Com. v. Doherty

• Decision Date: 22 August 1967
• Citation: 353 Mass. 197,229 N.E.2d 267
• Parties: COMMONWEALTH v. William R. DOHERTY (and four companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 267

229 N.E.2d 267

353 Mass. 197

COMMONWEALTH v. William R. DOHERTY (and four companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1967.

Decided Aug. 22, 1967.

Joseph J. Balliro, Boston, for defendant, Landry.

Charles M. Burnim, Boston, for defendant, Janice M. Doherty.

James J. Twohig, Boston, for defendant, Connor.

Alfred P. Farese, Boston, for defendant, William R. Doherty.

Murray P. Reiser, Asst. Dist. Atty. (James. M. McDonough, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

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

WHITTEMORE, Justice.

Donald E. Landry (Emo Landry) and James J. Connor (indicted as John Doe) were found guilty of murder in the first degree of Robert W. Davis. There was evidence to show that the crime was committed shortly before 3 A.M. on May 1, 1965. The jury recommended that the death penalty not be imposed. William R. Doherty and his wife, Janice M. Doherty, were found guilty of being accessories before the fact to murder in the first degree with recommendation that the death penalty not be imposed. Both Dohertys were also found guilty of being accessories after the fact to murder.

The trials were held subject to G.L. c. 278, §§ 33A to 33G inclusive. Most of the testimony regarding the events preceding and following the homicide was given by Elizabeth Moore. She had lived and boarded with the Dohertys and their four year old child for two years in the third or top floor apartment at 116 Dakota Street in the Dorchester district of Boston. Most of the testimony as to the actual killing came from Ronald Hayes, who had been a friend of Moore for several years and who was her companion on the night of the homicide.

Moore testified that on Friday evening, April 30, 1965, she and Hayes, in the company of the Dohertys, drank beer at the Sportsman's Cafe in Dorchester. Later, she, Hayes, the Dohertys, Davis (the deceased), and his friend Ronald Edwards gathered at the Doherty apartment. The company of six had supper in the kitchen. Beer was served. Doherty and Davis left the kitchen and went into the den. Upon their reappearance, Hayes saw that Davis had a gun in his belt. Edwards then left on Davis' cryptic instruction to 'Go get the queen,' and 'Go pick up the payroll' (according to Mrs. Doherty's testimony, 'payload' or 'payroll').

Hayes and Moore went to the latter's room, and while there heard noise and commotion. Moore opened the door and saw Mrs. Doherty making a telephone call. Davis and Doherty had returned to the den. On his wife's summons, Doherty again came out of the den and continued the telephone conversation which was not overheard. Doherty returned to the den. Mrs. Doherty then took the telephone to Moore's room, made a call, asked for 'Emo,' and, while waiting, told Hayes and Moore that Davis had two guns at Doherty's head and that she had to get someone to help him. She repeated this statement on the telephone. Doherty then entered the room again and said to his wife, 'Janice, tell her this guy is Bobby Davis who's against me, if something happens before they get up, and tell him to bring his piece and to get up here.' Mrs. Doherty said, '(B)ring your piece.' Upon completion of the call the Dohertys left the room.

Approximately five minutes later Mrs. Doherty returned, made another telephone call and said, 'Hello, Emo, what's taking you so long? Why aren't you up here? He's going to kill Billy (Doherty). Will you please come up? Take a cab, Emo. We're at 116 Dakota Street.' Mrs. Doherty asked Moore for the cab money and told Moore and Hayes that they had better leave. 'There's going to be trouble. * * * Emo is coming up, and he has a big gun. * * * (H)e knows how to use it. * * * (I)f you want to leave, go ahead. Get out of here.' Moore and Hayes declined to leave.

Moore went downstairs to meet the cab. While there she saw Edwards returning in Edwards' car with another man, Adrian Delaney. Edwards drove away. Delaney remained on the porch with Moore, who then saw a cab come up Dakota Street and stop at a side street. Two people got out of the cab and went into some nearby bushes. One of them was carrying a 'violin case.' The jury, from later testimony, could have inferred that these two were Landry and Connor.

Delaney pointed a gun at Moore, calling her 'Mrs. Doherty.' Doherty appeared on the porch from upstairs with a gun 'in his waist.' Doherty told Moore to 'get out of there.' A fight between Doherty and Delaney followed. Moore ran off the porch along the side of the house to the garage. While there, she heard a shot. Delaney ran past her down Iowa Street. She heard another shot from upstairs. Then she saw 'Jimmy Connor' carrying a long case. Moore had previously met Connor through Mrs. Doherty's parents, the Bakers, who lived in the same house as the Dohertys on the second floor. Moore asked Connor what she should do. He answered, 'Just stay there and be quiet.' Moore saw Hayes run from the house, get in his car and leave. On her return to the house from the garage, Moore saw Davis lying on the front porch.

Hayes' testimony of events in the Doherty apartment from the time of his arrival to the time Moore went downstairs to meet the cab was, in most particulars, corroborative of Moore's testimony. While Mrs. Doherty was making the telephone call to Emo, Doherty told his wife to 'Tell Emo (that) Davis did it if I am killed.' In response to a question by Moore, Doherty said that Davis was asleep on the couch in the den and that he did not try to take the guns away from Davis because he was afraid he would get shot if he woke Davis.

After Moore had gone downstairs, Hayes saw Doherty take the two guns away from Davis, who was sleeping. Both guns were Lugers. Doherty kept one. He gave the other to Hayes and told him to protect his (Doherty's) family. Doherty went downstairs. From the front porch on the third floor Hayes saw two men get out of a cab, one carrying a gun case. About the same time, a car stopped in front of the house and Hayes heard a gunshot on the porch. 'Connors' came upstairs, grabbed Hayes by the throat, and pushed him against the wall. Hayes saw no weapon on Connor. Hayes told him, 'I'm on your side. * * * I'm with you. I know nobody.' Mrs. Doherty came into the room and said, 'Not him; the one on the couch.' Hayes heard someone coming up the stairs and also heard 'bolt action or shotgun action or something like that.' Landry came in and pointed a 'rifle' at Hayes. Mrs. Doherty said, 'Not him; the one on the couch.' Landry 'put the gun in Davis' belly,' said 'hey, hey' twice, and 'shot him in the belly.' Mrs. Doherty came running into the room and said, 'Get him out of here.' Landry and Connor picked Davis up, 'one under each arm,' dragged him to the doorway and 'let him go.' Shortly afterwards, Hayes left the premises. He observed blood spattered on the front stairs and passed Davis who was 'sprawled out on the front porch.' Hayes got into his car, drove around the corner, dropped the Luger into a sewer and went home.

Moore testified that after the shooting Doherty, his wife, Moore, and Mrs. Baker met in the Baker apartment where it was decided by all, including Moore, that they would tell the police 'that two guys came up here and broke in and shot him.' Moore said to Doherty, 'I'll be a witness for you, Billy. I know you didn't shoot him.' Doherty called the police. When the police arrived about 3 A.M. on Saturday, May 1, Doherty was on the porch, standing beside Davis' body. Doherty told the police that he had been in a fight, had run from the porch and found Davis' body when he returned. Subsequently, the medical examiner reported that Davis died of a shotgun would in the chest.

1. We discuss first the assignments of error relating to the denial of the Dohertys' motions, filed at the close of the evidence, for directed verdicts of not guilty.

The evidence was insufficient to warrant a verdict of guilty against Doherty on the charge of being an accessory before the fact to murder. The Commonwealth's evidence showed that Davis had imperiled Doherty's life. The only words used by Doherty to his wife while she was telephoning were, 'tell her this guy is Bobby Davis who's against me, if something happens before they get up, and tell him to bring his piece and to get up here,' and 'Tell Emo (that) Davis did it if I am Killed.' Doherty's words were, at most, a call for armed help to be used if needed. Before any help arrived, Doherty disarmed Davis who was asleep. Thus, the situation for Doherty had changed from one of imminent peril to one of defensive security in his own dwelling as indicated by his giving one of Davis' Lugers to Hayes with the words, 'Protect my family.' Doherty had then gone downstairs to the front porch where he encountered Delaney pointing a gun at Moore, who was awaiting the arrival of the armed help. Moore testified that Doherty's ensuing fight with Delaney was to protect her from bodily harm, and that she had written to Doherty while he was in jail that he had saved her life. The testimony shows that Doherty had left the scene after a shot was fired during the fight with Delaney. It is speculative what Doherty would have done had he remained on the porch or on the scene until Landry and his companion arrived. The Commonwealth failed to establish beyond a reasonable doubt that Doherty counseled or procured the murder of Davis. G.L. c. 274, § 2. A verdict of not guilty should have been directed for Doherty on the indictment charging him with being an accessory before the fact to murder. Commonwealth v. O'Brien, 305 Mass. 393, 401, 26 N.E.2d 235. Commonwealth v. Carter, 306 Mass. 141, 147, 27 N.E.2d 690; Commonwealth v. Fancy, 349 Mass. 196, 201, 207 N.E.2d 276.

On the other hand, there was no error in the denial of Mrs. Doherty's motion for a directed verdict on the indictment charging her with being an accessory before the...