Com. v. Connolly

• Decision Date: 28 January 1970
• Citation: 255 N.E.2d 191,356 Mass. 617
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Daniel R. CONNOLLY. (and a companion case 1 ).

Page 191

255 N.E.2d 191

356 Mass. 617

COMMONWEALTH v. Daniel R. CONNOLLY. (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 6, 1969.

Decided Jan. 28, 1970.

Alfred P. Farese, Everett (Ignatius R. J. Piscitello, Lawrence, with him) for defendant Cote.

Joseph Sax, Boston, for defendant Connolly, submitted a brief.

Howard J. Camuso, Asst. Dist. Atty., for the Commonwealth.

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

SPALDING, Justice.

Under indictments charging them with the murder of one John Chwalek, the defendants, Daniel R. Connolly and Richard J. Cote, were found guilty of murder in the first degree, with a recommendation that the death sentence be not imposed. The defendants appealed. G.L. c. 278, §§ 33A--33G.

The evidence relating to the homicide came from one Sylvia E. Haggar, an eyewitness, whose testimony in substance was as follows. On the evening of November 30, 1967, while riding with Chwalek in a motor vehicle on Water Street, Lawrence, she observed a green car containing the two defendants and a third person unknown to her. The car was driven by Cote. Chwalek sounded his horn to signal to the driver of the green car to pull over. The two cars turned into Mason Street and stopped, Chwalek's car being a few feet behind the green car. Chwalek got out of his car and approached the green car. The three occupants of the green car also got out and words were exchanged. One of the occupants of the green car (not identified) took a gun out of the trunk. Connolly, who was then holding the gun, said to Chwalek, 'I am going to shoot you.' Thereupon, Connolly stepped back two or three feet and fired about five times at Chwalek, who fell to the ground. Connolly then went over to Chwalek's car and fired two shots at Sylvia Haggar, wounding her. Chwalek crawled back to his car. The other car was heard to leave. A few minutes later this car, driven by Cote, returned. Connolly got out and went over to Chwalek's car, put the gun in the window and fired. Cote yelled, 'Come on, Danny, come on, Danny; they're both dead. Let's get out of here.'

There was medical evidence that Chwalek died of multiple gunshot wounds of the chest and extremities, with extensive destructive wounds of the heart and lungs.

Connolly's version of the shooting differed materially from that just recited. According to him, Chwalek had threatened Connolly with a gun several times prior to November 30, the date Chwalek was shot, and on one occasion had struck him in the face with a revolver and had punched his wife in the face. On the night of the shooting, Chwalek, after forcing the green car over to the side of the road, approached with a shotgun and ordered Connolly out of the car. Connolly picked up a .22 calibre rifle and got out of his car. Chwalek then fired his shotgun at Connolly but missed him. Connelly tried to 'duck behind the car' and in doing so his gun 'went off.' A struggle ensued over the possession of the shotgun and during it the shotgun went off. The defendants then drove away and did not return.

The defendant Cote did not take the stand. There was evidence that he participated in the purchase of the .22 calibre rifle used to shoot Chwalek, was the owner and driver of the green car, was present throughout both shootings, and drove Connolly back to the scene after the initial shooting. ²

The police arrived shortly after the shooting. Officer Ouellette, after talking with Sylvia Haggar, arrested the defendants in a third floor apartment at 39 May Street, Lawrence. They were first taken to the Lawrence police station and thence to a hospital where Sylvia Haggar identified them as the men involved in the shooting. Officer Ouellette then obtained a warrant to search the apartment in which the defendants had been arrested. Permission was granted by a second floor tenant to search the cellar, where under the stairs a .22 calibre rifle was found. There was testimony by a ballistics expert that this rifle had fired the bullets found in Chwalek's body. Another witness testified that this was the rifle he had sold to Cote on Novermber 29. A second warrant was obtained to search the green car, which was parked across the street from the apartment where the defendants were arrested. During a search of the car some .22 shells were found.

1. Both defendants assign as error the denial of their motions for mistrial because of the composition of the jury. Eight veniremen were challenged for cause after expressing opinions against capital punishment. In the case of one, the judge did inquire specifically into the impact of his belief on his ability to assess guilt and found that he did not stand indifferent. Four of these veniremen were excused after it became clear that their opinions would impede an objective consideration of the appropriate sentence; there was no inquiry, however, as to whether guilt determination would be likewise impaired. Three of the eight veniremen, however, were excused without any attempt to relate their opinions to the matter of either guilt determination or sentencing.

General Laws c. 278, § 3, states that a person 'whose opinions are such as to preclude him from finding a defendant guilty of a crime punishable with death shall not serve as a juror on the trial of an indictment for such crime.' This provision prohibits that class of persons, whose opinions on capital punishment impair their ability to determine guilt fairly, from serving on a jury. It says nothing about the effect on the fairness of a trial when persons opposed to capital punishment but not shown to be unable to make a fair determination of guilt are excluded from the jury.

Since the death sentence was not imposed the rule laid down in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, is not applicable. The defendants argue that such an exclusion denies the right to be tried by an impartial jury made up of a cross-section of the community, as guaranteed by the Sixth and Fourteenth Amendments. The defendants are actually making two separate arguments. The first is that a jury so composed is a 'stacked jury,' i. e., one that is prosecution-prone and incapable of rendering a fair verdict, and so violates due process. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, rejected this argument by holding that there was not sufficient evidence to show that juries culled of those opposed to the death penalty were more likely to convict. That is the situation here; the defendants have produced nothing that would justify our departing from the holding in the Bumper case and our decision in Commonwealth v. Sullivan, 354 Mass. 598, 608--609, 239 N.E.2d 5. But, as we observed in the Sullivan case, '(t)he wise and proper course is to determine from further questions whether a belief against capital punishment would interfere with a determination of the guilt of the defendant.' p. 608, 239 N.E.2d p. 11.

The defendants' second argument is that there is an equal protection right to be tried by a jury composed of a cross-section of the community. When, it is argued, persons who have opinions against capital punishment are excluded, the resulting jury does not constitute a true cross-section of the community. Objectors to capital punishment, we are told, constitute a significant segment of the community. The defendants thus are asking us to adopt a rule of jury selection based on equal protection grounds, which forbids exclusion of veniremen solely because of their opinions against capital punishments regardless of a showing of actual prejudice in the verdict. We know of only one case which lends support for a holding that an opinion on capital punishment could constitute a class of persons who could not be excluded consistently with equal protection. In Crawford v. Bounds, Warden of Central Prison, 395 F.2d 297 (4th Cir.), decided by seven judges sitting en banc, two of the judges rested their decision for reversal on equal protection grounds. While we recognize that objectors to capital punishment do represent a substantial segment of the community, and that seven jurors were here excluded for an opinion not shown to impede objective appraisal of guilt, we do not find the equal protection argument convincing. The requirement that a jury be representative of all elements of the community is a device that insures impartiality, and thus helps meet the Sixth Amendment's requirement of an impartial jury. The equal protection argument thus merges into one of due process, and appears but another way to assert that a jury from which significant segments of public opinion have been excluded is inherently unfair. Because of our disposition of the defendants' due process contention we are not prepared to say that the composition of this jury impaired 'the * * * integrity of the fact-finding process,' ³ and thus violated due process or equal protection. We hold that the judge did not err in denying a mistrial because of prejudicial error in the selection of the jury.

2. The defendants allege a denial of due process and the right to counsel in the admission, subject to their exceptions, of Sylvia Haggar's testimony concerning her identification of the defendants in a hospital room immediately after their arrest without counsel being present. Since no question is presented about the validity of an in-court identification when precededby a tainted prior identification, United States v. Wade,388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California,388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, are inapposite. Rather the question is whether the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendants were denied due process of law. Stovall v. Denno, Warden, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. As in the Stovall case, the identification occurred in a hospital room...