Com. v. McColl

• Decision Date: 23 May 1978
• Citation: 375 Mass. 316,376 N.E.2d 562
• Parties: COMMONWEALTH v. David Bruce McCOLL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 562

376 N.E.2d 562

375 Mass. 316

COMMONWEALTH v. David Bruce McCOLL.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued April 3, 1978.

Decided May 23, 1978.

Jerry C. Effren, Dorchester, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for plaintiff.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN and LIACOS, JJ.

HENNESSEY, Chief Justice.

These are appeals under the provisions of G.L. c. 278, §§ 33A-33G, from two convictions of armed robbery, one of rape, and one of breaking and entering a dwelling house with the intent to commit a felony. The defendant was found guilty after a jury trial in the Superior Court. The judge imposed four life sentences, with two of the sentences to be served concurrently with each other, and the other two sentences to be served concurrently with each other from and after the terms first imposed.

The appeals were first entered in the Appeals Court. That court reported the case to this court without decision, stating that the Justices of that court were divided equally on the issue of the propriety of the prosecutor's closing argument to the jury.

The defendant now asserts error in the judge's charge to the jury as to the legal consequences of a verdict of not guilty by reason of insanity (the so called Mutina instructions, Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975)); in the judge's charge relating to the credibility of medical witnesses, the defendant contending that the instructions improperly conveyed to the jury the judge's own conclusions as to the credibility of witnesses offered by the defense; in a comment the judge made while excluding some proffered evidence as to a "paranoid schizophrenic in remission"; in the judge's denial of the defendant's request to be allowed sixteen peremptory challenges; in the judge's refusal to allow the defendant to file late a motion to suppress evidence; and in several allegedly improper statements by the prosecutor in his closing argument to the jury. We conclude that there was no error, and the judgments shall be affirmed.

The facts are as follows. On the night of April 5, 1972, the victims, Ms. C and Mr. W, returned home about 11 P.M. from an evening with friends in Framingham. As they walked toward their apartment building in Boston, they saw a man, later identified as the defendant, and a woman loitering outside, leaning against a tree.

Ms. C and Mr. W went into the foyer of their building. Mr. W checked the mailbox and then bent over to unlock the inner security door. While Mr. W was opening the door, the defendant and his woman accomplice entered the foyer. Ms. C saw that the defendant had a large black gun aimed at Mr. W and that the woman had a small silver gun drawn. Ms. C called out, and Mr. W turned around and found the defendant pointing a gun at his face and ordering him to "Shut up. Keep quiet and get in." Mr. W opened the security door. Once inside, the defendant and his companion, keeping in back of the victims, forced the victims at gunpoint up the staircase and into their third floor apartment.

Thereafter, the victims were tied up with cords by the defendant and his accomplice. They were held captive all that night. The defendant raped Ms. C repeatedly, and forced her to perform fellatio on him. The woman took Mr. W's watch, as well as a Master Charge card, a library card, a social security card, a selective service card, and a Hertz credit card. The defendant at one time grabbed Mr. W by the hair; Mr. W also suffered severe injuries to his wrists by reason of the tight bindings.

In the early morning, the defendant forced Ms. C, under threats, to persuade Mr. M, the unsuspecting occupant of a neighboring apartment, to join them. Thereafter, Mr. M was robbed of his billfold and was bound by the defendant and his accomplice. The two assailants ultimately departed, taking with them a radio, camera equipment, Mr. W's identification cards, some hashish, and some clothing from Mr. W's apartment. A cassette recorder, a player, a billfold, Mr. M's passport, driver's license, social security card, library card, and $8 were missing from Mr. M's apartment.

On July 12, 1972, a man later identified as the defendant, accosted one Mr. B with a black .44 magnum revolver on the lighted stairway of 5 Myrtle Street in Boston. Mr. B disarmed the defendant and gave the gun to Boston police Officer John J. Dennehy. Officer Dennehy testified that the gun at trial, exhibit 13, was the one that Mr. B gave him. Ms. C and Mr. M both testified that the gun at trial looked like the one the defendant used the night of April 5, 1972.

The defendant was arrested on August 16, 1972. While patrolling alone on Route 128, State Trooper Richard Savage observed a white 1963 Chevrolet convertible with a dark top, license number 65588N, parked at a rest stop. Since a vehicle with that description was noted in a police bulletin seeking the arrest of the defendant for several crimes, Trooper Savage stopped to investigate. With the information from the bulletin that the defendant was armed and dangerous, Trooper Savage approached the vehicle with his gun drawn. The defendant was lying on the front seat apparently asleep. Trooper Savage nudged the defendant and ordered him to sit up, slide over, and put his hands on his head.

Once the defendant sat up, the trooper ordered him twice to place his hands on the steering wheel. Ignoring the trooper's command, the defendant asked if he could put his sandals on. Despite Trooper Savage's negative answer, the defendant bent down. At that point, Trooper Savage pulled the defendant from the car and placed him under arrest. On the floor, Trooper Savage saw a fully loaded, chrome plated, .32 caliber Smith and Wesson revolver, exhibit 14. Ms. C testified that the revolver identified by Trooper Savage as the one found in the defendant's automobile also resembled the one held by the woman on the night of April 5. At some point after the arrest, Trooper Savage also took the defendant's driver's license from him.

After bringing the defendant to Foxborough State police barracks, Trooper Savage received a search warrant for the defendant's car from the District Court of Western Norfolk. A search of the vehicle revealed a series of credit cards, a library card, and a radio. Mr. W identified the cards as his and both he and Ms. C identified the radio as the one taken from their apartment on the night of April 5. The defendant was identified by all three victims, first by photographs, then in person in the Municipal Court of the Roxbury District, and later at the Superior Court trial.

1. The defendant exercised his option under Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975), by requesting an instruction to the jury on the consequences of a verdict of not guilty by reason of insanity. The gist of his present assertion of error is that the judge in his charge disclosed to the jury that, at any of the successive and periodic court hearings required by the law subsequent to a verdict of not guilty by reason of insanity, the defendant's mental condition might be found by the judge to be such as to make the defendant eligible for release from all custody. ¹

There was no error. Mutina does not require or suggest that an inaccurate summary of the applicable law be given to the jury or, as the defendant's argument seems to suggest, that the judge should predict to the jury the likelihood that the defendant would not be released from custody at any future hearing. Nor was it improper for the judge, in discussing the consequence of a possible later judicial finding that the defendant was not mentally ill, to use the words "he'd go right out onto the street." This was appropriate comment in light of the fact that the defense counsel stated unequivocally, in his closing argument to the jury, that "he's not going to walk out of here if you find him not guilty by reason of insanity. He's going to go back to Bridgewater where he's been for over three years."

2. The defendant argues that the judge's instructions to the jury were erroneous in several aspects other than those concerned with the Mutina instructions. The defendant's assertion of his exception as to the instructions was "to the entire charge." This catchall statement saved no rights (see Commonwealth v. Benjamin, 369 Mass. ---, --- ^a, 343 N.E.2d 402 and we need concern ourselves no further in this area. Nevertheless, we have examined the charge and we find it fair and correct.

The defendant contends that the judge, in analyzing the medical testimony and in attempting to assist the jury in their judgment of conflicting psychiatric opinions, implied in his comments that the medical witnesses offered by the defendant were unworthy of belief. The defendant agrees that a judge may properly engage in analysis of the evidence and may instruct the jury in language that is "comprehensively strong, rather than hesitatingly barren or ineffective." Commonwealth v. Bettencourt, 361 Mass. 515, 520, 281 N.E.2d 220, 223 (1972), quoting from Whitney v. Wellesley & Boston St. Ry., 197 Mass. 495, 502, 84 N.E. 95 (1908). The risk in a "strong" charge is obvious and substantial; it increases the chance that the judge may improperly comment on the evidence or invade the jury's function as to credibility of witnesses. See G. L. c. 231, § 81. Nevertheless, in our view, the charge in this case, taken as a whole, was evenhanded and fair. The judge succeeded in giving the jury many practical standards and tests with which to approach the conflicting expert opinions.

3. The defendant argues that the judge's comment in the following colloquy denied him a fair trial: DEFENDANT'S COUNSEL: "Well, you're talking about seeing someone who has been diagnosed as a paranoid schizophrenic in remission, which is not your diagnosis?" THE PROSECUTOR: "Objection." THE JUDGE: "Excluded. There's nothing of that sort in this case."

The exclusion of the...