Com. v. Hawkesworth

• Citation: 405 Mass. 664,543 N.E.2d 691
• Parties: COMMONWEALTH v. Norman HAWKESWORTH (and a companion case 1 ).
• Decision Date: 12 September 1989
• Court: United States State Supreme Judicial Court of Massachusetts

Page 691

543 N.E.2d 691

405 Mass. 664

COMMONWEALTH v. Norman HAWKESWORTH (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 2, 1989.

Decided Sept. 12, 1989.

Kimberly Homan (Norman S. Zalkind, Boston, with her), for Norman Hawkesworth.

Stephen Hrones, Boston, for John Morgan.

David B. Mark, Asst. Dist. Atty. (James Hamrock, Asst. Dist. Atty., and Julie W. Heflin, Legal Asst. to the Dist. Atty., with him) for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Chief Justice.

Convicted of murder in the first degree, on a felony-murder theory, the defendants appeal, claiming various errors in their transfers from the juvenile session of the District Court to the Superior Court and in their joint trial. Each defendant challenges the verbatim adoption, by the District Court judge, of the Commonwealth's proposed findings and rulings in his transfer decision, and each challenges the sufficiency of the evidence in support of those findings. The defendant John Morgan also asserts that certain testimony at his transfer hearing was improperly admitted. As to the trial, the defendant Morgan claims error in the admission of an inculpatory statement of the defendant Norman Hawkesworth, where Hawkesworth was not subject to cross-examination. ² Finally, both defendants attack the application of the felony-murder rule to them, and they request that we reduce the verdicts against them pursuant to our extraordinary power under G.L. c. 278, § 33E (1988 ed.). We reject the defendants' claims of error in their transfers to Superior Court, and we affirm the verdict against the defendant Hawkesworth; however, we reverse the conviction of the defendant Morgan under the principles enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and our parallel cases. We therefore remand for a new trial as to Morgan. We summarize the evidence before the jury, which consisted largely of the testimony of the other participants in the crime alleged. ³

1. The event. The jury would have been warranted in finding the following facts on the evidence presented. On the night of June 19, 1985, the defendant Norman Hawkesworth met with three other juveniles, his sister Regina Hawkesworth, Kristen St. Onge, and Jody Mendez. They met at Hawkesworth's home in a housing complex in the Hyde Park section of Boston. After some discussion, Mendez suggested that the group should steal an automobile. Mendez proposed the following ruse: one of the boys would lie in the roadway pretending to be injured, the two girls would flag down a passing motorist, and then the group would overpower the motorist and take the automobile. The group agreed to this plan. Shortly thereafter, John Morgan arrived, and agreed to participate. Hawkesworth produced a can of mace and distributed additional weapons: a handgun to Mendez, knives to the girls, and a billy club to Morgan. Morgan responded, "Good, I get to smash somebody's ---- head."

All five participants then walked to an unlighted section of West Boundary Road in the West Roxbury section of Boston. Along the way, Mendez fired the gun into the ground. Hawkesworth, visibly upset, exclaimed, "Damn, I only got one bullet left."

Upon finding a suitable site, the participants assumed their positions. Mendez lay in the roadway with the pistol concealed; the girls stood over him and attempted to flag down a motorist; and Hawkesworth and Morgan hid in the woods on either side of the roadway. One or two motorists stopped and asked whether everything was all right; but, because the automobiles each had several passengers, Mendez stood up and said that he was fine. Hawkesworth then exchanged places and weapons with Mendez.

The victim, Stephen Lanigan, was driving alone when he saw Hawkesworth and the girls in the roadway. He stopped at the roadside, left his automobile, approached Hawkesworth and the girls, and asked if everything was all right. Hawkesworth jumped up, pointed the gun at Lanigan, and said, "Freeze, ---- or I'll shoot." Lanigan then turned and ran toward his automobile; Hawkesworth pursued. As Lanigan was entering his automobile, Hawkesworth shot him in the back, from less than a yard away.

Lanigan drove his automobile a short distance and crashed into a signal box. Shortly thereafter, after being taken to Faulkner Hospital in Jamaica Plain, Lanigan was pronounced dead. Hawkesworth, meanwhile, had told everyone to run. He, Mendez, and the girls ran into the woods together. Morgan ran along West Boundary Road.

Officer Edward Shaughnessy of the Boston police department responded to a radio dispatch and examined the site of Stephen Lanigan's crashed automobile. Shaughnessy then drove along West Boundary Road, passing Morgan who was sitting by the side of the roadway. Shaughnessy reached the housing complex, reversed direction, and observed Morgan a second time, walking by the roadside. Shaughnessy stopped his cruiser in front of Morgan and asked if he could have a word; Morgan agreed. The two were joined by Detective Peter Doherty of the Boston police department; Shaughnessy then left.

Morgan stated that his name was John Milane, that he lived in Cambridge (although he had left his home there), and that he was on his way to visit his friend, Norman Hawkesworth. Morgan denied having seen anything or heard any gunshots on the road. Doherty drove Morgan to Norman Hawkesworth's house, verified with Hawkesworth's mother that the two were friends, and left.

Morgan, Hawkesworth, and the other three participants regathered sometime after midnight at a campsite where Morgan and Hawkesworth had fired the gun on prior occasions. Morgan then asked Hawkesworth if he had wiped the fingerprints off the gun. Hawkesworth said that he had, and that he had thrown the gun into some bushes.

A week later, on June 27, 1985, a hiker came upon the campsite and discovered a gun, wrapped in a windbreaker, and wedged between some rocks. The gun was later identified as the weapon used to shoot Lanigan; the windbreaker belonged to Morgan. On June 28, 1985, Detective James Solari of the Boston police department obtained a warrant to search Hawkesworth's house. He discovered Hawkesworth's diary in a bedroom closet. The diary contained the following entry for June 20, 1985, the day after the shooting: "Last night was a trip, boom, bang. That's all that needs to be said. Damn, I couldn't believe it. The young Norman finally came out. I don't want to get into describing my late night activities, but all that needs to be said is in riddles for people's safety, especially mine."

2. The District Court judge's verbatim adoption of proposed findings and rulings in his transfer decisions. The history of the transfer hearings in this case is unfortunate. The Commonwealth sought to transfer from the juvenile session of the District Court to the Superior Court three of the five juveniles involved in the incident--Mendez, Hawkesworth, and Morgan. After a finding of probable cause, which is not challenged, the District Court judge held a brief transfer hearing on October 2, 1985. He declined to transfer Mendez, but on October 17, 1985, he did transfer the defendants Hawkesworth and Morgan. The defendants then moved in the Superior Court to dismiss the indictments on the ground that the written findings of the District Court judge were too few and too conclusory under G.L. c. 119, § 61, and our case law. On April 17, 1986, a Superior Court judge denied the motions to dismiss, but remanded the cases to the District Court judge for new hearings and for more comprehensive findings. After the defendants' separate hearings, on July 23 and August 13, 1986, the Commonwealth submitted a set of proposed findings and rulings as to each defendant. The Commonwealth later stipulated that, when the District Court judge signed these proposed findings and rulings on August 27 and September 16, 1986, he made no changes. The defendants again moved to dismiss, but their motions were denied on February 2, 1987, by a second Superior Court judge. We review that decision. ⁴

General Laws c. 119, § 61 (1988 ed.), requires that before a juvenile may be transferred to Superior Court for trial as an adult, a District Court judge must enter "a written finding based upon clear and convincing evidence that the child presents a significant danger to the public as demonstrated by the nature of the offense charged and the child's past record of delinquent behavior, if any, and is not amenable to rehabilitation as a juvenile." Section 61 also requires that, after a finding of probable cause, the judge "shall then consider, but shall not be limited to, evidence of the following factors: (a) the seriousness of the alleged offense; (b) the child's family, school and social history, including his court and juvenile delinquency record, if any; (c) adequate protection of the public, (d) the nature of any past treatment efforts for the child, and (e) the likelihood of rehabilitation of the child."

The findings of fact signed by the District Court judge carefully and thoroughly address each of these statutory factors under separate headings. The defendants contend, however, that their indictments must be dismissed because the judge adopted the Commonwealth's proposed findings. ⁵ We disagree.

The defendants are correct to criticize the judge for failing to heed our repeated cautions not to adopt proposed findings verbatim. See, e.g., Lewis v. Emerson, 391 Mass. 517, 524, 462 N.E.2d 295 (1984). In so doing, the judge undermines the utility of fact finding, which is to "(1) insure the quality of a judge's decision making process by requiring simultaneous articulation of the judge's underlying reasoning; (2) assure the parties that their claims have been fully and fairly considered; and (3) inform an appellate court of the basis on which a decision has been reached." Cormier v. Carty, ...