Com. v. Burnett

• Decision Date: 25 August 1976
• Parties: COMMONWEALTH v. Neil BURNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 665

353 N.E.2d 665

371 Mass. 13

COMMONWEALTH

v. Neil BURNETT.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 1, 1976.

Decided Aug. 25, 1976.

Malvine Nathanson, Boston, for defendant.

Michael T. Stella, Jr., Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

This case is here under the provisions of G.L. c. 278, §§ 33A--33G, on an assignment of errors by the defendant who was found guilty on two indictments, one charging murder in the first degree and the other charging armed robbery. The jury could have found the facts to be as follows.

On the morning of August 26, 1972, Joseph Saba, who owned and operated a variety store in Methuen, was killed by multiple gunshot wounds caused by bullets from a .22 caliber gun which belonged to one Richard Waithe. Waithe wassubsequently indicted as a principal, being likewise charged with murder and armed robbery. He agreed, however, to testify at the trial of the defendant and did so on the basis that the indictments against him would be nol prossed or dismissed, and that he would be charged as an accessory after the fact.

On August 25, 1972, the defendant, Waithe and two women with whom they were living engaged in a period of drinking at their apartment in Lawrence followed by a ride around Lawrence, Methouen and Haverhill in Waithe's car, from which they returned to the apartment about 10 P.M. or 10:30 P.M. At 12:30 A.M. Wiathe and the defendant went driving again in the same car, returning once more to the apartment between 2:30 A.M. and 3 A.M. Thereafter, about 3:15 A.M., the defendant and Waithe again left the apartment to drive around in Waithe's car. Having stolen some bread from the exterior of a market, they procured some gasoline at a gasoline station in Methuen and continued to travel around the same areas. Between 6:45 A.M. and 7:15 A.M. they paused across the street from Saba's market in Methuen, and the defendant remarked that he was going to steal some cold cuts to go with the bread. The defendant at this time was dressed in a pair of cutoff dungarees and a dungaree jacket. Waithe remained in the car and the defendant walked around a corner. Forty-five to sixty seconds later he saw the defendant in the middle of the street with a gun in his hand, following which the defendant disappaeared from view around the corner. Some fifteen or twenty seconds later he heard some sounds that resembled a car backfiring, followed by the defendant running toward the car. As the defendant entered the car, Waithe saw a gun which he recognized as his in the defendant's hand. The defendant then announced, 'I just shot a man,' and advised Waithe, 'Get out of here or I'll shoot you, too!'

The cash register in Saba's market ordinarily contained approximartely $150 in denominations of $10, $5, and $1 bills as business opened in the morning. A Methuen police sergeant viewing the cash register about 8 A.M. noted $10 and $5 bills but observed two empty compartments in the register with no $1 bills to be seen.

Several witnesses testified to hearing the shots inside Saba's market and to seeing a tall, thin black man emerge from the store with a gun in his hand; one witness observed that the man was wearing dungaree shorts. Waithe's apartment was searched pursuant to a search warrant on August 30, 1972, and the Methuen police officer seized a pair of dungaree shorts on which a State chemist found evidence of human blood. There was evidence that one of the women who lived at the apartment had seen the defendant practicing with a gun which resembled a .22 caliber pistol. This same witness also testified to seeing a roll of money in the defendant's prossession late on August 26. The defendant endeavored to account for the money in his possession, stating that he had made a sale of certain stolen furs and watches. There was additional evidence from other witnesses on facets of the case bearing on the guilt of the defendant.

Three assignments of error are pressed.

1. It is first argued that portions of the trial judge's charge to the jury regarding sentencing and parole eligibility were erroneous and required reversal. Included in the charge was language that the jury actually impose the sentence and that if they found the defendant guilty of murder in the first degree he would receive a life sentence with no parole eligibility, while if they returned a verdict of murder in the second degree he would also receive a life sentence but would be eligible for parole in fifteen years. Reference is made by the defendant to a long-standing rule in Massachusetts that the trial judge may not engage in such instructions. See Commonwealth v. Mutina, --- Mass. ---, ---, n. 12 ^a, 323 N.E.2d 294 (1975). See also the discussion by Justice Spalding in Commonwealth v. Goodwin, 356 Mass. 632, 633--634, 255 N.E.2d 188 (1970), of Commonwealth v. McNeil, 328 Mass. 436, 442, 104 N.E.2d 153 (1952). While there was a failure to except to that portion of the charge which is under attack in this assignment, we nonetheless consider it under G.L. c. 278, § 33E, mindful of the principle that while we may examine errors not brought to the judge's attention under the above section, we will only reverse on a showing of grave prejudice. See Coimmonwealth v. Coleman, --- Mass. ---, --- ^b, 322 N.E.2d 407 (1975). We reiterate what we have said in rpior opinions. The trial judge is not to explain to the jury what parole conditions are for murder in the first degree or what they are if the defendant is found guilty of murder in the second degree. Such instructions tread closely to reversible error and are to be avoided. The Commonwealth argues that language of the charge in Commonwealth v. Goodwin, supra, parallels the trial judge's charge on this phase of the case here. However, in the Goodwin case the jury were told that 'the matter of parole in the statute is of no concern to the jury,' while here the jury were advised that murder in the second degree would carry a life term with parole eligibility after fifteen years.

In this instance a review of the transcript indicates that the comments of defense counsel dwelt on the same subject of possible sentences for the crime of murder. It could be argued that there was some necessity on the part of the judge to engage in instructions along the lines that he gave them at least to the extent of correcting the impression the jurors may have gathered from defense counsel that the defendant was subject to the death penalty if convicted. Furthermore, the failure to object or except to this aspect of the judge's charge may have been the result of a deliberate tactical decision on the part of the defense. Counsel may well have reasoned that informing the jury of the sentencing outcomes associated with possible verdicts improved his client's chances of avoiding a verdict of guilty of murder in the first degree; and, in fact, most of the cases cited on this issue by the...