Com. v. Medeiros

• Decision Date: 02 May 1968
• Parties: COMMONWEALTH v. Joseph A. MEDEIROS (and eleven companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 642

236 N.E.2d 642

354 Mass. 193

COMMONWEALTH v. Joseph A. MEDEIROS (and eleven companion cases).

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 4, 1968.

Decided May 2, 1968.

Ronald J. Chisholm, Boston, for defendants.

Ruth I. Abrams, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

KIRK, Justice.

The defendants Medeiros and Norman G. Bernier were each separately indicted on the following five charges: the kidnapping of Jo-Ann Pawlik, the kidnapping of her daughter Alexis Pawlik, assault and battery while armed with a dangerous weapon upon Jo-Ann Pawlik, assault upon Alexis Pawlik while armed with a dangerous weapon, and robbery of Jo-Ann Pawlik while armed with a dangerous weapon. In addition Bernier was indicted for carrying on his person without authority, a firearm, and Medeiros for carrying under his control in a vehicle a firearm without a permit. All of the charges arose out of the same event and were tried together under G.L. c. 278, §§ 33A--33G. Both defendants were found guilty on all the indictments, and both have appealed. Medeiros assigns as error the denial of his motions for a directed verdict on each charge and the instructions given to the jury relating to the carrying of a firearm. Bernier's only assignment of error was the denial of his motion that the judge appoint a psychiatrist nominated by Bernier to assist in his defence.

We summarize the evidence. On the evening of September 21, 1966, Jo-Ann Pawlik (Jo-Ann) and her two year old daughter Alexis rode with Jo-Ann's boy friend to the United States Naval Station at Newport, Rhode Island, where he was stationed. ¹ At 11:30 P.M. Jo-Ann left her friend at his station and commenced the return trip to Newton where she lived. Her car was a black Volkswagen. Alexis was asleep in the back seat. About midnight, as Jo-Ann drove through Fall River she became aware that an automobile was following her. When she passed the Needham Industrial Center she was able to identify the car as a white Volvo. It followed her as she made several changes of direction to reach her street in Newton. As she made the turn into her street she did not see the Volvo. When she stopped in her driveway, however, and put out the lights of her car, a man with a pistol ran to her (the driver's) side of the car. She saw the taillights of a car driving away. It was raining and dark. The man, whom she identified as the defendant Bernier, threatened her with the gun, ordered her to unlock the car door, and got into the car. At this point Alexis awoke and remained awake throughout the episode which followed. Pointing the gun at her, Bernier ordered Jo-Ann to drive the car to a spot 'two halfblocks' away. She did so. When the car stopped, he demanded her money at gunpoint. She gave him $21 from her purse. He then told her to take off her clothes. When she refused to remove her underclothing, he pointed the gun at Alexis' head and pressed back the hammer. He showed Jo-Ann that the gun was fully loaded. She removed her underthings. Bernier took off his glove or gloves and felt her body with his hands.

When Bernier was ready to leave he asked Jo-Ann for her name and address, saying that if she 'ever called the cops' he would send someone after her. She wrote her name and address on an envelope that bore the name of a bank. Bernier took the envelope and placed it in his pocket. He warned her to wait twenty minutes and not look back. Bernier then left the car and went toward the rear of the vehicle. Less than a minute later, he returned and ordered Jo-Ann to open the door once again. He entered the car and told Jo-Ann that she would have to drive him to New Bedford because his 'buddy' wasn't there. She replied that she did not have enough gas and he ordered her to drive around and look for his friend. She backed up 'three houses and a store' to the corner of the next street and turned, at which time she saw a parked white Volvo and called it to Bernier's attention. It was the same car which had followed her from Fall River. He said, 'That's it,' and ordered her to turn her car around and wait five minutes. When the car was turned around Bernier left. It was then approximately 1:45 A.M. Jo-Ann waited five minutes, took Alexis out of the car, locked the car and walked home. She called the Newton police.

At 3:37 A.M. officers of the Fall River police department, who had been alerted by radio, sighted a white, "57 vintage' Volvo. They stopped the car and arrested the occupants. Bernier was driving; Medeiros was seated to his right on the front seat. The officers searched the vehicle and found, under the seat where Medeiros had been seated, a loaded revolver, a cap, a spotted handkerchief tied into a makeshift mask, a pair of gardener's gloves, and an envelope with Jo-Ann's name written on it. ² Jo-Ann identified the cap, mask, and gloves as having been worn by the man who robbed her, the envelope as the one she had given him, and the gun as the one he had used. The officers also found eighteen bullets in the open ashtray on the dashboard of the Volvo. It was agreed that the Volvo was owned by Bernier and was registered to him in California. It bore California plates.

Bernier concedes that there was ample evidence to support the verdicts of guilty which the jury returned against him on all the indictments. That evidence logically requires a finding that someone had accompanied Bernier in the white Volvo. When Bernier ran toward Jo-Ann's car in her driveway someone other than Bernier drove the Volvo away and then parked it a short distance from the place where Bernier had compelled Jo-Ann to park her Volkswagen and where Bernier committed the armed assaults and robbery.

We consider first Medeiros' contention that he was entitled to a directed verdict of not guilty on each of the indictments against him. The contention raises two inquiries: (1) was the evidence sufficient to submit to the jury the question whether Medeiros was the operator of the Volvo when Bernier was engaged in his criminal activities in Newton, and, if the answer is in the affirmative, (2) was the evidence sufficient to submit to the jury the question whether Medeiros' participation was such as to make him a principal with Bernier in the commission of the five crimes against Jo-Ann and Alexis.

The evidence by which both questions must be resolved is circumstantial. The probative value of circumstantial evidence has been frequently referred to and need not be restated at length. Commonwealth v. Swartz, 343 Mass. 709, 712, 180 N.E.2d 685; Commonwealth v. O'Brien, 305 Mass. 393, 400--401, 26 N.E.2d 235; Commonwealth v. Bonomi, 335 Mass. 327, 355--356, 140 N.E.2d 140. It is not essential that the inferences drawn from facts or circumstances be necessary inferences. Commonwealth v. Doherty, 137 Mass. 245, 247. It is enough if the inferences drawn from the circumstances be reasonable and possible. Commonwealth v. Merrick, 255 Mass. 510, 514, 152 N.E. 377. It is not necessary to prove that no one other than the accused could have done the act. Commonwealth v. Leach, 156 Mass. 99, 101--102, 30 N.E. 163; Commonwealth v. Dawn, 302 Mass. 255, 263, 19 N.E.2d 315; Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276. That another might have had the opportunity to do the act goes only to the weight of the evidence. Commonwealth v. Richmond, 207 Mass. 240, 247, 93 N.E. 816. The weight of the evidence is for the jury. Commonwealth v. Swartz, 343 Mass. 709, 713, 180 N.E.2d 685.

We follow these guides in the resolution of the pending inquiries. Indisputably Medeiros was in the passenger's seat beside Bernier at 3:37 A.M. when the police stopped the car and arrested...