Com. v. Preston

• Decision Date: 21 April 1971
• Parties: COMMONWEALTH v. Robert PRESTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 922

268 N.E.2d 922

359 Mass. 368

COMMONWEALTH v. Robert PRESTON.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 1, 1971.

Decided April 21, 1971.

Chester C. Paris, Boston (Gerald M. Lewis, Lawrence, with him), for defendant.

Peter F. Brady, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ.

TAURO, Chief Justice.

This is an appeal by the defendant Robert Preston under G.L. c. 278, §§ 33A--33G from sentences imposed upon verdicts of guilty on two indictments for armed robbery, two indictments for mayhem, one indictment for assault and battery by means of a dangerous weapon, one indictment for assault to rape, one indictment for assault to murder, and one indictment for malicious damage to personal property. The cases of two codefendants, Emanuel Smith and Ralph C. Hamm, were disposed of prior to trial.

Before the trial a hearing was held on the defendant's motion to dismiss. The court made a finding of fact that the defendant was advised of his rights before being interrogated by the police and before being placed in a lineup.

At the trial Emanuel Smith, an inmate at State prison as a result of pleading guilty to indictments arising out of the same incident, testified that he was with Ralph Hamm and the defendant on the evening of November 22, 1968, and that all three went to a wooded area in Lawrence, Massachusetts. There, upon seeing a motor vehicle, the defendant opened the door and the lights went on inside. The defendant entered the car and had a scuffle with the male victim. Smith knifed him, yanked him out of the car, and he and Hamm beat him to unconsciousness. Smith then saw the defendant getting out of the car and saw a girl in the back seat. The defendant took the girl out of the car while she was unconscious. Hamm stomped her, and picked up a stick from the ground and shoved it into her vagina. They stole the girl's pocketbook and set the car on fire.

The male victim, in court, identified the defendant as the man who entered the car with a knife and attacked him. He stated that he could see the defendant as four lights went on in the car when the door opened. He also testified that he saw both the defendant and Smith in a police lineup in New York.

The girl also made an in-court identification of the defendant as the first man who entered the car. He had a knife. The defendant knocked her unconscious and her next recollection was of Hamm taking her into the back seat. She stated that the lights were on in the car and she saw the defendant well enough to identify him. She did not go to New York for the line-up. She had earlier picked the pictures of the defendant, Hamm and Smith out of a large number of photographs.

While Lieutenant Tylus of the Lawrence police was on the witness stand a voir dire ws held in order to determine whether the defendant was informed of his rights before interrogation. The judge ruled that an oral statement made by the defendant to the police in New York was admissible. The statement was to the effect that the defendant had taken part in the incident along with Smith and Hamm; that he and Smith had knives and beat the male victim unconscious; that Hamm was in the car with the girl for about twenty minutes and Hamm pushed the stick between her legs, and when he could not push it any further, he kicked it up the rest of the way.

The defendant took the stand and said that he opened the car door as a practical joke. He had no knife, but Smith had one. He admitted hitting the girl and taking her from the back seat. He did not see Hamm do anything to the girl while she was on the ground.

1. The defendant contends that there was error in the denial of his pre-trial motion that the Commonwealth be directed 'to furnish the defendant with all evidence which is of an exculpatory nature or which may be favorable to the accused which is within the possession, custody and control of or within the knowledge of the prosecuting officer during the pendency of all matters relating to this Indictment.' ¹ The trial judge denied the motion on the grounds that it was vague and incomprehensible.

The defendant does not claim that the prosecution withheld any evidence favorable to him, but does contend that the denial of the motion relieved the prosecution of its obligation to seek out any such evidence, whether or not it exists. The defendant admits that denial of the motion does not require reversal but suggests that the case to remanded for determination as to whether or not the prosecution did have such evidence. The cases relied upon by the defendant do not support his contention. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused, when requested, violates due process if the evidence is material either on the question of guilt or punishment, irrespective of the good faith or bad faith of the prosecution. In the Brady case, the prosecutor withheld a statement which might have reduced the defendant's offence to less than murder in the first degree. The statement did not come to the defendant's notice until after he had been sentenced and his conviction affirmed on appeal. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737; Williams v. Dutton, 400 F.2d 797 (5th Cir.). In the present case the defendant is merely speculating as to the existence of exculpatory evidence. The motion indicates that the defendant intended a fishing expedition. Moreover, some of the information sought by the defendant's motion would require the Commonwealth to make a determination as to whether one statement may or may not have been inconsistent with another statement. Such a burden could not be imposed on the Commonwealth. It is difficult to see any prejudice in the denial of the defendant's motion. The defence attorney had in his possession a copy of the transcript of a prior trial of Hamm which included evidence similar to that presented at the defendant's trial. Furthermore, the defendant took the stand and admitted his participation in the incident. The Commonwealth states that it is unaware of any evidence favorable to the accused.

2. The defendant claims that it was error to admit inculpatory statements made to the police because the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, warnings were not given. In particular, the defendant claims he was not warned that he had a right to consult with a lawyer and have a lawyer present during interrogation. The trial judge found that the defendant was advised of his rights by the police. The finding was based upon testimony by Lieutenant Tylus of the Lawrence police department that the warnings were given. Tylus testified at a pre-trial hearing that immediately upon apprehending the defendant and Smith in New York he informed both as required by the Miranda case. He further testified that on arriving at a New York police station, the New York police warned them of their Miranda rights and showed them a card. Tylus's testimony was similar at a voir dire during the trial, except that he also stated that he gave a second Miranda warning at the New York police station and Officer Lannon of the Lawrence police showed a Miranda card which the defendant and Smith read. ²

We believe that on this record there is sufficient evidence to support the trial judge's finding that the Miranda requirements were met. See Commonwealth v. Scott, 355 Mass. 471, 478--479, 245 N.E.2d 415. See also Commonwealth v. Rawlins, 352 Mass. 293, 225 N.E.2d 314.

3. The defendant claims error in the admission of testimony regarding his identification at the police lineup.

At the pre-trial hearing on this issue, Lieutenant Tylus testified...