Com. v. Gilday

Decision Date25 April 1975
PartiesCOMMONWEALTH v. William Morrill GILDAY, Jr.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Daniel F. Featherston, Jr., Boston, for defendant.

John T. Gaffney, Asst. Dist. Atty. (James M. McDonough, Boston, Legal Assistant to the District Attorney, with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

HENNESSEY, Justice.

This is an appeal under G.L. c. 278, §§ 33A--33G, of the defendant's convictions, after a jury trial, on an indictment for first degree murder and two indictments for armed robbery. The defendant was sentenced to death on the murder charge, the jury not having recommended that the death penalty not be imposed. Live sentences, to be served concurrently, were imposed as to the armed robbery convictions.

Thereafter, the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), was decided, and the defendant moved for a new trial as to the murder indictment on the ground that the Furman case established that a death sentence could not constitutionally be imposed and that therefore the trial judge could not legally impose a sentence of life imprisonment or any other sentence. The judge denied the motion, after hearing, and imposed a sentence of life imprisonment as to the murder conviction. After hearing, also, the judge denied a second motion for a new trial, which had been filed in the Supreme Judicial Court and remanded to the Superior Court for disposition, and in which the defendant alleged the wrongful suppression of certain evidence by the Commonwealth.

The defendant argues nine assignments of error, which relate to: (1) error of the judge in imposing a life sentence on the murder conviction on the first motion for a new trial; (2) error in the denial of the defendant's second motion for a new trial; (3) error in that he was deprived of a fair trial before an impartial jury by reason of widespread pre-trial publicity in the news media; (4) the erroneous exclusion of six potential jurors because of certain views on capital punishment; (5) examination by the prosecutor before the jury into subject matter of a certain letter; (6) error in permitting eyewitnesses Becker and Gaudette to testify, respectively, to an in court identification and a photographic identification of the defendant; (7) the admission in evidence of extensive proof of the defendant's flight after the robbery and murder, on the issue of consciousness of guilt, since proof of the flight involved kidnapping, and shooting at police officers; (8) denial of due process of law to the defendant by the prosecutor's false and impermissible characterizations, in final argument, of the defendant as a professional criminal; and (9) error in the judge's charge to the jury as to the definition of reasonable doubt.

There was no error, nor, as shown later in this opinion, do we find this to be an appropriate case in which to afford relief under G.L. c. 278, § 33E. We affirm the judgments.

The defendant was indicted on the 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. On motion of the defendant, his trial was severed from that of Bond; the two women were not apprehended; and Valeri pleaded guilty and was sentenced for the crime of manslaughter, after testifying as part of the Commonwealth's case in chief against the defendant.

The trial of the case consumed five weeks. 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 evidence reveals an odyssey of violence against a background of political revolution, or at least pretensions of revolution.

We summarize only the most significant evidence, and observe at the same time that there was much other testimony which tended to support an inference of the defendant's guilt on all indictments. 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 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 he knew the defendant and that he also knew Stanley Bond and Robert Valeri; that in September, 1970, he was living in a Northeastern University dormitory, and the defendant Gilday was residing at the Huntington Avenue Y.M.C.A., a few blocks away. On September 20, 1970, he was with Gilday in a bar; that Gilday told him he, Gilday, was 'in on something good,' a revolutionary cause, with all kinds of professors and businessmen involved who had no police records. Gilday showed him a .38 caliber pistol and bullets. Gilday told him there were girls involved, who would do away with anybody who would hurt the group.

McGrory stated that on September 23, 1970, at 12:30 A.M. Gilday came to see McGrory at the latter's apartment, and McGrory waw Bond and Valeri outside on the sidewalk. Gilday then told McGrory that he had told Bond and Valeri about him. Gilday said that he had told Bond and Valeri that McGrory wanted to see change and did not have much time to effect it, and that McGrory would have no qualms about killing people. He implied that McGrory should confirm these statements to Bond and Valeri. The witness McGrory testified that he and Gilday went out to meet Bond and Valeri and entered the white Ambassador; that Bond asked him why he wanted in, and the witness stated he wanted to see change; that he did not have long to achieve it; and that he was prepared to go to war with the establishment, depending on whom he was with, and the means used. Gilday then stated again the kinds of people involved, who had no criminal records, and who would 'blow the wall(s) of Walpole down if need be.' Gilday repeated that there were girls involved who were willing to kill if necessary, and that the group had police and army radios, submachine guns and bazookas.

About 2:30 P.M. that same day, 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 McGrory 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 hink 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 stated that he had met Gilday and Bond in in 1969, and Saxe and Power in 1970 at Brandeis University, and that in September he was a student at Northeastern University, and the group met in two apartments, one at 337 Beacon Street, Boston, rented by Bond, and the other at 163 Beacon Street, Boston, rented by Power. The witness testified that he knew the witness McGrory, and corroborated McGrory's account of the meeting in the early morning hours of September 23, 1970; that after McGrory had been left at his residence, Gilday, Bond, and he, Valeri, returned to 337 Beacon Street, where they met with Saxe, Power, and one Michael...

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