Com. v. Young

• Decision Date: 03 February 1981
• Citation: 382 Mass. 448,416 N.E.2d 944
• Parties: COMMONWEALTH v. David YOUNG, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 944

416 N.E.2d 944

382 Mass. 448

COMMONWEALTH v. David YOUNG, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 6, 1980.

Decided Feb. 3, 1981.

Kimberly Homan, Boston (Norman S. Zalkind, Boston, with her), for defendant.

Jeremiah Sullivan, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

Upon indictments for the murders of James ("D.J.") Walker and Lenwood Walker, brothers, in November, 1975, the defendant David Young, Jr., was tried by jury in February, 1979, found guilty of the crimes in the second degree, and sentenced to successive life terms. ¹ We review the judgments of conviction which are challenged on several grounds: (1) that certain items secured by the Commonwealth in a search without warrant at the initial discovery of the crimes were erroneously admitted at trial; (2) that the defendant was improperly obliged to sit in prisoner's dock during trial; (3) that evidence of illicit drug dealing by the defendant should have been excluded; (4) that a ballistician's testimony about the photograph of a gun should have been excluded; (5) that motions for directed verdicts of acquittal should have been allowed. We affirm the judgments.

The evidence for the prosecution at trial was in outline as follows. On the morning of November 18, 1975, a body with fractured skull and several bullet wounds was discovered in the cellar of a vacant single-family house at 14 Jacob Street in the Mattapan neighborhood of Boston. The victim of what evidently had been a homicide was later identified as eighteen-year old D.J. Walker, and time of death was fixed by the medical examiner at between 10 A.M. and 10 P.M., November 17. Police upon investigation followed a trail of scrape marks from the basement of No. 14 to the rear of the adjacent three-decker house at 10 Jacob Street where it ended in blood and brain matter. Police also found a trail of blood leading from the front of No. 10 to an apartment on the third floor whose floors were wet and bloodstained. (The course of the police investigation and the scene in the apartment are dealt with further at point 1 below.) From the condition of the apartment it could be inferred that the victim had been assaulted there; and, taking into consideration the condition of the skull and body ² and the trail first mentioned, it was inferable that the body had been dropped from the back porch of the apartment to the ground and moved or dragged to the cellar. The second trail was somewhat enigmatic. But on December 4, 1975, the bullet-pierced body of Lenwood Walker seventeen years old, in partially decomposed state, wrapped in a distinctive purple sheet, was found in an open field which was being treated for rodents. Medical analysis (hindered by the condition of the body) tended to show that Lenwood had died on or about November 18. Analysis of the "testable" bullets, .38 caliber, in both bodies established that they had been fired from the same gun with a "6-left" rifling system. ³ The type B of the blood found in the apartment fit both Walker brothers. It was abundantly proved that the defendant occupied the apartment; he paid rent, albeit intermittently, to one George Legner who owned the building. (On occasion, apparently, the defendant could be found at an apartment on Morton Street or another on Browning Avenue.)

Further, the proof showed that the defendant knew the Walker brothers well, and that for some two years D.J. had sold marihuana supplied by the defendant. Millie Walker, the brothers' sister, testified that there had been friction between the defendant and D.J. in these illicit business dealings; on one occasion the defendant ceased using D.J. because, he said, "D.J. kept getting ripped off." Also the defendant believed the Walker brothers had participated in a robbery of the apartment at No. 10. Anthony Grant, who knew the defendant as well as the brothers, testified that in fact he and D.J. (but, he said, not Lenwood) had broken into the apartment and robbed it on November 7.

On November 14 Grant appeared at the defendant's mother's house at 102 Nightingale Street at the defendant's invitation. What started as a social evening soon turned ugly. The defendant led Grant to the basement ostensibly to look at some sex pictures. The defendant said he had "heard that you and Lenny, (and) D.J., broke into my house." Brandishing a club or small baseball bat, the defendant said, "I can't let you go. If I let you go, you will go and tell D.J. and Lenwood and they would leave town"; "I want, want to get them, you know." The defendant beat Grant with the bat and shot at him with a gun he was carrying, but missed. ⁴ Hearing the commotion the defendant's stepfather intervened. The defendant with a companion drove the injured Grant home, threatening en route to shoot him and drop him at Franklin Park. Arriving at Grant's mother's apartment, the defendant told one John Bowie, present there, "Tony and a couple of his friends had broken into my house and I chastised him (Grant) a little bit"; "You better take care of him because I got something to do." The defendant also said (overheard by Grant's mother), "(K)eep Tony away from Mattapan and keep him away from the Walker brothers."

On November 15, Millie Walker saw the defendant in a hallway of her apartment house. He indicated he knew about her brothers' part in the robbery and asked where D.J. was. When Millie said she did not know, the defendant threatened her with a knife and said she should tell D.J. he was looking for him. That afternoon Millie and D.J. went to see the defendant. For a half hour or so there was a private conversation between D.J. and the defendant. The defendant, who was carrying a gun, ⁵ said in Millie's hearing that he could use some help in moving some of his things out of the apartment at No. 10 the coming Monday, November 17.

On November 17, the defendant telephoned the Walkers three times at their mother's house at 160 Westview Street, Dorchester. The mother answered the phone and recognized the defendant's voice. She said D.J. spoke with the defendant twice, at noon and 2 P.M., after which D.J. woke Lenwood, told him to shower, and said, "We have to go out later." About 3 P.M. the mother took the third call. The defendant said D.J. had agreed to help him move a couple of doors down from where he was living. D.J. got on the phone and then said to Lenwood, "Come on, man. Let's go help David move and get this man off my back." The brothers left. They did not return.

Sterling Garrison, an acquaintance of the defendant who boarded once or twice a week at the No. 10 apartment, testified that he dropped in at the defendant's mother's house around 2 or 3 P.M. on November 17. The defendant was there. He said, "he had found out who had broken into his house (a)nd that they were supposed to be coming by the house, his house and later"; if Garrison "didn't want to get into any trouble" he "should leave" because "he (the defendant) was going to get them." The defendant was carrying a gun.

Despite the defendant's words, Garrison appeared at No. 10 about 10 P.M. (Earlier that evening he had looked for the defendant at the defendant's mother's house.) The door to the apartment was open and from the threshold he could see blood up and down the hall and a body on the living room floor. He did not recognize the body. ⁶ He entered and, avoiding the body, walked to the middle bedroom, grabbed the clothing he kept there and made a bundle of it with a purple sheet from the bed, and left with the bundle. There was testimony that the sheet in which Lenwood's corpse was wrapped was similar to the sheet used by Garrison. ⁷

The police, after the investigation on November 18, promptly began a search for the defendant, but he had dropped from view and was not caught up with until a year later. He was then finally apprehended a floor above his mother's apartment crouched in a closet, wearing disguise.

For the defense, the defendant's mother was the principal witness; the defendant was not called. She said the defendant, except for a brief interval, was at her apartment all day through midnight of November 17, then she went to bed, and she had breakfast with him the next morning, November 18. But when questioned by the police on November 20, 1975, she said, according to police testimony, that she had last seen the defendant at 7 A.M. on November 17. The other defense witness, an assistant clerk of the Boston Municipal Court, produced a court record indicating that D.J. might have appeared in court some time on November 17, which would put in question the mother's account of both brothers being at home when the telephone calls were received. On rebuttal the mother said D.J. had gone out early that morning, about 8:30, returned about 10:45, and had gone back to bed.

1. Admission of evidence secured at initial investigation and search. By motion and renewed motion the defendant sought on constitutional grounds to suppress items of evidence arising from the police investigation carried on without warrant at No. 10 on the morning of November 18. The trial judges on voir dire denied the motions over objection and entered findings. ⁸ The effective errors claimed are in the admission of certain of these items at trial.

(a) We outline the course of the investigation as elicited at voir dire. About 8:25 A.M., November 18, Officers Eugene J. Murphy and Daniel Duran were called to the cellar of No. 14. A gas company employee had discovered a dead body there. The officers asked for help, which arrived about 9 A.M. and later in some strength, including chemists, a fingerprint expert, and a photographer, for it could be assumed there had been a homicide and various kinds of evidence would have to be assembled and recorded. Attention was first centered on the cellar of No. 14. Around 9:30 or 9:45 A.M., Officer John McManus...