Com. v. Turner

• Decision Date: 02 February 1977
• Parties: COMMONWEALTH v. Michael P. TURNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 626

359 N.E.2d 626

371 Mass. 803

COMMONWEALTH

v. Michael P. TURNER.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 13, 1976.

Decided Feb. 2, 1977.

Alan S. Geismer, Jr., Boston (Edward T. Dangel, III, Boston, with him) for defendant.

Charles J. Hely, Asst. Dist. Atty. Arthur M. Tiernan, Jr., Asst. Dist. Atty., Dedham, with him) for the Commonwealth.

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

QUIRICO, Justice.

The defendant was convicted by a jury in Norfolk County on indictments for murder in the first degree, assault with intent to rob, unlawfully carrying a weapon, and using a motor vehicle without authority, all arising out of an attempted armed robbery of a store in Dedham. ¹ He was sentenced to life imprisonment on the murder indictment, to be followed by a term of not less than fifteen nor more than twenty years' imprisonment on the assault indictment. The two lesser indictments were filed. In this appeal subject to G.L. c. 278, §§ 33A--33G, the defendant alleges that the trial judge committed error in (a) denying a motion for a change of venue, (b) permitting prosecution witnesses to invoke the privilege against self-incrimination contained in the Fifth Amendment to the United States Constitution after having allegedly waived that privilege by testifying before the grand jury, (c) denying directed verdicts based on allegedly insufficient corroboration of the testimony of immunized witnesses, (d) permitting the Commonwealth to introduce testimony regarding defendant's prior crimes, and (e) allegedly erroneous evidentiary rulings.

We summarize the evidence. Two masked men entered the Cumberland Farms store on Bussey Street in Dedham about 7:20 P.M. on March 25, 1974. One of the men wore a green mask. The taller of the two men was carrying a very long black gun, while the other was carrying a shorter gun. They pointed their guns at the cashier Thomas M. Connors (Connors), stated, 'This is a robbery,' and told him to open the safe. They ordered a customer, Walter Wilson, to get back, fatally shot him in the face and chest, and then fled.

The police found a .44 or .45 caliber bullet embedded in the floor of the store, and at the autopsy a .22 caliber and a .44 or .45 caliber bullet were removed from the victim's body.

On March 26, 1974, the police found a blue green 1970 Dodge automobile, reported stolen the day before, less than a mile from the scene of the shooting. A knotted green scarf with human bloodstains was found in the back seat.

As a result of promises of immunity from the Norfolk district attorney, and after having received a limited grant of immunity from this court, John F. Wallace (Wallace) and his stepbrother, James Thomas Evans (Evans), described the events surrounding the homicide and attempted robbery to the police, to the grand jury, and at the trial of the defendant.

Wallace testified that Evans, Bruce Turner, and Michael Turner had joined him at his apartment in South Boston on the afternoon of March 25, 1974, and talked about 'pulling a robbery.' Wallace and Evans said they saw two hand guns at the apartment: Bruce Turner had a .45 caliber and Michael Turner had a .22 caliber. Evans gave Bruce Turner a green V-shaped scarf, which belonged to Evans's girl friend who lived elsewhere in the same building.

The foursome, Wallace, Evans, and the two Turners, left the apartment early that evening and drove to Dedham in two cars. They parked one car and drove to the Cumberland Farms store in the other, a stolen blue green Dodge, which they parked around the corner from the store. The Turners got out of the Dodge, and went into the store. Shortly thereafter they ran back to the Dodge and ordered Wallace and Evans to drive away. Bruce Turner said, 'We blew it. I had to shoot him.' His finger was bleeding and he wrapped the green scarf around it. Wallace drove to where the other car had been parked. They all got out of the Dodge and drove away in the other car.

The four separated and met later the same evening at Wallace's apartment. Helen Lux, who shared the apartment, was also there. She testified that Michael Turner was 'very nervous,' that Bruce Turner unloaded a large gun and that Michael Turner unloaded a smaller gun. Two empty .45 shells and an empty .22 shell were placed in a cup in the cupboard. She gave Bruce a cloth for his finger, which was bleeding. There was further testimony tying the Turners to various weapons and ammunition and linking them to these crimes.

When Michael Turner was arrested in his home in May, 1974, an unloaded .38 caliber revolver was found in his shaving kit. After his arrest, he asked the police, 'Which gun killed him?' Both Turners testified seeking to exonerate themselves and to attribute the crimes to Wallace and Evans.

We hold that there was no error in the trial of these indictments, and we therefore affirm Michael Turner's convictions.

1. Change of Venue. There was no error in the denial of the defendant's motion for a change of venue. Before trial the defendant moved for a change of venue relying on G.L. c. 277, § 51, which provides in part that '(u)pon petition of a person indicted for a capital crime, the court may, if in its opinion an impartial trial cannot be had in the county where the case is pending, order a change of venue to any county adjoining the county where the indictment was found' (emphasis added). On appeal, the defendant now contends that (1) the trial judge took too narrow a view of his power and responsibility by interpreting G.L. c. 277, § 51, to preclude transfer of homicide cases to nonadjoining counties, and (2) if the statute so limits the transfer of homicide cases, it is unconstitutional under Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971), as violating the defendant's right to an impartial jury under the Fourteenth Amendment to the United States Constitution.

Considering the second contention first, we hold that the defendant did not establish 'that the guilt . . . had been so generally and substantially prejudged by the residents of the county that an unbiased tribunal . . . could not be obtained.' Commonwealth v. Bonomi, 335 Mass. 327, 333, 140 N.E.2d 140, 148 (1957). The jury were carefully screened to protect the defendant from prejudice from pre-trial publicity, most of which occurred approximately eight months before the trial neither the Commonwealth nor the defense exhausted its peremptory challenges of jurors; and both counsel stated that they were content with the jury. There was no abuse of discretion or other error in denying the motion for change of venue. Commonwealth v. Scott, 360 Mass. 695, 697, 277 N.E.2d 483 (1971); Commonwealth v. Smith, 357 Mass. 168, 173, 258 N.E.2d 13 (1970). In view of this holding we do not reach the question whether a change of venue, if any, is limited by statute to a change to an adjoining county, and if so, whether such a limitation would violate any constitutional right of a defendant.

2. Limitation on Cross-examination. The Commonwealth applied under G.L. c. 233, §§ 20C--20G, to a single justice of this court for an order granting immunity to Wallace, Evans, and Helen Lux. By an order of June 24, 1974, the single justice (a) dismissed the application as to Helen Lux at the Commonwealth's request; (b) ordered Wallace and Evans to 'answer the questions before the grand jury for Norfolk County propounded to them and all further questions which may be propounded to them before such grand jury relating to the alleged attempted armed robbery of the Cumberland Farms store in Dedham, Massachusetts, on March 25, 1974, and the alleged murder of Walter Wilson'; and (c) ordered that Wallace and Evans 'be and they thereby are granted immunity from prosecution with respect to their testimony to the extent provided by G.L. c. 233, § 20G . . ..'

General Laws c. 233, § 20G, inserted by St.1970, c. 408, provides in part that a witness who has been granted immunity 'shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction matter, or thing concerning which he is so compelled . . . to testify . . ..' Both the defendant and the Commonwealth agree that in these cases immunity extended only to testimony relating to the March 25, 1974, attempted robbery and homicide.

Despite the limited scope of their grants of immunity, Wallace and Evans testified before the grand jury about their involvement in prior and unrelated crimes, including two prior armed robberies of the same Cumberland Farms store in Dedham during August and September of 1973. ² When they were cross-examined at trial, they invoked the Fifth Amendment with respect to these prior crimes at the advice of counsel. The defendant contended that the grand jury testimony constituted a waiver of the privilege which carried over to trial and that the witnesses were therefore susceptible to cross-examination on these prior criminal acts. The defendant argues that, since Wallace and Evans admitted participation in prior robberies of the same Cumberland Farms store, they were likely to have been responsible for the homicide and attempted robbery in issue.

After a voir dire of the witnesses, an examination of the grand jury testimony, and extensive arguments by counsel, the judge found that the witnesses' grand jury testimony about other crimes was given under the mistaken impression that their immunity extended to prior crimes. He therefore ruled that Wallace and Evans had not waived their privilege as to prior crimes, and that the privilege could be asserted during cross-examination at the trial. The court sought to accommodate the defendant's interests by offering to permit the defense to introduce an authenticated or agreed copy of the grand jury transcript of the testimony of Wallace and Evans. Defense counsel did not pursue this course and now claims error in the limitation of cross-examination on the...