Com. v. Campbell

• Decision Date: 02 September 1976
• Citation: 371 Mass. 40,353 N.E.2d 740
• Parties: COMMONWEALTH v. Paul W. CAMPBELL (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 740

353 N.E.2d 740

371 Mass. 40

COMMONWEALTH

v. Paul W. CAMPBELL (and three companion cases ¹).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 3, 1976.

Decided Sept. 2, 1976.

Martin K. Leppo, Boston, for defendants.

Robert B. Russell, Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

The defendants Paul W. Campbell and Salvatore J. Tripolone were tried together on indictments charging each of them with breaking and entering a building in the nighttime with intent to commit larceny and possession of burglarious implements. The trial was made subject to G.L. c. 278, §§ 33A--33G. A jury found them guilty on all of the indictments and they were each subsequently given sentences to a house of correction for a term of two years on the charge of breaking and entering, execution being stayed pending appeal, and to the Massachusetts Correctional Institution at Walpole for a term, of three to five years, suspended with a two-year probationary term from and after the first sentence, on the charge of possession of burglarious implements. We took the case on our own motion.

The defendants were policemen in the town of Braintree and were apprehended while in the course of burglarizing the Mai Tai restaurant in that town on February 10, 1974. The Braintree police had been alerted by one Fava, also a Braintree policeman, and they had staked out the restaurant on the night in question. Fava had met both the defendants at approximately 3 A.M. on that early morning. They had gone to the defendant Campbell's private place of business to pick up the burglar's tools whence they departed to the Mai Tai restaurant. The defendant Tripolone forced open the front door, and he and Campbell went inside. Shortly thereafter the police chief and other Braintree police officers converged on the restaurant and arrested the defendants. While seventy-eight assignments of error were alleged on behalf of each defendant, only a number of them are pressed here, and we discuss them making reference to such other evidence adduced at the trial as may be necessary.

1. Error is alleged by the defendant Tripolone in that the judge permitted testimony as to other crimes allegedly committed by him. We are aware that commission by a defendant of an independent crime 'cannot ordinarily be shown as evidence tending to show the commission of the crime charged.' Commonwealth v. Stone, 321 Mass. 471, 473, 73 N.E.2d 896, 897 (1947). See Commonwealth v. Green, 302 Mass. 547, 552, 20 N.E.2d 417 (1939). It would appear that the testimony of conversations between Fava and Tripolone was referring to other burglaries and robberies and was indicative of a general criminal intent on the part of Tripolone to engage in burglarious entreprises employing in part the specialized knowledge which was his as a policeman. The testimony demonstrated a common scheme and intent and falls within the law laid down in Commonwealth v. Scott, 123 Mass. 222 (1877). It cannot be considered vague or remote and, being relevant, was admissible. It is to be noted that the intent of these defendants on entering the restaurant on the night in question was crucial in this case. The Commonwealth on these indictments had the burden of proving that the intention of the defendants at that time was to commit a larceny. The defense offered was that Tripolone and Campbell, who were admittedly in the building immediately prior to their arrest, had entered the building for a lawful purpose, that of investigating what appeared to them to be a breaking and entering which they happened on while driving by the restaurant on the way to Tripolone's apartment. In light of all the other evidence in the case this explanation may appear rather implausible; nevertheless, given the fact that these defendants were off-duty policemen who arguably had some responsibility to investigate possible criminal activity when they encountered it, such an explanation might have some appeal with jurors or at least serve to raise a reasonable doubt in the minds of some. The Commonwealth properly could introduce evidence of past, similar crimes which tended to rebut the defense of innocent intent and make more probable the existence of the requisite illegal intent, that of committing a larceny. See Commonwealth v. Abbott Eng'r, Inc., 351 Mass. 568, 572--573, 222 N.E.2d 862 (1967); Commonwealth v. Butynski, 339 Mass. 151, 152--153, 158 N.E.2d 310 (1959); Commonwealth v. Scott, supra; 2 J. Wigmore, Evidence §§ 302, 348 (3d ed. 1940). The trial judge did not abuse his discretion in admitting this evidence.

2. Nor did the judge err in charging the jury that it was open to them to consider testimony on other crimes which Tripolone might have committed. He made it clear in his charge that he allowed Fava's testimony as to these crimes only on the narrow issue of whether Tripolone 'might have been involved in some scheme or plan to get money from the various places with which he was familiar through his duties as a police officer, but that is all.' He gave a further charge impressing on the jury that the defendants were not charged with any offenses other than those set forth in the indictments, and we see no error in the manner in which this issue was handled.

3. On behalf of the defendant Campbell, error was alleged in that the prosecutor was allowed by the judge to interrogate him concerning his knowledge of a series of unsolved breaks in the town of Braintree. In the judge's charge he stated that while there was testimony that Campbell knew of some other breaks, ...