Com. v. Zeitler

• Decision Date: 11 May 1979
• Citation: 7 Mass.App.Ct. 543,389 N.E.2d 423
• Parties: COMMONWEALTH v. William J. ZEITLER, Jr.
• Court: Appeals Court of Massachusetts

Page 423

389 N.E.2d 423

7 Mass.App.Ct. 543

COMMONWEALTH v. William J. ZEITLER, Jr.

Appeals Court of Massachusetts, Berkshire.

Argued March 9, 1979.

Decided May 11, 1979.

Stephen T. Smith, Pittsfield, for defendant.

Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GRANT and PERRETTA, JJ.

HALE, Chief Justice.

The defendant appeals (G.L. c. 278, §§ 33A-33G) from convictions based on nine indictments: five charging assault by means of a dangerous weapon (G.L. c. 265, § 15B); two charging carrying a firearm without authority to do so (G.L. c. 269, § 10(A )); one charging the commission of an unnatural and lascivious act (G.L. c. 272, § 35); and one charging rape (G.L. c. 265, § 22). He has argued four separate issues based on appropriate assignments of error. We affirm eight of the defendant's convictions and reverse the conviction based on indictment 13621 charging that he committed an unnatural and lascivious act. We summarize the evidence consistent with the jury's verdicts.

On the evening of February 8, 1975, the defendant met Edward J. Casson, Jr., Edward Nutbrown and Patrick Dowling at a drinking establishment in Pittsfield. The four subsequently left there and proceeded in the defendant's automobile to the house of one Liccardi. When they arrived at the house Dowling and Nutbrown left the automobile, while Casson remained in the vehicle with the defendant. Casson testified that the defendant threatened him with a gun while he was alone with him in the car. Dowling and Nutbrown returned to the vehicle from the house shortly thereafter because no one answered the door. At this time the defendant used his gun to threaten Casson and Nutbrown. Nutbrown testified that he overheard a conversation between the defendant and Dowling in which Dowling suggested that Nutbrown and Casson be released unharmed, while the defendant insisted that they not be.

The foursome returned to the drinking establishment they had visited earlier, and Dowling and Nutbrown left the vehicle. Shortly thereafter Dowling returned to the automobile alone and proceeded with Casson and the defendant to a house in Pittsfield, where Dowling was dropped off.

The defendant and Casson proceeded to the home of Cecil Bascom. They arrived between 12:30 and 1:00 A. M. and found the apartment occupied by Bascom and his seventeen-year-old sister, Laura. While at the apartment, the defendant threatened Casson, Bascom and Laura with two guns. Laura testified that the defendant, armed with a gun, then guided her into the bedroom, touched her breasts and vagina, forced her to submit to cunnilingus and compelled her to have vaginal intercourse with him. Later that morning the defendant left the Bascom apartment and returned to his residence in Hinsdale, where he lived with his wife and parents. Further evidence will be discussed at appropriate points in the opinion.

1. The defendant claims error in the denial of his motion to suppress the two pistols allegedly employed by him during the course of the crimes charged. He argues that the pistols were obtained by Trooper Bell of the Massachusetts State Police as the result of a warrantless search and seizure, the defendant's consent to which was not voluntary. The circumstances in which the Commonwealth obtained the pistols, as disclosed by testimony adduced at the hearing on the motion to suppress, were as follows.

Trooper Bell received a telephone call from the Pittsfield police on February 9, 1975, informing him that warrants were outstanding on complaints charging the defendant with assault and battery by means of a dangerous weapon and rape. Bell knew the defendant on a "personal and professional" basis and had previously been a guest at the home of the defendant's parents. He knew that the parents occupied the first floor of a house and that the defendant and his wife occupied the second floor. Bell proceeded to that house and went directly to the mother's apartment, having been informed that the defendant was visiting there. The defendant's mother admitted Bell. Bell saw the defendant and told him that he was there to arrest him on a warrant charging him with an assault and battery involving the use of guns. Bell read the defendant the Miranda rights and ascertained that he understood the warnings, although he did not seek or obtain an express waiver of those rights.

After again advising the defendant that the warrant was for assault and battery by means of a dangerous weapon, Bell asked the defendant whether he owned any firearms. The defendant admitted that he did and described two black powder pistols with which he had recently been practicing. The defendant's description of his pistols matched the description Bell had received from the Pittsfield police department of the firearms involved in the crimes. When Bell asked the defendant if he could see the guns and "take them with us," the defendant offered to go upstairs to get them. Bell did not allow the defendant, who was under arrest, to do so. Instead, the defendant's wife, at the defendant's request, got the guns and gave them to Bell, who then prepared to transport the defendant and the two guns to the Pittsfield police station. As they entered the cruiser, Bell advised the defendant that there was also an outstanding warrant charging him with rape. He had withheld the information about the rape charge while in the house because he was concerned that knowledge of such a charge at that time would upset the defendant's mother and wife and precipitate an unnecessarily unpleasant situation. As they neared the police station Bell told the defendant that regulations required that he be handcuffed. He handed a pair of handcuffs to the defendant, who put them on himself.

The nub of the question before us regarding the judge's refusal to suppress this evidence is whether the defendant freely and voluntarily surrendered the pistols to Trooper Bell. Commonwealth v. Mendes, 361 Mass. 507, 512, 281 N.E.2d 243 (1972). We need not determine whether Bell's acquisition of the guns from the defendant constituted a search (see Coolidge v. New Hampshire, 403 U.S. 443, 489-490, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Commonwealth v. Aguiar, 370 Mass. 490, 496, 350 N.E.2d 436 (1976), and cases cited) because the standard by which we test the voluntariness of the defendant's actions is the same, whether or not the action technically was a search. The voluntariness of the defendant's consent is a question of fact to be determined by the judge based on the circumstances of the case in their totality and not "on the presence or absence of a single controlling criterion." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). See Commonwealth v. Mendes, 361 Mass. at 512-513, 281 N.E.2d 243; Commonwealth v. Aguiar, 370 Mass. at 496-497, 350 N.E.2d 436; Commonwealth v. Walker, 370 Mass. 548, 554-556, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976); United States v. Watson, 423 U.S. 411, 424-425, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The voluntariness of the defendant's consent here was indicated by his cooperative conduct (Commonwealth v. Aguiar, 370 Mass. at 496, 350 N.E.2d 436) and by the absence of trickery or threats on the part of the trooper (Commonwealth v. Walker, 370 Mass. at 555, 350 N.E.2d 678). Bell's failure immediately to inform the defendant of the rape warrant outstanding against him was not an omission that required a finding that the trooper employed direct or indirect coercion to obtain the pistols. Compare Schneckloth v. Bustamonte, 412 U.S. at 228, 93 S.Ct. 2041; United States v. Watson, 423 U.S. at 424-425, 96 S.Ct. 820. Neither was the acquisition of the pistols made unreasonable, nor was the defendant's consent tainted by the fact that he did not expressly waive his right to consult with counsel (see North Carolina v. Butler, --- U.S. ----, ----, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)) even though that is a factor to be considered in any inquiry into the voluntariness of the consent. ¹ The judge's finding that the defendant freely and voluntarily gave the pistols to Bell was warranted by the evidence recited above, and his refusal to suppress the pistols was justified.

2. The defendant contends that the judge erred when he allowed a witness to testify to parts of a conversation between the defendant and Dowling, a codefendant whose trial had been severed from that of the defendant. The defendant argues that the part of the conversation attributed to Dowling was hearsay and also violated the rule stated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The only argument made to the judge as to the admissibility of this testimony was based on the Bruton rule, even though, as the defendant concedes in his brief, Bruton "is restricted in its holding to the introduction of a statement inculpating a defendant where the co-defendant at joint trial declines to take the stand and subject himself to cross-examination." We decline to extend the rationale of that rule to the present situation.

We note, without considering the timeliness of the objections made at trial, that the testimony objected to concerned a running conversation between Dowling and the defendant. Most of the conversation was attributed to the defendant, and in it, among other things, he threatened to kill two of the four people present. The statements attributed to Dowling were made in an attempt to dissuade the defendant from carrying out his threats. They gave meaning to the defendant's incriminating responses and were admissible on that basis. See Commonwealth v. Kerrigan, 349 Mass. 295, 301, 207 N.E.2d 882 (1965).

3. Early in the part of his charge on the subject of rape, the judge read the principal parts of G.L. c. 265, § 22, as appearing in St.1974, c. 474, § 1, and that part of G.L. c. 277, § 39, as appearing in St.1974, c. 474, § 7,...