Com. v. Richardson

• Decision Date: 08 June 1973
• Parties: COMMONWEALTH v. Victor Waldo RICHARDSON.
• Court: Appeals Court of Massachusetts

Page 709

296 N.E.2d 709

1 Mass.App.Ct. 348

COMMONWEALTH v. Victor Waldo RICHARDSON.

Appeals Court of Massachusetts, Hampshire.

Argued April 9, 1973.

Decided June 8, 1973.

William P. Homans, Jr., Boston, for defendant.

John M. Finn, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and GOODMAN and GRANT, JJ.

GOODMAN, Justice.

These cases in which the defendant Richardson was convicted on three indictments charging armed robbery and four indictments charging assault with a dangerous weapon (a gun), ¹ come to us on an appeal from the denial of the defendant's motion for a new trial alleging newly discovered evidence and that the convictions were against the weight of the evidence. The defendant was tried upon G.L. c. 278, §§ 33A--33G, by a Superior Court judge (the trial judge) sitting without jury who made detailed findings of fact. The motion for a new trial based on affidavits was heard by a different judge (the motion judge), the trial judge having retired. We are, therefore, in the same position as the motion judge to review the original trial record and the findings of the trial judge, which are before us, in the light of the affidavits submitted with the motion and to evaluate the weight of the evidence at the trial. In these unusual circumstances, though the motion for a new trial requires a review of the evidence, we, 'in passing upon the questions presented for review, may consider the fact that the judge who heard the motions had before him nothing but the stenographic report of the evidence at the trial (and the trial judge's findings.)' Commonwealth v. Gedzium, 261 Mass. 299, 304, 159 N.E. 51, 53. Therefore as matter of discretion (see Commonwealth v. Libby, 358 Mass. 617, 619, 266 N.E.2d 641), we consider this case broadly and determine whether 'justice may not have been done,' under the expanded test of G.L. c. 278, § 29, as liberalized by St.1966, c. 301. Commonwealth v. Stout, 356 Mass. 237, 242, 249 N.E.2d 12. See Commonwealth v. Ransom, 358 Mass. 580, 583, 266 N.E.2d 304.

The following appears from the findings of the trial judge and such of the testimony as is obviously credible. The defendant at the time of the robbery was a junior at Amherst College and, sometime in the afternoon preceding the robbery, drove to Springfield with Ronald Young, a fellow student. There they looked at clothes in a store on Main Street, downtown, and after a while went into a pool room where they encountered Tubbs and King ², with whom they were acquainted. Tubbs and King had participated in a tutorial probram in which Young and the defendant had been tutors. 'Acced(ing) to their (Tubbs' and King's) request,' as the trial judge put it in his findings, the defendant and Young drove them back to Amherst. ³ The testimony varies as to just when they were dropped off. ⁴ The robbery occurred sometime between midnight and 12:15 A.M. on September 30. ⁵ At that time Tubbs and King, armed with a gun, entered a room in a University of Massachusetts dormitory occupied by three students (a fourth student was visiting there) and robbed them of various articles of personal property. The defendant, who after arriving in Amherst had gone to a class in Northampton, returned to his dormitory about 10 P.M. and, as the trial judge found, 'when actually called upon by telephone after the robberies were committed, he did go after the hour of midnight to transport them away from the scene of the robbery.' ⁶ The police arrived about 12:25 to 12:30 A.M. and arrested the defendant and the other two. They were in the car with the motor running; the stolen property was in the back of the car.

The primary issue in dispute relates to Richardson's involvement in the robbery. The only direct testimony of his implication came from Tubbs and King. Tubbs, in response to the question, 'Who said what?', replied, 'We were supposed to go there and take the marijuana; me and King were supposed to go and take the marijuana from these guys at the college.' The 'agreement' was made by 'the three of us, really' while they were in the car. He also testified: 'After we talked, the thing was for him to go to his class, take us to U Mass, then go to the class and come back and pick us up.' King testified that there was a 'round-about conversation' in the automobile; they told Richardson they were going to 'take the reefers,' and wanted him to pick them up. he also testified that they made two stops on the way from Springfield looking for a gun.

Young, who lived in the same dormitory as Richardson, testified that he accompanied Richardson from Amherst to Springfield about 2:30 or 3:00 P.M., that they met Tubbs and King about 5:00 or 5:30 P.M., and that they left to go back to Amherst about 6:00 P.M. They took Tubbs and King who had requested a ride and left them off when they arrived at the dormitory in Amherst where Young and Richardson lived. They drove directly to Amherst and made no stops. They then went to class in Northampton from 7:30 to 9:30 P.M. and returned to the dormitory about 10 P.M. Young saw Richardson again at midnight when Richardson left the dormitory. Young testified that they were together during the entire time and that there was no talk of a gun. Nor was there any conversation about Tubbs' and King's getting a ride back from the University of Massachusetts where they were headed. Richardson's testimony on his own behalf was substantially the same as Young's.

We need not analyze in any greater detail the discrepancies, inconsistencies and incoherencies in the testimony of Tubbs and King in an attempt to determine their credibility since the trial judge also did 'not give full credence to the testimony of the other two.' He did not make an assessment of the truthfulness of Tubbs and King vis-a-vis Richardson ⁷ but stated in his findings that 'the respective testimony of Tubbs and King is so diametrically opposed to that of the defendant...