 38 N.J.Super. 561, 564--567, 120 A.2d 59 (1956); State v. Hamilton, 250 N.C. 85, 89, 108 S.E.2d 46 (1959); Commonwealth v. Johnson, 359 Pa. 287, 293--294, 59 A.2d 128 (1948); Melton v. Commonmwealth, 132 Va. 703, 711--712, 111 S.E. 291 (1922).

The question whether the erroneous verdicts were final is distinct from the question whether the fresh verdicts were themselves erroneous and therefore vulnerable to the motions for mistrial which were promptly made. The present record shows no impropriety in the correction of the verdicts on the murder indictments. As to the armed entry indictments, however, the judge had instructed the jury that if there was a reasonable doubt 'that they went there to murder Hakim, these defendants must be found not guilty on that indictment.' The quoted instruction may well have been too favorable to the defendants, but it was the basis for the jury's deliberations. In view of that instruction and the foreman's statement that the jury had not found the requisite intent, there is a serious question whether any of the verdicts on the armed entry indictments can stand. In view of our disposition of the Tuey issue, however, we do not pursue this point further. It is sufficient for present purposes that the erroneous 'not guilty' verdicts on the murder indictments do not preclude a new trial.

3. The Tuey charge. The cases were vigorously contested, and largely turned on the credibility of the witnesses. The five surviving occupants of the invaded apartment all testified to the intrusion, but only two of them, Linda Jacobs and her nine year old son, could identify any of the defendants as intruders. Griffin, originally a codefendant, testified to statements by the defendant Brown naming five intruders, including the three defendants but not Griffin. A neighbor testified that he saw four men get into a car and drive away immediately after the intrusion, and there were a number of other discrepancies in the various accounts. Each of the defendants introduced alibi testimony.

The jury retired to deliberate at 11:30 A.M. August 1, 1973, and deliberated until recessed for the night. On August 2, 1973, the judge gave further instructions in response to two questions submitted by the jury with respect to the distinction between first and second degree murder. The jury continued its deliberations until 2:35 P.M. on the second day, and the judge then gave the supplementary charge set out in the margin, ² modeled in part on the charge in Commonwealth v. Tuey, 8 Cush. 1, 2 (1851). At 3:49 P.M. the jury returned to the court room with verdicts.

The charge was given four days before our decision in Commonwealth v. Rodriquez, --- Mass. ---, --- - ---, ^b 300 N.E.2d 192 (1973), and the judge did not have the benefit of our discussion and suggested revision of the Tuey charge. Since the Rodriquez decision, we have continued to uphold the use of the Tuey charge in cases tried before that decision. Commonwealth v. Valliere, --- Mass. ---, --- ^c, 321 N.E.2d 625 (1974); Cf. Commonwealth v....