Com. v. Gibson

• Decision Date: 22 August 1975
• Citation: Com. v. Gibson, 333 N.E.2d 400, 368 Mass. 518 (Mass. 1975)
• Parties: COMMONWEALTH v. Warren A. GIBSON.
• Court: Supreme Judicial Court of Massachusetts

Page 400

333 N.E.2d 400

368 Mass. 518

COMMONWEALTH

v. Warren A. GIBSON.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 4, 1975.

Decided Aug. 22, 1975.

Robert S. Potters, Boston, for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

This is an appeal under G.L. c. 278, §§ 33A--33G, by the defendant, who alleges that various errors of law were made in the course of the trial of an indictment charging him with the murder of John R. Shrake (victim). ¹ The jury convicted him of murder in the first degree and the judge sentenced him to Massachusetts Correctional Institution at Walpole for the rest of his natural life. The defendant has assigned and argued as error the following actions of the trial judge: (1) the denial of the defendant's motion to dismiss the indictment, which motion was predicated on the fact that hearsay evidence was presented to the grand jury which returned the indictment; (2) the exclusion of a question by defense counsel and affirmative answer by the defendant as to whether the defendant had learned something with regard to the habits and character of the victim when the victim was drinking; and (3) the giving of an instruction to the jury that they might draw reasonable inferences from circumstantial evidence. The defendant further argues tha the verdict of guilty of murder in the first degree was against the weight of the evidence and that, accordingly, we should exercise our power under G.L. c. 278, § 33E, to direct the entry of a verdict of guilty of manslaughter. There was no error of law and there was ample evidence to support the verdict. We summarize some of the evidence which, if believed, as it evidently was, supports the verdict.

At about 10:30 P.M. on May 28, 1973, the victim, accompanied by two other men, Ronald B. Casey, and Donald C. Keets, arrived at the Crossroads Cafe (cafe ) in Weymouth, or South Weymouth. When they arrived there, the defendant was seated at a booth with Robert Burrill. The victim, Casey, and Keets sat at another booth. Burrill was repeatedly playing the same song on the jukebox, until the bartender became angry and shut the machine off. This displeased Burrill, who started to leave and to take the jukebox out with him. The bartender, however, stopped him from removing the machine and got him to leave without it. The defendant thereupon joined the victim, Casey, and Keets in their booth. All the men were known to each other. All had been drinking for some time, the other three for longer and in greater amounts than the defendant.

When the defendant joined the other three men he sat across the booth from the victim. The defendant and the victim apparently engaged in a boasting contest, each daring the other to rip the toilet seat or 'commode' out of the ladies' rest room. The defendant did remove the toilet seat, which he brought back to the table. The victim seems to have attempted to remove the toilet itself, but failed. Thereafter, the defendant and the victim continued challenging each other, with statements becoming progressively louder and more harassing. The defendant said, 'I'm going to jail anyway,' or, 'I'm going to Walpole anyways tonight. I don't care.'

Thereafter, the defendant turned the conversation to the subject of guns and the shooting of people. In the words of one witness, the defendant said 'that he liked nothing better than to see a man grab his heart after he had been hit.' In the words of a witness, the defendant 'was showing . . . how people go through changes when they got shot in the heart . . . (and that) he would like to see the expressions on their face when they got shot through the heart.' Another witness testified that the defendant said to the victim, 'I would like to see a man go through changes when he gets busted in the heart.'

The defendant himself testified that he had purchased a gun which he kept in the glove compartment of his car. He obtained no permit to carry the gun. At least once following the conversations described above, the defendant left the cafe to go to his car parked outside. After his return from the car, he brushed against Keets, who was standing at the bar. Keets 'felt something kind of hard.' Assuming the hard object was a gun, Keets 'told him if he pulls his gun out here, that I would take it away from him and jam it up his . . ..' The defendant responded, 'Good. I have a cap for you, too.'

At about 1 A.M. the cafe closed for the night. By this time, the victim, Casey, Keets, and the defendant had been joined by two other acquaintances, John Sprague and Frank Howlett. The defendant said to the victim, 'COME ON, JACK. COME UP TO KRAMER'S.' 'Kramer's' is kramEr's dairy Bar in South Weymouth. The victim was then apparently quite drunk, as he fell down in the parking lot outside the cafe . At Keets's urging, the victim got into Sprague's car, rather than into the defendant's car. Sprague and the victim were joined in Sprague's car by Howlett. Keets got into Casey's car. The defendant entered his own car alone. Sprague's car left first, followed by the defendant's car, and the two cars, Sprague's in front, drove to Kramer's. Casey's car did not follow. Sprague and Howlett dropped the victim off at Kramer's at about 1:15 A.M. Sprague testified that when he last saw the victim he was standing at Kramer's with the defendant and that no one else was present.

Precisely what then happened at Kramer's is now apparently known only to the defendant. A woman who lived directly across the street from Kramer's testified that around 1 A.M. she 'heard a sound that sounded . . . like a pop. There was maybe two or three seconds and I heard another pop, and then I heard a car go down . . . the . . . street . . .. It passed my house.' About 6:30 A.M., another woman who lived near Kramer's was leaving for work when she saw the body of a man lying on its back. She summoned help. About 6:40 A.M., a Weymouth police officer arrived and examined the body, observing that it had a blue tint to its skin and no pulse. The body was identified as that of the victim. An autopsy revealed two gunshot wounds. One bullet had entered the base of the right lower neck or the upper part of the back and passed through the neck, exiting on the left back side of the neck. The other bullet perforated the skin at the level of the right second rib, and from there entered the chest cavity, perforating the upper lobe of the right lung. It also completely disrupted and perforated the large artery called the aorta. This bullet, which came to rest in the victim's arm, was recovered. The physician who performed the autopsy expressed his opinion that this latter wound was the cause of death. He also expressed his opinion, based on the level of alcohol in the victim's blood, that the victim was intoxicated at the time of his death.

Later, on the day of the shooting, the defendant appeared with counsel at the Weymouth police station. After the defendant received the warnings required to be given by Miranda v. Arizona, 384 U.S. 436, 478--479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), his counsel gave the police a .38 caliber 'Titan Tiger' revolver which the defendant stated was the gun used to kill the victim. A ballistics test later confirmed that the fatal bullet was fired from this weapon. During this visit to the police station, the defendant gave his account of the events leading up to the shooting. He recounted the events at the cafe rather differently from the way summarized above. He claimed that he was on his way to the home of his wife, from whom he was separated, to visit his children when Sprague, who was behind him in another car, blew his horn causing him to pull into Kramer's. Thereupon, alleged the defendant, the victim and another unidentified man came up to him and the victim 'called him a . . . (vile name) and stated to . . . (the defendant) he was going to F him up.' Then, according to this statement, the victim, still swearing, approached to within a few inches of the defendant until the unknown third person stated, 'Let's.' The defendant allegedly then pulled out his gun, which he had placed in his belt merely so as not to forget it, and, thinking the victim had a knife, fired the gun without aiming it. According to this statement, the victim and the unknown third person just walked away. The defendant then drove away, reporting the incident to the police later when he first realized that the victim had been seriously injured.

The defendant repeated substantially the foregoing story in his testimony at the trial. The jury obviously disbelieved it.

1. The defendant's first and apparently main argument is that the trial judge erred in denying his motion to dismiss the indictment, which motion was predicated on the fact that hearsay evidence was presented to the grand jury which returned the indictment. The only witness called before the grand jury was the investigating police officer. This officer testified to his own observations at the scene of the crime and at the autopsy, and detailed the admissions made to him by the defendant in the presence of counsel. All this evidence would seemingly be admissible at a trial. The hearsay question is apparently raised, however, because the police officer recounted to the grand jury a statement about some of the events prior to the shooting given him by one of the witnesses thereto. Even assuming that the grand jury would not have returned a murder indictment without this hearsay evidence, an assumption which is by no means compelled, we hold that there was no error in denying the motion to dismiss the indictment.

In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), the United States Supreme Court answered in the affirmative the question: 'May a defendant be required to stand trial and a conviction be sustained where only...