Com. v. Funderberg

• Decision Date: 06 March 1978
• Citation: 373 N.E.2d 963,374 Mass. 577
• Parties: COMMONWEALTH v. Jerry FUNDERBERG (and four companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 963

373 N.E.2d 963

374 Mass. 577

COMMONWEALTH v. Jerry FUNDERBERG (and four companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 4, 1978.

Decided March 6, 1978.

Martin K. Leppo, Boston, for Raymond Gaines.

Michael R. Pizziferri, Boston (Joseph A. Todisco, Natick, with him), for Jerry Funderberg.

Robert J. McKenna, Jr., Asst. Dist. Atty. (Michael J. Traft, Special Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and ABRAMS, JJ.

BRAUCHER, Justice.

The two defendants were convicted of murder in the first degree and armed robbery, and the defendant Funderberg was convicted of unlawful possession of a handgun. They appeal. The defendant Gaines assigns error in the denial of his repeated requests for a continuance, both defendants assign error with respect to photographic identifications, and the defendant Funderberg assigns additional errors with respect to the exclusion of evidence and instructions to the jury. We affirm the convictions.

The Commonwealth introduced evidence tending to prove the following facts. About 4 P.M. on Tuesday, December 10, 1974, the victim's fifteen-year old son was tending the cash register in his father's shoe repair shop in Roxbury. Three men entered the shop, Gaines, Funderberg, and a third man, Anderson. Gaines took money from the cash register; Funderberg and Anderson had guns, and one of them shot and fatally wounded the victim. The three men then backed out of the store and ran toward a nearby housing project.

An apartment in the housing project was used as a "shooting gallery," where customers could use heroin. The three men arrived there, out of breath, some time after 4 P.M. that day. Funderberg had a gun in his belt. He said, "When we get ready to do something and you get in the line of fire, you get hurt, too." One of them said, "How much money did we get?" The answer was $120. One said, "Oh, let's go back in the back room to do what we intended to do." The three were in the back room when the police knocked on the door of the apartment and were admitted, but the police left when the proprietor of the "shooting gallery" asked them for a search warrant. Two or three days later, according to the proprietor's testimony, "Funderberg was telling Anderson that he thought he'd hit him (the victim), you know, and Anderson said he don't think his shot hit him."

In May, 1975, Gaines was in jail in Des Moines, Iowa, and three police officers obtained arrest warrants and went to Iowa to bring him back to Boston. Miranda warnings were given to Gaines. The next day, on the return flight, Gaines told an officer-witness "that I didn't warn him of his rights so he could tell me the story. . . . He told me he was there when it happened, when it went down. He told me that the boy would never be able to recognize him because he pulled his hat down on his forehead and he took out his teeth."

The defendants attacked the identifications made by the victim's son, and sought to show bias in the testimony placing them in the "shooting gallery." Each of them also presented alibi testimony. Gaines and his aunt testified that he left Boston on a bus for Iowa on December 8, 1974, and that he telephoned her on his arrival on December 10. Five witnesses testified that Funderberg was babysitting in his sister's apartment from about 3:30 to 5 P.M. on December 10.

1. Gaines's requests for continuance. Gaines was indicted in May, 1975; on July 1, 1975, a Superior Court judge appointed counsel requested by Gaines by name. After filing a number of pre-trial motions, counsel withdrew on May 21, 1976. New counsel was appointed the same day, and trial was scheduled for June 9, 1976. Some time before then a written motion for continuance was filed by the new counsel and denied. At a pre-trial hearing on June 9, he complained that he was not entirely ready for trial. During a voir dire hearing on June 10 on photographic identifications he orally renewed his motion for a continuance, stating that he was not prepared and that he wanted to "check out the truth and veracity" of the testimony of the officer who assembled the photographs; the motion was denied. On Monday, June 14, counsel stated that he had not had time to obtain certified copies of the criminal records of Alfred Hamilton, a prosecution witness; he was given the opportunity to use the lunch break to obtain the records, but he did not produce them. On June 15, after the Commonwealth had completed its case in chief, he requested a mistrial or a continuance to obtain process to compel the attendance of Gaines's mother, an alibi witness in Iowa; the motion was denied.

Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is a patent abuse of discretion. Commonwealth v. Cavanaugh, --- Mass. ---, --- ^a, 353 N.E.2d 732 (1976). Commonwealth v. Gilchrest, 364 Mass. 272, 276, 303 N.E.2d 331 (1973). Commonwealth v. Bettencourt, 361 Mass. 515, 517-518, 281 N.E.2d 220 (1972). The reasons presented to the judge when the requests were denied were not such as to demonstrate that denial was an abuse of discretion, and a reading of the transcript fails to indicate that the quality of the defense was perceptibly impaired by the denials.

The written pre-trial motion stated only that time was needed "to investigate the alibi defense, interview witnesses, obtain and review hospital and other records." The defendant had known of his coming trial for more than a year, during most of which he was represented by counsel of his choice. Twenty-four days elapsed from the time new counsel was appointed until he began to present the defense, and counsel obviously had time to interview witnesses and obtain records locally. The need to compel the attendance of an Iowa witness apparently arose on the fifth day of trial, when the witness refused to come. It appeared to the judge that her testimony "would just corroborate" other testimony; there was no showing that she could have presented convincing corroboration on the critical matter of the date the defendant went to Iowa. See Commonwealth v. Dirring, 354 Mass. 523, 529-530, 238 N.E.2d 508 (1968).

2. Photographic identifications. Before trial Gaines moved to suppress photographic identifications and resulting in-court identifications. After hearing, the judge found that a fair mixture of photographs was presented to the victim's son, that there was no suggestiveness in the manner of presentation, and that his identifications of the defendants were untainted. The judge said that the reliability and weight of any identification were for the jury, and denied the motion. He directed that the witness not be shown the photographs until he testified again, and arrangements were made for sanitized reproductions, eliminating police...