Com. v. Dominico

• Citation: 306 N.E.2d 835,1 Mass.App.Ct. 693
• Parties: COMMONWEALTH v. Charles A. DOMINICO et al.
• Decision Date: 31 January 1974
• Court: Appeals Court of Massachusetts

Page 835

306 N.E.2d 835

1 Mass.App.Ct. 693

COMMONWEALTH v. Charles A. DOMINICO et al.

Appeals Court of Massachusetts, Suffolk.

Argued May 25, 1973.

Decided Jan. 31, 1974.

Robert M. Mardirosian, Watertown, for defendant Novello.

Usher A. Moren, Cambridge, for defendant Dominico.

Malvine Nathanson, Boston (Thomas J. Herbert, Quincy, with her), for defendant Merlino.

James F. Sullivan, Sp. Asst. Dist. Atty. (Alfred E. Saggese, Jr., Asst. Dist. Atty., and Elizabeth C. Casey, Legal Asst. Dist. Atty., with him), for the Commonwealth.

Before ROSE, KEVILLE and ARMSTRONG, JJ.

ARMSTRONG, Justice.

The appellants in this case, Charles Dominico, Carmello Merlino and Rocco Novello, bring their appeals under G.L. c. 278, §§ 33A--33G. They were convicted of armed robbery. A fourth defendant at the trial, William Cresta, was found not guilty by the jury. There were five other men named in the indictment: two remained unapprehended at the time of the trial; a mistrial was declared as to one Santo Diaferio; and both Andrew DeLeary and John J. Kelley pleaded guilty prior to the trial and appeared as key witnesses for the Commonwealth. The charges arose out of the armed robbery of a Brink's armored truck in Boston on December 28, 1968.

The jury heard testimony that on Saturday, December 28, 1968, Brink's truck No. 6280 made pickups totaling $542,802.48 in cash and $526,147.96 in checks from various business establishments in Boston. Between 6:00 P.M. and 7:00 P.M. that day the Brink's driver, John Gillespie, double parked the truck on Canal Street in Boston opposite the Union Oyster House, leaving the motor running. Gillespie and the guard, Joseph Kelley, left the truck and entered the Downey & Judge tavern for a drink. The messenger, Richard Haines, remained in the truck, leaving the deadbolt on the driver's side disengaged. At the time it was dark and raining.

Suddenly the door of the driver's side opened. A masked man entered, pointed a gun at Haines and said, 'Don't move or I'll blow your head off.' The masked man swiftly pulled Haines' hat over his eyes, blocking his vision, and handcuffed him but assured him that he would not be hurt. A second man entered the cab and the truck was driven to an empty parking lot across the street from the Registry of Motor Vehicles, where it was unloaded. Haines was ordered out of the cab into the back of the truck, where he was handcuffed to the door. When the group had left, Haines knocked his hat off, enabling him to observe a station wagon pulling away. Haines eventually freed himself and went to a nearby Metropolitan District Commission police station, where he reported the robbery.

Preparation for the robbery had begun the prior year. John J. Kelley had been keeping truck No. 6280 under observation. He mentioned to Merlino and Diaferio that it might be feasible to rob the truck. Subsequently there were further discussions with regard to the robbery in which Kelley, Merlino and Diaferio were joined by the defendants Dominico and Novello, and by the two others named in the indictment but not apprehended. Most of these discussions took place in the Back Bay area of Boston.

During the same period, Kelley, with the help of Dominico, arranged a meeting with Andrew DeLeary, a Brink's employee. On several occasions during the summer of 1968, these men discussed the possibility of robbing a Brink's truck. Kelley described the Saturday route in which he was interested to DeLeary. DeLeary was familiar with the truck assigned to that route because he worked on it on Mondays. By pre-arrangement, DeLeary passed keys to that truck to Dominico during a break in the route and received them back from him after copies had been made. After testing these copies DeLeary marked one of the keys with an 'F' to identify it as the front door key. This key was left behind by the robbers in the front door of the truck.

After the keys had been made Kelley, Dominico, Novello, Merlino, Diaferio, Stephen Roukous and Philip Cresta met to discuss the best location for the robbery. Kelley reconnoitered the North Station area and chose Canal Street as the location for the robbery because the Brink's driver and guard were known to frequent a tavern in that vicinity. License plates and cars were stolen for use in the robbery. Kelley purchased ski masks, disguises, handguns and a carbine. Holes were drilled in the trunk of one of the cars so that a man lying in the trunk could observe the armored truck undetected.

In November of 1968, after these preparations were completed, those named in the indictment, with the exception of William Cresta, met to plan each individual's role in the robbery. Novello was to be the observer in the trunk. Merlino was to drive one of the stolen cars, which was to follow behind the truck after it had been taken over. Dominico was to open the truck door, help subdue the guard and drive away with the truck.

The robbery was planned successively for several Saturdays in November and December but for various reasons was called off each time. The group met once again on Friday evening, December 27, 1968, near a Back Bay bar and rescheduled the robbery for the following day. Four cars and the necessary equipment for the robbery were assembled that evening. On Saturday afternoon the group met underneath the Southeast Expressway near the entrance to the Sumner and Callahan tunnelus. From there they observed the Brink's truck go through the tunnel to East Boston. When it returned to the Boston side thirty to forty-five minutes later, they followed it in their stolen cars onto the expressway and down onto Canal Street.

The robbery of Brink's truck No. 6280 was carried out as planned. The robbers, after leaving the parking lot on Nashua Street, dispersed to various pre-arranged points. They later rendezvoused at a motel in Brockton, counted the money, left and returned the following day to recount the money and divide it into shares.

The evidence given by DeLeary and Kelley was consistent. Various aspects of their testimony were corroborated by other witnesses.

In their defense both Novello and Dominico offered alibis which it was within the province of the jury not to believe. Denials of Motions for Pre-Trial Discovery. ¹

Dominico moved for production and inspection of the 'criminal records of each witness the Commonwealth intend(ed) to call' to testify at the trial. We assume that the object of this motion was the inspection of records of criminal convictions. See G.L. c. 233, § 21. Dominico also moved for production and inspection of the police records of all such witnesses. The trial judge granted the first motion only with respect to Kelley and DeLeary and denied the second motion. No prejudicial error resulted from these actions.

These motions were not requests for lists of witnesses appearing before the grand jury, Commonwealth v. Jordan, 207 Mass. 259, 264, 93 N.E. 809 (1911), or for access to witnesses in protective custody for purposes of interviewing them. Commonwealth v. Balliro, 349 Mass. 505, 515--517, 209 N.E.2d 308 (1965). Rather, they sought specific information about witnesses expected to appear at the trial. It is within the discretion of the trial judge to determine whether such information should be released. See Commonwealth v. French, 357 Mass. 356, 399, 259 N.E.2d 195 (1970), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2846, 33 L.Ed.2d 754 (1972). The Commonwealth is not obliged to summarize its evidence for the defendant, Commonwealth v. Kiernan, 348 Mass. 29, 34, 201 N.E.2d 504 (1964), cert. den. sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800 (1965), or to submit to full pre-trial discovery in criminal cases. Commonwealth v. Roy, 349 Mass. 224, 227, 207 N.E.2d 284 (1965); Commonwealth v. Marsh, 354 Mass. 713, 721--722, 542 N.E.2d 545 (1968). See also Commonwealth v. Bartolini, 299 Mass. 503, 505--508, 13 N.E.2d 382 (1938), cert. den. 304 U.S. 565, 58 S.Ct. 950, 82 L.Ed. 1531 (1938).

Dominico also sought to inspect all relevant police reports on the theory that they are public records within the meaning of G.L. c. 4, § 7. The motion does not refer to any report in particular, nor does Dominico make a showing that there was in fact any particular record '(a) . . . in which 'any entry has been made . . . (pursuant to a legal requirement)" or '(b) . . . in which 'any entry . . . is required to be made by law,' . . ..' TOWN CRIER, INC. V. CHIEF OF POLICE OF WESTON, MASS. (1972) , 282 N.E.2D 379.^A The trial judge was within the exercise of sound discretion in denying the motion. Commonwealth v. French, 357 Mass. 356, 399, 259 N.E.2d 195 (1970).

Right To A Speedy Trial. ²

The defendants Dominico and Novello argue that their constitutional right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and art. 11 of the Declaration of Rights of the Massachusetts Constitution was denied by the delay of nineteen months between indictment and trial.

In determining whether this right has been violated, we apply the guidelines set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). COMMONWEALTH V. HORNE, MASS. (1973) , 291 N.E.2D 629.^B The principal factors to be considered are the length of the delay, the reason for it, the resultant prejudice to the defendant and the defendant's assertion of his right to a speedy trial.

The threshold question is whether the delay of nineteen months in this case is sufficient to require inquiry into whether or not the right has been violated. In the Barker case the Supreme Court noted that the length of permissible delay is related to the nature of the crime. '(T)he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.' Barker v. Wingo, supra, at 531, 92 S.Ct. at 2192. Here we have a joint enterprise...