Com. v. Michel

Decision Date22 April 1975
Citation367 Mass. 454,327 N.E.2d 720
PartiesCOMMONWEALTH v. Larry MICHEL.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Anthony R. DiFruscia, Lawrence, for defendant.

Robert J. O'Sullivan, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

REARDON, Justice.

The defendant was convicted of robbery and mayhem in a jury waived trial in the Superior Court. The cases were taken on appeal under the provisions of G.L. c. 278, §§ 33A--33G, and were transferred here from the Appeals Court pursuant to G.L. c. 211A, § 10(A). The evidence can be briefly stated.

On March 19, 1972, the victim, one William Howard Cole, encountered the defendant at 'The Vets,' a drinking establishment in Lawrence. From there they proceeded to a series of drinking spots traveling in a car driven by the defendant. They departed the last establishment in the company of three other individuals, two brothers named Dennis Dietrich and Ernest Dietrich, and Walter Coyne, Third. 1 In due course the car turned off a Methuen street onto a snow covered road running between a playground and a cemetery. The car stopped and everyone alighted. Thereupon Cole was robbed of his wallet and unmercifully beaten. He was kicked in the head repeatedly, struck with a broken beer bottle, and a cemetery urn was dropped on his chest. As a result he received numerous lacerations, his jaw and right leg were fractured, and his left ear was partially torn off. His assailants left him in this condition in the snow, clad only in his undershorts, his clothes having been ripped off in the process of his beating. It appears that the four occupants of the car other than Cole then returned to the English Social Club in Lawrence, one of the drinking spots they had visited previously that day. On the following day the police found two stained jackets behind the English Social Club building. The manager at that club identified one of these jackets as that worn by the defendant on the previous evening. It was introduced as an exhibit. Further reference to testimony will be made as required hereafter.

The appeal brings three issues here: (1) the judge's refusal to make findings of not guilty of the robbery and mayhem charges; (2) an alleged denial of the right of confrontation with respect to the testimony of the witness Coyne; and (3) an alleged denial of due process in the judge's conduct of certain aspects of the trial.

1. In considering the defendant's motion for findings of not guilty (only Michel has perfected his appeal), we consider the evidence most favorable to the Commonwealth. COMMONWEALTH V. BURNS, --- MASS. ---, 289 N.E.2D 836 (1972)A. Michel first contends that there is insufficient evidence to indicate that he participated in the robbery. He relies on Commonwealth v. Benders, --- Mass. ---, ---, b 282 N.E.2d 405 (1972), in which it was stated that 'mere presence at the commission of the wrongful act and even failure to take affirmative steps to prevent it do not render a person liable as a participant.' Accord, Commonwealth v. Clark, --- Mass. ---, --- - ---, c 295 N.E.2d 163 (1973). To be convicted as a principal the defendant must have participated to some extent in the commission of the offense. Commonwealth v. Jacobson, 260 Mass. 311, 326, 157 N.E. 580 (1927); Commonwealth v. Stasiun, 349 Mass. 38, 49, 206 N.E.2d 671 (1965). Commonwealth v. Medeiros, 354 Mass. 193, 198, 236 N.E.2d 642 (1968), cert. den. sub nom. Bernier v. Massachusetts, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969). Commonwealth v. Pina, 360 Mass. 139, 143, 273 N.E.2d 806 (1971); Commonwealth v. Benders, supra. G.L. c. 274, § 2. We have no doubt that the evidence in this instance suffices to enable the fact finder to infer the defendant's participation in the robbery. The victim had testified that someone demanded his wallet containing ten or twenty dollars upon the arrival of the car near the cemetery, and that when he failed to hand it over he was slugged. The brutal beating followed and his wallet was later found empty some thirty feet away. There can be little doubt in establishing that this was a robbery. Commonwealth v. Novicki, 324 Mass. 461, 465, 87 N.E.2d 1 (1949). G.L. c. 265, § 19. Cole testified that he was dazed during the course of the beating and could not recall whether two or three individuals assaulted him, but the day following the incident he did identify the defendant from a picture as one of those present at the scene. Also present was Coyne who, in testimony for the Commonwealth, stated that 'three of them were beating him up,' that is, the Dietrich brothers and the defendant Michel. In response to a query from the judge as to whether his testimony was that the defendant 'took some part in what was being done to Mr. Cole,' he answered in the affirmative. The discovery of the defendant's jacket the following day was further evidence of his participation since it had been identified as being worn by him on March 19. There was testimony that on March 19 it appeared 'new and clean' as contrasted with its condition when discovered, when it was 'stained.' It is argued by the defendant that the foregoing evidence might indicate his part in the assault but not in the robbery. He stresses Coyne's testimony that he and Coyne had left the motor vehicle initially and had returned to find the Dietrich brothers already engaged in 'beating up' Cole. This indicates, he says, that any participation in the assault by him came after the robbery was complete. See COMMONWEALTH V. FLOWERS, --- MASS.APP. ---, 298 N.E.2D 898 (1973)D. The trouble with this argument is that there was no evidence that Cole's wallet had been taken from him prior to the time that the defendant took part in the beating, a fact situation dissimilar to that in the Flowers case. Furthermore, there was evidence that the empty wallet was found some thirty feet from the spot where the beating took place. A 'reasonable and possible' inference, Commonwealth v. Medeiros, supra, 354 Mass. at 197, 236 N.E.2d 642, is that the robbery was not completed until after the assailants had finished their attack on Cole and left him minus his wallet. See Commonwealth v. Novicki, supra, at 324 Mass. 465, 87 N.E.2d 1; Commonwealth v. Beaulieu, 333 Mass. 640, 644--645, 133 N.E.2d 226 (1956), cert. den. sub nom. Weaver v. Massachusetts, 351 U.S. 957, 76 S.Ct. 859, 100 L.Ed. 1480 (1956), and cert. den. sub nom. Boisvert v. Massachusetts, 352 U.S. 857, 77 S.Ct. 70, 1 L.Ed.2d 61 (1956). Cf. Commonwealth v. Green, 302 Mass. 547, 555, 20 N.E.2d 417 (1939). Thus, the judge could have found a causal connection between the defendant's use of violence and the taking of Cole's money. Commonwealth v. Jones, --- Mass. ---, ---, e 283 N.E.2d 840 (1972). LaFave and Scott, Criminal Law, § 94, at 696--702 (1972). Anderson, Wharton's Criminal Law & Procedure, § 559 (1957). There was no error in the denial of the defendant's motion for a finding of not guilty on the robbery charge. Nor was there error in denying a finding of not guilty as to the mayhem charge. The evidence of the defendant's participation in this malicious beating, which led to the partial tearing off of the victim's left ear, was sufficient to sustain a conviction under G.L. c. 265, § 14.

2. The defendant claims error in the judge's refusal to strike direct testimony of the witness Coyne after the defendant was allegedly denied the right of fully cross-examine Coyne relative to possible bias. This argument stems from an arrangement made by Coyne with the prosecution where in exchange for Coyne's testimony the prosecution would nol pros the indictments against Coyne in the instant cases, as well as file a disclaimer of two rape charges then pending against him. Since all negotiations with the prosecutor's office were handled by Coyne's attorney in his absence the judge instructed Coyne as to the attorney-client privilege, telling him that he need not answer questions about his arrangments with the prosecutor which would involve '(a)ny talk between you and . . . (your attorney), where there was nobody else there.'

It has long been the law in the Commonwealth that parties are entitled as matter of right to reasonable cross-examination of a witness for the purpose of showing bias. Commonwealth v. Russ, 232 Mass. 58, 79, 122 N.E.2d 176 (1919). Commonwealth v. Sansone, 252 Mass. 71, 74, 147 N.E. 574 (1925). Within the scope of this cross-examination it is proper to inquire whether the witness expects more favorable treatment from the government in return for his testimony. Commonwealth v. Bosworth, 22 Pick. 397, 400 (1839). Commonwealth v. DeBrosky, --- Mass. ---, ---, f 297 N.E.2d 496 (1973). Wigmore, Evidence, § 967 (Chadbourn rev. 1970). This right of cross-examination may assume constitutional dimensions under the confrontation clause of the Sixth Amendment to the Constitution of the United States, and art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Commonwealth v. Johnson, --- mass. ---, ---, g 313 n.e.2D 571 (1974). most recently, in the case of Davis v. Alaska, the Supreme Court held that the right to cross-examine a witness for possible bias arising out of his probationary status as a juvenile delinquent transcends the State's interest in preserving the confidentiality of juvenile records. Furthermore, it has been held that where the witness's credibility is a critical issue in the case, the requirements of due process also mandate that the jury be aware of 'evidence of any understanding or agreement as to a future prosecution.' Giglio v. United States, 405 U.S. 150, 154--155, 92 S.Ct. 763, 766, 31 L.Ed.2d...

To continue reading

Request your trial
61 cases
  • Com. v. DiBenedetto
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 8, 1998
    ...would the defendants have been entitled to invade the attorney-client privilege to learn this information. Commonwealth v. Michel, 367 Mass. 454, 460-462, 327 N.E.2d 720 (1975). See Commonwealth v. LaVelle, 414 Mass. 146, 154-155, 605 N.E.2d 852 5. The defendants assert that the judge erred......
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 7, 1979
    ...light of evidence permitting an inference of his actual participation in the crime as an aider and abettor. Commonwealth v. Michel, 367 Mass. 454, 456-459, 327 N.E.2d 720 (1975). Commonwealth v. Conroy, 333 Mass. 751, 754-755, 133 N.E.2d 246 (1956). The reliance placed on this argument by K......
  • Com. v. Crowe
    • United States
    • Appeals Court of Massachusetts
    • April 2, 1986
    ...use his knowledge of human nature and his judicial experience in determining the character of the testimony.' " Commonwealth v. Michel, 367 Mass. 454, 462, 327 N.E.2d 720 (1975), quoting from Blankenburg v. Commonwealth, 272 Mass. 25, 34, 172 N.E. 209 (1930), cert. denied, 283 U.S. 819, 51 ......
  • Com. v. Pelosi
    • United States
    • Appeals Court of Massachusetts
    • July 10, 2002
    ...Evidence, § 13.4.5 (7th ed. 1999); Drew v. Drew, 250 Mass. 41, 44-45, 144 N.E. 763 (1924). See also Commonwealth v. Michel, 367 Mass. 454, 460-461, 327 N.E.2d 720 (1975). The policy basis for such an approach is plain: confidentiality rules are designed to promote full discussion of private......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT