Com. v. Graves

• Decision Date: 23 July 1973
• Parties: COMMONWEALTH v. Herbert GRAVES, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 711

299 N.E.2d 711

363 Mass. 863

COMMONWEALTH v. Herbert GRAVES, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1973.

Decided July 23, 1973.

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

Stephen R. Delinsky, Asst. Dist. Atty., for the Commonwealth.

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

TAURO, Chief Justice.

The defendant Graves and a codefendant Johnson were tried jointly before a jury for the murder of James B. O'Leary, a Boston police officer. ¹ Graves, who testified in his own defence, was convicted of first degree murder (with a recommendation by the jury for leniency), armed robbery, and assault and battery by means of a dangerous weapon. He received concurrent sentences of life for murder, fifteen to twenty years for armed robbery, and five to ten years for assault and battery by means of a dangerous weapon. The convictions of both Johnson and Graves were affirmed in Commonwealth v. Johnson, 352 Mass. 311, 321, 225 N.E.2d 360. Graves's subsequent motion for a new trial was denied and he now appeals under G.L. c. 278, §§ 33A--33H, from the denial of that motion. In support of his motion for a new trial he argues that the admission of Johnson's pre-trial statement, which tended to undermine his own testimony of abandonment of the criminal enterprise, was constitutional error and that such error was not harmless beyond a reasonable doubt.

The Superior Court judge (not the trial judge) ² who heard arguments on Graves's motion for a new trial made careful and detailed findings. The judge concluded that the admission of Johnson's statement was constitutional error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, but he denied the motion because, under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and Harrington v. California (majority opinion by Douglas, J.), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, the error 'was harmless beyond a reasonable doubt, and . . . did not contribute to the verdict obtained . . ..'

The pertinent facts which are out in detail in Commonwealth v. Johnson, supra, may be briefly stated. On August 1, 1963, Graves drove Johnson to a liquor store on Boylston Street, Boston. Johnson robbed the store at gunpoint while Graves waited for him in the car. Johnson was chased out of the store and down the street by an employee and some onlookers. As he ran past Graves he told him to start the car. Police Officer O'Leary joined the chase and pursued Johnson onto Commonwealth Avenue. Graves drove the car through some side streets onto Commonwealth Avenue where Johnson jumped into the seat beside the driver while the car was stationary at a red light. Officer O'Leary approached the driver's side of the car and ordered Graves to get out. Officer O'Leary then walked around to the other side of the car where he was fatally wounded by two bullets fired by Johnson.

Graves knew that Johnson had a gun and he admitted that he was engaged in the joint enterprise to commit armed robbery of the iiquor store. He disclaimed responsibility for the murder of Officer O'Leary, however, maintaining that he abandoned the enterprise when Officer O'Leary ordered him out of the car. The evidence relating to Graves's possible abandonment came from several sources and we must decide whether the constitutional error in admitting Johnson's pre-trial statement was, on this issue, harmless beyond a reasonable doubt.

We examine first the standard for determining whether the constitutional error in the instant case is harmless beyond a reasonable doubt. While there are some constitutional errors which can never be construed as harmless (see Chapman v. California, 386 U.S. 18, 23 and fn. 8, 87 S.Ct. 824, 17 L.Ed.2d 705), it is clear that violations of the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, may, in some circumstances, be considered harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340; Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.E.2d 1; Brown v. United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208.

The standard in the Chapman case announced that 'error . . . which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as harmless.' 386 U.S. pp. 23--24, 87 S.Ct. p. 828. In that case the Supreme Court indicated that unless the prosecution could demonstrate beyond a reasonable doubt that the improper evidence 'did not contribute to petitioners' convictions' (p. 26, 87 S.Ct. p. 829), the error would not be declared harmless. In the Harrington case, however, the Supreme Court appeared to deviate from the Chapman standard and implied that even where improper evidence possibly influenced the jury, the error might be held harmless if there was other overwhelming evidence of guilt. Over a vigorous dissent, the majority of the Justices concluded that 'apart from . . . (the improperly admitted confessions) the case against Harrington was so overwhelming that . . . this violation of Bruton was harmless beyond a reasonable doubt . . ..' 395 U.S. p. 254, 89 S.Ct. p. 1728.

In Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340, the court attempted to merge the two standards, mentioning both the overwhelming 'independent evidence of guilt' (p. 431, 92 S.Ct. 1056) and the 'possibility that the improperly admitted evidence contributed to the conviction.' P. 432, 92 S.Ct. p. 1060. Most recently, however, in Brown v. United States (1973), 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, the court, in a unanimous opinion, appears to rest its decision not to disturb the petitioner's conviction solely on the basis of overwhelming independent evidence of the petitioner's guilt. After making our own examination (see the Harrington case, supra, 395 U.S., at 254, 89 S.Ct. 1726) of the evidence on the issue of abandonment in the instant case, we conclude that the admission of Johnson's pre-trial statement was harmless beyond a reasonable doubt.

The trial judge instructed the jury that to reach the conclusion that Graves had abandoned the enterprise they must find that there was 'some appreciable interval between the alleged act of abandonment and the act from responsibility for which escape is sought. It must be possible for a jury to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in the process of consummantion, or has become so inevitable that it cannot be reasonably stayed. The process of detachment must be such as to show not only a determination on the part of the accused to go no farther, but also such as to give his . . . (accomplices) ³ a reasonable opportunity, if they desire, to follow his example and refrain from further action before the act in question is committed.' These instructions on the elements of abandonment, to which the defendant did not object, were precise and accurate. Commonwealth v. Green, 302 Mass. 547, 555, 20 N.E.2d 417; Commonwealth v. Lussier, 333 Mass. 83, 90--91, 128 N.E.2d 569; Commonwealth v. Dellelo, 349 Mass. 525, 529--531, 209 N.E.2d 303; LEBLANC V. COMMONWEALTH, MASS., 293 N.E.2D 260.^A

⁴

The judge continued by instructing the jury that 'if you find that there was an abandonment in accordance with the principles to which I have called your attention . . . or if you find that . . . (Graves) had been then and there arrested by Officer O'Leary and was no longer in a position to render any aid or assistance to his . . . (accomplice) ⁵ Johnson, and was no longer free in so fat as the furtherance of their common purpose or design was concerned by virtue of that arrest, then he may not be found guilty of the shooting or the consequences of the shooting, of murder' (emphasis supplied).

The jury might well have concluded from these instructions that there were two possible findings that would prevent Graves from being found guilty of the shooting: (a) if he took steps to dissociate himself from the enterprise in the manner described in the instructions on abandonment, or (b) if he submitted to arrest so that he could no longer render assistance to the common enterprise. The correctness of this bifurcated instruction is not challenged. The correctness of the first part as to abandonment is beyond doubt. We need not pass upon the correctness of the instruction pertaining to possible arrest. ⁶ Since the instruction did not harm the defendant and was not challenged it 'became the law of the case by which the jury properly could be governed.' Commonwealth v. Peach, 239 Mass. 575, 581, 132 N.E. 351, 353. See Cohen v. Edinberg, 225 Mass. 177, 181, 114 N.E. 294. See also Commonwealth v. Kneeland, 20 Pick. (37 Mass.) 206, 223; Commonwealth v. Maguire, 313 Mass. 669, 671--674, 48 N.E.2d 665.

Graves maintains that the 'jury was not instructed . . . that it could consider . . . events . . . subsequent to the shooting,' and that, therefore, we should not take these subsequent events into account in deciding whether the admission of Johnson's pre-trial statement was harmless beyond a reasonable doubt. The short answer to this contention is that there is language in the judge's instructions indicating that such subsequent events should be taken into account.

The judge's instructions in no way indicated that the jury could not consider events subsequent to the shooting. ⁷ On the contrary, it is difficult to rationalize how a juror could determine whether the alleged 'arrest' had effectively prevented Graves's furtherance of the enterprise without considering the subsequent events. Similarly, to find 'some appreciable interval between the alleged act of abandonment and the act from responsibility for...