Com. v. Cefalo

• Decision Date: 18 August 1980
• Citation: 409 N.E.2d 719,381 Mass. 319
• Parties: COMMONWEALTH v. Robert J. CEFALO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 719

409 N.E.2d 719

381 Mass. 319

COMMONWEALTH v. Robert J. CEFALO.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 3, 1980.

Decided Aug. 18, 1980.

Joseph F. Flynn, Rockland, for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for Commonwealth.

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

QUIRICO, Justice.

On October 18, 1976, the defendant was convicted of murder in the first degree and sentenced to life imprisonment at Massachusetts Correctional Institution, Walpole. He appeals from this conviction, and from the denial of the second of his two motions for a new trial. ¹

The defendant raises three issues which were preserved by objection and exception. He argues: (1) that the search of his hotel room and seizure of items therefrom was illegal; (2) that limitation on recross-examination of a Commonwealth witness was improper; and (3) that the trial judge erred in denying a motion for a new trial on the basis of blood tests performed after the trial.

In addition, he raises six issues for the first time on appeal. He challenges: (1) failure of the prosecution to produce a witness whose expected testimony was outlined in the prosecutor's opening statement; (2) the judge's instructions regarding use by the jury of prior convictions to assess credibility; (3) allusions by a Commonwealth witness to a prior crime allegedly committed by the defendant; (4) references to the probable cause hearing by the prosecutor; (5) statements made by the judge to one Lee K. Callahan regarding her decision whether to testify at the defendant's trial; and (6) statements made by the prosecutor in his closing argument. Finally, he urges this court to reduce the conviction to murder in the second degree or manslaughter. We find no error, and affirm the conviction and the denial of a new trial.

We summarize the relevant evidence. At approximately 2:10 A.M. on February 29, 1976, a motorist approached a police cruiser of the city of Lynn. As a result of the information received from the motorist, Officers George Clarke and Roy Mullen proceeded to the corner of Orchard and Summer Streets, where they observed a black Ford Thunderbird automobile with the driver's door partially open and a person's leg protruding from the car. They found a body in the car, which they recognized as that of James Daniel Hynes. Hynes' body and the inside of the automobile were spattered with blood, and there was blood about Hynes' mouth and head.

The police officers left the scene of the crime to go to a nearby Dunkin Donuts shop, which they knew was frequented by Hynes' roommate, Harry Shamberger. There they asked Shamberger if he knew that Hynes was dead, and Shamberger said he did. He would not then tell them more, but later at the police station he gave a full account implicating the defendant. His statement was reduced to writing.

Harry Shamberger testified that he and Hynes had observed a dark green Cadillac automobile, with Callahan and the defendant riding therein, on the evening of February 26, 1976. Shamberger asked the defendant if he had "made a score," because of the car. The defendant, Hynes, and Shamberger exchanged angry words, and Hynes hit the defendant, who had alighted from the car. He fell to the ground, got up, and told Hynes that he "hit like a broad." This less than friendly banter continued, whereupon Hynes hit the defendant again. The police arrived, and the defendant and Hynes shook hands.

Shamberger said that on the evening of the homicide, February 28, he and Hynes were at the Lynn Tap and Grill until closing time, 1 A.M., then went to Jeffries' Lounge on Buffum Street in Lynn. After fifteen or twenty minutes, Hynes said he was not feeling well and left in his black Thunderbird to go home. Shamberger stayed only five or ten minutes more, until 1:25 or 1:30 A.M., then walked home. It took him fifteen to twenty minutes to arrive at Walden Street, which intersects with Summer Street a short block from the scene of the crime. He saw the same Cadillac he had seen on February 26 pass by him at a slow speed and recognized the passenger as the defendant. The car proceeded along Summer Street toward Breed Square, then turned and headed back toward Shamberger. Shamberger stepped into a driveway when he saw the car turn around. The car came to a stop almost directly across from him, on Summer Street. Shamberger observed that Lee Callahan was driving. In order to avoid being seen, Shamberger positioned himself against the back fence of the driveway.

The defendant got out of the car and walked to 498 Summer Street and started up the steps. Just then, Hynes' Thunderbird came down the street. ² After that car stopped, the defendant ran toward it. He got behind the Thunderbird, took his left hand from his pocket and put an object into his right hand-Shamberger could not see the object. The defendant knocked on the window of the Thunderbird, the door opened, and "then he had just reached in and fired." The gunshots lit up the car's interior. Shamberger heard two fast shots, then possibly another, but he was not certain. ³ He estimated that the shooting occurred at about 1:50 or 1:55 A.M. The defendant reached into the car briefly and "did something" to Hynes. Then the defendant ran to the Cadillac, which "took off at a fairly high rate of speed."

Shamberger did not check Hynes' condition, but walked away for some distance, eventually stopping at the Dunkin Donuts shop on Western Avenue. He stood in the parking lot, because he "felt pretty sick," then he went inside. After the police arrived, he accompanied them to the station, where he told them what he had seen.

After Shamberger told his story, Officer Mullen went from the Lynn police station to the home of Joseph Curcio in Lynn. Curcio returned with Mullen to the station and made a statement. Curcio, a taxicab dispatcher in Lynn, testified at trial that he had lent his Cadillac to Lee Callahan, the defendant's girl friend, ⁴ shortly after midnight on the morning of February 29. She returned it at 2:05 A.M. that same morning.

Chesley Ronald Taylor, Jr., testified that he was at the Pinecrest Bar in Central Square, Lynn, on the evening of February 28-29, 1976. The defendant came into the bar alone, spoke to the bartender (who testified that the defendant unsuccessfully requested a loan of thirty dollars), and proceeded to the other end of the bar where he uttered profanities to Herbie Michel, a customer seated at the bar, and slapped Michel across the face. The defendant then left the bar. He returned shortly after midnight, with his girl friend, Lee Callahan. He was in a good mood and offered to buy everyone a drink. Taylor refused the drink because of the earlier incident with Michel. Taylor and the defendant got into an argument and went outside to fight. After hitting him once, Taylor decided that the defendant "was in no condition to fight any more," and Taylor reentered the bar. A moment later, the defendant also went inside, where he kept insulting Taylor and wanted to fight again. The defendant was bleeding from the mouth. He accused Taylor of breaking his dental plate. The bartender gave the defendant some towels and told him to clean up, which he did, and then the defendant left with Callahan. The bartender closed the bar at 1 A.M., but he and two patrons remained inside. Some time later, the three men heard knocking on the door. The bartender went to the door, noticed that the clock on the wall read 1:50 A.M., and discovered the defendant and Callahan at the door. He told the defendant to "forget about it" and "straighten it out tomorrow." The defendant and Callahan then left. On the way back into the bar, the bartender noticed a second clock, and it was still 1:50 A.M.

After Shamberger related his story, he took police to the scene of the homicide and pointed things out. Captain Courtney ordered some officers to stake out the Olympic Hotel. The police obtained a search warrant for room 1-A of that hotel, where Shamberger said the defendant resided. They also obtained a warrant for the defendant's arrest. They found the defendant and Callahan in bed and arrested both, seizing articles of clothing and other items from the room. Further details concerning the search and seizure are given below.

Dr. George Katsas, the State pathologist, performed an autopsy on Hynes later that morning. He testified at trial that the autopsy revealed four bullet wounds on the face, with two bullets having penetrated the brain. He said the cause of death was multiple gunshot wounds with perforation of the brain, and hemorrhage.

Kenneth Gagnon, a State chemist, testified that he performed certain tests on the items seized from the defendant's room and from the defendant's person. All items with blood stains, including the defendant's dental plate, contained group "O" type blood stains. Hynes' blood was tested and found to be group "O." Stains from the inside of the Thunderbird in which Hynes died were also found to be group "O." Nowhere in the record, including that of the second motion for a new trial, does information appear regarding the blood type of the defendant.

1. Legality of the search and seizure. The defendant argues that the seizure of the clothing was not justified under the search warrant and supporting affidavit, because the latter did not on its face establish probable cause for the magistrate to believe that bloodstained clothing would be at the Olympic Hotel. In addition to Federal and State constitutional grounds, he bases this argument on G.L. c. 276, §§ 1, 2, 2A, 2B. He argues further that the seizure of a bloodstained jacket and shirt at the hotel cannot be justified by the "plain view" doctrine because the discovery of these items was not "inadvertent." See Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 2037-2042, 29 L.Ed.2d 564 (1971).

a. Items seized. When police entered the defendant's...