Com. v. Eagan

• Decision Date: 08 June 1970
• Citation: 357 Mass. 585,259 N.E.2d 548
• Parties: COMMONWEALTH v. Brian J. EAGAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 548

259 N.E.2d 548

357 Mass. 585

COMMONWEALTH v. Brian J. EAGAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 6, 1970.

Decided June 8, 1970.

Robert A. Stanziani, Boston, for defendant.

Francis K. Monarski, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ. SPALDING, Justice.

The defendant was convicted under an indictment charging him with being an accessory after the fact to the crime of kidnapping. G.L. c. 274, § 4. The indictment was tried with two indictments, in which Charles J. Flynn and Paul Souza, respectively, were charged with the crime of kidnapping. The trial was subject to G.L. c. 278, §§ 33A--33G. The case is here on Eagen's appeal.

The alleged crime grew out of an incident that occurred in Tewksbury on August 25, 1968. The Commonwealth presented evidence of the following. One Manuel Nobrega, a self-confessed bookmaker of Lowell, testified that he was threatened by Flynn when he refused to join him in his 'wire-service business.' Eagen arranged a meeting between Nobrega and Flynn on August 25, 1968, at the Branding Iron Restaurant in Tewksbury. Nobrega agreed to meet Flynn there, but told Eagen that he would be carrying firearms. On the day in question he left for the meeting with a shotgun, a 'real pistol,' and a 'starter's pistol' in his car, a Chevrolet. Immediately after turning off the motor of his car in the parking lot of the restaurant, he was struck in the face, through the car window, by Flynn. After daring Nobrega to come out, Flynn then entered the back seat and began beating him. Flynn also wrested the shotgun, which was on the front seat, from Nobrega and gave it to Paul Souza, who walked off with it. During the struggle Nobrega fired two shots from the starter pistol. Souza, at the direction of Flynn, then drove the victim's car away toward Tewksbury, while Flynn, from the back seat, held and beat Nobrega. In the vicinity of Clark Road, Andover, Nobrega finally freed himself and escaped on foot. Flynn pursued and caught up with him, and began beating him again. At one point Flynn attempted to crush Nobrega with a boulder while he was lying on the ground, but Souza was able to deflect it from Nobrega's head. Eagan, Flynn and Souza then drove away.

One Mel Cook testified that while leaving the restaurant in the automobile of one James Shanley, he noticed a Chevrolet in front of their car and a Thunderbird directly behind them. In the Chevrolet a man in the bact seat was continuously beating a man in the front seat on the passenger's side. Shanley testified to the same effect. He identified Nobrega as the victim, Souza as the driver of the Chevrolet, and Eagan as the driver of the Thunderbird.

Officer Manley of the Tewksbury police department testified that Egan, Flynn and Souza came into the police station on the afternoon of August 25, and reported 'a little trouble' at the Branding Iron Restaurant. Flynn stated that someone had tried to kill him. Manley noticed blood on Flynn's hands and shirt, which Flynn admitted was the 'other fellow's.' ¹

1. On the second day of the trial the morning editions of the Boston Globe and Boston Herald-Traveler newspapers carried articles relating that Eagan, Flynn and Souza were arrested for carrying a 'sawed-off' shotgun in an automobile on the way to court. Upon the recommendation of the prosecutor and defence counsel, the court polled the jury collectively as to whether any of them had read the newspaper articles or had heard broadcasts. All members of the jury and two alternates reported seeing at least one of the articles. The judge then asked the jurors whether this fact would 'affect * * * (their) honest deliberation' of the case and whether they could decide the case solely on the basis of evidence introduced at the trial. One juror who said that the articles might affect her deliberation was excused and replaced by an alternate. None of the other jurors indicated that the articles or broadcasts would affect his deliberation. The judge then instructed the jury at some length to disregard news articles in reaching their decision. Later in his charge, he told the jury that the guilt or innocence of Eagan, Flynn and Souza was to be determined 'on the evidence that you have heard and on the law as I give it to you, and not on the basis of anything else.'

The defendant argues (assignment no. 1) that it was error for the trial judge to refuse to grant his motion for a mistrial once he had learned that the jury had read news articles prejudicial to him. The defendant bases this argument on the alleged highly prejudicial nature of the articles, on the judge's failure to poll each juror separately, and on the assertion that limiting instructions could have little effect on the impact of these articles. We disagree.

The question whether prejudice has been engendered in a jury by newspaper publicity is a question in which the trial judge has large discretion. Whether a judge has abused his discretionary powers is to be determined by the special facts of each case. Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. In view of the trial judge's prompt actions to offset any prejudice we cannot say that he abused his discretion in deciding that the publication of the articles had not prevented the defendant from receiving a fair trial. He promptly inquired of the jury whether they had been exposed to the prejudicial publicity, and whether it impaired their impartiality in deciding this case. See Commonwealth v. Crehan, 345 Mass. 609, 615, 188 N.E.2d 923. The judge is not required to poll each juror individually. See United States v. Pisano, 193 F.2d 355, 360, 361 (7th Cir.). Nor must he extend the inquiry once a juror who has admitted exposure to the publication complained of affirms his ability to decide the case according to the evidence. Commonwealth v. Subilosky, 352 Mass. 153, 159, 224 N.E.2d 197. As noted, the judge also instructed the jury immediately after the poll to disregard the newspaper stories. We see no reason to depart from our rule that jurors are expected to follow instructions to disregard matters withdrawn from their consideration. Commonwealth v. Bellino, 320 Mass. 635, 645, 71 N.E.2d 411. Commonwealth v. Crehan, supra, 345 Mass. at 613, 188 N.E.2d 923. Compare Commonwealth v. Sarro, Mass., 248 N.E.2d 286; ^a Commonwealth v. Carita, Mass., 249 N.E.2d 5; ^b Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. In view of the jurors' indication of impartiality, the instructions here were 'sufficiently strong to accomplish * * * (the) purpose' of counteracting the effect of the withdrawn matter. Heina v. Broadway Fruit Mkt. Inc., 304 Mass. 608, 611, 24 N.E.2d 510, 512.

2. The Commonwealth introduced evidence of the attempt by Flynn to crush Nobrega with a boulder as well as the other events that occurred on Clark Road. The defendant argues (assignment no. 4) that since such evidence pertains to an indictment pending in another jurisdiction, ² it was irrelevant and improperly admitted. But the mere fact that evidence tends to prove the commission of some other crime does not render it inadmissible as long as it is relevant to the crime being tried. Commonwealth v. Lamoureux, 348 Mass. 390, 204 N.E.2d 115; Commonwealth v. White, 353 Mass. 409, 232 N.E.2d 335. The question thus is whether the testimony of the beating is relevant to the crime of which the defendant was charged, i.e., being an accessory after the fact to kidnapping. Of course, proof of the commission by the principal of the crime of kidnapping was essential to the Commonwealth's case against Eagan. Commonwealth v. Tilley, 327 Mass. 540, 546, 99 N.E.2d 749. Here the period of kidnapping extended from...