Com. v. Cook

• Decision Date: 27 June 1966
• Citation: 351 Mass. 231,218 N.E.2d 393
• Parties: COMMONWEALTH v. Robert Everett COOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 393

218 N.E.2d 393

351 Mass. 231

COMMONWEALTH v. Robert Everett COOK.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 5, 1966.

Decided June 27, 1966.

Lawrence F. O'Donnell, Boston (John B. Greene, Boston, with him) for defendant.

John F. McAuliffe, Asst. Dist. Atty. (James F. Sullivan, Legal Asst. to the Asst. Dist. Atty., with him) for the Commonwealth.

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

KIRK, Justice.

On an indictment charging him with the murder of William John Treannie at Boston on November 8, 1964, the defendant Cook at a trial held subject to G.L. c. 278, §§ 33A--33G, was found guilty of murder in the second degree. The case is before us on appeal under G.L. c. 278, § 33E, as amended through St.1962, c. 453.

Treannie was shot to death by two bullets which lodged in his brain. His body, decapitated and dismembered, was found by police in suitcases and a quilt at a vacant lot on November 13, 1964.

The evidence established that Treannie was killed in an apartment at 1585 Washington Street, Boston, where he lived with Cook and one William Murray. When the crime came to the attention of the police, Cook and Murray were missing.

Both Cook and Murray were indicted for the murder of Treannie. There was eyewitness testimony that during an argument in the apartment, after an afternoon and evening of drinking with Murray, Treannie and others in various establishments, Cook shot Treannie twice through the back of the head. At the close of the trial, the judge directed a verdict of not guilty for Murray. He directed a verdict of not guilty of so much of the indictment as charged Cook with murder in the first degree.

We have considered all of Cook's assignments of error. We discuss only those which he has argued. Our presentation is somewhat handicapped by the fact that in his brief Cook alleges violations of constitutional rights without specification and without citation of authorities to support any of his contentions of error.

Cook's first assignment of error relates to the judge's denial of his motion that he be permitted to examine before trial the minutes of the grand jury. The motion was based on the ground that Cook wanted 'reasonable knowledge of the nature and grounds of the crime and (to) be able to prepare his defense.' The nature of the crime and the means by which it was perpetrated were given to Cook in the Commonwealth's bill of particulars. Cook argues, nevertheless, that he is entitled to examine the minutes of the grand jury as matter of right. This court has repreatedly stated that the disposition of such a motion rests in the discretion of the judge. Commonwealth v. Giacomazza, 311 Mass. 456, 462, 42 N.E.2d 506; Commonwealth v. Galvin, 323 Mass. 205, 211, 80 N.E.2d 825; Commonwealth v. Kiernan, 348 Mass. 29, 201 N.E.2d 504; Commonwealth v. Ladetto, 349 Mass. 237, 207 N.E.2d 536. No reason has been offered for the exercise of discretion in favor of Cook. Our reading of the transcript does not disclose any fact which might cause the judge to read, as a precaution, the minutes of the grand jury, as was done in Commonwealth v. Kiernan, 348 Mass. 29, 36, 201 N.E.2d 504, to determine if a particularized need existed to provide Cook with any part of the record of the proceedings before the grand jury. The rule in the Federal courts appears to be the same as our own. See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323, and Dennis v. United States, 86 S.Ct. 1840. There was no error.

Cook's second major argument, encompassing assignments 6, 8, 9, 10, 23, 24 and 29, is apparently directed to two ends. The first of these is the denial of his motion to suppress evidence in the form of statements made by Cook to police officers when he was without counsel at a time when he alleges he was entitled to have counsel and allegedly asked to have counsel. The second is the denial of his motion to suppress statements made by him in the presence of police officers at the suggestion of his then counsel at preliminary proceedings in the Boston Municipal Court. Cook's contention is that the suggestion of his counsel revealed the latter's professional incompetence, with the result that Cook was, in effect, without counsel as guaranteed by the Sixth Amendment to the Constitution of the United States. With respect to both aspects of the motion to suppress, the judge filed on June 2, 1965, following Cook's claim of appeal on May 26, 1965, a document entitled 'Findings, Rulings and Order on Defendant Cook's Objections to Admissibility of Evidence.' The document consists of four and one-half pages of the printed record. The defendant moved that the document be struck from the record, and assigns as error the judge's refusal to do so. We consider first this quite extraordinary contention. The judge promptly made his ruling on the admissibility of the testimony of the police officers at the conclusion of an extended voir dire which included testimony of both Cook and Murray as well as several of the police officers. The trial was resumed and proceeded to verdict. The document filed by the judge sets out specifically the findings of fact made by him on the evidence heard at the voir dire.

The procedure adopted by the judge was a prudent step toward perfecting the record when it appeared that appellate review would be sought of the factual basis for his determination that the rules for police conduct, prescribed from time to time by the Supreme Court of the United States, had been followed. See Townsend v. Sain, 372 U.S. 293, 312--319, 83 S.Ct. 745, 9 L.Ed.2d 770; Henry v. State of Mississippi, 379 U.S. 443, 453, 85 S.Ct. 564, 13 L.Ed.2d 408. The time of the filing of the document was as soon as practicable, i.e., after the transcript was certified as correct following the verdict of guilty, and after the defendant had filed his claim of appeal. To require, as the defendant appears to argue, that the judge file his specific findings simultaneously with his ruling on admissibility, would result in delay in the progress of the trial and the imposition of a needless burden on the trial judge. If a defendant is found not guilty, or, if found guilty, does not appeal, the delay in the trial and the effort of the judge might serve no purpose. In appropriate cases, however, after a verdict of guilty even though no appeal is filed, a record of the essential facts found by the judge is desirable in the event a petition for a...