Com. v. Whooley
| Citation | 362 Mass. 313,284 N.E.2d 914 |
| Parties | COMMONWEALTH v. John J. WHOOLEY. |
| Decision Date | 13 July 1972 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John P. White, Jr., Boston, for John J. Whooley.
Robert Snider, Asst. Dist. Atty., for the Commonwealth.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.
Separate indictments against John J. Whooley and David G. Murphy, Jr. charged that on March 4, 1970, with intent to commit larceny, they confined and put in fear one Josephine Votta for the purpose of stealing from a safe in a building of Sears, Roebuck and Co., and that, with intent to commit larceny, they compelled Miss Votta, by intimidation, force and threats, to disclose and surrender the means of opening the safe. G.L. c. 265, § 21. They were both convicted at a trial held under the provisions of G.L. c. 278, §§ 33A--33G. Although the appeals of both defendants are before us, this opinion is limited to the appeal of Whooley (the defendant). 1 The errors alleged and argued by the defendant relate to the denial of his motion for a separate trial, the admission of certain evidence against him, the denial of his motions for directed verdicts, and the judge's instructions to the jury.
We summarize the evidence pertinent to the issues requiring our decision. On Wednesday, March 4, 1970, and for some time prior thereto, Miss Votta was employed as the manager of the cashier's office at the store of Sears, Roebuck and Co. at 201 Brookline Avenue, in Boston. The office included a room referred to as a vault in which there were two large metal safes equipped with a burglar alarm system. Before Miss Votta left her work about 5:30 P.M. on that day, she locked the vault and safes with their combinations, secured the office doors and windows, and turned on the burglar alarm. There was then about $175,000 in United States currency in the vault or the safes at that time.
Upon leaving the office, Miss Votta went to her car in the store employees' parking lot and found that the car doors which she had locked that morning were now unlocked. The car engine would not start. The hood was ajar, and upon opening it she found that the battery cable was disconnected so she reconnected it. About this time two men walked behind her car to a small guard shack about twenty or twenty-five feet away and then watched her through a window of the shack.
As Miss Votta started to enter her car a man pointed a gun at her and told her to shut up and get in the car. When she did so, the man also entered, sat to her left behind the steering wheel and held the gun on her. A second man whom she later identified as Murphy entered and sat to her right in the front seat. Since the validity of this identification is the subject of Murphy's pending appeal we will hereinafter refer to this individual only as the 'accomplice.' A third man whom she has never identified entered and sat in the rear The men told her that they knew who she was, they knew there was 'a lot of money in the vault,' and that they wanted the combinations to the vault and to the two safes inside the vault. The accomplice sitting to her right gave her two pieces of paper and a pencil to use in writing the combinations. They told her to hurry and, as she started to write, the car was driven out of the lot to a nearby street where it stopped at the curb. She finished writing the combinations and gave the papers to them. They asked her questions about the safes, the location of the money and whether it was in a bag. She answered their questions and told them they would not be able to get into the safe containing the money because it was connected to an 'ADT' alarm. They said they could take care of that. The main in the driver's seat and the man in the rear seat then left the car. All of this had taken ten to fifteen minutes from the time they first entered the car. The accomplice remained with Miss Votta in her car and from that position she could see that the lights were on in her office. About one-half hour later the two men returned in a second car which stopped behind Miss Votta's car. The man who had driven her car to that spot again took the driver's seat of her car. He asked for a key which was also needed to open the safe containing the money, and for more information about opening that safe. He then drove her car down the street about one block and stopped at the curb. The second car followed and again stopped behind hers. The man who had previously been in the rear seat of her car then left the second car and entered to the rear seat of her car. She gave the men the information they requested about opening the safe containing the money, and told them where the keys to that safe were. After about five or six minutes the same two men left in the second car, again leaving Miss Votta in her car with the accomplice. About one-half hour later a car came along the side of Miss Votta's car and the accomplice jumped out, got in the other car, and it left the scene.
We now turn to the evidence of events which occurred in or near Miss Votta's office while she was seated in her car with the accomplice and shortly thereafter. The ADT alarm on the safe containing the money sounded at 6:21 P.M. About 6:30 P.M. a store employee heard and saw the defendant, who was wearing a brown leather jacket, run from the direction of the cashier's office, and go down a corridor and into the ladies' room. About the same time one John Green, a security officer at the store, went to the cashier's office and saw that the outer door to the vault was ajar and that the office window was open. After speaking to the other employee he went into the ladies' room and came out carrying a brown duffle bag. The Boston police department was called and its officers Doherty and Conte arrived in about five minutes. Green and these officers searched the ladies' room and found a man's brown leather jacket hanging in a utility closet used by cleaning women. Officer Doherty saw the defendant on top of a ventilation duct near the ceiling of the ladies' room. He ordered him down and brought him to an office to await the arrival of the police van. The defendant was then wearing a sweater but no jacket. He asked the police if he could have his jacket back but they did not give it to him. In going through the pockets of the jacket, the police found the pieces of paper on one of which Miss Votta had written the combinations of the safes and which she had given to the men in her car earlier that evening.
The first alleged error argued by the defendant is the denial of his motion for the severance of his trial from that of the accomplice. His argument on this point is based entirely on the decision of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, which held that it was error in a joint trial of two defendants in a United States District Court to admit in evidence the confession of one defendant in which he inculpated the other defendant, even though the judge carefully instructed the jury that the confession was admitted only against the confessor. 2 Since the accomplice made no confession whatever in this case, the rule of the Bruton case has no application. The defendant argues that the same rule should be applied to evidence of acts and statements by the accomplice to Miss Votta while he confined her in her automobile on the date of the crime and while the alleged crime was being committed. We do not agree. The evidence permits an inference that the accomplice and...
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