Com. v. Cepulonis

• Decision Date: 24 February 1978
• Citation: 374 Mass. 487,373 N.E.2d 1136
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1136

373 N.E.2d 1136

374 Mass. 487

COMMONWEALTH v. Richard A. CEPULONIS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 3, 1978.

Decided Feb. 24, 1978.

Robert W. Harrington, Westwood, Judith E. Diamond, Boston, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

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

KAPLAN, Justice.

At trial in the Superior Court, Middlesex County, of five indictments, to be specified below, the following appeared. The crimes stemmed from a robbery on August 9, 1973 not directly charged in these five indictments in which the defendant Cepulonis with Frank Lovell (a codefendant) and James Guimond (a Commonwealth witness), all masked and armed with machine guns, held up a branch of the Suburban National Bank in Woburn, fired their guns to intimidate the customers and employees of the bank, and stole approximately $17,000. A witness, Dorothy Juliano, had seen the three men driving up in a yellow Mustang automobile and, suspecting that a robbery was in progress, telephoned the police. Officer John P. Gibbons, in a cruiser, spotted the car as it left the scene, and gave chase. He was met by gunfire from two men riding in the car, later identified as the defendant and Lovell, one firing through the rear window and the other hanging out a side window. At one point in the chase a car driven by Ann Moselunas came between the Mustang and Gibbons. Moselunas was wounded by shots from the Mustang smashing through the windshield of her car. Finally the robbers eluded their single pursuer. The Mustang, a stolen car, was later found abandoned.

The defendant's involvement in the criminal events was proved impressively by testimony of Federal agents and State police who described the clues and how they followed them to close on the defendant and Lovell and accomplish their arrest in New York in September, 1973. Guimond as a participant in many of the events gave compelling testimony and the Commonwealth's case was further buttressed by Richard Vidito, at whose apartment the robbers met the day before the robbery and to which the defendant and Lovell returned the day of the crime.

To trace the several prosecutions following upon the robbery: The defendant was convicted in February, 1974, in the United States District Court for the Eastern District of New York of the knowing possession of an unregistered firearm, to wit, a machine gun, in violation of 26 U.S.C. § 5861(d) (1970), and was sentenced to five years' imprisonment. In October, 1974, he and Lovell were found guilty in the United States District Court for Massachusetts of robbing a federally-insured bank while assaulting and putting in jeopardy the bank employees by use of dangerous weapons (18 U.S.C. § 2113(a) and (d) (1970)), and received a sentence of twenty-five years, concurrent with the previous sentence.

Also in February, 1974, the Middlesex County grand jury returned seven indictments against the defendant and James Lovell for the offenses of armed robbery (G.L. c. 265, § 17); confining or putting in fear for the purpose of stealing (G.L. c. 265, § 21); assault with intent to murder Gibbons (G.L. c. 265, § 15); a like assault and also assault with a dangerous weapon (G.L. c. 265, § 15B) as to Moselunas; concealment of a stolen motor vehicle (G.L. c. 266, § 28); and unlawful possession of a machine gun (G.L. c. 269, § 10).

The defendants moved before trial to dismiss all the indictments on the ground of former jeopardy. After a hearing in January , 1975, a judge of the Superior Court dismissed the indictments for armed robbery and confining. Trial proceeded on the remaining indictments. The defendants were found guilty of all the crimes there charged, and from the judgments of conviction ¹ they severally appealed under G.L. c 278, §§ 33A-33G. We took Cepulonis's appeal for direct review and decide that alone in this opinion. This defendant renews his claim of former jeopardy and presses a number of other points arising in the course of trial. We affirm his convictions.

1. Former jeopardy. The defendant contends that the Massachusetts charges of which he has been convicted should have been held barred by reason of the prior Federal prosecution (whether for the bank robbery, possession of the weapon, or both, he does not say). The answer is that this contention (i) cannot be made successfully as a matter of Federal constitutional right, and (ii) fails on the present facts if we apply although without constitutional compulsion a rule with respect to successive Federal and State prosecutions similar to the "same evidence" test that this court has regularly applied to repetitive prosecutions within the Commonwealth.

Under still reigning authority of the Supreme Court of the United States, there is nothing unconstitutional about a State prosecution that is precisely duplicative of a prior Federal trial; and the converse is also true. These results follow from a "two-sovereignty principle" (Bartkus v. Illinois, 359 U.S. 121, 134, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (Frankfurter, J.) (five to four decision)): the United States and the several States are conceived to have distinct competencies so that the action of one sovereign does not eliminate or supersede the authority of the other, and is not relevant in determining whether an individual liberty has been invaded by that other. Bartkus v. Illinois, supra, (subsequent State trial). Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (subsequent Federal trial) (six to three decision).

We need not describe fully the large and well known critical commentary which argues for some constitutional limit on repetitive Federal-State trials and punishments. The Bartkus position has been attacked as unhistorical, and also as morally wrong. ² (On the latter point, see especially Black, J., dissenting in Bartkus, supra, 359 U.S. at 150-164, 79 S.Ct. 676.) ³ And some attritions of the two-sovereignty notion are pointed to that might influence the constitutional law of double jeopardy. Thus it is no longer the case that the Federal courts will admit evidence illegally seized by State authorities (Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)), and a State may not compel testimony under a promise of immunity which does not protect against Federal prosecution (Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)). See Schaefer, Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, 58 Calif.L.Rev. 391, 401 (1970).

Notwithstanding its possible infirmities, the Bartkus-Abbate view is the present law of the Supreme Court, and recognized as such. ⁴ We look to that Court for interpretation of the double-jeopardy guaranty in so far as it now binds us under the Fourteenth Amendment (Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)), and in that respect we of course accept Bartkus. And if our own Declaration of Rights is taken to include a double-jeopardy guaranty (a proposition, as it happens, never explicitly adopted ⁵), we would not be inclined at present, on these facts, to interpret our guaranty more generously than Bartkus to impose constitutional limits on State prosecutions following Federal convictions or acquittals of similar offenses. But cf. People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976).

But there is a great difference between constitutionalizing a restriction, and voluntarily applying a common sense limitation, whether by judicial, prosecutorial, or legislative decision. This the Supreme Court opinions not only do not forbid, but actively encourage. See Bartkus, supra, 359 U.S. at 138-139, 79 S.Ct. 676. And this is the path that has been followed federally, and by many States.

The Bartkus and Abbate cases were decided on March 30, 1959. On April 6, 1959, the Attorney General issued a directive to United States Attorneys stating that "(i)t is our duty to observe not only the rulings of the Court but the spirit of the rulings as well." The Attorney General added that "(a) fter a state prosecution there should be no federal trial for the same act or acts unless the reasons are compelling. . . . (N)o federal case should be tried when there has already been a state prosecution for substantially the same act or acts" without the approval of an assistant attorney general after consultation with the Attorney General. Department of Justice Press Release, April 6, 1959, 27 U.S.L.W. 2509 (1959). This has remained the policy of the Department of Justice. On a few occasions Federal prosecutions have been initiated mistakenly, and the government has then sought dismissals to conform to the policy of the directive. In such cases the Supreme Court has supported the policy "to protect the individual from unfairness associated with needless multiple prosecutions." Rinaldi v. United States, --- U.S. ----, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977) (per curiam). See cases cited id. at ---- n. 8, 98 S.Ct. at 83 n. 8, and Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960).

By the time of the Bartkus decision a considerable number of States had already enacted statutes intended to eliminate redundant State prosecutions following Federal trials, ⁶ and more States have done so since. ⁷ The American Law Institute's Model Penal Code proposes legislation on this line at § 1.10 (Proposed Official Draft 1962). Among the States with such laws are California, ⁸ Illinois, ⁹ and New York. ¹⁰ The Supreme Court of Michigan has reached a like result as a matter of State constitutional law, People v. Cooper, supra, while Pennsylvania has done so without constitutional reference, Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). Some State courts have overlooked the invitation of Bartkus or have declined it; ¹¹ others have not had occasion to respond.

Owing, perhaps, to the sound exercise of discretion...