Com. v. Flynn

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore TAURO; QUIRICO
Citation362 Mass. 455,287 N.E.2d 420
PartiesCOMMONWEALTH v. Charles FLYNN (and companion cases 1 ).
Decision Date13 September 1972

Page 420

287 N.E.2d 420
362 Mass. 455
COMMONWEALTH

v.
Charles FLYNN (and companion cases 1).
Supreme Judicial Court of Massachusetts, Essex.
Argued May 2, 1972.
Decided Sept. 13, 1972.

Page 425

[362 Mass. 457] Joel R. Labell, Lawrence, for Carl Valleca (Eli G. Mavros, Lynn, for Kenneth Foster, with him).

Peter F. Brady, Asst. Dist. Atty. (Michael T. Stella, Jr., Lawrence, with him, for the Commonwealth.

Harvey Brower, Lynn, for Charles Flynn, submitted a brief.

Before [362 Mass. 455] TAURO, C.J., and BEARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

[362 Mass. 457] QUIRICO, Justice.

Charles Flynn, Demosthenes Gatzimas, Morris M. Capriole, Kenneth H. Foster and Carl Valleca [362 Mass. 458] were each charged in various indictments or counts thereof with the following crimes allegedly committed on May 5, 1969: (a) breaking and entering in the nighttime a building in Lawrence, with intent therein to commit a felony, to wit: armed robbery while masked or disguised, and (b) armed robbery while masked from each of twenty-four different persons then in the building.

On February 11, 1970, Gatzimas pleaded guilty of all of the charges against him. On February 17, 1970, Flynn, Foster and Valleca went to trial together under G.L. c. 278, §§ 33A--33G, on all of the charges

Page 426

against them. On March 11, 1970, they were found guilty on all such charges with the exceptions noted in the margin. 2 The cases are before us on their separate appeals and assignments of error.

The principal witnesses for the Commonwealth at the trial were the victims of the robbery and Gatzimas who had pleaded guilty but who was not sentenced until after the trial was over. We summarize the evidence in a manner sufficient for our decisions of the issues argued.

Prior to May 5, 1969, the date of the alleged crimes, Gatzimas had known Flynn for about four to four and one-half years, Foster for a period not appearing in the record, and Valleca for six or eight months. On Wednesday, April 30, 1969, Foster, driving a 1967 Cadillac automobile, took Flynn and Gatzimas from Flynn's house in Tewksbury to Valleca's apartment in Methuen. There a conversation took place in which Valleca said he had not been able to obtain two guns for Flynn, that he had obtained only one, and that Flynn should go to a named place in Lawrence to see one 'Moe,' later identified as Capriole, about getting another gun. Foster drove Flynn and Gatzimas to the named place where Flynn spoke to Capriole and the latter gave Flynn an [362 Mass. 459] automatic pistol. The next evening Gatzimas, Flynn and Foster were together at Flynn's house, and drove to the place in Lawrence where Flynn had seen Capriole the day before. The record does not disclose the purpose of this trip.

On the evening of Friday, May 2, 1969, using the same Cadillac automobile, Flynn, Foster and Gatzimas again drove from Flynn's house to Lawrence where Flynn wanted to see Capriole about getting another gun. Capriole joined them and they drove to a variety store where Capriole purchased two pairs of ladies' silk stockings. When Flynn saw the stockings he objected that they were too small but Capriole said that they were 'about the largest size he could have gotten.' On that same evening Flynn and Gatzimas met Valleca in Lawrence and Valleca gave them a description of the layout of the Syrian club in that city.

On Saturday, May 3, 1969, Foster drove Gatzimas to Flynn's house, arriving there about 12:30 P.M. Flynn asked Gatzimas to drive to Valleca's house to pick up a key to the Syrian club. Gatzimas did so, and Valleca gave him the key telling him to go straight to Flynn's house without stopping and to give the key to him.

About 11:30 P.M. on Sunday, May 4, 1969, Foster, using the same Cadillac automobile, drove Gatzimas and Flynn from the latter's house to the Syrian club in Lawrence, and let them off there about midnight. Gatzimas and Flynn went to the side of the club building where each put a silk stocking over his face. Each had a firearm on him. Flynn opened the door of the club with a key and they both entered the building. They went down a stairway to a lower level of the club where there were twenty-five or thirty men, most of them engaged in some from of gambling. Flynn fired one shot, and announced, 'All right, everybody line up against the wall. This is a holdup.' He ordered all the men to remove their trousers and they did so. Gatzimas gathered the trousers and put them in a pillowcase given to him by Flynn. Flynn searched several pairs of trousers, removed the [362 Mass. 460] wallets, and threw the trousers on the floor. The stockings worn by Gatzimas and Flynn did not fully hide their facial features, and one or more of the robbery victims who knew them recognized them and identified them in their later court testimony. Gatzimas knew at least one of the robbery victims.

Flynn and Gatzimas then left the building and went to the car in which Foster

Page 427

was waiting, about forty yards away. The car's motor was running, and Foster drove them back to Flynn's house. There the three men removed the contents from the trousers and counted the money which amounted to about $2,400. From this, Flynn gave $400 to Foster, $830 to Gatzimas, a total of $400 to three other persons present, and he put the rest of the money in his pocket. The stockings used as masks during the robbery and the trousers, credit cards, licenses and similar items taken from the victims were put back in the pillowcase. Gatzimas, Foster and two men other than Flynn drove to the bridge over the river in Tyngsborough and threw the pillowcase and its contents into the water below. The two guns used in the robbery were left at Flynn's house.

There was the following additional evidence limited to Valleca. On Tuesday, May 6, 1969. Valleca called Gatzimas and said that he wanted 'some money so that he could give it to the fellow that he got the key from.' He said he wanted $125. There was further conversation which resulted in Gatzimas meeting Valleca in Lowell where he gave him $70.

During this eighteen day trial the three defendants claimed a total of 734 exceptions to the judge's rulings and instructions to the jury. Not all of the exceptions were made the subject of assignments of alleged errors; and not all alleged errors assigned were ultimately argued in the defendants' briefs. The questions argued fall into thirteen principal categories, all but one of which were argued by two or more of the defendants. Because of this pattern of issues argued, we shall consider each issue separately, rather than the claims of each defendant[362 Mass. 461] separately. As we enter on the discussion of each issue, the number of the issue will be followed by the names of the defendants who raised it.

1. (Valleca). On February 11, 1970, Gatzimas pleaded guilty to all charges against him, and the Commonwealth disclosed that he would be a witness against the other defendants. The defendants asked the court for permission to interview Gatzimas. The Commonwealth did not object but asked that some one from the district attorney's office be allowed to attend the interview. Valleca's objection to the Commonwealth's request was overruled and he excepted. The defendants were entitled 'as of right (to) an opportunity to interview prospective witnesses held in the custody of the Commonwealth.' Commonwealth v. Balliro, 349 Mass. 505, 516--517, 209 N.E.2d 308, 315. This included Gatzimas who was in custody pending disposition on his pleas of guilty. In Commonwealth v. Doherty, 353 Mass. 197, 211, 229 N.E.2d 267, 276, cert. den. sub nom. Doherty v. Massachusetts, 390 U.S. 982, 88 S.Ct. 1106, 19 L.Ed.2d 1280, we said further that if such a witness 'elected to be interviewed, we think the defendants' counsel were entitled to talk with the witness, each separately and without the presence of the prosecutor or police officers.' See Commonwealth v. Carita, 356 Mass. 132, 142--143, 249 N.E.2d 5.

The interview of Gatzimas by Valleca's counsel was held February 12, 1970, and lasted about one and one-half hours. The record does not disclose what Gatzimas said in the interview, but Valleca's brief says that 'Gatzimas volunteered useful information.' The record does not tell us whether any person from the district attorney's office attended the interview. The Commonwealth's brief attempts to tell us no one did, and counsel for Valleca attempted to tell us in oral argument that someone did. The record leaves much to be desired on this issue. The burden is on the excepting defendant to present to us a record which shows error and prejudice resulting therefrom. Valleca has failed to satisfy this requirement on this issue.

2. (Foster and Valleca). Foster and Valleca allege [362 Mass. 462] error in the denial of their motions to sever their cases for trial. Both defendants assets, without elaboration in argument, that they were somehow denied their rights under the Equal Protection

Page 428

Clause of the Fourteenth Amendment to the United States Constitution. Valleca alleges error by the judge in 'disallowing Gatzimas' Motion to Sever has case from all other of the co-defendants . . . and by disallowing' Valleca's similar motion. In his brief he argues he was denied equal protection of law by 'the trial Court's allowance of Gatzimas' Motion to Sever.' Whichever version Valleca intended, there is no merit to his argument. Gatzimas pleaded guilty before his trial started, and there was no further severance question as to him thereafter.

Both Valleca and Foster argue that they were entitled to severances under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which held that where two defendants were tried together, the admission of a statement made after the alleged offence and out-of-court by a defendant who did not testify at the trial and which inculpated the other defendant violated the latter's rights under the...

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102 practice notes
  • Com. v. Drew
    • United States
    • Massachusetts Supreme Judicial Court
    • March 12, 1986
    ...of it. See, e.g., Commonwealth v. White, 370 Mass. 703, 708-709 [352 N.E.2d 904] (1976); Commonwealth v. [397 Mass. 71] Flynn, 362 Mass. 455, 477 [287 N.E.2d 420] (1972) ('the same general rule of evidence applies to cases where a conspiracy or common enterprise is shown to exist even thoug......
  • Com. v. Campbell
    • United States
    • Appeals Court of Massachusetts
    • August 10, 1977
    ...motion for a directed verdict. We consider the evidence in its light most favorable to the Commonwealth (Commonwealth v. Flynn, 362 Mass. 455, 479, 287 N.E.2d 420 (1972); Commonwealth v. Burns, 362 Mass. 875, 289 N.E.2d 836 (1972)) to decide whether there was sufficient evidence of the defe......
  • Com. v. Bongarzone
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 13, 1983
    ...only if they found a joint venture. See Commonwealth v. Borans, 379 Mass. 117, 146, 393 N.E.2d 911 (1979); Commonwealth v. Flynn, 362 Mass. 455, 477, 287 N.E.2d 420 (1972). There was no We have concluded, however, that the Commonwealth failed to produce sufficient evidence to warrant a find......
  • Com. v. Ridge, SJC-09396.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 10, 2009
    ...whether to allow leading questions [is] left for the most part to the wisdom and discretion of the trial judge." Commonwealth v. Flynn, 362 Mass. 455, 467, 287 N.E.2d 420 (1972), quoting 455 Mass. 327 Guiffre v. Carapezza, 298 Mass. 916 N.E.2d 366 458, 460, 11 N.E.2d 433 (1937). It is not i......
  • Request a trial to view additional results
102 cases
  • Com. v. Drew
    • United States
    • Massachusetts Supreme Judicial Court
    • March 12, 1986
    ...of it. See, e.g., Commonwealth v. White, 370 Mass. 703, 708-709 [352 N.E.2d 904] (1976); Commonwealth v. [397 Mass. 71] Flynn, 362 Mass. 455, 477 [287 N.E.2d 420] (1972) ('the same general rule of evidence applies to cases where a conspiracy or common enterprise is shown to exist even thoug......
  • Com. v. Campbell
    • United States
    • Appeals Court of Massachusetts
    • August 10, 1977
    ...motion for a directed verdict. We consider the evidence in its light most favorable to the Commonwealth (Commonwealth v. Flynn, 362 Mass. 455, 479, 287 N.E.2d 420 (1972); Commonwealth v. Burns, 362 Mass. 875, 289 N.E.2d 836 (1972)) to decide whether there was sufficient evidence of the defe......
  • Com. v. Bongarzone
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 13, 1983
    ...only if they found a joint venture. See Commonwealth v. Borans, 379 Mass. 117, 146, 393 N.E.2d 911 (1979); Commonwealth v. Flynn, 362 Mass. 455, 477, 287 N.E.2d 420 (1972). There was no We have concluded, however, that the Commonwealth failed to produce sufficient evidence to warrant a find......
  • Com. v. Ridge, SJC-09396.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 10, 2009
    ...whether to allow leading questions [is] left for the most part to the wisdom and discretion of the trial judge." Commonwealth v. Flynn, 362 Mass. 455, 467, 287 N.E.2d 420 (1972), quoting 455 Mass. 327 Guiffre v. Carapezza, 298 Mass. 916 N.E.2d 366 458, 460, 11 N.E.2d 433 (1937). It is not i......
  • Request a trial to view additional results

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