Com. v. Franklin

Decision Date21 December 1978
Citation376 Mass. 885,385 N.E.2d 227
PartiesCOMMONWEALTH v. Gary FRANKLIN (and a companion case 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Jonathan Shapiro, Boston, for defendants.

John F. Donovan, Asst. Dist. Atty., for the Commonwealth.


HENNESSEY, Chief Justice.

The defendant Gary Franklin was tried before a Superior Court jury on indictments charging assault with a dangerous weapon, assault and battery with a dangerous weapon, and unlawfully carrying a revolver on his person. The defendant Robert Phifer was tried before the same jury on indictments charging identical assault and assault and battery offenses, possession of ammunition without a firearms identification card, and unlawfully carrying a shotgun on his person. Before trial, both defendants made timely motions to dismiss their indictments as being selective and racially motivated, and to suppress certain evidence on the ground that it was obtained during illegal searches and seizures. After a three-day hearing, the trial judge denied both motions. Franklin was convicted of unlawfully carrying a revolver on his person. Phifer was convicted of possessing ammunition without a firearms identification card and of unlawfully carrying a shotgun on his person. With Phifer's permission, the judge ordered that his possession conviction be placed on file. The judge then imposed on each defendant the minimum mandatory sentence of imprisonment for one year in a house of correction and stayed execution of those sentences pending appeal.

The defendants appealed, pursuant to G.L. c. 278, §§ 33A-33G, arguing four assignments of error: (1) the denial of their motions to dismiss, (2) the denial of their motions to suppress, (3) the judge's limitation of the defendants' attempt to cross-examine government witnesses to show bias, and (4) the admission of certain evidence during trial. 2 This court, on its own motion, ordered direct appellate review. We find error only in the judge's rulings on the motions to dismiss, which placed on the defendants too great a burden of proof and too narrowly limited the dates and nature of crimes to be considered. 3 Accordingly the motions to dismiss must be remanded for a new hearing.

We summarize the pertinent facts as follows. The incidents out of which these indictments arose occurred at the Maverick Street housing project in East Boston. That housing project and its surrounding area had been, for almost two years prior to trial, the scene of repeated violent confrontations motivated by racial intolerance and hatred. On August 27, 1975, at approximately 10 P.M., a group of several unidentified white persons stopped a tactical patrol force cruiser which was assigned to the Maverick Street housing project. The persons told Officers Ricci and Fagone that a boy had been shot 4 by a black man wearing a green shirt and gold-rimmed glasses and that the man had run into the housing project building at 66 Grady Court. As the officers proceeded to that address, Officer Ricci heard what sounded to him like a shotgun blast. 5 By the time the officers reached 66 Grady Court, a large crowd of white persons had gathered in the courtyard in front. Officer Ricci noted that the crowd was yelling and screaming and described the scene as a frightening one with great potential for violence.

On entering the first floor hallway of the apartment building, the police observed the door of apartment 115, the defendant Phifer's apartment, to be approximately five or six inches ajar. Without obtaining or requesting permission, Officer Ricci entered the apartment, observed and seized a shotgun case which was lying on the floor, then walked down a corridor into the bedroom and observed and seized a pistol case which was lying on top of a dresser. Mrs. Phifer and her two children were in the apartment at the time. However, it appears that no conversation took place. When Officer Ricci returned to the building hallway, he saw a man coming down the stairs holding what appeared to be the butt of a shotgun. However, before Officer Ricci could see his face, the man turned and ran back up the stairs.

Almost simultaneously, Officer Ricci and the several other police officers who had since arrived heard three shots come from above. They ran up the stairs to the third floor, where Officer Cerundolo saw a black man wearing a green shirt run into apartment 124. One of the officers knocked on the door of that apartment. It was opened by someone inside. The defendant Franklin, who fit the description of the alleged assailant, as originally reported to the police by the group of white persons, was sitting in a chair and was placed under arrest immediately. Officer Ricci then walked into a bedroom, observed a mattress with a bulge in it, reached underneath and seized a shotgun. He then pushed open the door of another room, from which the defendant Phifer emerged. Phifer was dressed in the same manner as the man Officer Ricci had seen run up the steps moments before. However, Officer Ricci did not place him under arrest. Instead, he told another officer to hold Phifer while he searched the room. When Officer Ricci came out of the room, Phifer was no longer in the apartment.

On arriving at the police station, Officer Ricci described the man he had seen on the steps and later in apartment 124 to Captain Bradley and another policeman at the station. They recognized the man described as the defendant Phifer and, without seeking or obtaining any warrants, accompanied Officer Ricci back to apartment 115 at 66 Grady Court. Once there, they knocked on the door, which was opened by Mrs. Phifer. Phifer was placed under arrest and advised of his rights. Captain Bradley then asked Mrs. Phifer if the police could look around the apartment. He testified, and the judge found as matter of fact, that she consented. One hundred and twenty-three rounds of .22 caliber ammunition were found in and seized from the inside of a clothes dryer in the kitchen. A .22 caliber revolver was later found underneath Phifer's automobile, which was parked in a lot adjacent to 66 Grady Court.

1. The Motions to Dismiss.

Franklin and Phifer, who are both black, filed motions to dismiss on the grounds that the prosecution of only black persons on serious criminal charges arising out of continuous and violent racial confrontations at the Maverick Street housing project violated their rights to equal protection of the laws. The defendant filed six affidavits in support of their motions and placed in evidence the testimony of six defense witnesses. The Commonwealth called no witnesses and offered no evidence in rebuttal. 6

The evidence presented in support of the motions to dismiss tended to show the following. The period between April, 1975, and September, 1976, was one of extreme racial tension in East Boston. Both East Boston as a whole and the housing project in particular were overwhelmingly white. In April of 1975, gangs of white youths began roaming the housing project, stoning the homes of black residents, breaking their windows, firebombing their apartments and assaulting the blacks themselves. When asked to make arrests, the police refused and, in some cases, did so mockingly. When the black residents sought to have complaints issued in the East Boston District Court on their own, the clerk first held hearings and then refused, although he routinely issued complaints against black persons without hearings when such complaints were sought by whites. Fearful of the white gangs and afraid that the police would not protect them, some of the black residents invited friends to their homes hoping that their presence might provide some measure of protection. These people also became the targets of white violence and the objects of police persecution rather than protection. 7

Phifer and his family, who lived in the housing project, and Franklin, the Phifers' nephew, directly suffered the effects of this situation. On August 25, 1975, Mrs. Phifer heard a group of white youths, whom she had just seen breaking the windows of another black resident's apartment, shout, "Phifer, you're next." On August 27, 1975, Phifer and Franklin went to the Boston office of the NAACP to ask for assistance. Edward Redd, the executive secretary, telephoned the office of the Boston police commissioner and was assured that the commissioner was aware of the situation and that police protection would be provided. Despite this assurance, a shower of rocks, bricks and bottles was thrown against the Phifers' apartment on the night of August 27, 1975, and nine of their windows were broken.

The defendants supplemented the testimonial evidence given by introducing records of the findings and orders issued in the few judicial proceedings that blacks did manage to institute during this period. On August 31, 1975, a judge of the Housing Court of the City of Boston issued an injunction requiring the Boston police to provide twenty-four hour a day protection for residents of the East Boston housing project. The order issued on a finding that the police had neither discharged their responsibility to maintain law and order nor taken reasonable measures to protect black residents from white violence. 8 The violence and unequal treatment persisted nevertheless. In May of 1976, black housing project residents found it necessary to obtain a Housing Court order authorizing the issuance of complaints against eight white individuals who had stoned their homes. 9 As a result of these complaints, two of the youths who testified against the defendants at the instant trial 10 were ordered to vacate the housing project because of their continued attacks against black residents. At about the same time, black housing project families brought a Federal civil rights action against several of the same white youths and...

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