Com. v. Lussier

• Citation: 333 Mass. 83,128 N.E.2d 569
• Parties: COMMONWEALTH v. Leonard L. LUSSIER. COMMONWEALTH v. George E. PARKS.
• Decision Date: 14 July 1955
• Court: United States State Supreme Judicial Court of Massachusetts

Page 569

128 N.E.2d 569

333 Mass. 83

COMMONWEALTH v. Leonard L. LUSSIER.

COMMONWEALTH v. George E. PARKS.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 12, 1955.

Decided July 14, 1955.

James L. Vallely Boston, and Nicholas C. Crossen, Jr., Roslindale, for defendant Lussier.

Francis M. Collins, Springfield, for defendant Parks.

Stephen A. Moynahan, Springfield, Dist. Atty. for Commonwealth.

Before QUA, C. J., and WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

These are indictments for the murder of one Robert P. Blanchard. They were tried together, each defendant was found guilty of murder in the first degree, and sentences were imposed in accordance with the recommendation of the jury that sentences of death be not imposed. G.L.(Ter.Ed.) c. 265, § 2, as appearing in St.1951, c. 203. Commonwealth v. McNeil, 328 Mass. 436, 104 N.E.2d 153. The cases are before us on the appeals of the defendants accompanied by their respective assignments of error, a summary of the record, and a transcript of the evidence as required by G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended by St.1939, c. 341.

Each indictment was in the form provided by G.L. (Ter.Ed.) c. 277, § 79, and alleged that the defendant on January 13, 1954, at Springfield 'did assault and beat one Robert P. Blanchard, with intent to murder him, and by such assault and beating did murder the said Robert P. Blanchard.' On motion by the defendant Lussier the Commonwealth filed a bill of particulars in his case, wherein it was stated that the offence was committed between 8:30 P.M. and 9 P.M. on January 13, 1954, at or near the front entranceway of number 166 Eastern Avenue, Springfield, and that the defendant fired an automatic pistol at the deceased, causing his death.

There was evidence that each defendant was twenty-one years old. Lussier was in the navy and was stationed in Boston. He had formerly lived with foster parents in Agawam. The defendant Parks lived in Springfield. The men met at a lunch room in Springfield at about 4:30 P.M. on January 13, 1954. In the course of talk between them it appeared that Lussier needed money and at his suggestion they agreed to engage in a 'hold up.' About 6 P.M. they went to a parking lot, and while Parks waited near by Lussier stole an automobile from the lot. They drove to the home of Lussier's foster parents in Agawam. Lussier went into the house and brought out an overcoat, a bandana kerchief, a semiautomatic pistol loaded with a clip of eight cartridges, and a navy 'billy' club. After driving about for some time they stopped near a package store in Springfield, called the 'Six Corners.' They got out of the automobile, Lussier carrying the pistol and Parks the club. They looked into the store, and seeing several customers there, returned to the automobile and drove away, Lussier operating the automobile. After proceeding through several streets they passed Phelan's Package Store at 166 Eastern Avenue. Lussier suggested holding up the store. He stopped the automobile in a side street and told Parks to get in behind the wheel and to keep the motor running. Lussier got out, put on the overcoat over his navy uniform, placed a straw hat which he had found in the automobile on his head, and slipped the loaded pistol into a pocket of the overcoat. Parks then drove the automobile southerly on Eastern Avenue to a point about thirty feet to the south of the entrance to the package store and on the same side of the street, and remained there in the driver's seat with the motor running. Lussier, after waiting for some customers to leave, entered the store wearing the overcoat and the bandana knotted around his neck. He carried the loaded pistol in his hand. He pulled the bandana up so that it covered the lower part of his face. It was shortly before 9 P.M. and Miss Mary Phelan, the proprietor of the store, was behind the counter. Pointing the pistol in her direction Lussier said, 'This is a hold up' and ordered her to open the cash register. For some reason she did not or could not open it. One Timothy McCarthy, a relative of Miss Phelan, came in at that time and Lussier ordered him to open the register. McCarthy was unable to open it. Lussier then tried himself to open it but without success. Meanwhile Miss Phelan was attempting to use the telephone. Lussier turned and hurried to the front door by which he had entered. The door was three feet wide and opened outwards. As shown on photographs which are in evidence it was located about four feet in from the sidewalk at the back of a recess or open vestibule formed by the store windows. As Lussier was at or near this door Miss Phelan saw someone approaching the door from the sidewalk and shouted 'Grab him.' When Lussier had opened the door about two feet he was met by Blanchard, the deceased, who had parked his automobile in front of the store and was seeking to enter the store. The men struggled at the door. Two shots were fired in close sequence from the pistol held by Lussier, and Blanchard collapsed on the sidewalk or in the street in front of the store entrance. He had been shot in the back below the left shoulder, the bullet penetrating both lungs and lodging in his right chest. He died from the wound before reaching the hospital. It was the second shot which killed him. The first bullet went through his clothing and through the front window of the store at a point where it joined the side window of the recess. Lussier ran to the automobile in which Parks was waiting, and jumped in saying, 'I shot a man.' Parks drove away at a high rate of speed, skidded in turning into a side street, and stalled the automobile in a snow bank. The automobile was abandoned and both men ran from the scene. Lussier threw away his coat, pistol and clip and Parks the navy club.

Both defendants were separately arrested within a short time and each admitted to the police that he participated in the homicide substantially in the manner and to the extent stated in the above recital of evidence. At the trial, however, Parks testified that he withdrew from the enterprise after the ineffective approach to the first package store. Lussier testified that each of the shots from his pistol was fired by accident and produced a witness named Samson who testified that the fatal shot was fired when Lussier slipped on the ice while running toward the automobile.

The assignments of error filed by Lussier, with parenthetical reference to the exceptions on which they are based, will first be considered. Assignments 8, 9, 13 and 18 were waived at the time of oral argument. Assignment 1 (exceptions 3, 4, and 5) relates to the exclusion on cross-examination of questions to the Springfield captain of detectives who was in charge of the investigation of the shooting and, after the arrests, of the preparation of the cases for trial. They concerned the procedure of the police department in the matter of obtaining written statements of expected testimony and the opinion of the witness as to the importance of such statements. Their exclusion was discretionary with the judge, Commonwealth v. Corcoran, 252 Mass. 465, 486, 148 N.E. 123, and no error appears.

The exclusion of other questions to the same officer in cross-examination is the subject of assignment 2 (exception 6) and assignment 3 (exception 7). He was asked if information which he had received that witnesses had seen Lussier and Blanchard struggling explained the location of the wound back of Blanchard's left shoulder and if a statement made by Lussier that he shot Blanchard as he charged him was consistent with such a wound. The questions were properly excluded.

Assignments 4, 5, and 6 (exceptions 9, 10, and 11) relate to the exclusion of the following questions on cross-examination to the same officer, 'Why did you then lie when you said that Lussier had told you it was an accident?' 'Have you any information * * * that when Timothy McCarthy said that Lussier and Blanchard struggled prior to the firing of the shots that he would be wrong?' 'He [the officer who found the bullet] is the follow also that didn't tell you at any time that Samson [the defense witness] had told him that he had witnessed a struggle between Lussier and Blanchard?' They were all properly excluded.

Assignment 7 (exception 12). When the Commonwealth rested its case, Lussier presented two motions, (1) that the judge direct the jury that the Commonwealth had failed to prove so much of the indictment as alleged first-degree murder; and (2) that the indictment be reduced from a charge of first-degree murder to a charge of second-degree murder. He excepted to the statement of the judge that he would hear the motions when Lussier had rested. Until all the evidence had been closed on both sides the judge could not be required to rule upon the legal sufficiency of the evidence already introduced. Commonwealth v. Bader, 285 Mass. 574, 575-576, 189 N.E. 590.

At the conclusion of the evidence Lussier presented three motions: (1) that the jury be directed to return a verdict of not guilty of murder in the first and second degrees; (2) that the jury be directed that the Commonwealth had failed to prove so much of the indictment as alleged first-degree murder; and (3) that the indictment be reduced to manslaughter. The judge denied the motions and Lussier excepted. Their denials are respectively the bases of assignments 10, 11, and 12 (exceptions 21, 22, and 23). The motion for a directed verdict of not guilty on the charge of murder in the first degree could not have been allowed if there was evidence warranting the jury in finding that Blanchard was killed by Lussier 'with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life.' G.L.(Ter.Ed.) c. 265, § 1.

It is provided by G.L. (Ter.Ed.) c. 265, § 17, as appearing...