Com. v. White

• Decision Date: 02 October 1967
• Citation: 353 Mass. 409,232 N.E.2d 335
• Parties: COMMONWEALTH v. Richard A. WHITE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 335

232 N.E.2d 335

353 Mass. 409

COMMONWEALTH v. Richard A. WHITE.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 2, 1967.

Decided Dec. 14 1967.

John A. McNiff, Peabody, for defendant.

John J. Jennings, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, and SPIEGEL, JJ.

SPALDING, Justice.

The defendant, Richard A. White, was indicted for the murder of Clifford A. Crawford. The indictment charged murder in the first degree. The jury returned a verdict of guilty and recommended that the death sentence be not imposed. G.L. c. 265, § 2. The case, having been tried subject to G.L. c. 278, §§ 33A--33G, comes here on White's appeal.

We summarize the pertinent evidence as follows: On Sunday, December 5, 1965, about 6:30 A.M. Clifford Crawford was found dead outside Vi-Cliff's Restaurant in Danvers. The cause of death was a bullet wound in the chest. Crawford operated the restaurant and was last seen there about 12:30 A.M., December 5, shortly after closing time. He was next seen lying on the ground on his back with a cocked Beretta .380 semiautomatic pistol near his right hand. The police found no fingerprints on the gun and never succeeded in determining its origin or ownership. Near Crawford was a set of car keys.

Two expended cartridge casings were found at the scene. One, a Remington .380 casing, was found seven feet five inches in front of Crawford's car at a point seven feet from the restaurant. This casing was ejected from the Beretta gun found near Crawford's hand. The other casing, a Western .380, was found three feet eleven inches from the bottom of the side stairs of the building and six feet four inches behind Crawford's car. There was evidence tending to show that this casing had been ejected from a gun stolen from the home of John J. Reardon, Jr., of Salem. A spent bullet, on which there was blood, was found inside Crawford's car and the markings on it were consistent with those made by a Browning pistol, which was the type stolen from Reardon along with some Western .380 ammunition.

On Monday, December 6, 1965, Lieutenant McNulty of the Massachusetts State Police received information that a Corvette automobile had been found in Mount Sterling, Ohio. The car had been stolen from Mark Godfried of Peabody on the first or second day of December. As a result of this and other information McNulty had the defendant's fingerprint card forwarded to Ohio. The defendant's fingerprints were found on the stolen car; there were also found in the car three letters and a postcard which were identified as being in the handwriting of the defendant. On one letter in the defendant's hand, the following words appeared: 'rubber gloves, wire and clips, screw driver, pliers, sweat shirt, knife, handkerchief, Vi-Cliff's, Agawam, China Sails, and Anthony's Hawthorne.'

At the time of the killing the defendant was an escapee from the Massachusetts Correctional Institution at Concord, and had been such since October 20, 1965. He was arrested in Chicago on April 11, 1966, on a Federal fugitive warrant based upon the escape. On April 14 the Federal charge was dismissed, and the defendant waived hearing on the rendition proceedings and agreed to return to this Commonwealth voluntarily. On the same day he was interviewed by three Massachusetts police officers, as a result of which he gave a detailed account of the shooting of Crawford. Upon his return to Massachusetts the defendant was incarcerated temporarily in the House of Correction in Billerica. He was visited there by Officers McNulty and Noonan on April 17 at which time he furnished them with additional information concerning the shooting. At that visit an arrangement was made whereby the defendant's friends Thomas Beaulieu and his son Thomas (hereinafter sometimes called Beaulieu, Sr. and Beaulieu, Jr.) would visit him in Concord. Accordingly, the Beaulieus visited the defendant on April 23 at the Concord Reformatory to which he had been transferred. During this visit the defendant told them that he had 'nailed' Crawford at Vi-Cliff's and gave an account of the shooting.

MOTION FOR PARTICULARS.

1. The defendant moved for and was furnished particulars as to the time and place of the alleged offence, and the manner and means in and by which it was committed. The Commonwealth declined to specify as requested by the defendant the 'crime, if any, in the commission or attempted commission of which the murder of Clifford A. Crawford is alleged to have been committed.' To the refusal of the court to order this specification, the defendant excepted. (Assignment of error No. 1.) There was no error. 'The purpose of a bill of particulars is 'to describe in more detail that which is included in the allegations of an indictment in order that the defendant may be fully informed of the nature of the charge and be enabled to prepare an adequate defence.' COMMONWEALTH V. MCLAUGHLIN, MASS., 224 N.E.2D 444, 447.^A The indictment along with the particulars furnished by the Commonwealth gave the defendant 'reasonable knowledge of the nature and grounds of the crime charged'; it cannot therefore be said that the charge was not 'fully, plainly, substantially and formally set out.' G.L c. 277, § 40. In such circumstances the ordering of further specifications rested in the discretion of the judge. Commonwealth v. Binkiewicz, 342 Mass. 740, 747, 175 N.E.2d 473.

MOTIONS FOR DIRECTED VERDICTS.

2. At the close of the Commonwealth's evidence the defendant presented four motions for not guilty verdicts with respect to the offence charged in the indictment and the lesser included offences. Similar motions were presented at the close of all the evidence. All motions were denied subject to the defendant's exceptions. (Assignments of errors Nos. 13 and 14.)

In view of what we shall say later in part 7 of this opinion we think that the judge rightly submitted the issue of first degree murder to the jury. And clearly there was enough evidence to warrant a verdict of murder in the second degree or a verdict of any of the lesser included offences. There was evidence that the defendant went to the scene of the crime late at night carrying a loaded pistol. It could have been inferred that he was embarked on a criminal enterprise involving at the very least breaking and entering, or larceny, or both. In the defendant's own words (according to Beaulieu, Sr.) he went to ViCliff's to 'rob the place.' Thus it could have been found that the defendant shot and killed Crawford in the commission or attempted commission of a felony. A homicide committed in the commission or attemted commission of a felony is murder at common law. Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551. Commonwealth v. Madeiros, 255 Mass. 304, 310, 315, 151 N.E. 297, 47 A.L.R. 962. Commonwealth v. Green, 302 Mass. 547, 556, 20 N.E.2d 417. The defendant does not argue that the evidence would not support a verdict of manslaughter. See Commonwealth v. Bouvier, 316 Mass. 489, 55 N.E.2d 913. On the contrary the defendant urges that it would.

THE CONFESSIONS.

3. Three confessions are involved in this case. The first was made in Chicago to Officers McNulty, Joyce and Noonan on April 14, 1966. The second occurred on April 17 while the defendant was at the House of Correction at Billerica and was made to Officers McNulty and Noonan. The third was made to the defendant's friends, the Beaulieus, at Concord on April 23, 1966.

The defendant moved to suppress all three confessions. His motions were allowed with respect to the first two, but his motion with respect to the third was denied. (Assignment Nos. 2, 8, 10 and 11.) It is with this confession that we are concerned. But to a proper understanding of the questions presented, something should be said about the earlier confessions. Concerning the first (Chicago) confession the judge made careful and detailed findings of fact. He found that during the interrogation in Chicago the defendant was informed that he had a 'right to contact a family friend or a lawyer * * * (and) to use the telephone; that he did not have to talk * * * if he did not want to; that anything he * * * (said) could be used against him; (and) that he had a right to have a lawyer present * * * if he wanted one.' He was further asked if he was 'aware of * * * (his) rights' and he said that he was. Since the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was not decided until June 13, 1966, the warnings given to the defendant on April 14, 1966, were sufficient to satisfy the then existing standards. The judge suppressed the confession because the requirements laid down in the Miranda case were not satisfied. ¹ The warning was found to be defective because the police failed to inform the defendant 'that if he were indigent, a court appointed lawyer would be appointed forthwith and prior to any interrogation.' Although no findings were made in connection with the suppression of the second (Billerica) confession, we have no doubt that it was done for the same reason.

The defendant attacks the third (Concord) confession on the ground that it was in substance a continuation of the Chicago and Billerica confessions and was really conducted by the police through the agency of the Beaulieus. Thus, it is argued, the infirmity of the earlier confessions attaches to the Concord confession and renders it inadmissible. Accordingly, it is urged, the judge should have allowed the motion to suppress. Closely related to this argument is the contention that it was error to admit the police testimony as to a conversation with the defendant at Billerica as to matters preceding the Beaulieus' visit. And finally the defendant argues that the judge erred in admitting the defendant's confession to the Beaulieus. These questions are the subject of assignments of error Nos. 2, 8, 10 and 11.

Had the Concord confession been made to the police or...