Com. v. Domanski

• Decision Date: 21 December 1954
• Citation: 123 N.E.2d 368,332 Mass. 66
• Parties: COMMONWEALTH v. Bernard DOMANSKI. COMMONWEALTH v. Theodore GREEN et al. (two cases). COMMONWEALTH v. Theodore GREEN. COMMONWEALTH v. Frank MURRAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 368

123 N.E.2d 368

332 Mass. 66

COMMONWEALTH v. Bernard DOMANSKI.

COMMONWEALTH v. Theodore GREEN et al. (two cases).

COMMONWEALTH v. Theodore GREEN.

COMMONWEALTH v. Frank MURRAY.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 27, 1954.

Decided Dec. 21, 1954.

Paul T. Smith and Reuben Goodman, Boston, and Joseph T. Doyle, So. Boston, for defendants, Green and another.

Herbert F. Callahan, Boston, for defendant, Domanski.

A. Andre Gelinas, Asst. Dist. Atty., Fitchburg, for the Commonwealth.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ.

SPALDING, Justice.

The jury could have found these facts. On the night of November 25, 1951, four armed men entered the home of Joseph D'Amico on the second floor of a building at 281 Shrewsbury Street, Worcester, for the purpose of stealing $20,000 to $30,000 which, as they believed, was in the house. A fifth man remained outside in an automobile. While Joseph's wife, two daughters, and a son were held at gun point the intruders looked through an unlocked safe and a pocketbook but failed to find any money. Attracted by the noise, Joseph's brother, Gerard, and Gerard's wife came down to Joseph's apartment from their apartment on the floor above. Joseph's son and Gerard engaged in a struggle with two of the men. During the struggle Gerard was hit over the head with a pinch bar and several shots were fired. At this point one of the group, Domanski, fled to the street. Joseph D'Amico, who had been in his bakery on the first floor of the building, heard the commotion and ran to the street. Believing that some harm had come to his family, Joseph intercepted Domanski and attempted to stop him. In the ensuing struggle, Domanski shot Joseph in the throat and got into the waiting automobile. Shortly thereafter the other members of the group ran out of the house, got into the automobile and, along with Domanski, made their escape. Joseph's wound, although serious, was not fatal.

The defendants Green, Murray, and Domanski were indicted with others, including one Bistany, for assaulting Joseph D'Amico with intent to rob him, they being armed with a dangerous weapon; and for breaking and entering in the nighttime 'a building, to wit: the dwelling house of Joseph D'Amico * * * with intent therein to commit larceny.' Green, Murray, and Domanski were also indicted separately for carrying a pistol or revolver without lawful authority or permission.

The three defendants were tried together to a jury on all of these indictments and others which are not before us. In all of the indictments verdicts of guilty were returned against the defendants and consecutive sentences to the State prison were imposed. All appealed, the cases having been tried subject to the provisions of G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended.

1. The defendant Green's thirteenth and fourteenth assignments of error, which are the same in each of the cases in which he was involved, relate to certain remarks by the prosecutor in the course of his argument to the jury which, it is urged, were prejudicial.

The defendant Green did not take the stand. In his argument the prosecutor said, 'If Green could have proved to you that he was anywhere else except right here in Worcester on that day, you would have had him here.' Counsel for Green objected and moved for a mistrial. The judge impliedly denied the motion and ordered the remark stricken. Counsel then asked the judge to instruct the jury later with respect to the matter. No exception was taken. Later in his charge the judge fully instructed the jury that a defendant has a right not to testify and that no adverse inference may be drawn if he exercises that right. No exception was taken to that portion of the charge. Despite the argument of the Commonwealth to the contrary, the remark was reasonably susceptible of being interpreted as a comment on Green's failure to take the stand which, of course, was improper. Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Richmond, 207 Mass. 240, 248-249, 93 N.E. 816; Opinion of the Justices, 300 Mass. 620, 623-624, 15 N.E.2d 662; G.L. (Ter.Ed.) c. 233, § 20. But in view of the manner in which the judge dealt with the remark, first, by ordering it stricken, and later by adequate instructions, to which no exception was taken, Green's rights were adequately protected. Commonwealth v. Richmond, 207 Mass. 240, 250-251, 93 N.E. 816.

But immediately following the remark just discussed the prosecutor said, 'There was no defence presented by Mr. Green as to where he was. * * * You jurors have a right to take that into consideration.' Counsel for Green objected and took an exception. The trial judge took no action with respect to it nor did he later refer to the matter in his charge. The Commonwealth argues that these remarks were intended as a comment on Green's failure to call witnesses, and we shall deal with the question on that footing.

It is settled that 'where incriminating evidence has been introduced by the commonwealth and explanations consistent with his innocence could be produced by the defendant through witnesses other than himself, more likely to be known to him than to the representatives of the government, and he does not call such witnesses, his failure in this respect is fair matter for comment, and is not within the protection of the Constitution. * * * The inference drawn by common sense and approved by the law is that such evidence if presented would be unfavorable to the defendant.' Commonwealth v. People's Express Co., 201 Mass. 564, 581, 88 N.E. 420, 426; Commonwealth v. Clark, 14 Gray 367; Commonwealth v. Harlow, 110 Mass. 411; Commonwealth v. Finnerty, 148 Mass. 162, 167, 19 N.E. 215; Commonwealth v. McCabe, 163 Mass. 98, 102, 39 N.E. 777; Commonwealth v. Spencer, 212 Mass. 438, 451, 99 N.E. 266; Commonwealth v. O'Rourke, 311 Mass. 213, 222, 40 N.E.2d 883. But as Knowlton, J., observed in discussing this principle in Commonwealth v. Finnerty, supra, 'if it did not appear that the defendant could easily call witnesses other than himself to explain * * * [the strong evidence of guilt introduced by the Commonwealth] if he were innocent, possible explanations might be conjectured which might make his guilt doubtful'. 148 Mass. at page 167, 19 N.E. at page 217. Continuing, he observed that the principle of allowing comment on the failure of a defendant to call witnesses was one to be 'applied cautiously, and with a strict regard for the rights of persons accused. The jury should ordinarily be instructed not to draw inferences from the neglect of a defendant to call witnesses, unless it appears to be within his power to call others than himself, and unless the evidence against him is so strong that, if innocent, he would be expected to call them.' 148 Mass. at page 167, 19 N.E. at page 217. But the foundation for comment was lacking here. There was nothing during the course of the trial to suggest that Green had witnesses available who were not brought forward. Yet the argument of the prosecutor in effect asked the jury to draw an unfavorable inference from Green's failure to call witnesses. This was highly prejudicial. Heina v. Broadway Fruit Market, Inc., 304 Mass. 608, 611, 24 N.E.2d 510. The matter was seasonably brought to the attention of the judge who impliedly ruled that the argument was not improper, and no mention was made of it in the charge. Green was entitled, at the very least, to an instruction that this was a case in which the jury could not properly draw inferences from Green's failure to present a defence. In the circumstances Green did all that was necessary to preserve his rights and his exception must be sustained. Doherty v. Levine, 278 Mass. 418, 180 N.E. 168; Heina v. Broadway Fruit Market, Inc., 304 Mass. 608, 611, 24 N.E.2d 510. It follows that the verdicts against him must be set aside. It, therefore, becomes unnecessary to consider his other assignments of error. Questions raised by him which would be likely to arise on a retrial of the case will be discussed in considering the assignments of error of the other defendants.

2. The defendant Murray assigns as error (assignment 12) the fact that the prosecutor in his argument stated, 'The Commonwealth has no exceptions.' We think this statement, to which Murray excepted, was not as a matter of law objectionable. It is difficult to see how it was relevant, and it would have been better left unsaid. But it was not incorrect as a statement of law and we cannot say that it was prejudicial. Murray challenges another statement made by the prosecutor, but there is no assignment of error relating to this point and we do not consider it. Commonwealth v. Gale, 317 Mass. 274, 277, 57 N.E.2d 918.

3. The defendants Domanski and Murray, hereinafter called the defendants, by their twelfth and sixteenth assignments respectively challenge the jurisdiction of the court to try them because, when brought to trial and thereafter, they were in Federal custody. This question is raised by motions in arrest of judgment, which were denied by the trial judge subject to the defendants' exceptions.

It appears that when the defendants were placed on trial they were in the custody of the United States marshal for the District of Massachusetts awaiting trial on indictments for Federal offences. Pursuant to writs of habeas corpus ad respondendum from the Superior Court the marshal brought the defendants to court each day and at the adjournment of court they were returned by him to jail. At no time did Federal authorities object to this proceeding. After trial and before sentence an assistant United States Attorney appeared and stated that the United States had no objection to the sentencing of the defendants provided they would be made available to answer to Federal charges pending against them. ¹ Under our dual system of government probably nothing is better settled than the principle that the court which...