Com. v. Tatro

• Decision Date: 13 May 1976
• Citation: 4 Mass.App.Ct. 295,346 N.E.2d 724
• Parties: COMMONWEALTH v. David A. TATRO.
• Court: Appeals Court of Massachusetts

Page 724

346 N.E.2d 724

4 Mass.App.Ct. 295

COMMONWEALTH

v. David A. TATRO.

Appeals Court of Massachusetts, Hampshire.

Argued Jan. 12, 1976.

Decided May 13, 1976.

Conrad W. Fisher, Worcester, for defendant.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and GOODMAN and GRANT, JJ. HALE, Chief Judge.

The defendant was convicted of manslaughter, armed robbery, and assault by means of a dangerous weapon after a trial in the Superior Court pursuant to G.L. c. 278, §§ 33A--33G.

Evidence was introduced from which the jury could have found that the defendant was one of a group of five young men who robbed by Venus Medical Center in Ware. The defendant and two of the others met on the morning of February 7, 1973, in Warren and agreed to break into the Warren town hall that night to steal money. The defendant and three others met again at 6:30 that night, drove to Ware, and purchased and consumed a case of beer. They stopped by the defendant's home, where the defendant borrowed $5 from his mother. At 10:30 P.M. they picked up the firth member of the group. While driving around, the group changed its plan and decided to hold up the Venus Medical Center for money and beer. They parked down the street from the store, and three of them walked toward it while the defendant and another remained in the front seat of the car, the defendant on the right. One of the three carried a shotgun as he left the car but put it by a fence while the other two entered the store. They encountered the proprietor, one Milos, picked out a number of items, and put them on the counter. Milos asked them to pay for their purchases and leave. One of them returned to the car to get some money. The defendant gave it to him, and he returned to the store, followed by the man who had been waiting outside and now was carrying the gun. Frightened by the gun, Milos ran into his adjoining residence, shut the door, and yelled, 'Shotgun, holdup, call the police.' He began to vomit and fell to the floor unconscious. Medical assistance was called. Milos was pronounced dead on arrival at a local hospital fifteen minutes later.

The police arrived on the scene shortly after 11:25 P.M. and blocked the street on which the defendant and his friends sought to escape in their car. As one of the policemen drove up he observed the occupant of the front passenger's seat open the rear door to assist one of the group who had been in the store. Four of the group were arrested immediately, but the fifth escaped and was arrested at a later time. Further facts will be described as needed in the discussion of the assignments of error.

We have examined the defendant's assignments of error, find that none of them requires reversal, and affirm the convictions for the reasons set out below.

1. The defendant contends that the jury list mandated by G.L. c. 234, § 4, failed to include information as to the marital status and the occupations of the spouses of some of the jurors. He argues that the judge erred in refusing to question the jurors to elicit such information. No findings were made about the completeness of the list, and the list has not been incorporated in the record before us. We, therefore, have no means of determining the truth of the defendant's allegations. The burden of demonstrating error is on the appellant. H. E. Fletcher Co. v. Commonwealth, 350 Mass. 316, 322--323, 214 N.E.2d 721 (1966).

2. The defendant next contends that it was error for the judge to have allowed two of the other members of the group to testify that they had discussed the possibility of robbing the Warren town hall on the morning of the day of the robbery of the Venus Medical Center. He argues that that testimony was improperly admitted because it described plans for a separate crime. The testimony was relevant, however, to demonstrate the state of mind of the group, showing a common plan to carry out a robbery, although the target later changed from the Warren town hall to the Venus Medical Center. Commonwealth v. Fiore, --- Mass. ---, --- ^a, 308 N.E.2d 902 (1974). Commonwealth v. Mangula, --- Mass.App. ---, --- ^b, 322 N.E.2d 177 (1975).

3. When a witness testified that the defendant had been in trouble with the police before, the defendant's counsel moved for a mistrial and excepted to the denial of it. The judge acted as if there had been a motion to strike, instructing the jury that the answer was unresponsive to the question and was to be disregarded. His actions were entirely proper. Commonwealth v. Early, 349 Mass. 636, 637, 212 N.E.2d 457 (1965).

4. The defendant contends that the judge improperly admitted testimony by Detective-Lieutenant Powers of the State Police concerning a statement made by the defendant. He argues that he could not have voluntarily waived his rights to remain silent and to obtain counsel in light of physical abuse he suffered at the hands of the local police and the failure of lieutenant Powers to inform him of the death of Milos.

The judge conducted a voir dire and, pursuant to an order of this court, has made extensive subsidiary findings and rulings of law with regard to the voluntariness of the waiver of rights and of the statement given to Lieutenant Powers. See Commonwealth v. Hosey, --- Mass. ---, --- - ---, n. 1 ^c, 334 N.E.2d 44 (1975). 'We accept, as we must, the trial judge's resolution of conflicting testimony . . . and will not disturb his subsidiary findings if they are warranted by the evidence . . . However, ultimate findings and conclusions of law, particularly those of constitutional dimensions, are open for our independent review . . ..' Commonwealth v. Mahnke, --- Mass. ---, --- - ---, ^d 335 N.E.2d 660 (1975).

We sumamrize the judge's findings and conclusions. The four suspects, arrested immediately after the arrival of the police, were taken to the police station. There, at around midnight, they suffered physical abuse. One, Perkins, was slapped across the face when he was asked the name of the boy who had run away and replied that he did not know. At about the same time, the defendant was choked and pushed around, again in an attempt to discover the whereabouts of the escapee.

Sergeant Mettig of the Ware police department, who was not aware that any abuse had been inflicted on any of the suspects, escorted them to their cells, informed them of their right to use the telephone, and left the station to pursue the fifth suspect. When he returned with that person he interviewed each of the suspects in the presence of Officer Gagnon. He spoke to the defendant at about 12:40 A.M. Sergeant Mettig read the Miranda warnings and asked the defendant whether he understood them, to which the defendant replied that he did. The defendant gave vague answers to the questions, and his statement was exculpatory except for admitting his presence in the car. ¹

The judge held that the Commonwealth had failed to sustain its burden of demonstrating that the defendant voluntarily, knowingly and intelligently waived his rights to silence and to the assistance of counsel before making the statement, and suppressed it. The Judge found, however, that the statement was not the product of the physical abuse which the defendant had suffered earlier. During the first interrogation of the defendant, Sergeant Mettig was not aware that the defendant had been abused, nor was he aware of the death of Milos.

Detective Lieutenant Powers, assigned to the office of the District Attorney for the Northwestern District, was called shortly after 1:00 A.M. on February 8, 1973, and arrived at the scene of the crime shortly after 2:00 A.M. to begin his investigation. He questioned all of the suspects. His questioning of the defendant took place shortly after 5:00 A.M. in the presence of Corporal Malatesta of the State police and Sergeant Mettig. The judge found that Lieutenant Powers clearly and adequately advised the defendant of his constitutional rights. Powers then gave the defendant a paper on which were printed the Miranda warnings and a form of waiver of those rights. The defendant was asked that he the paper and did so. He stated that he understood his rights and then, at the request of Lieutenant Powers, signed the paper. The defendant was sober at that time and made no mention of any verbal or physical abuse by the Ware police to Lieutenant Powers. Whatever marks the defendant had on his neck earlier in the night were not 'sufficiently pronounced at the time of the interview to attract the attention of Lieutenant Powers.' Again, the defendant made a statement which was largely exculpatory. ² He claimed not to have known that the shotgun was in the car or that the others intended to rob the store until after the robbery was completed.

Although Lieutenant Powers had learned of the death of Milos earlier in the evening, he did not inform the defendant of that fact during the interview. The defendant knew he was charged with armed robbery. The judge found, 'At the time of the interview the cause of Milos' death had not yet been determined--but Lieutenant Powers was aware that there was no evidence that the victim had been shot or struck in the course of the robbery. It was, at that time, by no means clear that the defendant would be charged with any form of homicide.'

The judge did not believe the representations made in the defendant's behalf that he would not have waived his rights and given the statements if he had been informed of Milos' death. ³

On the basis of his subsidiary findings, the judge concluded that neither the physical abuse nor the lack of knowledge of Milos' death affected the adequacy of the defendant 's waiver of his rights before giving the statement to Lieutenant Powers. ⁴

Our independent review of those subsidiary facts leads us to the same ultimate conclusions as those reached by the judge. We consider first the effect of the physical abuse on the statement given to Lieutenant Powers. We...