Com. v. Johnson

• Decision Date: 04 April 1967
• Parties: COMMONWEALTH v. Ronald L. JOHNSON et al. 1 (and four companion cases 2 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 360

225 N.E.2d 360

352 Mass. 311

COMMONWEALTH v. Ronald L. JOHNSON et al. ¹ (and four

companion cases ²).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1966.

Decided April 4, 1967.

John M. Harrington, Jr., Boston (John A. Pike, Boston, with him) for defendant Johnson.

Joseph J. Balliro, Boston, for defendant Graves.

John F. McAuliffe, Asst. Dist. Atty. (James F. Sullivan, Asst. Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

KIRK, Justice.

The two defendants were indicted, tried and found guilty of murder in the first degree of James B. O'Leary. The jury recommended that the death penalty not be imposed on Graves; no recommendation was made as to Johnson. On a separate indictment Johnson was found guilty of armed robbery, while masked, of Jacob Berman; Graves was found guilty of armed robbery of Berman. Both defendants were found guilty of assault and battery on Berman by means of a dangerous weapon. Johnson, in addition, was found guilty of unlawfully carrying a firearm, and unlawfully having a firearm under his control in a vehicle. The trial was held subject to G.L. c. 278, §§ 33A--33G, and the cases are here on appeal with assignments of error.

The trial commenced January 13, 1964, and was concluded January 25, 1964. The evidence showed that about 9 P.M. August 1, 1963, Berman was the sole employee then on duty at the Copley Wine and Liquor Company, Boylston Street, Boston. Johnson, wearing a mask and armed with a revolver, entered the store, struck Berman on the cheekbone with the revolver, ordered two customers to lie on the floor, and took money which he forced Berman to remove from the cash register. After Johnson left the store he was pursued by Berman and others via Exeter, Newbury and Fairfield streets to Commonwealth Avenue across the Mall. Boston Police Officer James B. O'Leary, who had joined the pursuit at the intersection of Exeter and Newbury streets, followed Johnson diagonally across Commonwealth Avenue. Johnson entered on the passenger side of a two-toned Buick convertible which was stopped in the outbound lane on Commonwealth Avenue. The car was being driven by Graves, to whom Johnson had recently transferred ownership. Graves knew that Johnson had a gun and that he was going to hold up the liquor store. Graves expected to receive half of the money. He had remained in the car, which was parked around the corner from the store, while Johnson went into the store. When he saw the commotion near the store, he started the car and drove outbound on Commonwealth Avenue. Graves stopped the car when Johnson came across the Mall on Commonwealth Avenue.

Officer O'Leary approached the car and ordered Graves out of the vehicle. O'Leary then proceeded to the passenger side of the vehicle. As he did so, two shots rang out. O'Leary, mortally wounded, fell to the street. Graves leaped from the driver's side of the car and ran along Fairfield Street, then through an alley to Gloucester Street, where he hailed a taxi which took him to the place where Johnson lived in Roxbury. Johnson drove off in the car. Police officers, alerted by the police alarm, saw Johnson in the Fenway and pursued him through several streets in the Fenway and Roxbury areas. In the course of the chase the car driven by Johnson struck a wall, hit four or five motor vehicles, and finally came to a halt after crashing into a bus. The front of the Buick was demolished. Johnson, limping, fled from the Buick and went over a fence. He was eventually apprehended under a back porch where he had sought concealment.

Officer O'Leary, in the meantime, had been taken to the Massachusetts General Hospital where, shortly before 3 A.M. on August 2, 1963, he was pronounced dead of gunshot wounds. Ballistics evidence showed that the bullet removed from O'Leary's body had been fired from the .38 calibre Smith & Wesson revolver which had been found beneath the Buick convertible after the collision with the MTA bus.

JOHNSON'S ASSIGNMENTS OF ERROR.

1. We deal first with those assignments of error (,6 7, 12, 13) which relate to a statement amounting to a confession made to the police by Johnson after his arrest, at a time when he was not represented by counsel. The statement was stenographically taken and transcribed. When the statement was offered at the trial, Johnson objected to its admission in evidence. A voir dire was held.

At the voir dire a question asked by the defendant of a doctor called by him was excluded (assignment 6). There was no error. The doctor, who had seen Johnson for the first time on August 15, 1963, at the Boston City Hospital, made a diagnosis on August 16, 1963, that Johnson was suffering from a subdural hematoma. The diagnosis was confirmed by an operation performed on August 17. In the opinion of the doctor the condition had existed for one or two weeks. The excluded question was whether the doctor had 'an opinion as to the cause of this subdural hematoma.' There is no indication that the doctor was aware of any set of facts, hypothetical or otherwise, upon which he could predicate an opinion which would have relevance to Johnson's physical condition on August 1 or 2, 1963. Despite the judge's suggestion, no offer was made which would aid the judge in determining whether, if the witness had an opinion of the cause of Johnson's condition on August 15, 1963, it related to the events of August 1 or 2. Cf. Commonwealth v. Banuchi, 335 Mass. 649, 653--654, 141 N.E.2d 835; Commonwealth v. Burke, 344 Mass. 243, 246, 182 N.E.2d 127.

There was no error in the judge's ruling at the completion of the voir dire that Johnson's statement to the police was admissible in evidence (assignment 7). When the statement was sought to be introduced at trial, it was prima facie voluntary. Commonwealth v. McGarty, 323 Mass. 435, 438, 82 N.E.2d 603; Commonwealth v. Beaulieu, 333 Mass. 640, 655, 133 N.E.2d 226. The burden was on the defendant to show that the statement was not voluntarily made. Commonwealth v. Sheppard, 313 Mass. 590, 604, 48 N.E.2d 630. The only ground upon which the defendant objected to its admission was that it 'was involuntarily given because of physical force applied to the defendant by the police.' The question was one of fact to be decided by the judge in the first instance. The judge found, after hearing, that there had been no physical coercion of the defendant. In a statement of findings subsequently filed (COMMONWEALTH V. COOK, MASS., 218 N.E.2D 393,^A the judge stated that Johnson's testimony that the statement had been made because of physical abuse or threats of abuse by the police was 'unreliable and not believable.' Since the evidence upon which the defendant relied to exclude the statement was found unworthy of belief, the judge properly concluded that the statement was admissible.

The defendant argues that there was error (assignment 13) in that the judge, after ruling that Johnson's statement was admissible, did not instruct the jury to disregard it unless they found it was made voluntarily. No exception was saved at the trial. The defendant argues, however, that the 'interests of justice' require that the assignment be considered and a new trial ordered. Although an assignment of error not based on an exception brings nothing to this court for review, Commonwealth v. Chester, 337 Mass. 702, 703, 150 N.E.2d 914, and cases cited, we have considered the issue in light of the broad power conferred on us under G.L. c. 278, § 33E.

We find no basis for disturbing the verdicts on the assigned ground. Although the judge may pass upon the voluntariness of a statement in the first instance, the final determination is one of fact for the jury. Commonwealth v. Makarewicz, 333 Mass. 575, 585, 132 N.E.2d 294. In the cases before us, after the judge found that the statement was voluntarily made, the voluntariness of the statement was not thereafter challenged at the trial. No evidence was presented to the jury from which they could find that the statement was involuntarily made. When the parties rested, the judge conferred with counsel about arguments and the charge. At the conference, there was no mention of the issue of the voluntariness of Johnson's statement. There was no request for an instruction regarding it. Johnson's counsel made no reference to the issue in his argument to the jury, which was mainly a plea that the death penalty not be imposed. No exception was taken to the judge's charge.

It seems clear to us from the transcript that the defendant was content to let the issue of voluntariness rest on the ruling made by the judge in the absence of the jury. The alternative was to revive and emphasize the issue by having the judge instruct the jury that, having heard the evidence on the voir dire, he had determined that the statement was voluntarily made, and by the further instruction that the jury could find that it was involuntary if there was evidence presented to them which persuaded them to that conclusion, when in fact there was no such evidence before the jury. The defendant's conduct of his cases indicates deliberate decision not to press the issue of involuntariness when it could have been raised seasonably before the jury. 'It is well settled that a party cannot reserve for a motion for a new trial a point that he could have raised at the trial.' Commonwealth v. Doyle, 323 Mass. 633, 638, 84 N.E.2d 20, 23 and cases cited. This rule has particular pertinency when the point now argued was omitted not by the oversight, but by the purpose, of counsel. The representation implied in the conduct of the defence was that the issue of voluntariness was not in controversy. The judge was therefore under no duty to charge the jury on that issue. See Dalton v. Post Publishing Co. 328 Mass. 595, 598--599, 105 N.E.2d 385; Commonwealth v. Kiernan, 348 Mass. 29, 58, 201 N.E.2d 504.

Assignment of error 12 relates to...