Com. v. DeBrosky

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; WILKINS
• Citation: 297 N.E.2d 496,363 Mass. 718
• Parties: COMMONWEALTH v. Richard DeBROSKY. (and nine companion cases 1 ).
• Decision Date: 08 June 1973

Page 496

297 N.E.2d 496 363 Mass. 718 COMMONWEALTH
v.
Richard DeBROSKY. (and nine companion cases ¹). Supreme Judicial Court of Massachusetts, Franklin. Argued March 5, 1973.
Decided June 8, 1973.

[363 Mass. 719]

Page 498

Alexander Whiteside, II, Boston, for defendants.

John M. Callahan, Dist. Atty. (Stephen R. Kaplan, Asst. Dist. Atty., with him), for the Commonwealth.

Before [363 Mass. 718] TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

[363 Mass. 719] WILKINS, Justice.

Shortly after 6 P.M. on the evening of February 18, 1969, three men entered the home of Mr. and Mrs. Clifford W. Mann in Greenfield and stole the major portion of Mann's valuable coin collection.

Each of the two defendants was found guilty of (1) putting Mann in fear for the purpose of stealing, (2) assault and battery on Mann by means of a dangerous weapon, (3) masked, armed robbery from Mann, (4) robbery from Mrs. Mann, and (5) unauthorized use of Mann's automobile, which it was claimed they used to leave the Mann home after loading the coin collection into Mann's car. The defendants appeal under the provisions of G.L. c. 278, §§ 33A--33G.

The first person to enter the Mann home grabbed Mrs. Mann, threatened her and tied her up. He was later identified by Mrs. Mann as the defendant DeBrosky. [363 Mass. 720] This person undertook to blindfold Mrs. Mann, although in fact, as she testified, she was able to see a bit as she lay on the floor. The second person to enter the home wore a ski stocking mask. Mann saw him thus

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attired, but never saw his face. Mrs. Mann saw his feet. Subsequent testimony indicated that this second person was the defendant Coburn. During a brief scuffle, the second man struck Mann on the head with a shotgun, causing the gun to discharge but not injure anyone. The second man tied Mann up, blindfolded him and threatened him and kicked him in order to obtain the combinations to two safes where most of Mann's coins were stored. More than $800 was taken from Mann's wallet and about $34 was taken from Mrs. Mann's pocketbook. Mann testified that the market value of his coin collection was in excess of $13,000.

The third man who entered the Mann home was not seen by the Manns, although his voice was heard. One John S. Maglio, who testified for the Commonwealth after being granted immunity from prosecution pursuant to the provisions of G.L. c. 233, §§ 20C--20I, testified that he was that third man. He testified to events during the robbery which, in considerable degree, were confirmed by the testimony of the Manns. Maglio testified that DeBrosky and Coburn entered the house first and that he entered later. Testimony by Maglio describing events before and after the robbery was substantiated in certain respects by other evidence.

Facts relating to each issue will be set forth in the appropriate portion of this opinion. There was no error.

1. The judge neither exceeded his authority nor otherwise erred in permitting a portion of the trial to be conducted at the Franklin County Public Hospital (hospital).

On the second day of her testimony, during the course of her cross-examination, Mrs. Mann, who was sixty-five years old and had a heart condition, was hospitalized in a state of nervous exhaustion. On the following day, after consultation with her physician, the judge ordered that the cross-examination of Mrs. Mann continue in the air-conditioned [363 Mass. 721] auditorium of the hospital. The judge made findings that 'there would be a serious danger to her health and even to her life, were she to continue her testimony in this courtroom.' The judge found that her physician had concluded that 'she could testify with reasonable safety at the hospital . . . but not otherwise,' and that the 'interests of justice require that the testimony of this principal witness be obtained, if this is possible under circumstances which will not jeopardize her health.' He ruled that 'the defendants' rights of confrontation and cross examination can be preserved fully, if her testimony is taken in the auditorium of the . . . (hospital).' The judge relayed his intentions to the Chief Justice of the Superior Court who found the arrangements to be acceptable to him. The judge entered a written order with appropriate findings in support of his decision, including the finding that it would be 'unsafe and inexpedient' to hold court in the court house during the balance of Mrs. Mann's testimony. The judge gave notice of his intention in open court, and a notice of the transfer of the trial to the auditorium of the hospital was published in a Greenfield newspaper on the day prior to her testimony at the hospital.

The court did convene at the hospital and Mrs. Mann testified there on cross-examination and on voir dire during the course of two days. The court denied the defendants' motions for a mistrial which were asserted in opposition to the transfer of the proceeding to the auditorium of the hospital.

The judge had the authority to transfer the trial to the auditorium of the hospital in the reasonable exercise of his discretion. Section 5 of G.L. c. 220, which is quoted in full in the margin, ² authorized the holding of court at [363 Mass. 722] another place in the

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same county. The judge fully complied with the requirements of the statute. In the discretion of the judge, any reason for a lack of 'safety' or for a lack of expediency, if compelling in the circumstances, justifies action under G.L. c. 220, § 5. ³

The defendants rely on Commonwealth v. Handren, 261 Mass. 294, 158 N.E. 894, where verdicts of guilty were set aside because a portion of a trial was held at the private homes of two ill witnesses, one of whom lived outside of the county where the court was sitting. The judge in the Handren case was not acting under G.L. c. 220, § 5; the trial proceeded in private homes, and not in an auditorium of a hospital (a place to which the public, including the press, had reason to believe it had a right of access). We agree with the Handren case (p. 298, 158 N.E. 894) that court sittings may be held only where authorized by law. The sitting held in the auditorium of the hospital was so authorized.

We reject the further contention that, even if there were an adequate jurisdictional basis for holding court at the hospital, the defendants' constitutional rights to cross-examine Mrs. Mann were impaired. There is no indication that Mrs. Mann was physically unable to testify under cross-examination. Nor is there any indication in our review of her cross-examination that Mrs. Mann's physical condition prejudiced the defendants in any way. No suggestion has been advanced to us that subjects of cross-examination were restricted or wholly foreclosed or that techniques of cross-examination which might have been employed were abandoned because of Mrs. Mann's condition. For all we know, because the trial continued at the hospital, Mrs. Mann may have been better able to tolerate, and the defendants better able to conduct, forceful cross-examination than would have been the case if she had returned to the court house.

2. There was no error in the admission of motel and hotel records showing the registration of persons at a [363 Mass. 723] motel in North Attleborough at 1 A.M. on February 19 (in the early morning following the robbery) and at a hotel in New York City on February 20. These records were admitted under the business records statute and, as is required in a criminal trial, 'all questions of fact which must be determined by the court as the basis for the admissibility of the evidence involved' were submitted to the jury by the judge. G.L. c. 233, § 78, as appearing in St.1954, c. 442, § 1.

The owner of the North Attleborough motel testified from registration records, which were introduced in evidence over objection, that one 'Charles P. Reed' had taken two rooms for four people at 1 A.M. on February 19 and that he had a car with an Alabama registration. Maglio subsequently testified that, after transferring the coins in Greenfield from the Mann car to a car which Mrs. Maglio had drive to a agreed place, Coburn, DeBrosky, Maglio's wife and he drove to Haverhill. In Haverhill it was thought that a sale of the coins might be made in Providence and thus the group, augmented by two others who were assisting in the disposition of the coins, drove to North Attleborough. Maglio subsequently testified that when he arrived at the North Attleborough motel, Coburn was already there, that the coins were taken to a room in the motel at the direction of Coburn and another man and that Coburn had arrived in North Attleborough in a car with Alabama plates. A North Attleborough police officer testified

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that on March 26, 1969 (approximately five weeks after the robbery), he talked with Coburn at the same North Attleborough motel and Coburn gave his name as 'Charles Reed' and 'Charles P. Reed,' the name used by the person registering the group at that motel shortly after midnight on the night of the robbery.

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