Com. v. Corcione

• Decision Date: 15 February 1974
• Citation: 364 Mass. 611,307 N.E.2d 321
• Parties: COMMONWEALTH v. Robert CORCIONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 321

307 N.E.2d 321

364 Mass. 611

COMMONWEALTH v. Robert CORCIONE.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Sept. 17, 18, 1973.

Decided Feb. 15, 1974.

Michael J. Haroz, Cambridge, for defendant.

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

HENNESSEY, Justice.

The defendant was convicted after a jury trial of murder in the first degree (c. 265, § 1) with a recommendation that the death penalty be not imposed (c. 265, § 2), armed robbery (c. 265, § 17), and breaking and entering a dwelling house and assault on a person therein (c. 266, § 14). He was sentenced to three concurrent life terms, and now appeals his convictions and sentences pursuant to the provisions of G.L. c. 278, §§ 33A--33G, inclusive. The defendant argues ten assignments of error, which fall into three distinct categories: (1) alleged errors in the judge's charge to the jury, (2) alleged error in the denial of the defendant's request for a change of attorneys, and (3) alleged error in the admission of testimony referring to the results of a lie detector test. Cases against other defendants were severed and the defendant alone was involved in the trial with which we are here concerned.

The only assignments of error which are based on an exception saved by the defendant are those concerning the defendant's request for a change of attorneys. All other assignments are addressed to our power in all capital cases to redress any miscarriage of justice even in the absence of an exception. See G.L. c. 278, § 33E.

We summarize the evidence. Jeffrey Ray, a then sixteen year old acquaintance of the defendant, testified that on June 18, 1970, he suggested to the defendant and one Michael Gardner that they break into one Joseph Perry's house. The three surveyed the house and later that evening returned in a car driven by one Joseph Cleary, who then departed. They waited until a vistor left the Perry house, raised a window and entered the front room of the house. On discovering that a locked door barred access to the rear of the house they left and parted company.

Gardner, a then fifteen year old acquaintance of the defendant, testified that he participated in the activity described above and that he remained with the defendant when they left the Perry house. They were joined by Clearly and made a trip to Woburn with three girls, one of whom, Cathy Gairachty, was dating Cleary. after their return to Cambridge and at Cleary's suggestion the defendant, Gardner, Cleary and Gairachty, returned to the house. While the girl waited in the car the others entered through the same window as earlier, successfully removed a box that blocked the kitchen door, and entered the back bedroom where they encountered Perry. While the defendant held that victim's feet and Cleary his shoulders, Gardner searched his apparel for money. When Gardner was unsuccessful, Cleary hit the victim in the face. To facilitate further search by Gardner and the defendant, the latter and Cleary rolled the victim over, which resulted in Perry's falling on the floor. After the search uncovered some money, Cleary began kicking the victim in the face, and Gardner interceded in his behalf. On Cleary's orders the other two searched the dwelling; when they discovered Cleary again beating the victim they remonstrated with him until he agreed to stop. Shortly after, they left and went to Clearly's mother's house where they divided the money.

Later, Cleary insisted they return as he needed more money. Gardner agreed and the defendant said to him, 'When Joe (Cleary) goes over there we can see if that guy is all right.' They ree ntered the window and returned to the rear bedroom where Cleary held the victim while the two boys searched the bedroom and the other rooms. Twice more they discovered Cleary beating Perry and both interceded. At one point the defendant in walking across the victim on the bed kicked him 'a couple of times.' He was told not to by Gardner and said, 'All right.'

Cleary told them to get the car but as they were leaving they saw him beating Perry repeatedly with a white stick; they ran back and stopped him and then Gardner told the defendant to get Cleary out of there while he got the car. They left without taking anything and later separated. The following morning Gardner helped Cleary dispose of his bloody clothes.

There was evidence, including medical testimony, from which the jury could properly infer that Perry died the following day as a result of the beating described above.

Other testimonial evidence was introduced to corroborate aspects of the above story or to show the defendant's consciousness of his guilt; the latter included mention by the defendant of his belief that he had failed a lie detector test. Exhibits included physical evidence recovered from the victim's apartment or from the place of its disposal.

The defendant called four witnesses to impeach the witness Ray. Two boys testified that after the crime Ray was unusually free with his money, giving them each $5 for each of two games of pool in which they beat him. A third boy was dismissed after testifying that he did not recall what date he had a conversation with Ray. Ray was then recalled and denied having a conversation with the fourth defence witness, who testified that prior to the crime (though she was confused as to the date) Ray and his brother discussed robbing Perry, and Ray said, 'I will have to kill the guy.'

We have concluded that, because of errors in the judge's instructions to the jury, the judgments are to be reversed and the defendant shall have a new trial as to all indictments.

1. The defendant argues that the definition of malice included in the charge was erroneous. In view of our ruling below that there was reversible error in the charge affecting all indictments, it is unnecessary to discuss the contention concerning malice, except to comment that the charge defined the term in traditional language.

The defendant's major arguments as to the charge relate to the principles of joint criminal enterprise. He points out that there was substantial evidence here from which the jury may have held him criminally responsible for the conduct of two others, particularly Cleary. His contention is that the judge instructed as to an unacceptably broad concept of joint liability in his discussion of all of the crimes charged (see Commonwealth v. Richards, Mass., 293 N.E.2d 854, 1973), ^a except as to his charge concerning felony murder. See Commonwealth v. Devereaux, 256 Mass. 387, 395, 152 N.E.2d 380 (1926). Even as to the instructions concerning murder, he contends that the judge erroneously removed from the jury's consideration the issue of whether the murder was a natural and probable consequence of the burglary or robbery. He also argues that the judge improperly precluded consideration by the jury of a verdict of guilty of second degree murder. G.L. c. 265, § 1.See See Commonwealth v. Chase, 350 Mass. 738, 217 N.E.2d 195 (1966).

It would serve no useful purpose to examine the merits of the defendant's particular line of argument, since the errors in the concluding portions of the charge as we have identified them below in this opinion would serve to vitiate any earlier instructions on joint responsibility, however correct those earlier instructions might have been. The major invalidity of the charge consisted in its treatment of all indictments as rising or falling together. It is fair to say that the jury may well have reached their verdicts under the impression that the defendant should be found guilty on all indictments, including first degree murder, if they found criminal complicity of any kind on his part.

In demonstrating that there was error here which requires a new trial, it will be helpful for us to summarize the charge. After a full exposition of the necessary, usual and preliminary concepts, the remainder of the charge concerned itself for the most part with instructions concerning the elements of the crimes. The judge read to the jury from G.L. c. 265, § 1, which defines the crime of murder. This was followed by a delineation of the three categories of first degree murder, viz.: homicide with deliverately premeditated malice aforethought; homicide with extreme atrocity or cruelty; and homicide connected with a crime punishable by life imprisonment. The elements of proof of each of the three categories were discussed in detail.

In his discussion of the third category of first degree murder, the so called 'felony murder' doctrine, the judge defined and described the elements of the two additional indictments against the defendant: armed robbery and burglary with assault. He correctly identified each of these as a crime punishable by life imprisonment and thus an appropriate basis for a first degree murder conviction based on the felony murder doctrine.

The charge was concluded with instructions which for the greater part stated (1) a summary of the law concerning concert of action among several participants, (2) a repetition of some of the prior instructions concerning first degree murder, and (3) a delineation of permissible verdicts which included an instruction that there must be three not guilty verdicts or three guilty verdicts, with the further statement that the jury could return a verdict of guilty of first degree murder or guilty of second degree murder. After a conference with counsel out of the jury's hearing, the judge then gave further instructions which required the jury to consider the three counts separately, and discussed various combinations of permissible verdicts.

Thus the judge gave two successive and opposed sets of instructions as to whether identical verdicts were required. These two versions are set out in full in Appendix A annexed to this opinion, together with the intervening colloquy with counsel.

About two hours after they...