Com. v. White

• Citation: 370 Mass. 703,352 N.E.2d 904
• Parties: COMMONWEALTH v. Janet L. WHITE.
• Decision Date: 30 July 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 904

352 N.E.2d 904

370 Mass. 703

COMMONWEALTH

v. Janet L. WHITE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 3, 1976.

Decided July 30, 1976.

Fern L. Nesson, Cambridge, for defendant.

Alice E. Richmond, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

After trial by jury, the defendant Janet L. White was convicted on indictment No 82711 for armed robbery, and on indictment No. 82713 for assault and battery with a dangerous weapon, and sentenced. ¹ She was also convicted on indictment No. 82712 for unlawful possession of a narcotic drug (marihuana) found on her person after her arrest; the indictment was placed on file. She appealed to the Appeals Court under the provisions of G.L. c. 278, §§ 33A--33G, and we transferred the case to this court on our own motion (see G.L. c. 211A, § 10(A)).

The questions raised are, first, on the admissibility of certain extrajudicial statements by Danny Gilbert, an alleged participant in the principal crimes whose case had been disposed of; and, second, on the legality of the composition of the grand jury which indicted the defendant.

It will be useful to state the substance of the trial testimony and we start with the Commonwealth's case. About 4 P.M., February 18, 1974, the complaining witness Thomas Slade with his two small children, aged two and three, was walking in a westerly direction on the overpass of Cummins Highway from Hyde Park Avenue, which runs north and south, toward Rowe Street (the neighborhood is Roslindale, Boston). Two black youths ran from behind Thomas and the children: a young man circled around them and stood facing Thomas brandishing a straight razor half open, while a young woman stood at his left. He thought she held a 'shiny' object but he did not make out what it was. The pair demanded that Thomas give them all he had. As he backed away, he sensed 'two things' on his left arm but paid no attention. (Later he realized they were cuts that had penetrated his clothing, drawing blood.) The young woman said, 'What are you moving away from your kids for, man.' Thomas took five one dollar bills from his pocket and handed them to the young man. The youths then ran back on the overpass toward Hyde Park Avenue. The encounter was very brief.

Thomas's destination had been his father's house on Rowe Street, close by. He now led his children quickly to the place and left them there. He got into his brother Robert's car, which had been parked on Rowe Street, and drove to the 'Erie' pub a short distance away, at or near the corner of Hyde Park Avenue and Canterbury Street, where he had earlier spent some time with his brother and friends. At his shout, his brother and Francis Alfieri and Dennis Sugrue came out of the pub. Thomas made room for Robert at the wheel and Alfieri also boarded the car.

The car proceeded north on Hyde Park Avenue in search of the robbers. As it passed a parking lot near 'White's' liquor store a block or so from the Erie pub, Thomas exclaimed, 'That's them,' indicating two black youths at the driveway, later identified as Danny Gilbert, aged sixteen, and the defendant Janet White, also a teenager. Thomas leaped from the car shouting, 'Who got my money?' The defendant yelled, 'What money, what are you talking about,' and began to run south on Hyde Park Avenue. Gilbert took off in the opposite direction.

Thomas started in pursuit of Gilbert. Alfieri and Robert also got out of the car; Alfieri headed toward Gilbert, Robert toward the defendant. Almost immediately Thomas stumbled and fell; he did not resume the chase, but returned to White's to telephone the police. Robert quickly saw that Sugrue, who had followed Robert's car on foot, had met the defendant. Robert reboarded his car and drove north on Hyde Park Avenue, passing Alfieri, and sighting Gilbert ahead. Gilbert turned right from Hyde Park Avenue onto Mt. Hope Street with Robert following in his car and closing on him. As Gilbert started to duck into a yard, Robert stopped the car, jumped out, and seized Gilbert by the arm. Gilbert submitted without a struggle. He handed Robert five one dollar bills, and said--as testified to by Robert, over objection--'I didn't do it. She did it'; and in answer to Robert's question what he had done with the razor, 'I threw it away.' 'Where?' 'I don't know.'

Alfieri meanwhile had encountered a friend, Colin Twomsley, at the corner of Hyde Park Avenue and Mt. Hope Street. He got into Twomsley's car and they came up to Robert as Gilbert was handing Robert the $5. Gilbert was placed in Twomsley's car between Alfieri and Twomsley. He kept saying--as testified to by Twomsley and Alfieri, over objection--that he didn't do it, she did it, and that he was sorry, why didn't they let him go. The three in Twomsley's car, followed by Robert in his car, went back to White's where they found Thomas, Sugrue, and the defendant. The defendant had been using swear words and saying that she was only a girl and hadn't done anything. Gilbert, addressing Thomas, said, 'I'm sorry, man, I didn't mean it. I don't blame you for being mad.' ² (This was testified to by Thomas and others, also over objection.) Robert, after exhibiting to Thomas the five one dollar bills he received from Gilbert, handed them to one of the police officers who arrived on the scene. The defendant said, 'That's his (Gilbert's) money' (or 'ours'). Robert said, 'It's too late, he already admitted it.' Gilbert and the defendant were promptly taken in the police car to the station house.

The episode from the crime to the encounter on Mt. Hope Street took perhaps ten or fifteen minutes, and to the police arrests perhaps thirty or forty minutes.

As to identification of the defendant, Thomas gave no particulars of the appearance of the robbers to the others in the car as it started up Hyde Park Avenue. Thomas testified that, glancing to his left on the overpass, he observed that the young woman had an afro hairdo and was freckled, wore glasses with large rims, a green jacket with a fur collar, and dungarees. This approximated the defendant's appearance on her arrival at the police station as testified to by an officer who observed her there. But Thomas, modifying his testimony, said that he had not observed the dungarees during the incident on the overpass.

To turn from the Commonwealth's case to the defendant's: The defendant testified in her own defense and denied any part in the crime on the overpass. She said that she and Gilbert were on their way in the car of Lamarr Oduss to a bowling alley and had stopped at White's where she had been deputed to buy wine. She was diverted to watch some children sledding behind the parking lot. ³ As she and Gilbert were standing at the driveway, the Slade car bore in on them; a man was hanging out shouting profanities with the word 'nigger.' They were scared, and fled. Gilbert in fact had $9 as they started out from her house; he had counted the money there. She saw the police officer take money from Gilbert and give it to Thomas. She said she was wearing plaid pants, not dungarees (but was contradicted, as to some other apparel she claimed to have worn, by the picture of her taken at the station). The defendant's mother testified to the plaid pants and to the defendant, Gilbert, and Oduss being at the house, but she had not seen any counting of bills by Gilbert.

The inference the defense sought to have the jury draw was that Thomas had no clear idea of who the robbers were and fastened on the first pair of black youths in the vicinity, his 'identification' of the defendant being actually his observation of the defendant as captured, not that of the figure at his left on the overpass.

1. The main question for review is shaped by defense objections and exceptions to the admission in evidence of testimony as to what Gilbert said when cornered on Mt. Hope Street and during the return to White's, offered to prove the truth of Gilbert's statements as inculpating or tending to inculpate the defendant. (Gilbert did not appear as a witness at the trial.) The point was further emphasized by a motion for a mistrial ⁴ and objection and exception to a relevant part of the judge's charge to the jury (see our text at note 10). We believe the judge committed error requiring reversal of two of the convictions, the cases to stand for retrial.

( a) The judge relied on the coconspirators' exception to the hearsay rule ⁵ described in our recent decision of Commonwealth v. Pleasant, --- Mass. ---, --- - --- ^a, 315 N.E.2d 874 (1974). Citing Commonwealth v. Chapman, 345 Mass. 251, 255, 186 N.E.2d 818 (1962), we said:

"(W)here there is proof . . . that two or more persons are engaged in a common criminal enterprise, ⁶ the acts and declarations of one, during the enterprise and in furtherance of it, affect all." We were at pains to stress that '(n)ot all statements of coconspirators or joint criminal venturers are admissible against an absent defendant (i.e., absent at the time of the utterance) . . . They must be made both during the pendency of the cooperative effort and in furtherance of its goal.' These requirements are traditional and well recognized in the law of the Commonwealth, as elsewhere. Commonwealth v. Flynn, 362 Mass. 455, 476--477, 287 N.E.2d 420 (1972). Commonwealth v. Stasiun, 349 Mass. 38, 50--53, 206 N.E.2d 672 (1965). Commonwealth v. Shea, 323 Mass. 406, 414--415, 82 N.E.2d 511 (1948). See Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196 (1946); Fed.R.Evidence 801(d)(2) (E).

No doubt the evidence here, exclusive of the declarations, ⁷ was sufficient to warrant putting to the jury the question whether Gilbert and the defendant were engaged in a joint criminal venture comprising the robbery and assault on the overpass. But the declarations in question were not made in the course of the initiation or commission of...