Com. v. Little

• Decision Date: 25 August 1978
• Citation: 376 Mass. 233,379 N.E.2d 1105
• Parties: COMMONWEALTH v. Albert LITTLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1105

379 N.E.2d 1105

376 Mass. 233

COMMONWEALTH v. Albert LITTLE.

Supreme Judicial Court of Massachusetts, Bristol.

Argued May 2, 1978.

Decided Aug. 25, 1978.

Barry H. Gerstein, Salem, for defendant.

Francis M. O'Boy, Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant Albert Little (Little) was indicted for the murder of Normand Blanchette (Blanchette), who was found shot to death in New Bedford in the early morning hours of June 12, 1975. After a six-day trial in the Superior Court, a jury found Little guilty of murder in the first degree. The defendant's assignments of error are here pursuant to G.L. c. 278, §§ 33A-33G. We conclude that there was no error.

About 12:30 A.M. on June 12, 1975, police found Blanchette's body slumped in the driver's seat of a pickup truck, which was parked at the side of a road in an industrial area with its engine running and its lights on. The Commonwealth presented a circumstantial case against Little, and the jury were warranted in finding the following facts based on the Commonwealth's evidence.

Blanchette was Little's brother-in-law. He had married the defendant's sister Barbara in 1967, and in 1972 the relationship began to break down. Barbara Blanchette suspected her husband of "running around with other women," as she testified at trial. The couple quarreled frequently, and Barbara occasionally sought her brother's intervention in these quarrels.

The evidence warranted a finding that Blanchette and Little did not get along and that Little had threatened to kill Blanchette. Little had another sister, Linda, and the threat to Blanchette came in 1973 when Little had intervened in a personal dispute on Linda's behalf. One Earl Mayes (Mayes) testified that he had been keeping company with Linda Little in 1973, but that the two had parted company after a spat. Shortly thereafter, the defendant and another man confronted Mayes, took him to the Blanchette home, and beat him with a pistol. Mayes testified that Blanchette arrived home shortly after the beating and saw Mayes lying on the kitchen floor with his face bleeding. Thereon Little told Blanchette: "(S)ee what happened to this guy, the only difference between this is that you are going to be buried. . . . If you don't stop screwing around on my sister." The evidence tended to show that this hostility continued up to the date of Blanchette's death. The defendant told police that he had argued with Blanchette several times on the evening that Blanchette was shot. These arguments related to Blanchette's extramarital activities.

Nine days before Blanchette's death, on June 2, 1975, Barbara Blanchette entered a local bar, accompanied by Linda Little, and found her husband seated with two women, whom she did not know, and another man. An argument ensued, and Barbara Blanchette thereafter consulted a lawyer. The evidence warranted an inference that she also went to Boston and discussed the incident with her brother, the defendant.

Little told police investigating the homicide that he came from Boston to New Bedford on the evening of June 11, 1975, with his mother at her request, to help straighten out Normand and Barbara's marital problems. He stated that he arrived at the Blanchette home about 9:30 P.M. and almost immediately got into an argument with Blanchette. Rather than argue at the house, in the presence of Little's mother and two sisters, the two went out to a bar and continued the argument there. Little told Blanchette to straighten out his marital problems. Blanchette became very angry and told Little in language that need not be repeated here that Little should mind his own business. He also told Little that he would not give him a ride home. As related at trial by the police witness, Blanchette told Little that if he wanted a ride home, he should call his mother.

According to Little's statement, Blanchette left the bar about 11:15 P.M. The two had driven to the bar in the pickup truck in which Blanchette's body was found about one hour later. The truck had been borrowed, and the owner testified that he spoke to Blanchette on the telephone at approximately 11:45 P.M. about difficulty that Blanchette was having starting the truck. The owner testified that it was necessary to push in the clutch to start the truck, but that he and Blanchette had conferred at length about the truck that evening. Blanchette had driven the truck a number of times previously. Inferences were warranted, as argued to the jury by the prosecutor, that Blanchette, a professional bus driver, knew perfectly well how to start the truck, but that he feared for his safety, wanted a third person to be present, and called the truck's owner hoping to persuade him to come start the truck.

The Commonwealth's evidence allowed the jury to find that, after leaving the bar, Little rode in the pickup truck with Blanchette, who was driving; that sometime shortly before midnight Blanchette stopped the truck by the side of the road, a fairly short distance from the bar, in the spot where police later found his body; that Little shot Blanchette in the head twice while sitting in the passenger's seat; that Little then threw the gun in a drainage ditch; and that Little walked back to the bar, called his mother to come pick him up, and then drove back to Boston with her after stopping back at the Blanchette home briefly to speak with his sister.

Alibi witnesses testified that Little was back in the district of Boston known as the "Combat Zone" at 12:30 A.M., but the jury were warranted in finding that the defendant was still in New Bedford at least as late as midnight. A neighbor of the Blanchettes testified that at midnight she looked out her window and saw a car matching the description of Mrs. Little's parked outside the Blanchette home. Little told police that when he stopped on his way back to Boston, he stood outside the house and spoke to his sister through a window. The neighbor did not see anyone in the yard when she looked at midnight. The evidence thus permitted the jury to infer that, at midnight, Mrs. Little had not yet gone to pick up her son. Mrs. Little testified that it was she who drove most of the way back to Boston that night, and that the trip usually took her about seventy minutes.

A forensic pathologist testified that Blanchette had been shot twice in the right side of the head. Powder burns and stippling around the wounds indicated, he said, that the killer had fired from very close range, probably not more than one foot away. An inference was warranted, as argued to the jury by the prosecutor, that the killer had to have been a passenger in the car, and therefore probably was known to the victim. Additionally, Blanchette had both credit cards and $107 in cash in his pockets when he died. Thus, the jury were warranted in concluding that robbery was not a motive.

In his statement to police, Little said that when he called his mother for a ride, he used the public telephone in a bar known as Smugglers' Den. Police asked him to describe the telephone, and Little described an ordinary public telephone. There was testimony that the telephone in Smugglers' Den was unique and memorable in that it was mounted in a dory standing on end against a wall. Police confronted Little with this fact, and Little had no further comment.

1. The first two assignments allege error regarding the prosecutor's opening statement. Counsel argues, first, that the conviction should be reversed because the prosecutor called Little's statement to the police an admission. Counsel next asserts that the prosecutor told the jury that the defendant would testify at trial. We note that no objection was made on these points during the opening or later, and no exception was taken. Although generally, "an assignment of error not based on an exception brings nothing to this court for review," Commonwealth v. Myers, 356 Mass. 343, 346, 252 N.E.2d 350, 352 (1969), and cases cited, we address the defendant's arguments pursuant to our broad power of review in capital cases under G.L. c. 278, § 33E. Having examined the transcript in this case, we conclude that there was no error. Little's statement to police Was an admission; there was no possibility that the jury might conclude from the prosecutor's remarks that Little had confessed to the crime. Moreover, the prosecutor did Not say that the defendant would take the stand. The prosecutor said that a police officer would take the stand and relate what Little had said at the station. The jury could not have been confused on this point. These two contentions of the defendant are utterly without merit.

2. Also without merit are assignments alleging that the judge erred in admitting prior inconsistent statements of two witnesses to impeach their credibility. The defendant argues that the witnesses were not given the opportunity to explain the inconsistencies. See G.L. c. 233, § 23. In this case there was no need for an explanation, however, since in each instance the witness denied having made the prior statement. Where the witness unequivocally denies making the inconsistent statement, it is obvious that no explanation is possible. Commonwealth v. Ferrara, 368 Mass. 182, 193, 330 N.E.2d 837 (1975).

3. Counsel next asserts that the judge erred in allowing testimony that, two years earlier, Little had pistol-whipped Mayes as a lesson to Blanchette. The record clearly shows that, after an extensive voir dire, the judge allowed this testimony because it tended to show the defendant's state of mind toward Blanchette, namely hostility, which could be found to have continued up to the time of Blanchette's death. There was no error. Commonwealth v. Burke, 339 Mass. 521, 534, 159 N.E.2d 856 (1959); Commonwealth v. Bartolini, 299 Mass. 503, 510-511, 13 N.E.2d 382 (1938). Commonwealth v. Caruso, 251 Mass. 362, 367, 146...