Com. v. McCambridge

• Decision Date: 04 January 1967
• Citation: 222 N.E.2d 763,351 Mass. 516
• Parties: COMMONWEALTH v. John M. McCAMBRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 763

222 N.E.2d 763

351 Mass. 516

COMMONWEALTH v. John M. McCAMBRIDGE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 9, 1966.

Decided Jan. 4, 1967.

Lawrence H. Norris, Boston, for defendant.

John T. Gaffney, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

The defendant was convicted of manslaughter and unlawfully carrying a revolver in a trial subject to G.L. c. 278, §§ 33A--33G. His appeals are accompanied by a summary of the record, a transcript of the testimony, and an assignment of errors.

We state facts which the jury could have found. On October 10, 1964, about 10 P.M. Officer Vellante, accompanied by Sergeant Ronayne and Officer Calnan, was driving an unmarked Boston police car on Bartlett Street in the Roxbury district when he saw a Mercury two-door sedan swerve to the left and right, jump the sidewalk, and hit a fence. He stopped, got out of the car, and opened the door on the passenger side of the sedan. He then observed the defendant and one Charlebois in a violent struggle. The defendant was on the rear floor lying on his side. Three quarters of Charlebois' body was over the front seat toward the rear floor. He was leaning over with one hand on top of the defendant. They were fighting, and there was a thirty-two calibre revolver in the palms of both. Their hands were about one inch and one half off the floor. Officer Vellante grabbed the revolver by the barrel and put it in his pocket. Just as Officer Vellante opened the door Charlebois turned and made the statement, 'He's got a gun. He just shot me.' Officers Calnan and Vellante respectively pulled Charlebois and the defendant out of the sedan. The defendant was brought to the police car and searched. Officer Calnan stood Charlebois against the front fender of the sedan and gave him a quick search. Charlebois then repeated his statement twice, first some six feet from the defendant and again when he was at the most two feet away from the defendant. He spoke loudly enough for all to hear. The defendant, when asked by an officer what happened, said, 'The son of a b. pulled a gun on me.' When the officer asked why, he said that he did not know. At this point, according to the sergeant's testimony, the defendant was placed under arrest.

There were three live and three spent bullets in the revolver, which required an eleven-and-one-half to twelve pound pull on the trigger to cause it to discharge, which was a pound to a pound and one half more than normal. Charlebois died from gunshot wounds of chest, heart, and lung, one bullet entering the breast bone and another entering below the fifth rib on the right. There were two bullet holes on the back side of the driver's seat. In the upholstery above the rear window were two holes, and directly behind one of the holes on the inside there was an indentation in the top of the steel roof which did not penetrate to the outside.

The sedan was registered to the defendant and operated by him.

1. The defendant's first argument is that 'the trial judge erred in instructing the jury with respect to admissions, or admissions by silence or failure to deny: and by permitting Officer Ronayne to testify that the defendant did not deny shooting Charlebois.' These contentions are stated to be based on assignments of errors 3 and 6.

The third assignment of error is: 'By permitting Officer Ronayne to testify that the defendant did not deny shooting Charlebois. Under the circumstances, the defendant was not required to deny anything, and the absence of a denial could not be used against him either as an admission or otherwise. He was under arrest, and even if he was not, to permit such testimony amounted to a denial of his rights, under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, to have counsel at all stages, to be protected against self incrimination, and to due process of law and equal protection of the laws.'

The same statement in substance is in the sixth assignment of error which relates to instructions to the jury.

We quote from the defendant's brief all that is quoted from the instructions to the jury: 'You had evidence that, at the scene where the automobile came to a stop and the defendant and Charlebois were found, Charlebois made certain statements. You should decide whether those statements were made. You should decide whether they were made within the hearing of the defendant. You should then decide what the reaction of the ordinary and reasonable person would be if he is not guilty of the things charged by Charlebois. If you find that the normal, ordinary reaction of a person who is not guilty of the things charged by Charlebois would be to deny the accusation and if you find that the defendant, having heard the accusation, failed to deny it, you may consider the failure to deny, and you decide whether that is inconsistent with his present claim of innocence.'

The exception was 'to so much of the charge as concerns the instructions on admissions; I should say, particularly with reference to that portion of the instructions concerning implied admissions by silence or failure to deny.' The only exception to evidence which is argued is that to the question to Sergeant Ronayne on redirect examination. The defendant seeks to give this question an unreasonably broad interpretation, which we do not accept. It obviously was reasonably to be understood in context as applying to the period covered by the previous testimony and not as an interrogation whether he made denial even under arrest.

The subject of arrest does not appear to have been mentioned to the trial judge at any time. The only reference to arrest in the pertinent testimony was the opinion of Sergeant Ronayne. The first appearance of reliance upon any question of arrest is in the assignment of error above quoted. No exception was expressly based upon the ground that the defendant was under arrest.

We are not directed to any specific statements which even now are alleged to have taken place after the defendant was placed under arrest. If the defendant's argument, although not so expressed, is intended to be directed to every time the deceased made the statement both inside and outside the sedan, we do not agree that the defendant was 'at all times under arrest.' We think that the evidence presented no such issue of fact, and that this was a question of law which the trial judge decided correctly. See Commonwealth v. LaBossiere, 347 Mass. 384, 387, ...