Com. v. Clark

• Citation: 363 Mass. 467,295 N.E.2d 163
• Parties: COMMONWEALTH v. Richard CLARK, Jr. (and two companion cases 1 ).
• Decision Date: 13 April 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 163

295 N.E.2d 163

363 Mass. 467

COMMONWEALTH v. Richard CLARK, Jr. (and two companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1973.

Decided April 13, 1973.

Robert A. Stanziani, Boston, for Maurice Williams.

P. J. Piscitelli, Brockton, Richard M. Egbert, Boston, with him, for Richard Clark, Jr.

Newman A. Flanagan, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C. J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

REARDON, Justice.

The defendants were found guilty of murder in the second degree of one Leonard Vincent Castronova, and additionally the defendant Maurice Williams was found guilty of unlawfully carrying a firearm. Both defendants received life sentences, and Williams received a concurrent sentence for a term of years on the gun charge. The case taken under G.L. c. 278, §§ 33A--33G, is before us with the transcript of evidence, exhibits, and the defendants' assignments of error.

The evidence tended to show the following. On May 21, 1970, Castronova and one Mark Silverio drove to the Grove Hall section of Boston for the purposes of purchasing heroin. Silverio was driving a 1964 Dodge automobile which was owned by his aunt. Silverio had in his possession $5, although he knew that the selling price for a bag of heroin was at least $10. Castronova was carrying a loaded pistol, and a knife had been concealed by Silverio underneath the front seat cushion of the car. Arriving in the vicinity of Jules Pool Room they sought a seller of heroin and were then hailed by the defendant Clark who asked them, 'Are you looking?' Upon receiving an indication from Silverio that they were, Clark entered the automobile and gave the driver Silverio directions down Blue Hill Avenue and on to Devon Street. Silverio drove to the area indicated and stopped his car. Clark alighted from the car, disappeared around a corner, and in about two minutes was back with Williams who got in the back seat behind Castronova. Clark meanwhile got into the back seat behind Silverio. Williams handed Silverio a bag and said, 'Here's the stuff.' Silverio handed the bag to Castronova who tasted the substance in the bag and returned the bag to Silverio who also tasted it. Silverio then gave the bag back to Williams saying, 'We don't want it. It's not heroin.' Williams said, 'You made me open this and you are going to buy it,' and at that point produced a gun. Both Silverio and Castronova told Williams they had no money with which to buy the heroin, at which point Williams said, 'Okay, let me out of this . . . car.' Thereafter Williams alighted from the passenger's side of the car which had two doors only, and Clark from the driver's side. While standing within serval feet of the car outside Castronova's open window with a gun in his hand Williams said, '(G)et the hell out of here.' As Silverio put his foot to the accelerator and the car began to go forward he heard a gun discharge, and Castronova said that he had been shot. Silverio drove Castronova to the Carney Hospital where a discussion took place in the parking space as to what each should tell the doctor and the police. Silverio and Castronova had arrived at the hospital between 8:30 and 8:45 P.M., and several hours later, while in surgery, Castronova died. Other pertinent facts will be treated in the consideration of the several assignments of error which we now discuss.

1. Error is alleged in admission of the testimony of Silverio (who was missing at the time of trial) which was taken stenographically at a previous trial of the indictments which ended in a jury disagreement. The defendants allege that the Commonwealth had not proven the necessity of it or shown a diligent effort to find the missing witness. A thorough discussion of the problem presented by this assignment is contained in Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; California v. Green, 399 U.S 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. Initially it may be said that the testimony of Silverio was crucial. Apart from the defendants, he was the only other surviving witness to the shooting. His memory of the events was of extreme importance in assessing possible guilt. There thus existed a necessity for his presence in so far as the Commonwealth was concerned. Silverio's testimony had been given at the first complete trial of the charges against these defendants, and at that trial each defendant had a full opportunity to cross-examine him. See Commonwealth v. Mustone, 353 Mass. 490, 492, 233 N.E.2d 1. Silverio's testimony was available in accurate and complete form and was read to the jury. We hold that the principles which apply in the case of a witness made unavailable by death or insanity likewise apply in this instance.

Furthermore, there is no question but that the Commonwealth had mounted a diligent search. Silverio, a known drug addict, was a familiar person to several police departments, all of which joined in looking for him. His wife, mother, aunt and grandparents were checked. Police in Quincy, Hyde Park, West Roxbury and Newburyport, with default warrants in hand, were on the lookout for him, and he was particularly sought by his wife for the service of a divorce libel. All of these activities took place shortly before the trial. No further good purpose would be served by describing them in detail. Suffice it to say that our review of the transcript indicates that they constituted a diligent search.

2. One Jones gave evidence that on May 25 or 26, 1970, four or five days after the homicide, Williams approached him to borrow $20, and that he lent Williams that sum, receiving as security a long-barrel black gun with a white handle which had '22' caliber imprinted on it. The defendant Williams objects to this testimony as to the caliber of the gun on the ground that it was hearsay since the out-of-court imprint on the gun is an assertion offered for its truth. We see no error in admitting the evidence. Labels and brand names have been held admissible to prove, e.g., the resident port of a ship (Stearns v. Doe, 12 Gray 482); the source of beer in a barrel (Commonwealth v. Collier, 134 Mass. 203); the contents of a box (Kennedy v. State, 182 Ala. 10, 17--18, 62 So. 49); and the contents of a package (State v. Lizotte, 230 A.2d 414, 417 (Maine); State v. Rines, 269 A.2d 9, 13--14 (Maine)). A label indicating the size of a gun is no less competent evidence.

3. Both defendants complain of the refusal of the judge to charge the jury on involuntary manslaughter. 'Involuntary manslaughter is an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life . . . or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.' Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211, 218. See Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902, and Commonwealth v. McCauley, 355 Mass. 554, 560, 246 N.E.2d 425. The evidence in this case permitted a finding that the deceased was killed by a shot fired by the defendant Williams standing near the car, with a gun pointed in the deceased's direction. It has been...