Com. v. Connearney

• Citation: 268 N.E.2d 662,359 Mass. 200
• Parties: COMMONWEALTH v. John F. CONNEARNEY.
• Decision Date: 07 April 1971
• Court: United States State Supreme Judicial Court of Massachusetts

Page 662

268 N.E.2d 662

359 Mass. 200

COMMONWEALTH v. John F. CONNEARNEY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 2, 1971.

Decided April 7, 1971.

E. Peter Mullane, Cambridge, for defendant.

John P. Connor, Jr., and Robert J. Fleming, Sp. Asst. Attys. Gen., for the Commonwealth.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL and BRAUCHER, JJ.

TAURO, Chief Justice.

John F. Connearney, Gerhard N. Letellier and William Hayes were tried as co-defendants for the murder of Joseph Dermandy. A verdict of not guilty was directed for Hayes, and Letellier was found not guilty by the jury. Connearney was convicted of murder in the second degree and has appealed under G.L. c. 278, §§ 33A--33G.

The evidence is summarized: On the evening of June 28, 1968, Dermandy was slain in his cell at the Massachusetts Correctional Institution at Norfolk. The cause of death was multiple stab wounds in the back. One Gerald Wallace testified that on the afternoon of June 28, 1968, he and the defendants Connearney and Letellier had some discusion as to who had gone to the administration in connection with the searching of another inmate's room. He quoted Connearney as saying that Dermandy probably was the person involved and that Dermandy called Hayes a locker thief. That evening, at approximately 8:15 P.M., Wallace saw Letellier and Connearney enter, leave, and then return to Dermandy's room. At approximately 8:30 P.M., Connearney, Letellier and Dermandy left the room. About 8:45 P.M., the three codefendants entered Dermandy's room. Letellier came out and asked Wallace for a knife. Wallace replied that Dermandy had two knives in the bathroom. Wallace showed Letellier the location of the knives and Letellier placed one knife behind a radiator and the other in his pocket. Around 9:15 P.M., Wallace went to Dermandy's room where he observed Letellier with a knife in his hand, either putting it into or taking it out of Dermandy, and Connearney lifting Dermandy's body off the floor with a cord around Dermandy's neck. The codefendant Hayes was also in the room. Wallace assisted another inmate in placing the body on the bed. After Wallace had washed his hands Letellier told Wallace, 'Take the knife. Take the knife. I have to wash up.' Wallace and O'Brien, another inmate, attempted to dispose of the knife, but Wallace could not remember what happened to it.

Albert P. Guilmette, another inmate, testified that around 9 P.M., he heard a noise and saw a group of men going to Dermandy's room. A short time later Connearney and Wallace came to Guilmette's room and Connearney said, 'We have Dermody (sic) down there. * * * We are going to have to kill him.' Connearney later saw Guilmette and told him that Dermandy was dead and warned him and Joseph Martin, another inmate, about saying anything or else 'we will get you and we will get your family.' These statements were limited by the trial judge to Connearney. Joseph Martin corroborated Guilmette's testimony as to Connearney's statements. Martin also testified that he saw Connearney, Wallace and O'Brien in Dermandy's room and that Connearney had a knife in his hand.

Letellier rested his case immediately after the Commonwealth rested and was permitted to absent himself from the court room while Connearney presented his defence. Letellier returned to the court room after Connearney rested his case.

The case went to the jury at 10:20 A.M. on July 29, 1969. At 9:55 P.M., the trial judge gave the Tuey (Commonwealth v. Tuey, 8 Cush. 1) charge. At midnight the jury were permitted to retire and resume deliberations the following morning. At 2 P.M., the jury returned a verdict of not guilty for Letellier and guilty for Connearney.

1. Connearney contends that the verdicts of guilty as to him, and not guilty as to Letellier, are inconsistent and in violation of Connearney's constitutional rights. He argues that the inconsistency arises from the fact that the evidence introduced by the Commonwealth was substantially based on the same facts and the same witnesses against each of the defendants. We disagree. The record clearly contradicts his claim. The evidence against him appears to be more substantial and persuasive than the evidence against Letellier. The witness Albert P. Guilmette testified that Connearney said to him, 'We have Dermody (sic) down there. * * * We are going to have to kill him.' This conversation was limited by the judge to Connearney. Other inculpatory statements before and after the murder were introduced only against Connearney. Thus, Guilmette quoted Connearney as saying, on the night of the homicide, 'This ain't the first guy I killed. He's a punk and he deserves to die.' Joseph Martin corroborated some of Guilmette's testimony as to inculpatory statements made by Connearney. Martin also testified that he looked into Dermandy's room and saw Wallace, O'Brien and Connearney there. Letellier is not mentioned. According to Martin, and in contrast with Wallace's testimony, Connearney had a knife in his right hand. Martin later saw Letellier merely walking in the hallway. Wallace testified that he saw Connearney holding a cord around Dermandy's neck. Philip Picard, the prison superintendent, testified that during his investigation of the killing, inmates Martin and Guilmette named Connearney, Wallace and O'Brien as the men assaulting Dermandy. It is apparent that the jury carefully weighed the evidence in its application to each defendant. The joinder of Letellier and Connearney in a trial for the murder of Drmandy did not require that both defendants be found guilty or innocent. 'In Commonweath v. Slate, 11 Gray, 60, 63, it was stated that there can be no question as to the propriety of convicting one and acquitting another of defendants indicted jointly when the charge does not involve from its character, as in the case of a charge of conspiracy or riot, the united act of two or more individuals to constitute an offence in either * * *, and that in all other cases the joinder of two or more persons in an indictment does not require that all should be found guilty or none.' Commonwealth v. Carter, 306 Mass. 141, 143--144, 27 N.E.2d 690, 692.

A careful examination of the record leads us to conclude that there is no merit to Connearney's contention that the jury reached 'inconsistent' verdicts because of prejudicial action by the trial judge. (a) Connearney claims prejudice because he and his codefendants were shackeled while the jury were being empanelled. This court has stated that 'a judge properly should be reluctant to interfere with reasonable precautions which a sheriff deems necessary to keep secure prisoners for whose custody he is responsible and, if a judge fails to require removal of shackles, his exercise of a sound discretion will be sustained.' Commonwealth v....