Com. v. Smallwood

• Decision Date: 03 March 1980
• Citation: 401 N.E.2d 802,379 Mass. 878
• Parties: COMMONWEALTH v. William SMALLWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 802

401 N.E.2d 802

379 Mass. 878

COMMONWEALTH v. William SMALLWOOD.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 5, 1979.

Decided March 3, 1980.

Stephen Hrones, Boston, for defendant.

Pamela L. Hunt, Legal Asst. to the District Atty., Cambridge, for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant brings this appeal under G.L. c. 278, §§ 33A-33G, from his convictions on indictments charging murder in the first degree, armed robbery, and unlawfully carrying a firearm on his person. He was sentenced to a term of life to be served at the Massachusetts Correctional Institution at Walpole on the murder conviction and to additional concurrent terms of life and three to five years on the armed robbery and firearm indictments respectively.

The defendant raises the following issues in this appeal: (1) whether it was error for the judge to instruct the jury that, should the defendant be found guilty, the death penalty was not a possible sentence; (2) whether the judge erred in admitting statements made by the defendant without the assistance of counsel after a complaint had been obtained and an arrest warrant had been issued; (3) whether the assistant district attorney's use of subpoenas to summon witnesses to the courthouse on days when the case was not before the court denied the defendant a fair trial; (4) whether the judge erred in denying the defendant's motion for mistrial after the assistant district attorney elicited testimony regarding the alleged involvement of the defendant in a crime not charged; and (5) whether statements made by the assistant district attorney in closing argument constituted a prejudicial reference to the defendant's failure to testify and were therefore a violation of the defendant's rights under the Fifth Amendment to the Federal Constitution.

We conclude that there was no error and, further, find no sufficient reason to disturb the verdicts pursuant to our powers under G.L. c. 278, § 33E. Consequently, we affirm the judgments.

We summarize the evidence presented. On December 16, 1977, two armed men robbed Vautour's Liquor Store in Everett. Present in the store throughout the incident were the owner, Willard Vautour and a customer, Francis Brown. During the course of the robbery another customer, Edward Stevens, entered the store. One of the robbers, who was armed with a .38 caliber handgun, ordered Stevens to move to the rear of the store. When Stevens failed to comply, the armed robber shot and killed him. The two robbers then fled from the store.

Francis Brown and Willard Vautour, working in cooperation with Detective Nicholas Addonizio of the Everett police department, identified photographs of the defendant as the gunman and William Florentino as his unarmed accomplice. On March 4, 1978, Detective Addonizio filed a complaint and obtained an arrest warrant for the defendant.

Detective Frank O'Halloran of the State police was also involved in the investigation of the crime. He contacted the defendant's brother, James Smallwood, in an attempt to enlist his cooperation in inducing the defendant to surrender. On the evening of March 8, 1978, O'Halloran went to James Smallwood's house and discussed the advantages to the defendant of surrendering himself. James then made a telephone call to the defendant at an undisclosed location and permitted O'Halloran to speak with him. O'Halloran did not inform the defendant of his rights at this time. He asked the defendant if he had been driving a green car on the night of the crime. The defendant replied that he did not recall. He added that "Boo Boo" (William Florentino) had urged him to go along on the night of the crime and had pressured him to use the gun. O'Halloran directed the conversation toward a discussion of surrender and then returned the telephone to James, who assured his brother that it would be in his best interests to surrender. The defendant agreed to surrender to O'Halloran at a location agreed upon by the defendant and his brother. Prior to trial a motion by the defendant to suppress the telephone conversation was denied.

O'Halloran and James drove to the agreed location where they met the defendant and a young woman, both of whom got into the back seat of the car. Because the defendant was hungry, all four went to a restaurant. After they ate, the young woman was dropped off. A conversation then took place in the car. The defendant's motion to suppress this conversation was denied.

Prior to going to the Newton police station O'Halloran, the defendant and his brother stopped at O'Halloran's home where the defendant was given something to drink, and his clothes were taken to be washed. A conversation which occurred at that time was suppressed by the judge, on the defendant's pretrial motion.

Detective O'Halloran knew that an attorney, Harvey Rowe, was working on behalf of the defendant. His attempts to contact Mr. Rowe prior to the defendant's surrender were unsuccessful. O'Halloran finally reached Mr. Rowe the morning after the surrender, and they agreed that the defendant would not be questioned without his attorney.

Statements made by the defendant in the course of an interrogation by the Everett police department in violation of this agreement were suppressed at trial. The statements made by the defendant, on the telephone and in person, on the evening of the surrender, were the subject of a pretrial motion to suppress which was denied.

1. At the close of his charge to the jury the judge stated that, regardless of the verdict, the death penalty could not lawfully be imposed in Massachusetts for the crime with which the defendant was charged. Immediately following the jury charge defense counsel objected to the discussion of the consequences of a guilty verdict.

We have long held that the sentencing consequences of a verdict may not be submitted to the jury because the jury's function is to reach a verdict based solely on the evidence presented to them considered in the light of the judge's charge to them concerning the applicable legal standards. Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977) (reversible error to charge jury that verdict of guilty of murder in first degree would carry sentence of life imprisonment without parole, whereas verdict of guilty of murder in second degree would carry same sentence with eligibility for parole after fifteen years). "In (Commonwealth v.) Mutina, (366 Mass. 810, 323 N.E.2d 294 (1975)), we reversed a conviction of murder in the first degree, holding that, for all trials and retrials after the date of that opinion, a defendant is entitled to an instruction regarding the consequences of a verdict of not guilty by reason of insanity if a timely request for such instruction is made. We stressed, however, that we did not depart from 'the long-standing general rule that neither sentencing nor parole may appropriately be considered by the jury in reaching their verdict.' We concluded that the jurors might well have based their verdict, not on the evidence, but on a desire to ensure the continued confinement of the defendant. Instructing the jury on the consequences of a verdict of not guilty by reason of insanity may, in an appropriate case, afford the same protection as does the application of the general rule that sentencing consequences are not within the jury's province: it prevents extraneous factors from interfering with or even totally eclipsing the jury's deliberations with respect to the evidence before them." Commonwealth v. Ferreria, 373 Mass. 116, --- - --- ^a, 364 N.E.2d 1264, 1271 (1977).

In the instant case, as in Mutina, we reaffirm the general rule against instructing the jury on sentencing and stress that the judge should not have given such an instruction. Nevertheless, under the particular circumstances of this case we do not find that the judge's instruction, however ill-advised, amounted to error of reversible magnitude. Here the judge apparently was concerned that the death penalty question might be an "extraneous factor . . . interfering with . . . the jury's deliberations." Commonwealth v. Ferreira, supra at --- ^b, 364 N.E.2d at 1271. He decided that he should clarify for the jury the status of the death penalty, particularly because of extensive news reporting of recent legislative proposals. Thus the judge's instruction was an effort to remove extraneous considerations by clarifying what the sentence would not be. We find the probable effect of this charge to be more closely akin to that of the permissible instruction in Mutina than to that of the impermissible Ferreira instruction, in which the judge informed the jury of the widely disparate parole consequences of two potential verdicts.

Moreover, in the instant case the judge minimized any untoward influence that this portion of the charge might have had on the jury by stressing that the jury's verdict must "be based solely upon the evidence in this case and without regard to the possible consequences." We do not assume that the jury failed to heed this admonition. Commonwealth v. Fazio, --- Mass. ---, --- ^c, 378 N.E.2d 648 (1978). Commonwealth v. Leno, --- Mass. ---, --- ^d, 374 N.E.2d 572 (1978). Thus, viewing the impact of the charge as a whole (see Commonwealth v. Godin, --- Mass. ---, --- ^e, 371 N.E.2d 438 (1977), cert. denied, 436 U.S. 917, 98 S.Ct. 2263, 56 L.Ed.2d 758 (1978); Commonwealth v. Scanlon, 373 Mass. 11, --- ^f, 364 N.E.2d 1196 (1977)), we do not find a reversible violation of the rule against instructing the jury on sentencing.

2. The defendant argues that it was error to admit the statements he made to Detective O'Halloran on the telephone and in person without the assistance of counsel on the evening of the surrender. As for the telephone statements, clearly the defendant was not in custody. Hence, Miranda warnings were not required. Oregon v....