Com. v. Gilday

• Decision Date: 31 December 1980
• Citation: 415 N.E.2d 797,382 Mass. 166
• Parties: COMMONWEALTH v. William Morrill GILDAY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 797

415 N.E.2d 797

382 Mass. 166

COMMONWEALTH v. William Morrill GILDAY, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1980.

Decided Dec. 31, 1980.

William M. Kunstler, New York City, Barry P. Wilson, Boston, Mass., with him for defendant.

Jeremiah P. Sullivan, Asst. Dist. Atty. (Carol A. Fagan, Legal Asst. to the Dist, Atty., with him) for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ. HENNESSEY, Chief Justice.

The defendant William Morrill Gilday, Jr., was convicted, after a jury trial, on an indictment for murder in the first degree of a Boston police officer, and on two indictments for armed robbery. Concurrent life sentences were ultimately imposed on all convictions. ¹ On appeal, this court affirmed the convictions. Commonwealth v. Gilday, 367 Mass. 474, 327 N.E.2d 851 (1975). Gilday is now here on appeal from the denial by a Superior Court judge of a motion for a new trial. We affirm the judge's order denying the motion.

During oral argument, Gilday's attorney stated to this court that copies of two reports of the Federal Bureau of Investigation, assertedly exculpatory of Gilday, had come into Gilday's possession at some time after the hearing on the motion for a new trial had been completed. At defense counsel's request we remanded the case to the Superior Court motion judge for further consideration of the motion for a new trial in light of the two documents. The judge made further findings and rulings, and reaffirmed his denial of the motion.

We summarize the relevant facts, as excerpted from our opinion in Commonwealth v. Gilday, 367 Mass. 474, 477-485, 327 N.E.2d 851 (1975). The defendant was indicted on murder and robbery charges on October 1, 1970, along with Stanley R. Bond, Robert J. Valeri, Susan E. Saxe and Katherine A. Power. The victim of the murder was Boston police Officer Walter A. Schroeder, who was shot in the course of the armed robbery of the Brighton branch of the State Street Bank and Trust Company on September 23, 1970. The Commonwealth's evidence showed, in general, that Bond, Valeri and Saxe entered the bank carrying guns, robbed it and drove off in a blue Chevrolet; that Gilday, armed with a semiautomatic rifle, was seated in a white Ambassador automobile across the street from the bank; that after the other three had escaped from the scene, Gilday fired a number of shots at two policemen who arrived, and Officer Schroeder thereby sustained the wounds from which he died the next day. Bond, Valeri, and Saxe later switched to a third vehicle, a station wagon driven by Power, and made their escape. Gilday also escaped in the white Ambassador.

The witness Francis Goddard testified that he had seen a man firing at the bank, and his testimony as to the man's description was consistent with the defendant's appearance. The witness Bernard Becker identified Gilday before the jury as the man who fired the rifle at the bank on the day in question. The witness Andrew Gaudette testified that he saw a man in a white sedan firing a weapon toward the bank, and that he had identified a photograph of Gilday, among a group of photographs shown to the witness, as the man who fired the gun. Gaudette failed to identify Gilday before the jury, at a time when Gilday was seated among the spectators in the court room.

The witness James A. Fox, a licensed firearms dealer in New Hampshire, testified that he had sold a .45 caliber semiautomatic rifle, and other weapons, to the defendant on September 5, 1970, and that the defendant was accompanied by Bond. The defendant and Bond fired test rounds from the weapon into a sandbank. He identified a semiautomatic rifle, which had been found in Bond's luggage at the time of Bond's arrest in Colorado after the murder and robbery, as the one he sold to the defendant. A ballistics expert testified that bullets and spent casings recovered from the New Hampshire sandbank, from the police car of Officer Schroeder, from in and around the Brighton bank, and from the area where the white Ambassador had been, all were fired from the semiautomatic rifle in evidence that had been sold to Gilday and later found in Bond's luggage.

The blue Chevrolet, which had been used by Bond, Saxe, and Valeri in the robbery, was recovered by the police. It was shown that an Ontario license plate on the vehicle had been stolen from a vehicle in the parking lot of the Huntington Avenue Y.M.C.A. in Boston where Gilday at the time lived. Gilday's thumb print was found on the license plate.

Alan McGrory testified that about 2:30 P.M. the day of the robbery and murder, the defendant came to McGrory's room. Bond was outside on the street, casually talking to a driver in a taxicab. At that time the witness McCrory said to Gilday, "I was sick to hear that two guys and a girl and an old reprobate had robbed a bank and critically wounded a police officer." Gilday answered that he had not heard about it. Then the two tried to get the news on the radio without success. Gilday then said that he did not think the officer was going to die, and that, even if the officer did die, he, Gilday, had nothing to lose. Gilday warned McGrory that even if Gilday were imprisoned on death row, he would take care of McGrory if he said anything. At this point Gilday gave the witness some money from a large roll of bills, and asked the witness whether he would be ready to leave that afternoon for the west coast. Gilday offered to get the witness a gun.

Robert J. Valeri testified that plans were made that Saxe, Bond, and Gilday were to enter the bank, and Valeri was to stay outside, but the following morning Gilday asked Valeri to go in while Gilday remained outside. Bond was to carry a 9 mm. Browning; Gilday, a shotgun and a .38 caliber pistol; Saxe, a .30 caliber carbine and pistol; and Valeri, a semiautomatic weapon and a .357 Magnum, but the plans were changed, and Gilday took the semiautomatic weapon, and he, Valeri, took the shotgun. According to Valeri's testimony plans were made for Bond, Saxe, and Valeri to use the blue Chevrolet; Gilday was to have the white Ambassador; and Power was to use a 1961 or 1962 Ford station wagon, which Gilday had purchased. The witness testified that he stole the blue Chevrolet in Springfield, Massachusetts, and that just before leaving for the robbery, Gilday changed the plates and put on the Ontario plate. The witness testified that he had seen the semiautomatic weapon prior to September 23, and Gilday told him that he and Bond had bought the weapon in New Hampshire.

Valeri further stated that, when they left the Beacon Street area, Bond was driving the blue Chevrolet, Gilday the white Ambassador, and he, Valeri, was driving the station wagon; that, on a side street, Power took the station wagon as the switch car, and he, Valeri, joined Bond and Saxe in the Chevrolet; that the two vehicles proceeded to the bank, and Gilday took his position in the white Ambassador with the New Jersey plates, on Western Avenue near the corner of Everett Street; that he, Valeri, Bond, and Saxe entered the bank, and when the tellers were slow in giving up the money, Bond fired two quick shots in the bank; that Bond took the money in bags, and they left the bank; that they drove from the bank, met Power, abandoned the Chevrolet, and drove away in the Ford station wagon, with Bond and himself lying in the back under a rug. The witness said he was dropped at Roberts station in Waltham from where he took a train to North Station, Boston, and proceeded to 163 Beacon Street. When he arrived, Bond and Fleischer were present and Power and Saxe later returned. Gilday came in after the women, and he had with him a suitcase containing the semiautomatic weapon. Bond asked Gilday what had happened, and Gilday said he stayed there and waited, and when the police officer came, he opened fire on him, and Bond and Valeri asked why he, Gilday, had waited, and Gilday said that "he had always wanted to shoot a police officer."

Stanley R. Bond testified that he was present when Gilday purchased the semiautomatic weapon, with other guns; and that he and Gilday bought the Ford station wagon. Bond stated that Gilday had stolen license plates for the group, one of which was used in the State Street Bank holdup, but the witness was not sure on which car the plate had been used. Bond also testified that he thought he drove the blue Chevrolet, that Michael Fleischer drove the white Nash, and that Power drove the station wagon. At one point, the witness said, "Mike had pulled up across the street." They drove around the bank. Saxe then went into the bank to see if the vault was open. After she returned to them, they parked the car and Bond, Saxe, and Valeri entered the bank together. Bond took the guard's gun. When the tellers hesitated, he fired one shot from his weapon. Bond and the others took the money in bags and left. They drove to the switch car site, joined Power, then dropped Power off on Route 9, and Valeri in Waltham. The witness Bond left the station wagon in Waltham, and took a cab back to the apartment on Beacon Street. When he arrived, Power was there and told him a "cop" had been shot. Saxe returned, then Valeri, and finally the defendant Gilday and Fleischer arrived at the same time. Later that evening, Bond drove Gilday to Brandeis University and told him to drive the station wagon somewhere, and he gave Gilday $1,000. Bond testified that he and Power left Boston by car; that Saxe and Fleischer went to the Logan airport; and that the four were together again in Philadelphia.

Bond further testified that he was sure that Gilday knew that he, Bond, was involved in robbing banks and in other activities, and that Gilday had participated in a breaking and entering of the Newburyport armory together with himself, Saxe, Power, and Valeri. The witness testified that he did not see Gilday on September 23, 1970, until after noon,...