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July 19, 1977


Suffolk. Indictments found and returned in the Superior Court on October 16, 1975. The cases were tried before Chmielinski, J.

Hale, C.j., Goodman, & Armstrong, JJ.


Arrested Person. Evidence, Prior consistent statement. Practice, Criminal, Admissions and confessions, Charge to jury, Judicial discretion, Continuance.

The opinion of the court was delivered by: Armstrong

A motion to suppress an inculpatory statement of a defendant in a criminal case was properly denied where the Commonwealth proved beyond a reasonable doubt that the statement was not obtained as a result of failure of police to inform him of his right to use a telephone or permit his use thereof for approximately two hours after his arrival at a police station. [525-526]

At a criminal trial it lay within the discretion of the Judge to admit prior consistent statements contained in an official report by a Federal agent testifying for the Commonwealth, where the defense had attempted to impeach the witness by showing that such statements, relating to the possession and use of a shotgun by a companion of the defendants, were omitted from his substantially contemporaneous response to inquiries by police. [526-530]

There was no error in the denial of a criminal defendant's request for a jury instruction emphasizing that his testimony should be weighed by the same standard as that of any other witness, where the charge made clear that the jury could not reject the defendant's testimony solely because he was on trial. [530-531]

A Judge at a criminal trial did not abuse his discretion by denying a continuance to permit a defendant to locate a missing witness, where the request was not timely and the testimony sought was of only marginal significance. [531-532]

The defendants, Darden and Ferriabough, were indicted jointly for conspiracy to distribute cocaine and separately for armed robbery. *fn1 They were convicted of those offenses and have appealed under G. L. c. 278, §§ 33A-33G. The evidence taken in the light most favorable to the Commonwealth warranted the jury's finding the following to be the facts which supported the convictions.

On September 29, 1975, one Dooling, a police informant, who had previously witnessed Ferriabough obtaining drugs for an addict, and who had been called on the telephone by Ferriabough to see if he wanted to buy an ounce of cocaine for $1,200, met Ferriabough near a bar in the vicinity of LaGrange Street in Boston. Darden was with Ferriabough. The defendants said they were prepared to sell him the ounce of cocaine. Dooling stated that he had been unsuccessful in obtaining the money for the purchase, which angered Ferriabough. Dooling was permitted to test the cocaine. While waiting to test the cocaine, he saw Darden, and later, Ferriabough, talking with one Mayo, who had been in the bar. Dooling and the defendants arranged a meeting for the following day for the purpose of completing the transaction. Dooling informed Detective Maher of the Boston police drug control unit of the impending sale.

On September 30, Dooling met at Boston police head-quarters with Detective Maher and one Stephen Murphy, an agent of the Drug Enforcement Administration (DEA) of the United States Department of Justice. Fifteen hundred dollars in marked bills was hidden in the trunk of Dooling's car. Murphy and Dooling then drove the car to the arranged meeting place, a club in Park Square. They were followed surreptitiously by a number of DEA agents and Boston police officers, including Detective Maher. Darden insisted that the transaction take place in another location, saying that he had to be careful because he had just completed serving a Federal prison term for narcotics violations. The place chosen was on Huntington Avenue, in front of the Young Men's Christian Association. Ferriabough joined Murphy and Dooling in Dooling's car; Darden took a taxicab to pick up Mayo, who (according to Darden) had the cocaine. The Dooling car arrived first. When the taxicab came, Darden got out, got into Dooling's car, and directed Murphy, who was driving, to a place near the end of Gainsborough Street, where a footbridge crosses railroad tracks. Murphy parked the car some distance away. Darden got out, walked to the end of Gainsborough Street, and entered the waiting taxicab. Mayo got out of the taxicab and waited. Murphy and Ferriabough walked to the end of Gainsborough Street and met Mayo, who said he would hand over the cocaine on the footbridge. Darden, seated in the taxicab, held a silver shopping bag on his lap. As Murphy and Ferriabough walked towards the footbridge, Mayo went to the taxicab, took the silver shopping bag, and followed the other two. He sat on the stairs of the footbridge, waited for a woman and children to pass, then reached into the shopping bag and pulled out a sawed-off shotgun. He aimed it at Murphy's stomach. Ferriabough laughed and took the car keys from Murphy. He returned to the Dooling car, opened the trunk where he knew the money was hidden, removed it, and started to flee. Meanwhile, Mayo had ordered Murphy to walk across the footbridge, threatening, when Murphy feigned illness, "to kill right there." At some point Murphy drew a hand gun from his waistband, and a gunfight ensued in which Mayo was mortally wounded. DEA agents and Boston police officers converged on the scene. Darden, Ferriabough and the taxi driver were all arrested and taken to Boston police headquarters. The time was then approximately 2:30 P.M. At 5:20 P.M., Ferriabough made a statement to the police which was taped and which amounted to a confession on the conspiracy charge. It also confirmed many of the facts stated above concerning the armed robbery charge but portrayed the defendants as surprised by Mayo's possession and use of the gun. The statement was read in evidence during the cross-examination of Ferriabough.

1. The defendants contend that the Judge erred in denying Ferriabough's pre-trial motion to suppress his statement and in allowing it in evidence. At the voir dire the defendants sought to show that the statement was obtained by threats and coercion and that the police denied the defendants their rights under G. L. c. 276, § 33A, to make telephone calls within an hour after their arrests. The evidence adduced by the defendants to substantiate the claim of threats and coercion was not consistent (the taxi driver's testimony differed substantially from the defendants') and was explicitly denied by each of the law enforcement officers who testified. By his denial of the motion the Judge impliedly accepted the testimony of the latter. *fn2

We may assume that the Judge, in the absence of evidence to the contrary from the police, credited the testimony of the defendants and the cabby that they were not informed of their right to use the telephone nor permitted use thereof for approximately two hours after their arrival at the police station. Those omissions, even if not intentional, would violate the provisions of § 33A and would require suppression of any evidence obtained as a result thereof. Commonwealth v. Bouchard, 347 Mass. 418, 419-421 (1964). Commonwealth v. Jones, 362 Mass. 497, 502 (1972). If such an omission is intentional, an in-custody inculpatory statement is inadmissible unless the Commonwealth proves "beyond a reasonable doubt that the evidence is untainted by the deprivation of the defendant's right." Id. at 503.

That burden was met in this case. The evidence was uncontradicted that the defendants were fully informed, not only of their Miranda rights, but also of their present right to use the telephone, before the start of the interrogation which resulted in Ferriabough's statement. From all the evidence at the voir dire it appears that the delay was caused by the fact that Detective Maher, who was in charge of the case, was delayed for more than two hours at the scene of the arrests, very likely due to the unexpected homicide, and that until his arrival at the station the defendants were simply made to wait. Upon his arrival, all proper procedures were followed, and no evidence was obtained, or ...

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