Com. v. Saferian

• Citation: 366 Mass. 89,315 N.E.2d 878
• Parties: COMMONWEALTH v. John J. SAFERIAN, Jr.
• Decision Date: 30 July 1974
• Court: United States State Supreme Judicial Court of Massachusetts

Page 878

315 N.E.2d 878

366 Mass. 89

COMMONWEALTH v. John J. SAFERIAN, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1974.

Decided July 30, 1974.

Francis John Stolarz, Cambridge, for defendant.

Roger A. Emanuelson, Sp. Asst. Dist. Atty., for the Commonwealth.

Before REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

On February 6, 1967, the defendant was found guilty by a jury, after trial made subject to G.L. c. 278, §§ 33A--33G, of the crimes of armed robbery, larceny of a motor vehicle, and unlawfully carrying a revolver under his control in a motor vehicle. He was sentenced to the Massachusetts Correctional Institution at Walpole for ten to twelve years on the robbery conviction, and for four to five years on each of the other convictions, the three terms to run concurrently. The procedural oddities that occurred thereafter are summarized in the margin. ¹ It will be enough to say that the only claim now pressed by the defendant and to be considered by us is that the defendant was deprived of the effective assistance of counsel at the trial level. The claim was considered and rejected on a motion for a new trial by the same judge who presided at the trial. Previously it had been examined on writ of error by a special master who made findings generally unfavorable to the defendant; the master's report was confirmed by a single justice of this court. ² We have now reconsidered the entire record. ³

It will be useful, first, to state the facts as they appeared to the jury. About 9 P.M., October 11, 1966, a robbery occurred at Gibson Liquor Mart in Dorchester. Edward Rubin, the shopkeeper, testified that two men entered the store with guns in their hands, said this was a holdup, and ordered him to open the cash register and put the money on the counter. He obeyed. The robbers ordered Rubin and Walter Stewart, an employee, into the refrigerator at the rear of the store, and, having taken the money, apparently $150, fled. Within three minutes, Rubin and Stewart had let themselves out of the locker. As Rubin was telephoning the police, a motorcycle patrolman arrived, alerted by someone who had glimpsed what was going on in Rubin's store. Before going to police headquaters, Rubin used the patrolman's radio to broadcast a description of the robbers to the police. Rubin and Stewart had both gotten a good look at the men during the three or four minutes of the encounter at the store.

About 10:45 P.M. that night Officer Boston area, observed a white 1966 Cadilny's Pier Four restaurant in the South Boston area, obserbed a white 1966 Cadillac with a black vinyl top, with three men in the front seat, pull into a space in the parking lot. Earlier Puopolo had been tipped by the doorman of Jimmy's Harborside Restaurant, nearby, to be on the lookout for such a car which had been acting suspiciously that evening in slowly reconnoitering the parking lot at Jimmy's. Puopolo was especially interested because a car matching that description had been stolen a week before from the Pier Four parking lot while Puopolo was on duty. Puopolo now noted that the driver of the Cadillac was not properly clad to dine at the restaurant. No one got out of the car for several minutes. Puopolo, who was in uniform, approached the car and asked the driver for his license and the car registration. The driver, Daniel A. Daley, Jr., produced neither but offered a serviceman's identification card. The defendant, seated next to the driver, rummaged in the glove compartment, ostensibly to find the registration, but did not produce it. He had no identification and gave the name John J. Tomeo, later shown to be false. The third man, James Donahue, also lacked identification and gave the false name James L. Dean. Puopolo placed all three men under arrest for larceny of the car, and, handcuffing the driver to the defendant, led the three into the kitchen of the restaurant to await a police wagon. While in the kitchen, the defendant made a motion with his free hand toward his ribs or waist. Puopolo thereupon searched the defendant and found a cocked, nickel plated, .38 caliber revolver in the waistband under his cost. Other police officers soon arrived. One of these officers, after a conversation with Puopolo, went to the parked Cadillac and observed by flashlight through the windows that two guns were lying on the floor of the car. Under a search warrant later obtained, the guns were seized. The car was in fact the property of one George Katz and was the car that had been stolen from the Pier Four parking lot. The license plates had been removed and stolen license plates substituted.

At police headquaters, Rubin had been examining photographs supplied by the police, but without result. A call came through about midnight and Rubin was taken to the District 6 station in South Boston where the three men were being held. A lineup was arranged of fourteen or fifteen white males with the three men interspersed. Without difficulty or hesitation Rubin identified the defendant and Daley as the two holdup men. Stewart arriving at the station about 1 A.M., too late to view the lineup, saw the three men passing through the station lobby, and promptly pointed to the defendant and Daley. In their testimony at trial Rubin and Stewart firmly identified the defendant and further testified that the gun taken from the defendant resembled the one used by him in the robbery. When booked at District 6 the defendant had $60 in small bills and Daley $250.

Reading the record, we are bound to agree with the observation of the experienced special master that the defendant was 'apprehended in flagrante delicto' and the 'evidence of . . . (his) guilt was overwhelming.' One can speculate that with superior effort or advocacy on the part of the defendant's counsel the case against the defendant might have been made to appear less formidable, but that would be empty conjecture; the truth is that the case by any lights was very strong.

We must now follow how defendant's counsel behaved and how he played the few cards he had, reconstructing his actions from the trial record, the proceedings before the special master at which counsel and the defendant both testified, and the hearing on the new-trial motion at which only the defendant testified, counsel being ill. Counsel, a veteran of the criminal bar with forty years' experience, was appointed by the court at the defendant's arraignment to serve without compensation. He had a talk with the defendant and advised him to plead not guilty and to waive commitment to Bridgewater for observation of mental condition. The defendant did so. Counsel did not consult with the defendant during the next six weeks preceding trial; he said it was likely he had spoken in the interim to the prosecutor, but he had no definite recollection of it.

Before commencement of trial proper, counsel, joined by the attorney representing the original codefendant Daley, filed a motion to suppress evidence of the guns including the one found on the defendant's person. The hearing on this motion occupied the better part of two days. The facts developed have been mentioned above as they were repeated on trial to the jury. Conceivably the motion had some possible merit as to Daley; it had minimal validity in respect to the defendant, ⁴ and was denied by the judge as to both defendants with specific findings of fact.

Counsel for the defendant engaged fully in the examination of every witness at the hearing on the motion to suppress as well as at trial, ⁵ and something should be said here abot his style. As counsel testified before the special master, his regular method of trying cases relied little on pre-trial preparation and much on impromptu cross-examination of prosecution witnesses. ⁶ In cross-examination he seemed to favor a bludgeoning frontal attach intended to unsettle the witness, in hopes that falsehood or faults of observation would emerge. His questions were frequently allusive rather than precise. Altogether it was a rather undirected or unfocussed example of the older, florid style of examination. In this case the method made little impression as the witnesses at voir dire held firm and repelled all allaults. Counsel had no better success later before the jury.

When the motion to suppress failed, Daley pleaded guilty, and counsel advised the defendant to change his plea and do the same. The defendant declined, and the prosecution continued against him alone. At the trial proper, counsel persisted with extended but futile cross-examination of Commonwealth witnesses, his task being aggravated by the defendant's insistence that he pursue particular lines of interrogation, and also by the defendant's increasing hostility toward him when the defence deteriorated. ⁷ The transcript indicates that there were numerous conversations between the defendant and counsel as the trial went on. In most but not all instances counsel seems to have done as the defendant asked; one or two suggestions were useful, another resulted in allowing a somewhat damaging enlargement of the prosecution's scope of redirect examination. ⁸ At one stage the defendant addressed the court, complaining that counsel had not attended him between arraignment and trial, and indicating that he wanted to bring out that the lineup evidence by Rubin was tainted by the alleged fact that Rubin had visited him in the cell block area at District 6 just before the lineup. (Counsel's cross-examination of Rubin had already indicated awareness of this lurking possibility.) With great patience the judge allowed the matter to be pursued by means of a voir dire hearing. Two lawyers were called who had represented the arrested men at the lineup. Counsel conducted the examinations; they came to nothing; the defendant acknowledged that he was satisfied and was content that these witnesses not be called to give their testimony before the jury.

The...