Com. v. LeBlanc

Citation299 N.E.2d 719,364 Mass. 1
PartiesCOMMONWEALTH v. David L. LeBLANC
Decision Date07 May 1973
CourtUnited States State Supreme Judicial Court of Massachusetts

John A. McNiff, Peabody, for defendant.

Peter F. Brady, Asst. Dist. Atty., for Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

This case touches on the problem of admission of a codefendant's confession under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and involves also a claim of ineffective assistance of trial counsel.

Indictments returned by an Essex County grand jury on September 23, 1970, accused David LeBlanc (hereafter called the defendant) and his cousin George Jemery of the murder of the defendant's stepfather Robert Wheeler on July 24, 1970. The two young men were brought to trial jointly in February, 1971, the defendant being represented by retained counsel. At the close of the Commonwealth's case, the judge accepted from Jemery a plea of guilty of murder in the second degree, and sentenced him to imprisonment for life the judge refused a like plea on the part of the defendant. Thereupon the defendant rested on the Commonwealth's case without offering evidence on his own behalf. The jury brought in against him a verdict of murder in the first degree without a recommendation that a death sentence be not imposed, with the result that the judge imposed a sentence of death by electrocution. The defendant filed an appeal pro se. In April, 1972, new appointed counsel filed a motion for a new trial, later supported by his affidavit and testimony of two witnesses. The motion was denied in July, 1972, and the defendant excepted. The case was taken under G.L. c. 278, §§ 33A--33G.

1. Evidence apart from defendant's statements. We summarize this evidence, to which no exception is being urged.

In July, 1970, the defendant was living with his mother Mrs. Jean Wheeler, his stepfather Robert Wheeler (the victim), and his sister Priscilla LeBlanc, at 310 Boston Street, Lynn. The defendant and his stepfather Wheeler had quarreled. According to the defendant's friend, Frederick Chamness, the defendant, about a week before the killing on July 24, had told him, Chamness, that he was going to kill Wheeler or have someone do it for him.

On the evening of July 24 Chamness was at the Wheeler apartment visiting with Priscilla LeBlanc, having arrived there in a white Ford car. The defendant asked Chamness to take him for a ride later that night. About 11 P.M. Chamness drove the defendant to a house that can be identified as Robert Taylor's. A week or two previously, the defendant had had a conversation with Taylor in which he expressed interest in getting guns to do some hunting; Taylor had then said he had a shotgun to sell--it was actually a twelve gauge pump action shotgun. The defendant now asked Taylor for the gun, saying he wanted to use it in New Hampshire over the weekend. Taylor in the presence of Mrs. Taylor gave the defendant permission and handed him some twelve gauge shotgun shells. However, the gun was with Taylor's sister, Glenna Moriarty, so Taylor spoke to Mrs. Moriarty on the telephone and said that Chamness would probably call for the gun.

The defendant left Taylor's house and Chamness drove him to a house identifiable as Mrs. Moriarty's. The defendant went in and received Taylor's gun in its case, telling Mrs. Moriarty that he was going up to New Hampshire with it. Mrs. Moriarty saw the driver of a white car open the trunk and place the gun case in it while the defendant sat in the passenger seat of the car; and Chamness later identified that gun case as Taylor's. Chamness and the defendant returned in the car to 310 Boston Street where they picked up the codefendant George Jemery, son of Mrs. Wheeler's sister and cousin of the defendant.

With Chamness driving, the car proceeded to the parking lot of Cushman's Bakery in Lynn. This case close by Nissen's Bakery which was Wheeler's place of work. At the defendant's request Chamness turned off his lights and opened the trunk, and the defendant removed the gun case from the trunk. The defendant asked Chamness to wait, they would be only a couple of minutes, but Chamness declined. Before driving away, Chamness saw the defendant and Jemery start toward the embankment and railroad tracks which lay between Cushman's Bakery and Nissen's Bakery. Past the tracks was the rear loaking platform of Nissen's Bakery, a roof of which, at first-story level, could be readily reached by climbing a pole next to the building.

Around 11:30 P.M. Anthony Cieri, finishing his shift at Nissen's Bakery and expecting the arrival of his fellow employee Wheeler to work the next shift, heard two blasts from outside the building sounding like firecrackers. He opened a door and looked up and down Brookline Street (on which Nissen's fronted) but saw nothing. Similar sounds were heard by Frederick Walker, at his residence near Nissen's, and by William Anderson, standing on a porch at a house next to Nissen's loading area. Walker, going to his third-floor back porch to investigate, saw a man on Nissen's roof; the man bent over as if to pick something up, then trotted across the roof and jumped off on the side nearest the railroad tracks. Anderson, after the blasts, heard voices from the area of the tracks and Nissen's Bakery; one voice said twice, 'Grab my shirt'; then came sounds of running.

Shortly before midnight, Cieri looked out a window facing Nissen's driveway, a well-lit area extending from the street to the rear loading space. He saw Wheeler's body lying on the ground. Another worker called the police. Officer McKenney, on cruiser duty in the vicinity, had also heard two sounds resembling firecrackers. He was now directed by radio to Nissen's driveway. There he saw Wheeler's body. He observed marks on a wall near the body consistent with the impact of shotgun pellets from two separate shots. He found nearby two plastic inserts ('power pistons') for shotgun shells designed to keep the pellets massed as they leave the barrel.

That morning the defendant returned to 310 Boston Street and slept there. Mrs. Moriarty came by in the morning. The defendant mentioned the gun and said he would like to bring it back to her house. She told him to return it to her brother. He said, 'It just doesn't look good. I think I should give it back.' At the wake for Wheeler on July 26, Taylor asked the defendant for the gun. The two went to 310 Boston Street; the defendant came out with the gun and gave it to Taylor, who promptly turned it over to the police.

Medical testimony established that Wheeler had been killed by a shotgun wound in the chest followed by hemorrhage. The effect of the testimony by one of the police firearms experts was that the shots were fired from the roof of Nissen's Bakery. After test firing Taylor's gun, this witness was unable to say that the recovered lead pellets and fragments, including fragments from Wheeler's chest, had been fired from that gun. Another police expert stated that the victim was killed by two shots from a twelve-gauge shotgun, but he was unable to establish that Taylor's gun was the weapon actually used. The spent shells might have provided definite proof as to whether Taylor's gun fired the shots, but the shells had not been recovered.

2. Defendant's statements. The foregoing very substantial case against the defendant was clinched by the defendant's confession, received in evidence without voir dire examination or objection. On July 31, after Miranda warnings, 1 the defendant told police Lieutenant McDermott that he had hired a man to kill his stepfather for a price of $300. (He could not name the man. The transaction had been carried out, he claimed, by a telephone call to Revere.) The defendant said that on July 24, as instructed, he had left the money and a shotgun at the tracks to be picked up by the contract killer. Following up on the defendant's statement, Lieutenant McDermott took the defendant to the area of the tracks where they searched for any trace of the money or the gun, without result. Upon their return to the police station, the defendant confessed to shooting his stepfather. He said that he had gone to Nissen's Bakery about a week before the killing to decide upon the best place to hide and from which to shoot Wheeler. He confirmed that on July 24 he went first to the Taylor and then to the Moriarty house to get the gun; that he was driven to the Cushman parking lot and walked across the tracks to Nissen's. He took off his bright colored shirt before climbing onto the roof in order to be less conspicuous. He had waited on the roof for his stepfather to arrive had shot him twice, picked up the one ejected shell, and run off the roof, yelling twice, 'Grab my shirt.' He had thrown that shell, and the other spent shell left in the gun, into an ash barrel. He had hidden the gun and case in some bushes, gone to a place on Green Street (inferably Jemery's home), returned and retrieved the gun and case, and made his way home and put them in the back hallway.

On July 31, Jemery made a confession in considerable detail, not only describing his own actions but naming the defendant and recounting his actions. On voir dire the confession was objected to by both defendants on Miranda grounds. It was contended that Jemery had limited capacity to understand the Miranda formulas, and that he was under emotional pressure because of the presence and actions of his father who accompanied him to the police station. However, the judge denied the motions to suppress when it appeared that Jemery had given a statement to Lieutenant Stinson after the father had left the station. But as the statement in terms in implicated the defendant, the judge evidently felt that the Bruton doctrine would prevent its admission in full at trial. A short statement made by Jemery to Lieutenant Stinson and...

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