Com. v. Carita

Decision Date04 June 1969
Citation249 N.E.2d 5,356 Mass. 132
PartiesCOMMONWEALTH v. David C. CARITA et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert A. Stanziani, Boston, for defendant Wise.

Thomas C. Troy, Reading, for defendant Fondanova.

Henry E. Quarles, Sr., Boston, for defendant Carita.

Albert L. Hutton, Jr., Boston, for defendant Lynch.

Lawrence L. Cameron, Asst. Dist. Atty., for the Commonwealth.

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

The defendants, David C. Carita, Sabatino A. Fondanova, Francis B. Lynch and Paul J. Wise, appeal under G.L. c. 278, §§ 33A--33G, as amended, their convictions on indictments charging them with murder in the first degree and armed robbery. The jury having in each case recommended that the death sentence be not imposed on the murder indictments, the defendants were sentenced to life imprisonment. On the indictments for armed robbery, sentences for terms of years were imposed to be served concurrently with the several sentences on the convictions for murder. The cases are before us on a summary of the record, a transcript of the evidence and assignments of error.

There was evidence that at approximately 10:20 P.M. on February 3, 1966, Morris J. Yanes, a clerk employed by Sandler's liquor store on Columbia Road in Dorchester, was discovered in a snowbank outside that establishment. He was removed to the Boston City Hospital where a quarter of an hour later he was pronounced dead. An autopsy report subsequently determined that he met his death as a result of a gunshot wound in the chest causing massive hemorrhaging.

The four defendants, who knew each other, spent the evening of February 2, 1966, in a cocktail bar, leaving about 1 A.M. on February 3, in the company of four girls with whom they went to the defendant Carita's apartment where they proceeded to drink beer and take pills containing narcotics. This party lasted until 8 A.M. At 3:30 P.M. the defendants had come together at the apartment of one Rita Howlett where Carita announced he had a 'score.' He further stated, 'I can get the car; I can go like a teacher or, if I have to, I can go fast like hell.' On this occasion guns were in the hands of three of the defendants; Fondanova had a forty-five calibre weapon while Carita had a thirty-two calibre weapon and Wise a twenty-two calibre weapon. Carita left the apartment about 7 P.M. and returned in an hour. One D'Ambrosia had parked a 1965 maroon Pontiac on Stoughton Street, near Harrison Avenue, Boston, on that evening and when he returned an hour and a half later the car was gone. The defendants left the Howlett apartment together at 9:15 P.M. in a maroon Pontiac with Carita driving and returned at 11:15 P.M.

Two witnesses who had just completed a purchase at Sandler's liquor store were a few minutes later walking down a nearby street when they heard shots. Both saw a maroon Pontiac headed south on Columbia Road with a man running alongside. One of these witnesses testified that the running man resembled Fondanova. The second witness returned to the snowbank where Yanes was lying, turned him over, and observed blood coming from his chest. He found in the snowbank a fifth of Scotch whiskey and $11 in bills which he later turned over to the police. A third witness also heard the shots and saw the maroon Pontiac pulling away with a man looking like Fondanova running beside the car.

A woman and her young son, who lived across the street from the liquor store, likewise heard the shots and from their window saw two men run from the liquor store and exchange shots. The son saw one of the men grab his chest and fall. His mother recognized the victim as Yanes. Both saw the maroon Pontiac leave the scene with three occupants inside and a man running beside the car. Both identified pictures of the stolen Pontiac as resembling the car which they saw depart the scene. Police arriving at the store took into custody the $11 in bills, the bottle of Scotch whiskey, a twenty-five calibre revolver belonging to Yanes from which four rounds had been fired, and a fully loaded thirty-eight calibre weapon in a holster strapped around the victim's waist which had not been fired. Several hours later the police found the stolen Pontiac sedan a half mile from the liquor store with several shattered windows and containing two thirty-two calibre casings and one spent twenty-two calibre bullet. A second clerk at Sandler's liquor store found on an inventory the following morning that $11 and one bottle of Cutty Sark Scotch whiskey were missing.

The several defendants were arrested in various locations during the following month, one in a South Boston closet, one in Princeton, New Jersey, and Carita in Dorchester where he was observed at the time of his arrest to hurl a thirty-two calibre weapon from a bedroom window.

Counsel for the four men took one thousand, six hundred and fourteen exceptions to rulings made by the trial judge during the course of the trial. We concern ourselves with the comparatively few exceptions which form the basis for the assignments of error and treat with additional evidence adduced and not previously referred to as may be necessary in our disposition of those assignments.

1. Prior to a discussion of a number of assignments of error we treat with the claim of the defendant Wise that it was error to deny his motion for a directed verdict of not guilty on the murder indictment brought against him. His argument is premised on the consideration that evidence was lacking to prove that he participated in the robbery or attempted robbery. Nothwithstanding that he alleged no assignment of error in this regard, he has argued the motion at length in the defendants' brief and we consider it. In sum, there was evidence that he was in the company of his fellow defendants for the greater part of two days, that he was present when Carita proclaimed he had a 'score,' that at that time he was in possession of a twenty-two calibre gun, that he left the Howlett apartment in company with the other defendants prior to the time the crime was committed, and that in addition to other evidence to which reference has been made he engaged in flight and was ultimately arrested in New Jersey where he was employed under an assumed name. The evidence against him was substantial enough to warrant the denial of his motion.

2. Carita's assignments 19, 20 and 21, Fondanova's assignments 2 and 30, Lynch's assignments 1, 22, 23 and 24, and Wise's assignment 45 raise the question of possible error by the court in denying the defendants' motions to sever. The defendants argue that the Commonwealth was aware of, and the attention of the trial judge was called to, the possibility that admissions and confessions might during the course of trial be offered against one defendant which would have the effect of incriminating one or more of his fellow defendants. They further argue cases of individual prejudice in that being called to take the stand by certain of their codefendants their refusal to testify amounted to prejudicial comment which created for each of them a 'serious dilemma.' They claim that 'they had a right under one constitutional provision to cross-examine regarding evidence which came into the trial against them and at the same time were possessed of a countervailing constitutional right not to take the witness stand or in any other way be compelled to incriminate themselves.'

We deal first with the evidence which is under attack. This consists of two alleged admissions or confessions. The first one was introduced through the witness MacAskill, a friend of Lynch and Fondanova, who testified, 'I asked Lynch if he had stuck up the liquor store on Columbia Road the night before.' In response to the question, 'What did he say?' he replied, 'He said, 'Yes, we did,' and he said, 'But there's no worry about getting caught, because we got rid of the guns and the car, and there were no witnesses.' He then said that they didn't get anything, because they fell on the street coming out of the store and dropped the money. He said that the owner had come out and fired shots at them, and that they fired shots back and killed him.'

The second was elicited through the witness, Joyce O'Brien, who testified as follow: 'He (the defendant, Fondanova) told me that there was a holdup and that it got fouled up.' THE COURT: 'He told you there was a holdup and that it got fouled up? What else did he tell you, if anything?' THE WITNESS: 'He told me that Carita went into the store.' THE COURT: 'He told you that Carita went into the store?' THE WITNESS: 'And that he came running out, Carita came running out of the store and there was a man running after him shooting at him. And he said--he said Carita shot the man.' THE COURT: 'He said Carita shot the man?' THE WITNESS: 'Yah. And I asked him, I said, What did you do? And he said--' THE COURT: 'You asked him 'What did you do' and he said what?' THE WITNESS: 'He said he didn't know what to do, so he ran for the car. And that the car was leaving without him and he almost didn't make it.' THE COURT: 'The car was leaving without him and he almost did not make it?' THE WITNESS: 'Yah. And he said he thought that the man was dead, and he was sorry he got mixed up in it.' The defendants contend that the vice inherent in the admission of this material was not cured by the limitations relative to it imposed by the trial judge contemporaneously or by similar limitations appearing in his charge.

The Commonwealth notes in its brief that the answer of the witness Joyce O'Brien implicating Carita as the person who shot the victim took it by complete surprise.

The case was tried through most of the month of July, 1966. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, came down on May 20, 1968, and was followed by Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, ...

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