Com. v. Subilosky

• Decision Date: 03 March 1967
• Parties: COMMONWEALTH v. Joseph SUBILOSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 197

224 N.E.2d 197

352 Mass. 153

COMMONWEALTH v. Joseph SUBILOSKY.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 3, 1967.

Decided March 3, 1967.

Joseph J. Balliro, Boston (Genero L. Morte, Marlboro, with him), for defendant.

John F. Driscoll, Asst. Dist. Atty. (Manual Morse, Asst. Dist. Atty., with him), for the Commonwealth.

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

WHITTEMORE, Justice.

The defendant has appealed, under provisions of G.L. c. 278, §§ 33A--33G, from his conviction in the Superior Court for Worcester County on thirteen indictments, charging him with murder in the first degree (No. 24,369), armed robbery Nos. 24,368, 24,370, 24,371), putting various individuals in fear (Nos. 24,372, 24,373, 24,374), assault with a dangerous weapon (Nos. 24,375, 24,376, 24,377), carrying a firearm without authority (No. 24,379), larceny of a motor vehicle (No. 24,378), and breaking and entering and larceny in and daytime (No. 24, 380). An indictment charging conspiracy to commit larceny was placed on file with the defendant's consent. The jury having recommended that the sentence of death not be imposed, the defendant was sentenced to imprisonment for the term of his life. The court directed that the other sentences imposed on the defendant be served concurrently with the life sentence.

The evidence permitted the jury to find these facts. Approximately 6:30 P.M. on August 27, 1965, four men (some witnesses said three) got out of a stolen automobile and entered a branch office of the Worcester County Institution for Savings, on West Boylston Street in Worcester. The intruders announced a holdup and ordered all persons in the bank to lie on the floor. The defendant, later identified as the killer by one of the tellers, Mrs. Judith M. Dillon, pointed a gun at the bank manager, Pasquale J. Lombardi, and fired the bullet that entered his head, resulting in his death. The robbers made their escape in the stolen car. A pursuing police cruiser, responding to an alarm set off by one of the bank employees, was not far behind. The escape car crashed into a tree at some distance from the bank on another street. Shortly after hearing the crash, occupants of a nearby house saw three men running in a direction away from the damaged vehicle. The police thereafter captured three men not far from the scene. The defendant was not among the three. The defence being an alibi, the defendant relied on such of the testimony as tended to show that the robbers were only three in number. ¹

Several police officers observed the defendant in downtown Worcester approximately four hours after the robbery. He appeared to have been drinking; he was wearing a straw hat, described by various witnesses as a golf hat or Alpine hat, and he was carrying a round bottle of liquor labeled 'J. W. Dant.' The bottle had been stolen from the home of Dr. Jarrel G. Burrow, on Massachusetts Avenue, Worcester.

The defendant, on the evening of the robbery, went to the home of Mrs. Miriam Hebert, an acquaintance, and remained there overnight. She and her son drove the defendant to Northboro the following day. While with Mrs. Hebert, the defendant told her that he had been involved in the bank holdup but had not shot the bank manager. His incriminating admissions, if believed, placed him and three others in the bank and in the escaping group. ² The defendant left at Mrs Hebert's home the jacket and trousers he had been wearing, and in exchange was outfitted in clothing of her husband.

Dr. Burrow testified that at some time during a four day period, which included the day of the robbery, his house had been broken into and that a jacket (the one left by the defendant at Mrs. Hebert's house) and a round bottle of liquor labeled 'J. W. Dant' had been taken. He had a collection of perhaps forty straw hats, souvenirs, mostly from the Caribbean. He could not tell whether the collection was intact.

The defendant's testimony, if believed, would have established his alibi. He testified that on the day of the robbery he had worked until noontime in Marlboro and had spent the afternoon and evening in Worcester, drinking in various bars; that during the evening he met Mrs. Hebert's son, Richard, and obtained from him the hat he was wearing and the liquor he had in his possession at the time he was first observed by police officers; and that he stayed that night at the home of Mrs. Hebert. The defendant admitted that at some time prior to the holdup he had purchased the gun later identified as the weapon from which the fatal shot was fired. He testified that he had lent it to another man. When he learned of the robbery on the following day, while at the home of Mrs. Hebert, he concluded that the man to whom he had lent the gun had participated in the crime. Fearing that he would be involved because of the gun, he decided to flee the jurisdiction.

About one month later, the defendant was taken into custody in Kansas City and returned to Worcester for trial.

1. The examination of prospective jurors.

General Laws c. 234, § 28, provides: 'Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein; and the objecting party may introduce other competent evidence in support of the objection. If the court finds that the juror does not stand indifferent in the case, another shall be called in his stead.' The judge in his questions, of course, recognized that being related to the murder victim would be as significant as being related to a party.

General Laws c. 278, § 3, provides: 'A person whose opinions are such as to preclude him from finding a defendant guilty of a crime punishable with death shall not serve as a juror on the trial of an indictment for such crime.'

The rule has been often restated. The questioning of jurors, other than as required by G.L. c 234, § 28, and c. 278, § 3, rests wholly in the discretion of the judge. Commonwealth v. Kiernan, 348 Mass. 29, 35, 201 N.E.2d 504, cert. den. sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800. Commonwealth v. Geagan, 339 Mass. 487, 504, 159 N.E.2d 870, cert. den. sub nom. Geagan v. Massachusetts, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152. Even if something appears, such as pre-trial publicity, which makes it proper to go further, '(t)he determination of * * * (the) matter * * * (is) still in the discretion of the trial judge.' Geagan case, p. 504, 159 N.E.2d p. 883. We discern no abuse of discretion.

(a) When examined, juror No. 71 answered that he was related to the deceased. The judge excused this juror. Counsel for the defendant asked that the record show that for four days the juror had been sequestered with the other prospective jurors. He excepted to the denial of his motion to discharge the entire venire and to the refusal of the judge to ask other prospective jurors whether they had discussed the circumstances of the case with any relative of the deceased.

There was no such risk of prejudice as to require other action then excusing juror No. 71. Of course the excused juror may have expressed some view of the case to the other veniremen, so may others in the venire, and so may acquaintances of some of them. Exposure to such comment is not a ground of disqualification. The dominant consideration, as the statutory subjects of inquiry show, is not the views to which the jurors have been exposed; it is what is their commitment, if any, in their own opinions, or their own expressions. That juror No. 71 was a relative did not make it significantly more likely that other jurors would have heard vehement remarks about the case of ineradicable emotional effect.

(b) Juror No. 72, when asked as to any opinion, answered, 'I have an opinion, but I'm afraid it isn't a very well-founded one.' He answered negatively the question whether the opinion was of such a nature as to interfere with his rendering an impartial verdict on evidence presented in court. He answered in the affirmative the question whether he had 'discussed this case during the past week with anyone or read about it in the newspapers.' To the next question: 'Would anything that you might have read or ehard about this case preclude you from finding a true verdict on the sworn evidence introduced at the trial?' he answered, 'No sir.'

The judge denied the defendant's requests to inquire of juror No. 72 'what that opinion is,' what he had discussed or had read about the case, and, as to each such subject, 'the extent to which it might affect his responsibility as a juror.'

It was not an abuse of discretion to decline to extend the inquiry. The case, it is apparent, was such as to receive newspaper notice and be discussed by citizens. A number of jurors answered that they had opinions that would affect them as jurors. That juror No. 72 had discussed or read something about the case was not unusual or prejudicial if it did not affect his judgment or his impartiality. Whether to accept, without more, the declaration of a juror as to his disinterest and freedom from emotional or intellectual commitment was for the trial judge. The rather precise answer of this juror suggests that he had both the mind and temperament to exclude irrelevancies.

Persons who read little if at all and talk with no one about matters of general interest, and hence have no ideas about what happens in their environment and little practice in forming judgments about such matters, may not be ideally suited to weigh evidence, exclude matters not properly before them, and follow the instructions of the judge. In the absence of some extraordinary circumstance (compare Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923),...