Com. v. Hogg

• Decision Date: 09 May 1974
• Citation: 365 Mass. 290,311 N.E.2d 63
• Parties: COMMONWEALTH v. Jonathan HOGG (and twelve companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 63

311 N.E.2d 63

365 Mass. 290

COMMONWEALTH v. Jonathan HOGG (and twelve companion cases ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 1, 1974.

Decided May 9, 1974.

Kenneth Weiss, for defendants David S. Monroe and another.

Harvey M. Pullman, Boston, for defendant Jonathan Hogg.

Angelo Morello, Asst. Dist. Atty., for the Commonwealth.

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

BRAUCHER, Justice.

The defendants were tried together to a jury, and appeal from their convictions under G.L. c. 278, §§ 33A--33G. Monroe and Williams were convicted on indictments charging each of them with armed robbery, assault and battery by means of a dangerous weapon, armed assault with intent to murder, kidnapping, larceny of a motor vehicle, and unlawfully carrying a weapon. Hogg was convicted on a single indictment charging him with unlawfully carrying a firearm. We affirm all the convictions.

We summarize the evidence on behalf of the Commonwealth. About 8:30 A.M. on September 14, 1971, Thomas Fratto was sitting in his car on Arlington Street in Boston. Monroe and Willimas, both armed with .38 caliber pistols, ordered him into the back seat, took his wallet, and placed a rope around his neck. They bought gasoline with Fratto's money. Monroe drove first to Franklin Park and then to an abandoned apartment house in Dorchester. Monroe told Williams to take Fratto to the third floor, and Williams did so and tied and gagged Fratto. Later Monroe entered the room, tightened the bonds, and both assailants left the room. Still later Williams returned, tightened the bonds again, and, when Fratto struggled, shot him four times.

Despite his wounds Fratto managed to alert neighbors, who called the police. Officers arrived at the scene about 9:40 A.M. and Fratto gave them a description of his car, including the license number; he described the assailants simply as 'two black guys.' This information was given to the police radio dispatcher, and police officers soon observed the car in Mattapan. Shortly after 10 A.M. the car was stopped and its three occupants arrested and searched. Monroe, the driver, had a loaded .38 caliber pistol; Williams, in the right rear seat, had a loaded .38 caliber pistol and a knife and was wearing rubber gloves; Hogg, in the left rear seat, had a loaded .25 caliber pistol, a knife and rubber gloves. Fratto's wallet was on the floor of the car.

A spent bullet found in the abandoned apartment house could have been fired from Williams's pistol. One of two bullets removed from Fratto had been so fired. Tests indicated the presence of blood on the knives taken from Williams and Hogg.

1. Identification. At a lineup on October 13, 1971, nearly a month after the crimes and shortly after his release from the hospital, Fratto identified Monroe and Williams as his assailants. After a voir dire held during the trial, the judge suppressed testimony as to the lineup because the defendants were not represented by counsel at the lineup. He found, however, that there was nothing suggestive in the lineup or related proceedings and that the in-court identifications of the defendants by Fratto, beyond a reasonable doubt, were independent of anything that happened at the lineup; and he allowed the in-court identifications by Fratto to stand. These findings were supported by subsidiary findings, and the subsidiary findings, except in one respect, were supported by the testimony. The defendants correctly point out that the judge found that Monroe and Williams 'were in the company of Fratto for about half an hour in an automobile in the daylight, and between 15 and 20 minutes in the house where Fratto was shot,' but that Fratto's testimony was that both assailants were out of the room during part of the fifteen to twenty minutes. We do not think this discrepancy is material, and we decline to disturb the judge's conclusion. COMMONWEALTH V. MURPHY, --- MASS. ---, 289 N.E.2D 571 (1972)^A, and cases cited.

In his closing argument, the prosecuting attorney referred to the lineup. ² On prompt objection, the judge said there was 'no evidence of that before the jury,' the prosecuting attorney appologized, and no further reference to the lineup was made. The judge denied motions for a mistrial, concluding that the reference was inadvertent. There was no error. The defence counsel had previously brought the subject of the lineup to the attention of the jury in recross-examination of Fratto, and the judge could properly conclude that the danger of prejudice from an inadvertent improper remark was not so substantial as to require a mistrial. See Commonwealth v. Smith, 342 Mass. 180, 187--188, 172 N.E.2d 597 (1961). A more specific instruction to the jury on the point was not requested; moreover, such an instruction might have tended to emphasize the improper remark.

2. Bullets. Monroe and Williams contend that two spent bullets admitted in evidence were not properly identified. As to one, a police officer from the crime laboratory testified that he saw another officer pick up a bullet in the apartment house where Fratto was shot. Shown a bullet, he testified, 'It appears to be the same.' Later a police ballistician testified that he received the bullet from the officer who picked it up and that guns taken from Monroe and Williams were capable of firing such a bullet.

As to the second bullet, the doctor who operated on Fratto at the hospital testified that he removed two bullets from Fratto and gave them to a nurse. The assistant director of the operating room testified that a nurse received the bullet offered in evidence and, in the ordinary and usual course of business, a receipt was made out naming Fratto and the doctor. A police officer testified that he picked up the bullet and signed the receipt at the hospital and that he turned the bullet over to the ballistics unit and received a second receipt. The receipts were admitted in evidence. The ballistician testified that he received the bullet from the officer who picked it up at the hospital, that another officer signed the receipt for it, that he test fired the gun taken from Williams and that in his opinion the spent bullet was fired from the weapon.

There was no error. A complete chain of custody was established for both bullets. Compare COMMONWEALTH V. RODRIQUEZ, --- MASS. ---, 300 N.E.2D 192 (1973)^B; COMMONWEALTH V. PICKLES, --- MASS. ---, 305 N.E.2D 107 (1973)^C. In the case of the bullet from the hospital, there was evidence to warrant the findings required by G.L. c. 233, § 78 (business records). See Commonwealth v. Leonard, 352 Mass. 636, 644, 227 N.E.2d 721 (1967). We need not decide whether the receipt given the hospital was also admissible under G.L. c. 233, § 79 (hospital records). See Commonwealth v. Franks, 359 Mass. 577, 579--580, 270 N.E.2d 837 (1971). If there were weaknesses in the chain of custody, that would go to the weight of the evidence rather than to its admissibility. Commonwealth v. White, 353 Mass. 409, 419--420, 232 N.E.2d 335 (1967), and cases cited. See McCormick, Evidence (2d ed.) § 212 (1972).

3. Lesser included crimes. Monroe claims error in the judge's refusal to charge the jury that, under the indictment for armed robbery, the jury could find the defendant guilty of unarmed robbery, larceny, or assault. Williams claims error in refusal to charge that, under the indictment for larceny of a motor vehicle, the jury could find the defendant guilty of use without authority. G.L. c. 278, § 12. Commonwealth v. Novicki, 324 Mass. 461, 466, 87 N.E.2d 1 (1949). Commonwealth v. Subilosky, 352 Mass. 153, 166--167, 224 N.E.2d 197 (1967). Commonwealth v. McCauley, 355 Mass. 554, 559, 246 N.E.2d 425 (1969).

Where there is no 'rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense,' no instruction need be given on the lesser offence. Am.Law Inst., Model Panel Code, § 1.07(5) (Proposed Official Draft, 1962). COMMONWEALTH V. MCKAY, --- MASS. ---, 294 N.E.2D 213 (1973)^D. Driscoll v. United States, 356 F.2d 324, 327 (1st Cir. 1966), vacated on other grounds 390 U.S. 202, 88 S.Ct. 899, 19 L.Ed.2d 1034 (1968). People v. Mussenden, 308 N.Y. 558, 562--563, 127 N.E.2d 551 (1955). There was no rational basis in the testimony for a conclusion that Monroe and Williams robbed Fratto but were unarmed, that they stole his wallert or car otherwise than through force or fear, that they assaulted him without weapons and without stealing, or that they took his car only for a 'joy ride.' The judge properly instructed the jury that larceny required an intent to deprive the owner permanently of his property and that if one or both defendants 'were just going to skylark, using it without...