Com. v. Robinson

• Decision Date: 06 January 1981
• Citation: 382 Mass. 189,415 N.E.2d 805
• Parties: COMMONWEALTH v. Gregory ROBINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 805

415 N.E.2d 805

382 Mass. 189

COMMONWEALTH v. Gregory ROBINSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 9, 1980.

Decided Jan. 6, 1981.

Willie J. Davis, Boston, for defendant.

John A. Kiernan, Asst. Dist. Atty. (Sharon D. Meyers, Legal Asst. to the Dist. Atty., Boston, with him), for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

In April, 1976, a Suffolk County jury found the defendant Gregory Robinson guilty of murder in the first degree, of armed robbery, and of two counts of assault by means of a dangerous weapon. ¹ Shortly after sentence, counsel filed a formal motion for a new trial and a notice of appeal. The trial judge denied the motion in July, 1977, and dismissed the appeal in December, 1977, for failure to file an assignment of errors (see G.L. c. 278, § 33F, repealed by St.1979, c. 346, § 3). The defendant, however, acting pro se, in January, 1978, filed a second motion for a new trial. Appointed counsel improved the motion by amendment. It was denied by the trial judge in November, 1979, with memorandum dated in April, 1980. This denial is the subject of the present appeal.

The motion contended that the prosecutor's use of peremptory challenges in jury selection was racially biased, and also attacked several parts of the judge's charge to the jury: his instructions on the jury's role in determining the degree of murder, on premeditated murder, on reasonable doubt, and on the burden of proof (in general, and as to "duress"). After describing the facts, we consider these points, and conclude by affirming the convictions.

1. Narrative. We state briefly the core facts. The defendant and one Ronald Ellis ² approached the Peking House restaurant in the Roxbury section of Boston about 12:45 A.M., December 16, 1975, and asked Shung Li, who was locking the front door, for an order of rice. Shung Li allowed the men to enter and walked with them to the rear kitchen area of the restaurant where Yip Ming, Yung Kam Tai, and Sheung Lee were cleaning up. Ellis drew a sawed-off shotgun from under his jacket and ordered the four employees to get down on the floor. He told the defendant to search for money. Although Sheung Lee quickly rendered Ellis's order to the employees into Chinese, Shung Li, who had little English, may have remained standing. Ellis fired his shotgun, wounding Shung Li in the chest. Ellis and the defendant left the restaurant with some $300 the defendant had found in a kitchen cabinet drawer. Shung Li died of the wound the next day.

We turn to the defendant's testimony about the events of the evening in which he sought to picture himself as acting under supervening pressure from Ellis. The defendant said he met Ellis for the first time at a "shooting gallery" in Roxbury between 8 and 9 P.M., December 15. Ellis had taken cocaine or heroin; the defendant took heroin. While waiting for the shots to take effect, Ellis spoke of an encounter with an acquaintance at a bar earlier that evening which had ended with the man pulling a pistol on him. He solicited the defendant's help in fetching his own gun and going back to the bar to confront the man. The defendant undertook to drive Ellis to Ellis's house in Dorchester and they drove off in the defendant's automobile, a green Buick borrowed, as it happened, from the defendant's girl friend Janice Bacon.

Arriving at Ellis's house, the defendant waited in the car while Ellis went in and then emerged with a green Army duffel bag containing, as the defendant assumed, a gun (in fact a sawed-off shotgun). The defendant drove to the indicated bar near the Dudley subway station in the Roxbury section of Boston and again waited as Ellis entered and returned, saying that the man was not there.

The defendant and Ellis drove about for two hours talking and drinking wine. Ellis spoke of "taking off some joint" but the defendant, so he testified, disclaimed any interest in such a venture. Finally they returned to Roxbury. Coming out of a bar where they had used the rest room, Ellis proposed robbing a Merit gas station across the street. The defendant declined to take part, and drove off alone. But as the defendant waited a red light at a near corner, Ellis reentered the car taking the front passenger seat. At that point Ellis's shotgun discharged into the adjacent door. The blast, said the defendant, "panicked" him. Ellis said it was an accident, but the defendant testified he "couldn't understand" how that could be.

The defendant asked Ellis where he wanted to be let off and Ellis directed him, but en route Ellis ordered the defendant to stop by the Peking House restaurant so they could rob it. The defendant said he didn't want to do it and pointed out some hazards in the robbery as a means of discouraging Ellis. But ultimately he did as Ellis wished because he was "afraid" of Ellis and his shotgun and "couldn't see anything else to do."

As to his conduct while in the restaurant, the defendant testified that he alternated between acting as lookout from a position in the doorway between the kitchen and the front serving area, and responding to Ellis's command to search for money by rummaging in a kitchen cabinet. At one point he blocked Ellis from pushing one of the employees into the serving area; he explained that he feared the police would see the robbery in progress and shoot him as they entered. He said he tried to persuade Ellis to leave the restaurant, but Ellis merely directed him to look for more money. Regarding the shooting of Shung Li, the defendant testified he was on lookout when he heard the shot. He ran to the store front to see if anything stirred, and returned to the kitchen area. He did not notice that Shung Li had been wounded. On Ellis's order he resumed looking for money in the kitchen cabinet. Some minutes later, when Sheung Lee reached across him for the phone to call a doctor, he turned and saw Shung Li bleeding on the floor. He and Ellis then left.

There was possible confirmation of part of the defendant's story in the testimony of Janice Bacon, called by the defense. She said she found a hole in the front passenger door of her Buick automobile that was not there, she thought, when she lent the car to the defendant on December 15. But she said she first observed the hole sometime in January. James E. Higgins, a Boston police ballistician, called by the prosecution, testified that the hole in the door was consistent with a blast from a shotgun, but that it could also have been made by ramming an iron rod through the door.

Without getting into the detail of the Commonwealth's case, we say a word about its evidence bearing on the claim of duress. Ellis was not called. The defendant's taped statement, given to Detective Peter O'Malley on January 8, 1976, was played to the jury. Here the defendant indicates that the robbery was Ellis's idea, but there is not more than a hint of duress. On the tape the defendant says that he and Ellis were broke that night and were driving about looking for a "place to hit." The tape has nothing about a shotgun blast in the car. (In testimony the defendant said he was "confused" the day he talked to Detective O'Malley, and O'Malley had cut off his statement at various points. Neither claim is evident from hearing the tape. It appears to run continuously during the defendant's statement.) On the tape the defendant says that after stopping the car two doors down from the restaurant in front of a smoke shop, he moved the car some distance to avoid bright illumination of the license plate by the shop's neon lights. (In testimony the defendant explained the move as intended to allow the customers to leave the restaurant and the door to be closed so that the robbery would be thwarted.)

Donna Horner, a prosecution witness, said the defendant told her that he and another fellow had robbed a Chinese restaurant; that as they were leaving the place he told the other guy to "(s)hoot the motherf " and to his surprise the fellow did shoot. He also told her that he carried a pistol during the episode, and the other fellow a shotgun. The defendant's avowal to Horner came on January 2, 1976; she said they were in bed together, the defendant (but not Horner) having taken heroin. ³ (It may be noted that the restaurant employees did not observe a weapon in the defendant's hands.)

After the robbery, the defendant accompanied Ellis to Ellis's girl friend's place. As against testimony by the defendant suggesting that he continued in fear of Ellis, the girl friend, Diana Dozier, called by the Commonwealth in rebuttal, described the two as counting out and dividing the money and saying they could have gotten more, and mentioning an "accidental" shotgun burst in the car in what she took to be a friendly or joking manner. She said the defendant came by two days later asking for Ellis. He asked for Ellis again when she ran into him at Dudley station three days after the robbery.

With respect to chances of escape, the defendant said on the tape that he was alone in the car when he moved it down from the smoke shop. (He put Ellis still in the car in his testimony.) In testimony the defendant admitted that Ellis stopped to put on the defendant's coat before the two entered the restaurant (the shotgun could be concealed under the coat), but he claimed nevertheless that the shotgun never left Ellis's possession. He knew a bar across the street from the parked car which he "imagine(d)" would be open late, but he did not try to run to it. Just after Shung Li was shot he was alone at the store front, but did not try to leave because, he said, he was not sure the door would open.

2. Peremptory challenges. The defendant is black. He argues that the prosecution denied him rights under art. 12 of the Declaration of Rights of the Massachusetts Constitution, as laid out in our opinion in Commonwealth v. Soares, 377 Mass. ---, ---, ^a ...