Com. v. Hall

• Decision Date: 13 February 1976
• Citation: 343 N.E.2d 388,369 Mass. 715
• Parties: COMMONWEALTH v. James HALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 388

343 N.E.2d 388

369 Mass. 715

COMMONWEALTH

v. James HALL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1975.

Decided Feb. 13, 1976.

Malvine Nathanson, Boston, for defendant.

Kathleen M. Curry, Asst. Dist. Atty., for the Commonwealth.

Before BEARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

QUIRICO, Justice.

The defendant (Hall) and a codefendant, Raymond J. White, were indicted, tried and convicted for the following crimes, all allegedly committed on August 14, 1971: murder in the first degree of Calvin Thorn, murder in the first degree of Harry T. Jeffreys, and armed robbery from the person of Thorn of $29,325 belonging to Freedom Foods, Inc. The jury returned their verdicts on March 21, 1972, before the decision on June 29, 1972, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), relating to the death penalty, and made no recommendation that the death penalty be not imposed. G.L. c. 265, § 2. Each defendant was sentenced to death on each of the two indictments charging murder in the first degree and to a term of imprisonment for life thereafter on the indictment charging armed robbery.

The cases are before us on the appeal of Hall under G.L. c. 278, §§ 33A--33H, and his assignments of alleged error. There are no appeals before us by White. Each of the three indictments also named a third defendant, L. C. Clayton, who was not brought to trial. He testified as a prosecution witness against White and Hall, and on March 22, 1972, the Commonwealth filed a nolle prosequi as to him on each of the indictments. Because two of the cases before us on appeal are 'capital cases' errors relating to (1) the denial of requested c. 278, § 33E, as amended through St.1962, c. 453, the appeal in each of those cases transfers to this court 'the whole case for (our) consideration of the law and the evidence.'

By his brief Hall has argued five alleged errors relating to (d) the denial of requested pre-trial discovery of grand jury minutes, probation and criminal records of prospective witnesses, and police reports concerning the cases, (2) the refusal of the trial judge to question each prospective juror as to his knowledge of 'who Allah is,' (3) the limitation of Hall's cross-examination of a prosecution witness, (4) the cross-examination of Hall as to his refusal to talk to the police while under arrest, and (5) the unconstitutionality of the two death sentences.

The first three alleged errors assigned by Hall are based on exceptions duly saved before or during the trial; the last two are not based on any exceptions. We have held on numerous occasions that 'an assignment of error under G.L. c. 278, §§ 33A--33G, brings nothing to this court unless based on a valid exception.' Commonwealth v. Chaptman, 345 Mass. 251, 255--256, 186 N.E.2d 818, 821 (1962). Commonwealth v. Gibson, --- Mass. ---, ---, ^a 333 N.E.2d 400 (1975), and cases cited. That rule applies equally to capital cases within the definition of G.L. c. 278, § 33E, which empowers us to 'order a new trial . . . only 'if satisfied' that because of error of law or of fact the verdict is a miscarriage of justice, or where because of newly discovered evidence or for some other reason justice requires a new trial.' Commonwealth v. Bellino, 320 Mass. 635, 646, 71 N.E.2d 411, 418, cert. denied, 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1947). Commonwealth v. De Christoforo, 360 Mass. 531, 540, 277 N.E.2d 100 (1971). We have examined all the alleged errors and conclude, for the reasons hereafter stated, that as to those based on exceptions there was no error, that as to those not based on exceptions there is no relief warranted or required under § 33E, and that the only relief to which the defendant is entitled is in relation to the death sentences.

Before discussing each of the alleged errors, we state some highlights of the Commonwealth's evidence. On Saturday, August 14, 1971, an employee of the Freedom Foods supermarket on Columbia Road, Dorchester, called a bank to send some additional cash which was needed for cashing welfare checks for its patrons. Thorn, an employee of a private security force, arrived with the requested cash about 10:30 A.M. He had previously worked at the store as a security guard. He parked his car near the front of the store and went inside to get Jeffreys who was working there as a security guard. The two men then left the store and walked to the rear of Thorn's car. Thorn was in civilian clothes. Jeffreys was in the uniform of a security guard and was holding a gun in one hand. As Thorn opened the trunk of his car, two men rushed out of the store and started shooting at Thorn and Jeffreys from a distance of about three feet, wounding both of them. Jeffreys shot at the two men and wounded one of them. Thorn and Jeffreys were taken to a hospital and both died shortly thereafter from the gunshot wounds.

The two robbers took several bags of money from the trunk of Thorn's car and ran toward Columbia Road, with the wounded robber in a crouched position holding both hands around his groin or pelvic area. They entered a parked car and drove away on Columbia Road in the direction of Franklin Park. A witness saw that a chrome strip was missing from the right side of the car and he memorized the registration number on the car. The information ultimately reached the police.

On the afternoon of the day of the robbery the police found the car in question parked on a street near an apartment where Nina White, White's sister, lived. There were large amounts of human blood on the front seat, the steering wheel, the steering column, and on the dashboard all the way over to the right hand side of the car. There was also a box containing nineteen live rounds of ammunition for a .38 caliber firearm. The box, originally containing fifty rounds, had been purchased by White on July 8, 1971. Several of Hall's fingerprints were found on this box.

The registration plates fastened to the front and rear of the car when it was found were those issued to Hall's wife for that car. In the trunk there was a Massachusetts registration plate which Clayton had borrowed from one Williams and given to Hall at Hall's request several days before the robbery. Hall told Clayton, who was his cousin, that he was going to rob the Freedom Foods store and did not want to use his own plates. Clayton borrowed the plate from Williams for that purpose.

A number of persons who witnessed the robbery and related events testified at the trial. Three of these persons were the manager, the general manager, and an employee of the Freedom Foods store, and the fourth was a customer at the store. All gave somewhat varying descriptions of the robbers to the police, and testified thereon at the trial. The store manager actually identified one of the robbers as White who had formerly worked for the same private security force by which the victim Thorn was employed. In that capacity White had occasionally worked at the store.

After interviewing some of the witnesses the police left the scene and went to White's home. From there they went to another address, 90 Columbia Road, Dorchester, about one-half mile from the store and there went to a third floor apartment occupied by White's sister, Nina. There were fresh, wet spots of what appeared to be blood on the stairs up to the apartment and on the floor of the hall in front of the door leading to the apartment. They knocked and Nina came to the door but did not let them into the apartment when they first sought entrance. About fifteen minutes later Clayton came out of theapartmen, spoke to the officers, and went back inside. About ten or fifteen minutes later White came out of the apartment with his hands over his head, and after some talk with him the officers entered the apartment.

Inside the apartment the police found the following. Hall was lying on a bed, naked and bleeding from the area of his groin, and there were blood spots on the bed sheets. Near the bed there were several 'bank bags' and a paper shopping bag containing money, later determined to be in the amount of $19,325, and a bag containing an unascertained sum in coins. A bag containing an additional sum of $7,000 was found inside a vacuum cleaner in a closet. This had been placed there by Nina at the request of Hall. Beside Hall's bed there was a bucket containing about one quart of blood, some articles of clothing, and two complete and six empty .38 caliber shell casings. Two .38 caliber hand guns were found on a pile of laundry in a closet. They had been placed there earlier that day by Nina, when Hall arrived at the apartment, bleeding from a wound, and gave them to her.

Ballistics tests were performed on the two hand guns found in the apartment as described above, and on three spent bullets removed from the body of each of the two victims. The tests showed that the three bullets from the body of Jeffreys were fired by one of the hand guns, a .38 caliber Colt revolver, and that two of the bullets removed from the body of Thorn were fired from the other hand gun, a .38 caliber Iver-Johnson. The third bullet removed from Thorn's body was in a condition which did not permit a positive conclusion. The .38 caliber Colt revolver had been purchased by White at a gun store on June 21, 1971.

Nina White, testifying under a grant of immunity, gave the following information in addition to that already attributed to her above. White and Hall left her apartment together between 8 and 8:30 A.M. on August 14, 1971, the day of the robbery in question. They returned to the apartment about '10:45, close to 11' that same morning. At that time Hall was carrying an army duffle bag with something in it and he was bleeding heavily from his left thigh. Nina applied a tourniquet to the leg to stop the bleeding. While she was doing this, Hall said to White: 'If you had done what you were supposed to, I never would have been shot.' Hall asked...