Com. v. Montecalvo

• Decision Date: 21 February 1975
• Citation: 367 Mass. 46,323 N.E.2d 888
• Parties: COMMONWEALTH v. George Joseph MONTECALVO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 888

323 N.E.2d 888

367 Mass. 46

COMMONWEALTH v. George Joseph MONTECALVO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1974.

Decided Feb. 21, 1975.

John A. Pino, Boston, for defendant.

William J. Doyle, Asst. Dist. Atty. for the Commonwealth.

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

TAURO, Chief Justice.

The defendant appeals, pursuant to G.L. c. 278, §§ 33A--33G, from a conviction of murder in the second degree on an indictment charging him with murder in the first degree. We affirm.

The evidence pertinent to the issues is as follows: On February 16, 1973, sometime after 4 P.M., a first floor tenant at 124 Walnut Street, Chelsea, heard moaning sounds coming from the direction of the cellar. Accompanied by her husband, who had taken a flashlight, the tenant went to the cellar where she observed a boy lying naked, face down, on the floor. She immediately went upstairs and told her landlady, who called the police.

The police arrived promptly in response to a call received at 4:31 P.M. They found the boy, later identified as the victim, lying on the floor. He was conscious, but his naked body was clammy and cold. There were no clothes in the vicinity, and neither the boy's clothing, nor the bag of groceries he was carrying when last seen, were ever found. The victim was taken to Chelsea Memorial Hospital, where it was observed that he had abrasive, rope-like marks on the left side of his neck and bruises or other marks on his ankles and buttocks.

The victim remained at Chelsea Memorial Hospital for a few days and was then discharged. Shortly thereafter, his condition began to deteriorate markedly, and he was taken by his mother to the school nurse. The nurse immediately arranged for a doctor's examination, and, as a result, he was taken to Massachusetts General Hospital, where he remained until his death in May, 1973. $The victim was last seen in the company of the defendant. An eighth grader living in the neighborhood observed the victim and the defendant together in front of 124 Walnut Street shortly after 3 P.M. A detective on undercover drug duty, who had been making a surveillance of the area, observed the defendant and the victim on the front porch of 124 Walnut Street, walking into the doorway, at approximately 3:45 P.M. The victim was discovered shortly after 4 P.M.

The cellar in which the victim was found was part of a six-family dwelling that was fully occupied at the time of the incident. The defendant lived with his mother and step-father on the top floor. The cellar was open to all tenants, and in fact some (but not the defendant's family) stored fuel oil there. The cellar was locked with a hook and eye, which could be easily opened from the outside.

1. The defendant assign as error the trial judge's refusal to interrogate each prospective juror individually with regard to the 'statutory questions' authorized by G.L. c. 234, § 28. ¹ At the beginning of the trial, the judge expressed his intention to have the statutory questions asked of the jurors as a group, as was the accepted practice in noncapital cases. Defense counsel objected, asserting that the statute, speaking as it does in the singular, commands individual interrogation of each juror as he is called. The judge, while recognizing that this had been the practice in capital cases, Commonwealth v. Ventura, 294 Mass. 113, 1 N.E.2d 30 (1936), reasoned that this practice evolved from the need to question each juror regarding his views about the death penalty, see G.L. c. 278, § 3, and that, since this particular questioning was no longer required in light of the fact that the jury no longer plays a role in determining whether such penalty shall be imposed, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), neither was individual interrogation. There was no error in the judge's analysis.

Although c. 234, § 28, speaks in terms of 'the juror' and 'a person,' we do not read the statute as requiring individual interrogation. This construction is supported by G.L. c. 4, § 6, Fourth, which allows words expressed in the singular to 'extend and be applied to several persons or things.' Our reading of § 28 is also in accordance with generally accepted rules of statutory construction. See Sands, Sutherland Statutory Construction, § 47.34 (4th ed. 1973). Thus, reference to 'the juror' does not require interrogation of each prospective juror individually, but contemplates questioning 'the jurors' as a group as well.

This conclusion is further bolstered by reference to the 1973 amendment to c. 234, § 28, which provides for further examination of prospective jurors where certain circumstances are present. Statute 1973, c. 919, inserted a second paragraph in the section, which describes the content of the additional examination and then states that it 'shall be conducted individually and outside the presence of other persons about to be called as jurors or already called.' Although not itself applicable to the instant case, the amendment is relevant to show that, where the Legislature intends individual interrogation, 'it has expressly stated its intent in clear and unambiguous language.' Wood v. Commissioner of Correction, --- Mass. ---, ---, ^a 292 N.E.2d 712, 715 (1973). The absence of such 'clear and appropriate language' in § 28 as originally enacted leads us to the conclusion that individual interrogation was not intended in the circumstances covered by that section. Wood v. Commissioner of Correction, supra. See Sands, Sutherland Statutory Construction, § 51.02 (4th ed. 1973).

We have considered the defendant's contention that individual questioning is necessary, despite the fact that the death penalty questions are no longer required. He argues that in cases of murder in the first degree defendants should have the opportunity to observe prospective jurors as they answer the judge's questions in order to get some insight into the makeup of the particular jurors. We reject this argument as supported neither by statute nor constitutional mandate. The purpose of § 28 is 'to determine whether . . . (the prospective jurors) are free from interest, bias and prejudice.' Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 295, 275 N.E.2d 33, 95 (1971), cert. den. sub nom. Farrell v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683 (1972), and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 8s.Ct. 2433, 32 L.Ed.2d 689 (1972). The procedure adopted by the judge below accomplished this purpose, while in no way violating the express terms of the statute. Accordingly, we hold that it was not an abuse of discretion for the judge to have conducted the examination in this manner. ²

The defendant raises here for the first time the fact that the interrogation was not conducted under oath, as required by the statute. He claims that this entitles him to a new trial. We disagree. Assuming this issue to be properly before us, we find no merit in the defendant's contention. 'Under G.L. c. 234, § 32, an irregularity in the empanelling of jurors is not sufficient to set aside a verdict unless the objecting party has been injured thereby.' Commonwealth v. McKay, -- Mass. --, --, ^b 294 N.E.2d 213, 216 (1973). Thus, the defendant must show that he was prejudiced by the failure to have the oath administered before questioning of the prospective jurors. There is no indication in the record of such prejudice. Commonwealth v. Cero, 264 Mass. 264, 271, 162 N.E. 349 (1928). Commonwealth v. Guerro, 357 Mass. 741, 756, 260 N.W.2d 190 (1970). ³

2. There was no error in the admission of testimony by a friend of the victim's mother regarding telephone calls she received from the defendant shortly after the victim was taken to the hospital. The friend testified that she received the first call within a day or two of the incident; possibly, but no later than, Monday. She stated that this was the first time the defendant had ever called her, although she was quite friendly with the defendant's mother and had spoken to her on the telephone on numerous occasions. In the first call, the defendant asked how the victim was doing and whether his clothes had been found. The friend testified that she received '(m)any, many' calls from the defendant, often when the victim's mother was present in her home. In all of these calls, the defendant asked questions regarding the victim, and particularly whether his clothing had been found.

Actions and statements that indicate consciousness of guilt on the part of the defendant are admissible and together with other evidence, may be sufficient to prove guilt. Commonwealth v. Webster, 5 Cush. 295, 316--317 (1850); Commonwealth v. Bonomi, 335 Mass. 327, 346--348, 140 N.E.2d 140 (1957); Commonwealth v. Curry, 341 Mass. 50, 55, 166 N.E.2d 714 (1960); Commonwealth v. Swartz, 343 Mass. 709, 712--713, 180 N.E.2d 685 (1962). Although this theory usually has been applied to cases where a defendant runs away, Commonwealth v. Corcoran, 332 Mass. 615, 619, 127 N.E.2d 187 (1955); Commonwealth v. Geagan, 339 Mass. 487, 512, 159 N.E.2d 870 (1959), cert. den. 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959); Commonwealth v. Carita, 356 Mass. 132, 140, 249 N.E.2d 5 (1969), or makes intentionally false and misleading statements to police, Commonwealth v. Trefethen, 157 Mass. 180, 199, 31 N.E. 961 (1892); Commonwealth v. Spezzaro, 250 Mass. 454, 4578 146 N.E. 3 (1925); Commonwealth v. Bonomi, supra; Commonwealth v. Curry, supra, or makes threats against key witnesses for the prosecution, Commonwealth v. Smith, 162 Mass. 508, 509--510, 39 N.E. 111 (1895), it is equally applicable to the instant case. The jury properly could have found, under the careful and limiting instructions given by the judge during the course of this testimony and again in his charge, that the defendant's inordinate interest in the case, and particularly in whether the victim's...