Com. v. Guerro

• Decision Date: 19 June 1970
• Citation: 357 Mass. 741,260 N.E.2d 190
• Parties: COMMONWEALTH v. Thomas A. GUERRO. (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 190

260 N.E.2d 190

357 Mass. 741

COMMONWEALTH v. Thomas A. GUERRO. (and three companion cases ¹).

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 4, 1970.

Decided June 19, 1970.

Reuben Goodman, Boston, for defendants.

Stanley J. Jablonski, Asst. Dist. Atty., for Commonwealth.

SPIEGEL, Justice.

Cases involving twenty-eight indictments were consolidated for trial. ² Guerro was indicted for operating a motor vehicle 'without the authority of the owner * * * after his right to operate without a license * * * (had) been suspended or * * * revoked.' G.L. c. 266, § 28. Guerro and Tarzian were each indicted for receiving motor vehicles 'knowing the same to have been stolen,' G.L. c. 266, § 28; for possession of motor vehicle master keys, G.L. c. 266, § 49; and for being accessories before the fact of larceny, G.L. (Ter.Ed.) c. 274, § 2. Tarzian, Coderre and Danese were each indicted for theft of a motor vehicle, G.L. c. 266, § 28. Tarzian and Coderre were each indicted for larceny, G.L. c. 266, § 30. Tarzian was charged with removing and changing a motor vehicle identification number. Coderre was also indicted for altering the identification number of a motor vehicle to conceal its identity, G.L. c. 266, § 139. All of the defendants were indicted for conspiracy to steal motor vehicles and except for Coderre for conspiracy to receive stolen motor vehicles. The defendants were sentenced on sixteen indictments. They have appealed under the provisions of G.L. c. 278, §§ 33A--33G. The cases are here on a summary of the record, a transcript of the evidence, and a total of eighty-one assignments of error.

For purposes of clarification we state the relevant portions of the evidence as they relate to each of the motor vehicles involved herein.

THE STIVLETTA CADILLAC.

About 7:30 or 8 P.M. on December 1, 1966, one Nicholas Stivletta parked a 1966 Cadillac convertible, royal blue with a white roof, at Shoppers' World in Framingham and went to a motor picture theatre. When he came out of the theatre at approximately 10:30 or 11 P.M. his car was missing. The motor vehicle identification number was F6147195. In the latter part of November, 1966, one Robert L. Varney received a telephone call from an unknown caller, who inquired whether Varney would be interested in buying a 1966 Cadillac. The caller told Varney that the car had been in an accident, but would be repaired in a 'couple of weeks.' Varney indicated his interest and on December 2, 1966, the defendant Tarzian went to Varney's place of employment and asked if Varney 'wanted to see the car that he had brought over.' Varney went outside and observed a 1966 Cadillac convertible with a blue body and a white top. After Varney drove the car, they went to the Worcester County National Bank where Varney cashed a check for $2,650. After returning to the parking lot of Varney's place of employment, Tarzian 'took' out a bill of sale, which Varney signed. Varney then checked the identification number on the bill of sale with the number on the door plate. The number F6226101 appeared in both places. Varney gave Tarzian the $2,650. Tarzian walked away and got into a white Cadillac that had been parked nearby. The bill of sale indicated that one John F. Maloney, 612 1/2 East Fifth Street, South Boston, had been the prior owner of the vehicle. ³ Varney called a telephone operator in an attempt to verify the existence of the person named on the bill of sale. Later that day he traded the Cadillac convertible to Lawless Cadillac for a 1967 Pontiac Grand Prix. On March 2, 1967, on William F. Yetman, a special agent for the National Automobile Theft Bureau inspected a 1966 blue Cadillac convertible at the Worcester police garage. He found that the plastic tab on the door post of the vehicle, with the number F6226101, was a replacement and that the identification number F6147195 located on the right front frame rail was the true vehicle identification number. This number was the same as the one on the original bill of sale for the Stivletta vehicle.

THE 1966 PONTIAC GTO.

On February 18, 1967, one Russell West parked his 1966 Pontiac GTO convertible, burgundy body with a black top, in the parking lot adjacent to the Jordan Marsh Company store in Bedford, New Hampshire. At 3 P.M. that day, West returned to the place where he had parked his vehicle and it was missing. The car bore two number plates--New Hampshire FA404. West next saw the vehicle approximately two weeks later at the State police barracks in Grafton, Massachusetts.

In October of 1966, one Clifford M. Auger, a police officer in the special service division for the city of Worcester, began a surveillance of the apartment of Guerro and Tarzian at 17 Bowdoin Street, Worcester. The surveillance was conducted together with Lieutenant Mulhearn, Officers William Luby, Leonard Stranieri and R. V. Bryant of the Worcester police department and several members of the State police. During the period of observation, Auger had seen several cars driven by Guerro, Tarzian and Danese.

At approximately 3 P.M. on February 20, 1967, Auger and Stranieri went to the second floor of the Hertz Rent-A-Car garage overlooking the parking lot of the Holiday Inn in the area of Myrtle Street in the city of Worcester. The officers had with them a pair of binoculars and a camera. Shortly after arriving at the garage they observed 'the defendant Guerro walk into the driveway of the Holiday Inn with another person.' Guerro and his companion subsequently left the parking lot and walked around the Holiday Inn out to Myrtle Street. ⁴ At 3:55 P.M., Auger and Stranieri observed a burgundy 1966 Pontiac GTO convertible with a black top drive into the Holiday Inn parking lot, followed by a black sedan, 'approximately a 1960, Cadillac.' The Cadillac had Massachusetts registration plate numbered U872 and was driven by the defendant Danese. Auger had previously observed the car during his surveillance at 17 Bowdoin Street. The GTO had a New Hampshire dealer's registration plate attached to it, bearing the number 125V. ⁵ The operator of the GTO was Mason. Mason and Danese left the vicinity of the vehicles and disappeared from the officers' view. During this interval Auger left the Hertz garage and after walking to the Holiday Inn parking lot he proceeded to 'put a heavy scratch underneath the G of the GTO' with his keys. Auger subsequently went back to the second floor of the garage and observed Danese and Mason come back to the parking lot and move the Cadillac to another space some distance from the GTO. Mason went back to the GTO and Auger, looking through the binoculars, observed Mason 'behind the rear seat reaching into the trunk, working in the car.' Mason then handed Danese 'some long shiny objects.' ⁶ At 4:20 P.M., Guerro reappeared and proceeded directly to the GTO; he spoke with Mason and Danese, then got into the GTO and drove the car to a position from which he was able to converse with Danese and Mason, who had returned to the Cadillac. Apparently, after finishing the conversation, he drove the car out of the parking lot onto the street and out of view.

On February 28, 1967, Officers Auger, Stranieri and Lieutenant Mulhearn were riding in a police car when they observed a burgundy Pontiac GTO convertible drive past them, going in the opposite direction. After turning around to follow the vehicle, they proceeded toward Auburn and Stranieri noticed a burgundy GTO convertible parked at the Whitcomb Machine Company. The officers drove into the Whitcomb parking lot and Auger observed the right rear quarter of the vehicle. He saw a scratch under the G in GTO (the one he had made on February 20, 1967, in the Holiday Inn parking lot), and that the registration plate attached to the vehicle bore the New Hampshire number FA404. This was the same number issued to the missing West vehicle. Shortly thereafter, Officers Auger and Stranieri, again equipped with binoculars and a camera, went to the Gagner Woodworking Company (which is located across the street from the Whitcomb Machine Company) and took a position from which they could observe the GTO in the Whitcomb parking lot. They were subsequently joined by several State police officers and Yetman of the National Auto Theft Bureau. At approximately 1:15 P.M. Larson drove into the Whitcomb Company parking lot. Larson was driving a 1959 white Plymouth, Massachusetts registration number F63359. He parked the car and went directly into the Whitcomb building. During this time, the State police officers and Yetman were positioned in the Gagner Woodworking Company driveway in an unmarked vehicle. About 4:40 P.M., Larson emerged from the Whitcomb building and proceeded to get into the GTO and drive away. Sergeant James A. Baker of the State police followed Larson and stopped the car about a quarter of a mile from the Whitecomb parking lot. Baker advised Larson that the car had been reported stolen in New Hampshire and took Larson into custody. The GTO was then taken to the Grafton State police barracks where a New Hampshire dealer's plate number 125V was found under the seat. On February 26, 1967, Officer R. V. Bryant had seen a 1966 Pontiac GTO convertible, burgundy with a black top, being driven by the defendant Tarzian. At that time the vehicle had a Massachusetts registration plate attached, numbered F63359, the same number plate that was attached to Larson's white 1959 Plymouth.

THE GIRARD CADILLAC.

On November 22, 1966, about 8 P.M., one Herbert F. Girard parked his 1966 black Fleetwood Cadillac at the Monticello in Framingham. When he returned for the vehicle about 1 A.M. on the twenty-third of November, it was missing.

About the first week in November, one Leroy P. Smith spoke with the defendant Coderre and 'told him * * * (he) was in the market for a Cadillac.' Smith also told Coderre the type of equipment he wanted in the car. On the sixteenth or seventeeth of November, Coderre...