Com. v. LeBlanc

• Decision Date: 04 October 1977
• Citation: 367 N.E.2d 846,373 Mass. 478
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 846

367 N.E.2d 846

373 Mass. 478

COMMONWEALTH v. Robert George LeBLANC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 4, 1977.

Decided Oct. 4, 1977.

Robert A. Stanziani, Boston, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

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

QUIRICO, Justice.

The defendant was found guilty of murder in the first degree of police Sergeant Richard F. Halloran and was sentenced to life imprisonment. In this appeal under G.L. c. 278, §§ 33A-33G, he presses various claims of error which may be grouped as follows: (1) the denial of motions to suppress statements and a gun, (2) the denial of motions for directed verdicts of acquittal of murder in the first and second degrees, and of lesser included offenses, (3) statements excluded from the judge's charge, (4) the admission of certain evidence, and (5) the denial of the request by the defendant to question a member of the venire who was not called as a prospective juror. We find no error, affirm the judgment, and decline to exercise our powers under G.L. c. 278, § 33E.

We summarize the evidence introduced at the trial and at the hearing on the defendant's motions to suppress, and the judge's findings on those motions. During the early morning of November 6, 1975, the victim, Richard F. Halloran, a sergeant in the Boston police department, was on patrol duty in East Boston. He was seen driving a police cruiser at 3:25 A.M. by one Frank Tavella. About 3:40 A.M., a police officer found Halloran wounded, unconscious, and lying on his back beside the cruiser on Bremen Street near the intersection of Neptune Road in East Boston. Halloran was holding his unfired service revolver in his hand, but his body showed no signs of a struggle. He was dead on arrival at a hospital ten minutes later. The cause of death was a gunshot wound through the chest by a .25 caliber bullet which penetrated the lungs and pierced the aorta.

At the trial, testimony was received from two witnesses who had driven by the scene near the time of the shooting and from three witnesses who had heard the gunfire. David O'Connell stated that he drove by about 3:25 A.M. and that he saw a police cruiser parked with its headlights on, and a slant-back small car parked ahead of the cruiser on the opposite side of the street. He did not see a police officer, but saw a man standing in the street and described him as about five feet nine inches tall, in his twenties, 170 to 180 pounds in weight, with a mod "bubble-type" haircut down to the back of his neck.

Anthony Messina drove through the intersection between 3:20 and 3:25 A.M., and saw a police cruiser parked behind a foreign car, burnt orange in color. He saw a man about five feet nine inches tall, 180 pounds in weight, with shoulder length hair, slamming the trunk of the orange car. When Messina later returned to the intersection, he passed a clock reading 3:33 A.M. and he noticed that the police cruiser remained parked and that the foreign car was gone. He saw the body of Sergeant Halloran and he started for the police station, but he returned to the scene when he saw a police cruiser arriving.

Three witnesses who heard the shooting made substantially consistent statements. As Frank Tavella unlocked the gates or his nearby restaurant, he heard four gunshots: one shot, followed by a pause, followed by three rapid shots. Alfredo Franciosa was awakened from sleep by three or four gunshots which sounded as though they were fired from two different guns. He then heard a car door slam, and the screeching of tires. Bartholemew Oliva heard one shot, two loud voices, then two more gunshots five or six seconds later. He heard screeching tires, and from his bedroom window he saw a dark orange, foreign-made car going up Bremen Street toward Curtis Street at a speed of forty to forty-five miles an hour.

Police investigators at the scene found a discharged .25 caliber cartridge casing and a spent .25 caliber metal case bullet. A spent .38 caliber bullet was later found in the lining of the victim's jacket. A single skid mark extended from where the foreign car had been parked, and two long skid marks which matched the initial skid mark in width were discovered at the intersection of Curtis and Bremen Streets, the direction the foreign car had taken. The left skid mark ended at a high granite curbstone on Curtis Street.

A piece of aluminum was stuck to the curb, and four broken pieces of amber plastic lens material were discovered nearby. These pieces were identified as coming from the left front directional signal of a 1974 Mazda RX-2 car. Oliva was shown such a car, and confirmed that it was the type of car he saw leaving the scene of the shooting.

Thus, several hours after the shooting, the police had discovered the color and kind of car that had left the scene, and knew the front end of the car was damaged from a collision with a curbstone. They also had two similar descriptions of a man in his twenties, about five feet nine inches tall, weighing 170 to 180 pounds, with full dark hair over his ears, who was seen standing near the police cruiser and the orange Mazda from 3:20 to 3:40 A.M., when the shooting occurred.

About 1 P.M. the following afternoon, the police discovered a 1974 dark orange Mazda parked at 51 Prescott Street, East Boston, with its left front directional light broken, and showing other damage similar to what police crime laboratory technicians had described would have happened in a collision with the curbstone. ¹ The car was locked and its ignition appeared intact. While the officers were inspecting the car, a passerby approached them and identified herself as Mrs. LeBlanc. She asked what the problem was with this particular car, and she said that it belonged to her son, Robert LeBlanc, who lived nearby at 286 Princeton Street, and was home at that time. About 1:20 P.M., the police went to 286 Princeton Street, and asked to speak to Robert LeBlanc. LeBlanc was found in his third-floor bedroom; he appeared to the officers to be approximately twenty to twenty-two years of age, and had black bushy hair which covered his ears. The officers asked LeBlanc if he owned the orange Mazda, and he replied that he rented it. He was asked what time he parked it on Prescott Street and replied, "Sometime last night." He was asked if anyone else had access to the car and replied that he was the only one with a key to the car. At that point he was arrested for murder, and was taken to the police station.

He was given Miranda warnings, and then in response to police questioning stated that he had arrived home about 2:20 A.M. the morning of November 6, that he had parked the car where the police found it, and that he had let no one else use it. He had the key to the car in his pocket at the time of his arrest. He said he had stayed up until 5 A.M. listening to his police radio with his brother, and thereby knew of the shooting. He admitted having once owned a .22 or .25 caliber automatic pistol, but said he sold it to a "strange kid" for $20. He explained the damage to the front end of the rented car by stating he had struck a wall two days earlier while racing with his friend Freddie Almeida.

At the trial there was evidence which contradicted the defendant's alibi. Freddie Almeida denied being involved in any automobile accident with the defendant. Indeed, the manager of the car rental agency had inspected the car in the early evening of November 5, the day before the murder, and found no damage to the front end.

The defendant's brother testified that he had been asleep, and had not listened to the police radio during the morning of November 6. There was evidence that the defendant had been seen carrying both a large and a small gun numerous times preceding the murder. A witness whom the defendant had dated on many occasions testified that on November 2, 1975, she and the defendant fired his small gun out the window of a motel room.

After the defendant was arrested, and based to some extent on his statements, the police obtained a search warrant. On executing the warrant at 8:10 P.M. on the evening of November 6, they found a .25 caliber semiautomatic pistol hidden behind paneling in the cellar of the defendant's home. The bullet which killed the victim was fired from this gun.

Further factual discussion will appear as necessary to the discussion of the defendant's specific assignments of error.

1. The defendant first claims that his statements made at the police station should have been suppressed as the fruits of his arrest which he contends was illegal because it was made (a) without probable cause and (b) in his home without a warrant, in alleged violation of Commonwealth v. Forde, 367 Mass. --- ^a, 329 N.E.2d 717 (1975). For a variety of reasons, this argument is unpersuasive.

Since the defendant relies so heavily on the Forde decision, we assume, for purposes of argument, that that case furnishes the legal standards of police conduct which govern his arrest. In the Forde case, the police had watched an apartment for drug traffic for six months, and obtained information from a reliable informant of drug sales therein. They arrested four persons leaving the apartment with a shopping bag of marihuana. After some delay, after being informed by an assistant district attorney that a warrant was required to search the defendant's apartment, and after overhearing two of those arrested persons tell others who were to be released on bail to inform others at the apartment of the arrest, the police went to the apartment and arrested all the individuals present. They later obtained a search warrant for contraband issued solely on the basis of the evidence in plain view at the entry. While these facts suggested that the warrantless entry into the apartment and the arrest of persons found there may have been intended solely for the...