Com. v. Johnson

• Decision Date: 10 February 1977
• Citation: 359 N.E.2d 1286,371 Mass. 862
• Parties: COMMONWEALTH v. Ronald E. JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1286

359 N.E.2d 1286

371 Mass. 862

COMMONWEALTH

v. Ronald E. JOHNSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 2, 1976.

Decided Feb. 10, 1977.

Michael R. Pizziferri, Boston, for defendant.

George E. Foote, Jr., Special Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, QUIRICO and WILKINS, JJ.

HENNESSEY, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from a conviction of murder in the second degree on an indictment charging murder in the first degree and from convictions on indictments charging armed assault with intent to rob and unlawfully carrying a firearm, all stemming from the same incident. The defendant was sentenced to a term of life imprisonment at the Massachusetts Correctional Institution at Walpole on the murder conviction and to lesser concurrent terms on the other two indictments.

The defendant contends in this appeal (1) that his rights under the Sixth Amendment to the United States Constitution were violated because the trial judge questioned prospective jurors with respect to their views on capital punishment and because he excused two rpospective jurors who stated that their opposition to capital punishment might preclude their finding the defendant guilty even if they were convinced of his guilt beyond a reasonable doubt; (2) that the trial judge erred in refusing to grant a mistrial on the basis of a prejudicial newspaper article; (3) that the trial judge erred in denying the defendant's motion to suppress identification; (4) that the trial judge erred in refusing to suppress statements made by the defendant while the he was in the hospital; and (5) that the trial judge erred in admitting hospital records.

We summarize the pertinent evidence. The incident from which these charges stem occurred at approximately 4 P.M. on January 27, 1973, in a shoe store in the Roxbury section of Boston. Roberto Vasquez, a part time employee, was working in the store with the manager, James Gibson. Vasquez testified that about 4 P.M. Gibson took the gun that he kept under the counder on which the cash register was located in the front room of the store and went into the back room to use the bathroom. At that time, Vasquez was waiting on a customer. A few seconds thereafter a man whom Vasquez identified at trial as the defendant entered the store. Vasquez asked the defendant if he could help him; the defendant said that he was just looking, and Vasquez turned back to continue helping the customer on whom he had been waiting. As he did so, he heard a click behind him, someone grabbed his arm and he felt what he believed to be a gun in his back. The person who grabbed him instructed him to move to the rear room of the stroe. Vasquez testified that he recognized the voice as that of the man with whom he had just spoken.

Vasquez further testified that at the command of the defendant, he went to the back room and called 'Jimmy.' He was able to see the defendant's face as this occurred. Gibson, who was still in the bathroom behind a closed door, inquired what he wanted, and Vasquez responded, 'A customer.' Gibson flushed the toilet and emerged from the bathroom holding his gun.

The next thing Vasquez remembered was finding himself in the front room of the store. He heard the sound of fighting coming from the rear room and saw shelves moving and boxes shaking. Vasquez saw the defendant back out of the rear room in a crouched position and saw him shoot twice. Vasquez then saw Gibson come out of the back room bent over, holding his stomach, and fall among the chairs.

Vasquez next saw the defendant point a gun at Gibson's head. The defendant then demanded the keys to the cash register Gibson told him that there was nothing in the register, and the defendant threatened to shoot him in the head. Gibson took the keys out of his back pocket, and the defendant ordered him to get up and go to the register. Gibson did so, inserted they key into the register and then collapsed. The defendant thereupon fled from the store.

A Boston police officer from division 2 testified that he responded to the scene within a few moments of the shooting and found Gibson lying on his back on the floor behind the register with blood on his chest. The police immediately removed Gibson to the hospital. Gibson suffered from bullet wounds of the neck, chest, and abdomen. He died as a result of his wounds on February 15, 1973.

Vasquez made a positive in-court identification of the defendant as the man who had shot Gibson. Prior to allowing the identification, the trial judge conducted an extensive voir dire on the defendant's motion to suppress the in-court identification. The following evidence was introduced on voir dire. During the incident Vasquez had repeated opportunity to observe the assailant's face. Vasquez gave the police a description of the assailant immediately following the shooting. He was taken to the division 2 police station on the afternoon following the shooting and was shown a group of approximately ten pjotographs of white and black males between the ages of nineteen and twenty-five, none of which he identified as the assailant. He was thereafter taken to police headquarters and shown additional photographs. He again made no identification. On the morning of Monday, January 29, 1973, police showed Vasquez another group of photographs at his home. Among that group was a photograph of the defendant which Vasquez identified as that of the assailant. Vasquez again identified that photograph during the hearing and also identified the defendant. The motion to suppress was denied, and Vasquez subsequently made his in-court identification repeatedly.

The defendant was arrested by Boston police officers on the evening of January 29, 1973, at the Rhode Island Hospital in hospitalized for a bullet wound of the arm. hospitizled for a bullet would of the arm. The defendant told police at the hospital that he had come to Rhode Island from Boston by car on Saturday night.

The defendant presented a defense of alibi, consisting of testimony of his wife, his wife's brother and a friend that he had been at home until shortly before 9 P.M. on the evening in question. There was further testimony that at some time between 9 and 10 P.M. that same evening, the defendant went to the homes of several friends and relatives in Boston, that his arm was bleeding at that time, and that two of these friends drove him to Providence where he was admitted to the hospital.

1. Disqualification of Jurors. The defendant's trial took place during the month of January, 1974. During the course of jury selection, the trial judge asked each prospective juror individually whether he held an opinion with respect to capital punishment which would preclude him from finding the defendant guilty of an offense which might be punished by death even if he felt that the Commonwealth had proven all material elements of the crime beyond a reasonable doubt. The judge excused two prospective jorors who felt they would be unable to return a verdict of guilty if that verdict could result in the imposition of capital punishment.

The defendant contends that he was denied by these exclusions a trial by a jury representing a true cross section of the Commonwealth. This contention is controlled by our holding in COMMONWEALTH V. HARRINGTON, --- MASS. --- , 323 N.E.2D 895 (1975)^A. In that case, which also involved a trial on indictments for murder and armed assault, we held that Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), prohibited the imposition of the death penalty under G.L. c. 265, §§ 1, 2. Harrington was decided more than a year after the trial in the case now before us. While the trial judge here was in error in his belief that the death sentence might be imposed on a conviction for murder in the first degree, his construction of the interaction of Furman with G.L. c. 265, §§ 1, 2, was precisely that on which the trial judge in Harrington had proceeded. Given that belief, it was not error for the judge to question prospective jurors regarding whether they held opinions on capital punishment which would prevent them from finding the defendant guilty.

The defendant has not shown that he was drprived of a jury who could fairly and objectively determine his guilt or innocence based on the evidence before them. Commonwealth v. Curry, --- Mass. ---, --- - --- ^b, 330 N.E.2d 819 (1975); Commonwealth v. Stone, 366 Mass. 506, 508, 320 N.E.2d 888 (1974); Commonwealth v. Valliere, 366 Mass. 479, 487--488, 321 N.E.2d 625 (1974); Commonwealth v. McAlister, 365 Mass. 454, 458, 313 N.E.2d 113 (1974).

2. The Newspaper Article. During the presentation of the Commonwealth's evidence, the defendant moved for a mistrial on the basis of an allegedly prejudicial newspaper article which had appeared the previous day and contained a portion of the Commonwealth's opening statement. The defendant excepted to the denial of his motion on the ground that the article may have tainted the testimony of the chief prosecution witness, Vasquez, because the reported portions of the opening statement outlined his expected testimony. He specifically and emphatically stated that his exception was not based on possible prejudice to the jury, who had been sequestered and would not therefore have had access to the article. The defendant declined the offer of the trial judge to poll the jury to ensure that they had not seen the article.

On appeal the defendant raises only the issue of possible prejudicial effect on the jury. Since he based his objection below on a different ground and specifically disavowed this ground of objection, there is technically no issue before us. Commonwealth v. Flynn, 362 Mass. 455, 472, 287 N.E.2d 420 (1972); Commonwealth v. Gray, 357 Mass. 771, 772, 257 N.E.2d 924 (1970). However, we have reviewed the record and find no prejudice to the defendant from this...