Com. v. Salerno

• Decision Date: 30 January 1970
• Citation: 255 N.E.2d 318,356 Mass. 642
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Anthony J. SALERNO.

Page 318

255 N.E.2d 318

356 Mass. 642

COMMONWEALTH v. Anthony J. SALERNO.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Dec. 1, 1969.

Decided Jan. 30, 1970.

T. Philip Leader, Worcester, for defendant.

John M. O'Connor, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

The defendant Salerno, with one Postoian, was tried and found guilty on indictments charging conspiracy to commit larceny, the putting of Lorna Kay Rathbun and George W. Norrman in fear for the purpose of stealing from a building, assault with a dangerous weapon, armed robbery and larceny of a motor vehicle. They were tried together with one Bowse, who was charged with conspiracy to commit larceny, and with being an accessory before and after the fact of a felony. The trial was subject to G.L. c. 278, §§ 33A--33G. The case is before us on Salerno's appeal and eleven assignments of error. The summary of the record is accompanied by a transcript of the evidence.

We summarize the evidence. On December 9, 1966, at approximately 11:40 A.M., a man carrying a gun entered the portable trailer office of the Catalytic Construction Company located on the premises of the Borden Chemical Company Litchfield Street in Leominster. He wore a dirty, beige, three-quarter length car coat, a silver colored construction, helmet, and a green cloth mask over the lower portion of his face. With the gun he confronted George W. Norrman, the paymaster of the construction company, and Lorna Kay Rathbun, another employee, and said, 'Give me the money.' Norrman handed him a metal box containing $8,385.21, the payroll for the construction workers which was to have been distributed about noon. The man ran from the trailer. Norrman followed after a moment, and saw a beige Chevrolet with Massachusetts registration plates, the last three digits of which were '761.' Another man, wearing 'something dark around his eyes,' was driving the car, which sped away on Litchfield Street.

Mrs. Elizabeth Andreasson was seated in a Volkswagen bus parked across the street from the entrance to the premises, waiting for her husband to collect his pay from the construction company. She observed a beige-colored car stop on Litchfield Street and back off the street at a right angle. There were two men in the car. The driver wore a dark-colored 'hard top hat' and sunglasses. The passenger alighted and started up the hill through the entrance to the chemical company's premises. He wore a silver 'hard top hat,' a beige car coat, and a green 'scarf' tucked in around the neck of the coat. Two or three minutes later, he ran back down the hill, carrying a metal box. The green 'scarf' was now pulled up over his nose, covering the lower part of his face. He took off the silver construction helmet and threw it over the fence, pulled the mask down from his face, and got into the car. As the car sped away, Mrs. Andreasson noted the registration, and testified, 'There was either a 'G' or 'C'--and I don't recall right now--but I think, 167, or something like that, at the end, and I knew that I had missed one digit.'

At 12:30 or 12:45 P.M., Mrs. Andreasson arrived at the Leominster police station, where she was shown ten or twelve photographs. She picked out pictures of Salerno, whom she identified as the driver, and Postoian, whom she identified as the passenger.

An investigator for the United States Treasury Department saw Bowse and Postoian (who wore a dirty, beige raincoat and a green 'scarf' across his chest) leave a motel in a maroon Chevrolet station wagon bearing Massachusetts registration number R70--814 at approximately 11 A.M. on December 9. Another Treasury agent followed a maroon Chevrolet station wagon with that registration number on Litchfield Street on the same morning. There were three men in the car. As the station wagon approached the entrance to the Borden Chemical Company, the driver alternately speeded up and applied the brakes, while the two passengers looked around. The investigator then drove off. A short time later, at approximately 11:15 A.M., he saw the same vehicle parked at a filling station. Bowse was in the driver's seat; the other men were gone. When the station wagon left the filling station, the investigator followed it to a parking lot behind the Metropolitan Theatre in Leominster. Shortly after 11:45 A.M., Bowse was joined by two other men, one of whom was recognized as Salerno. The three men drove off in the station wagon.

Shortly before 1 P.M., Fitchburg police detectives located the maroon station wagon, with registration number R70--814, on Lunenburg Street in Fitchburg. They observed three men whom they had not seen before in the area walking down the street. Two of them, Salerno and Postoian, entered a bar. One of the detectives followed, identified himself, and asked if the two would mind coming outside and answering a few questions. The two men agreed, and accompanied the detective to the station wagon. They denied have any connection with the car.

About 1:20 P.M., a Leominster police car, bearing Mrs. Andreasson and one of the Federal agents, approached a group of eight or ten people near the station wagon. Mrs. Andreasson immediately identified Salerno and Postoian, who were standing in the group which included the bartender and patrons of a nearby bar. The fitchburg police then told Salerno and Postoian that they were under arrest.

Robert R. Jollette, the owner of a beige Chevrolet, Massachusetts registration G67--761, testified that he had left it in a parking lot in Worcester on December 8 and that it was missing when he returned the next evening. Salerno was seen in a beige car about 11:15 A.M. on December 9 in Leominster. The Leominster police recovered the car in the parking lot behind the Metropolitan Theatre on the afternoon of December 9. In the car were found a blue construction helmet, a pair of sunglasses and a car coat.

During the trial the judge held a voir dire on some of the issues raised, made findings of fact which are supported by the evidence, denied motions to dismiss and to suppress and furnish evidence and submitted the case to the jury.

1. Salerno contends that the period of time during which he was in the company of the Fitchburg police, i.e., between the time he and Postoian consented to leave the barroom with them and the time they were observed and identified by Mrs. Andreasson in the group on the street, was an unlawful detention. The facts point to the contrary. Apart from the voluntariness of Salerno's act in accompanying the police, were the facts that the Fitchburg police knew that an armed robbery had taken place in Leominster a short time before, that Salerno and his companions were strangers who had not made their appearance in the area until immediately after the robbery, that a maroon station wagon was in some way connected with the robbery, and that a maroon station wagon was parked not far from where the police first observed the men. The information which the officers had and the observations which they made justified the 'threshold' inquiry. Commonwealth v. Lehan, 347 Mass. 197, 201--204, 196 N.E.2d 840. Commonwealth v. Lawton, 348 Mass. 129, 133, 202...