Com. v. Watkins

• Decision Date: 20 June 1978
• Parties: COMMONWEALTH v. Larry WATKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1040

379 N.E.2d 1040

375 Mass. 472

COMMONWEALTH v. Larry WATKINS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 6, 1977.

Decided June 20, 1978.

Richard K. Latimer, Boston, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

The defendant was indicted for murder in the first degree, armed robbery, and kidnapping. Before trial, the defendant moved to suppress, inter alia, ¹ certain incriminatory statements made by him to Massachusetts police officers while in custody in Louisville, Kentucky. After a pretrial hearing, the trial judge, in a statement from the bench, denied the defendant's motion. However, during the trial the judge, on his own motion, conducted another hearing on the admissibility of the defendant's statements and excluded certain portions thereof from evidence. The remaining statements were introduced in evidence at trial and the defendant was convicted on all indictments.

On appeal, the defendant argues five specific assignments of error. ² He claims that the trial judge erred in (1) refusing to exclude from the trial all statements made to the police while he was in custody, (2) denying his motion to dismiss the murder indictment on the ground that the felony murder rule, G.L. c. 265, § 1, is unconstitutional, (3) denying his motions for compulsory process and for a continuance to secure the attendance of a witness, Theodore Watkins, at trial, (4) denying his motion for a mistrial based on the testimony of a witness to the effect that a few weeks before the crime he saw a gun in the defendant's possession, and (5) denying his motion to excuse the jury from further deliberations for the evening after they had submitted a question to the judge at a very late hour.

We hold that there was no error, and that there is no basis to modify the jury verdict or to grant the defendant any other relief under G.L. c. 278, § 33E.

Before discussing the alleged errors argued by the defendant, we review briefly the evidence introduced at the trial concerning the events surrounding the commission of the armed robbery, kidnapping, and murder. The evidence was introduced primarily through the testimony of four witnesses: Police Detective Lieutenant William Nally of the Massachusetts State Police, who testified as to the statements made to him by the defendant when the latter was in custody in Kentucky; Theresa Nelson (Nelson), a female companion of the defendant, who was arrested with him in Kentucky; Fred Starling (Starling), an uncle of Nelson, with whom she was living while in Boston; and the defendant himself. The testimony of Detective Nally and of Nelson, which was similar in most respects, was essentially as follows.

In October, 1975, the defendant and Nelson came to Boston from Louisville, Kentucky. On November 17, 1975, in the late afternoon or early evening, they were together in Boston when Nelson hailed the driver of a green Buick automobile driving by. When the car stopped, the two entered and, after riding for a very short time, the defendant pulled out a pistol and held it on the driver. ³ Nelson searched the man, took his wallet and gave it to the defendant, who then forced the driver to get into the trunk of the car. The defendant and Nelson then drove to a place where they picked up a person known as Bobo or Beau Jack, who Nelson testified was the defendant's brother. The group drove for some time and stopped. The defendant and Bobo got out of the car, opened the trunk, and Bobo, using the defendant's gun, shot the man who was in the trunk. ⁴ The defendant and Nelson, with the defendant driving brought Bobo back to his house. Nelson and the defendant then with the same car went to her uncle's (Starling's) house where they packed her belongings and left for Kentucky. Nelson further testified that she did not know whether the defendant had been drinking or using drugs on the day of the shooting, but he appeared normal and had no difficulty driving the car.

Starling testified at trial that about two and one-half to three weeks before the shooting, he had observed the defendant with a .38 caliber handgun in his possession. However, he admitted that he did not know "much about guns" and was "(j)ust guessing" as to the gun's caliber.

The defendant was the sole defense witness at his trial, and he testified to the following effect. On November 17, 1975, he and Nelson were at his brother's house in Roxbury. About 4:30 P.M., feeling sick and dizzy from smoking marihuana and drinking, he left the house with Nelson, and, with her assistance, staggered to a place where Nelson flagged down what the defendant thought was a taxicab. He entered the car and fell down onto the rear seat. The next thing he remembered was hearing the voice of his brother Theodore, who was also known as Bobo and Beau Jack. At this point the defendant realized he was not in a taxicab. He heard a loud noise, and, although still sick and dizzy, he raised himself from his prone position in the back seat of the car and saw Theodore get into the driver's side of the front seat and Nelson enter the passenger's side. The car then sped away. After a stop at the house of Theodore's girl friend, the defendant drove Nelson to her house in the car which was a green Buick. They both then left for Kentucky in that car. He did not bring the gun he had in Kentucky with him to Boston, but he had acquired a small .38 caliber gun in Boston, which he displayed in the presence of Starling.

In convicting the defendant on all the indictments, the jury apparently did not believe the defendant's testimony as given above, but rather credited that of Detective Nally and Nelson.

1. Motion to Suppress.

In reviewing the judge's findings of fact and rulings of law on the motion to suppress, we accept the judge's resolution of the conflicting testimony, and will not disturb his subsidiary findings if they are warranted by the evidence. Commonwealth v. Mahnke, 368 Mass. 662, --- - --- ^A, 335 N.E.2d 660 (1975), and cases cited, cert. denied, 425 U.S. 959 (1976). However, ultimate findings and conclusions of law, especially those of constitutional dimension, are open for our independent review in this appeal. Commonwealth v. Haas, --- Mass. ---, --- ^B, 369 N.E.2d 692 (1977). COMMONWEALTH V. MAHNKE, SUPRA AT --- , 335 N.E.2D AT 664.^C Commonwealth v. Murphy, 362 Mass. 542, 551, 289 N.E.2d 571 (1972) (Hennessey, J., concurring).

We summarize the facts found by the judge in denying the motion to suppress. ⁵ On November 18, 1975, the body of one Edward Keen (Keen) was found in Newton, Massachusetts. Keen had died from a gunshot wound in the head. Investigation revealed that Keen was the owner of a green, 1971 Buick automobile which could not be located at the scene where the body was found or at the victim's residence in Roxbury. An all points bulletin was sent over police wires for this car.

On November 21, 1975, police in Louisville, Kentucky, responding to a telephone call, came on the defendant and Nelson who were seated in a green, 1971 Buick automobile. The occupants were recognized as persons wanted for the commission of armed robberies in Louisville. As the police approached, the car sped away and a high speed chase ensued, ending with a collision. Nelson jumped or fell from the car, while the defendant fled the scene on foot. Shortly thereafter the police found him hiding under a car and they arrested him.

The 1971 Buick automobile was towed to a police garage where it was searched. Bloodstains, items of clothing, and other evidence of a homicide were found in the trunk of the car. The Kentucky plates attached to the car did not belong to that vehicle; rather, investigation disclosed that the car was registered in Massachusetts and belonged to Keen, the victim of the shooting.

Two Massachusetts police officers, Detective Nally and Detective Lieutenant James Cox of the Newton, Massachusetts, police department, questioned Nelson at the Louisville police station on the morning of November 22, 1975, and took a statement from her in which she inculpated the defendant in the shooting of Keen. About 2 P.M. on the same day, the detectives questioned the defendant with a stenographer present. The defendant was given his Miranda warnings and indicated that he understood them. He answered a few preliminary questions, but then asked for an attorney. Detective Nally, however, continued to question the defendant whether he wanted to consult with an attorney before discussing anything, or whether he wanted to talk about what he had told another officer the previous day. ⁶ The defendant agreed to talk and he answered questions concerning the events of November 21, 1975, in Louisville. He also admitted being in Boston with Nelson in the preceding several weeks. The questioning to that point is recorded in the first eleven pages of the transcript of the stenographer who was present. The defendant then again stated that he wanted an attorney. The questioning was stopped and the defendant was allowed to use the telephone to call an attorney. He made a telephone call, after which he said he had not called an attorney, but rather had called and spoken to his mother and sister. He then told the detectives that he was ready to make a statement. The questioning resumed at 2:45 P.M., and the defendant gave inculpatory details of the circumstances leading up to and including the shooting of Keen. Detective Nally testified about this conversation at the trial.

After the voir dire during the trial, the judge ruled that when the defendant was being questioned by the Massachusetts detectives in Louisville they did not stop all questioning when he initially requested an attorney, and they did not obtain from the defendant a waiver of his right to have an attorney present. ⁷ The judge also ruled that the detectives should have ceased...