Com. v. Valliere

Citation366 Mass. 479,321 N.E.2d 625
Decision Date11 December 1974
CourtUnited States State Supreme Judicial Court of Massachusetts

Efrem A. Gordon, Springfield, for defendant.

John T. McDonough, Asst. Dist. Atty., for the Commonwealth.


BRAUCHER, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from convictions of the murder of two employees of a bank in Chicopee and of armed rebbery, while masked and disguised, of the same two employees. The events in controversy took place on January 11, 1971. Pre-trial hearings were held on eleven days in March and April, 1972, and the jury trial took thirty-one days in May and June, 1972. More than 6,000 pages of transcript are before us, disclosing more than 200 exceptions taken by the defendant. He has filed thrity assignments of error, and argues most of them under twenty-one separate headings. We affirm the convictions, but reverse the judgments in so far as they impose death sentences and remand for resentencing to imprisonment for life. Commonwealth v. LeBlanc, --- Mass. ---, --- - ---, a 299 N.E.2d 719 (1973).

We summarize very briefly the evidence supporting the convictions, omitting statements by the defendant. About 2:40 P.M. on Monday, January 11, 1971, a man entered a branch of the Springfield Institution for Savings located in a trailer in a large shopping center in Chicopee. A camera in the bank took pictures every fifteen seconds; they showed the man clad in a jacket with a hood and holding a rifle, but he could not be identified from the pictures. The only other people who were then in the branch were two bank employees. One of them activated an alarm. Both employees were shot and killed while lying face down on the floor, and $4,655.16 were taken. The police arrived within five to ten minutes.

Several witnesses saw the robber in the vicinity of the bank shortly before or after the crimes, but their descriptions varied and none could identify the defendant as the man seen. One witness, Shelton, identified the robber as a man who was driving a green 1960 or 1961 Mercury Comet with Massachusetts license plate 8, blank, blank, 51L. A day or two after the crimes he added another digit to make it 86, blank, 51L. The defendant sold a green 1960 Mercury Comet, license 86051L, in Worcester, late in the afternoon of the crimes. When the car was located on January 18, 1971, the same witness identified it as the car he had seen.

There was expert testimony that the bullets recovered from the scene of the crimes were fired from an Italian 7.35 calibre Mannlicher Carcano rifle. The defendant owned such a rifle, but it was not found. The defendant also owned a hooded jacket similar to that worn by the robber, but it was not found. In the defendant's home the police found a pair of construction boots like those mentioned in some of the descriptions of the robber.

On January 5, 1971, there was a $2.62 balance in a joint account of the defendant and his wife in a Springfield bank. On January 9, 1971, the defendant did not have enough money to make a customary $1 bet at a bowling alley. On January 11, 1971, about twenty minutes after the crimes, he made a $300 drive-in deposit at the Springfield bank. Later that afternoon he paid $295 in cash, when he traded in the 1960 Mercury for a 1965 Chevrolet in Worcester. Change of $5 was due him, but the office where change was available was three miles away, and he told the salesman to keep the change. Later that evening, back in Springfield, he paid in cash a debt of $430, and he gave his wife about $55. Three or four days later he had fifty and hundred dollar bills in his wallet.

An inquest was held in May, 1971, and a grand jury returned four indictments against the defendant on September 13, 1971. He was arrested on September 23, 1971, on an indictment warrant. The jury verdicts were returned June 21, 1972, and he was sentenced the same day. His motion for a new trial was denied November 14, 1972.

1. The inquest report. On March 23, 1972, in the course of a hearing on a defense motion for a continuance, the judge said that the inquest transcript and inquest report were available to counsel for the defendant, and added, 'I have one in my lobby which I just got through reading.' Thereafter the defendant moved for a change of venue, for a rehearing of his motion to suppress (considered below), and for disqualification of the judge, on the ground that the judge had read and become familiar with the transcript and report of the inquest. Each motion was denied, and the defendant assigns as error that his right to a fair trial was prejudiced by the reading. 'The appearance of judicial detachment,' the defendant says, 'has certainly been destroyed by the trial Court's curious absorption of extra-judicial material.'

We agree with the defendant that inquests are not part of any criminal proceedings which may ensue, ans that although some evidence at an inquest may be admissible at later criminal proceedings, in accordance with usual principles of the law of evidence, the inquest decision itself is not admissible. See Kennedy v. Justices of the Dist. Court of Dukes County, 356 Mass. 367, 374, 252 N.E. 201 (1969). It does not follow, however, that a judge who has read the inquest report is disqualified from acting in the criminal case, where the case is tried before a jury. Judges acting on pre-trial motions are often exposed to evidence not admissible at trial, and judges must often hear inadmissible evidence in order to rule that it is inadmissible. As to jury waived trials, see Commonwealth v. Brown, --- Mass. ---, ---, fn. 20 b, 305 N.E.2d 830 (1973). There is no indication that the judge improperly relied on the inquest transcript or report in ruling on issues arising before or at the trial. The assignment of error is not well taken. Cf. the Kennedy case, supra, at 379; Commonwealth v. Leventhal, --- Mass. ---, --- - --- c, 307 N.E.2d 839 (1974).

2. The motion to suppress. The defendant moved before trial that any statements by him which the Commonwealth intended to use as evidence be suppressed because he was not properly warned of his constitutional rights before making the statements. Extensive testimony was given at the nine-day hearing on the motion by nine police officers, the defendant and several others. The judge filed twenty-three pages of findings with respect to claimed 'violation of defendant's Miranda rights.' See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He denied the motion, and the defendant claims error.

We summarize the judge's findings. On January 12, 1971, the day after the crimes, policemen visited the defendant's home in Springfield, saw in the yard a Chevrolet bearing the numbers they were looking for, and were told by the defendant's wife that a Mercury had been traded in when the Chevrolet had been purchased. On January 18, 1971, police officers again went to the defendant's home, and thereafter he made statements on five separate occasions on January 18 and 19. The judge made separate findings as to each.

(1) Four police officers arrived at the defendant's home about 6 or 6:30 P.M. on January 18, 1971. They were conducting a general inquiry or investigation into unsolved crimes, and suspicion began to focus on the defendant only after they learned from a bill of sale that the defendant had traded in his Mercury for the Chevrolet in Worcester on January 11, 1971, and learned from the defendant that the transaction was consummated 'about dark.' One of the officers immediately read Miranda warnings to the defendant from a card, and the defendant understood his rights and knowingly and intelligently waived them. He was not in custody or otherwise deprived of freedom of action in any way, but freely accompanied the officers to the Chicopee police station.

(2) Two of the officers questioned the defendant at the station about 8:15 P.M. on January 18. They did not give him Miranda warnings, but had been present when such warnings were read to him less than two hours before. His previous waiver carried over, he was not in custody or otherwise deprived of his freedom in any significant way, and the information given by him was given freely and voluntarily.

(3) About 10:30 P.M. on January 18 the defendant was questioned at the station by the chief detective, who first read Miranda warnings from a card. The defendant understood his rights and knowingly and intelligently waived them before any questioning began. He was not in custody or otherwise restrained in doing anything he desired, and the information given by him was given freely and voluntarily.

(4) About 12:20 A.M. on January 19 another officer told the defendant that he had just returned from Worcester, that the defendant's Mercury had been absolutely identified as the car seen at the scene of the crimes, and that the defendant was the chief suspect. The officer then read Miranda warnings from a card, and the defendant understood his rights and knowingly and intelligently waived them before any questioning began. The defendant was not in custody or otherwise restrained, information freely and voluntarily, and was taken home about 1 A.M.

(5) About 1:30 P.M. on January 19 two officers went to the defendant's home. They gave him Miranda warnings before any questioning, and he understood his rights and intelligently and knowingly waived them. After conversation with the defendant and his wife for about an hour, he went to the police station with them and indicated that he was willing to go with them to Brattleboro, Vermont. He went with them to Brattleboro, and pointed out a place where he said he had dropped a rifle in three pieces from a bridge onto the river. The river was frozen, and a search was made for the rifle parts, but they were not found. A telephone call was made to Chicopee...

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