Com. v. Grace

• Decision Date: 03 August 1976
• Citation: 370 Mass. 746,352 N.E.2d 175
• Parties: COMMONWEALTH v. Frank GRACE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 175

352 N.E.2d 175

370 Mass. 746

COMMONWEALTH

v. Frank GRACE.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Dec. 1, 1975.

Decided Aug. 3, 1976.

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

Peter B. Gay, Special Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN and WILKINS, JJ.

QUIRICO, Judge.

This case is before the court pursuant to G.L. c. 278 §§ 33 A--33G, on the defendant's appeal from his conviction of murder in the first degree and the resulting sentence of imprisonment to the Massachusetts Correctional Institution at Walpole for life. The defendant was tried together with his brother Ross Grace, who was found guilty of murder in the second degree, and with Donald Arnum and Phillip Glover, who received directed verdicts on the murder indictments and were found not guilty of assault and battery. After the defendant's appeal was entered, he filed a motion for a new trial and the case was remitted to the Superior Court for hearing. G.L. c. 278, § 33E. The trial judge heard the motion on affidavits and oral testimony, and he subsequently filed findings and an order denying the motion. The defendant appealed from the denial, the record was supplemented, and the appeal was duly ree ntered in this court.

The defendant's primary focus in this appeal is on the denial of his motion for a new trial. He also raises other assignments of error relating to the conduct of the trial; however, for reasons which will be stated later, ¹ aside from the new trial issue we comment only on that on that assignment of error related to the alleged refusal by the trial judge to ask specific questions of prospective jurors relating to racial prejudice. We believe there was no error either in the denial of the defendant's motion for a new trial or in the judge's conduct of the trial. Accordingly, we affirm.

The evidence introduced by the Commonwealth and the defendant was highly contradictory. It was undisputed that the victim, Marvin Morgan, was shot on the street outside the West End Social Club in New Bedford on August 8, 1972, at approximately 11:30 P.M. after descending the stairs from the club. It was also undisputed that the shooting was observed by one Eric Baker, a cousin of the victim, and one Jasper Lassiter, both of whom had accompanied the victim from Providence to New Bedford earlier in the evening. The remainder of the evidence was sharply disputed, the Commonwealth's witnesses contending that the defendant was present and shot the victim, the defendant's witnesses corroborating the defendant's own testimony that he was elsewhere at the time of the shooting.

The Commonwealth's chief witnesses, Baker and Lassiter, testified that they were coming down the stairs with the victim when two men, identified by them as the defendant Frank 'Parky' Grace and his brother Ross Grace, approached with guns drawn. The Graces ordered them up against a wall, and, when Baker asked what was going on, he was told to get out of the way as he was not involved. There was some conversation regarding an alleged 'rip off,' and Ross Grace pointed out Lassiter and the victim as the persons who 'took (him) off for $800.' Glover, who had approached from another direction, threw punches at the victim, and then the defendant reached over Glover's shoulder and shot the victim in the chest. When Baker tried to intercede, the defendant hit him in the face with the gun and it went off.

Baker fled and flagged down a police cruiser. He told the officers that his cousin had just been shot, and they returned to the scene and took the victim to the hospital. On the way to the hospital, Baker gave the police the names or nicknames of the defendant, his brother Ross, and Donald 'Dolomite' Arnum as persons involved in the shooting. At the police station, Baker identified the photograph of another person, but it was later determined that this other person was not involved or present at the scene.

Baker gave the police a statement the next morning. The statement, which was introduced on cross-examination, contained slight inconsistencies with Baker's trial testimony. In the statement, Baker had lied to the police about not using drugs. The defendant tried to impeach Baker's credibility by showing that he was a drug addict and a 'pusher,' and that he was due for a 'fix' at the time of the shooting. Lassiter also identified the defendant. A statement he made to police on the day of the shooting, which also contradicted in part his trial testimony, was introduced to impeach him, as was his history of drug addiction.

Various police officers testified for the Commonwealth regarding the arrest of the defendant, shortly after the homicide, on a street between the club and the defendant's home. The officers also corroborated Baker's version of the flagging down the cruiser and giving the police information about the incident.

The defendant testified in his own behalf. He related the events of the evening as follows: He was at the Elks Home in New Bedford from about 7 to 8:45 P.M., after which time he returned home to watch 'Kung Fu' on television. When the program was over at 10 P.M., he met a friend, one Vern Rudolph, and they rode around, eventually stopping at the Cape Verdean Band Club about 11:15 P.M. He stayed there for approximately ten minutes, and then went to the Tropicana Club where he arrived at 11:30 P.M. He remained there 'shooting craps' until about 11:45 P.M., when he and Rudolph went to the Cozy Lounge. When they arrived there, Eileen Sylvia, the defendant's then girl friend, told him that she had received a telephone call from the babysitter at the defendant's house telling her about a shooting at the West End Social Club. The three of them drove toward the club, and were told by persons in front of the place that there had been a shooting and that police officers were heading up to the defendant's house. The defendant got out of the car and ran toward his house where he was stopped by police officers and arrested. He claimed that he was not questioned about the homicide. The Commonwealth introduced records of his convictions for possession of a switchblade knife, assault, threatening bodily harm, and assault and battery to impeach his credibility. G.L. c. 233, § 21, as appearing in St.1950, c. 426.

Several witnesses were called to corroborate the defendant's alibi testimony. The bartender at the West End Social Club testified that the defendant had not been at the club earlier in the evening, contrary to Baker's testimony, and that he observed the defendant pull up in a car in front of the club with some other persons at approximately 12:15 A.M. One Leonard Gonsalves testified to seeing the defendant and Rudolph at the Tropicana Club at eleven ten or eleven fifteen that night, and to having an argument with him regarding a dice game. One Steven Lopes testified that he saw the defendant twice that night, the first time between nine and ten at the Cape Verdean Band, Club, the second time about 11:45 P.M. at the Cozy Lounge. The defendant was also placed at the Cape Verdean Band Club with Rudolph about 11 P.M. by one Robert Grace, who had known the defendant for several years but was not related to him. One Bruce Ribeiro testified that he saw the defendant arrive with Rudolph in the area of the West End Social Club sometime after 11:30 P.M.

Rudolph testified and corroborated in detail the defendant's story. He described his travels with the defendant from club to club, ending at the Cozy Lounge shortly before midnight. His version differed only in that he stated that Elieen Sylvia had learned of the shooting from a cabdriver, and he was adamant on this point. Finally, Elizabeth Vieira, the babysitter at the defendant's apartment, testified that someone came to the house about an hour after 'Kung Fu' ended and told her to trouble at the club, and she called Eileen Sylvia at the Cozy Lounge with that information. She also corroborated the defendant's testimony that he had been home to watch 'Kung Fu' between 9 and 10 P.M.

1. The defendant filed a motion for a new trial based on evidence which he alleged to be 'newly discovered and highly relevant.' This evidence, which was contained in written affidavits and oral testimony, was introduced at the hearing on the motion for three purposes: (a) to support the alibi fedense developed at the trial, (b) to challenge the testimony of a government witness whose identification of the defendant was allegedly prompted by police, and (c) to demonstrate that one juror was not impartial. After a review of this evidence and of the trial transcript, the judge concluded that there was 'nothing in the 'newly discovered' evidence which would be anything more than cumulative,' that 'its absence at the trial did not in all likelihood make any difference in the jury's verdict,' and that he was 'not convinced that justice either was not, or may not have been, done at the trial.' Accordingly, he denied the motion. There was no error.

[a] The defendant offered the affidavits and testimony of a number of persons to support his defense, four of whom allegedly were eyewitnesses to the shooting. ² All of those alleged eyewitnesses testified at the hearing on the motion for a new trial that they observed the person who shot the victim, and, while unable to say who that person was, they could say it was not the defendant. Another affiant corroborated the testimony of the defendant and Rudolph as to his whereabouts at the time of the homicide. The judge found that none of these witnesses, nor their testimony, was 'newly discovered . . . in the classic sense.' He found that, while all the potential witnesses were known to the defendant, the alleged eyewitnesses did not testify at the trial for the following reasons: (a) Jo Ann Metts and Paul Bowen did not testify because they feared prosecution on outstanding criminal charges, (b) Gerald Ribeiro was...