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10/04/77 COMMONWEALTH v. ROBERT GEORGE LEBLANC

October 4, 1977

COMMONWEALTH
v.
ROBERT GEORGE LEBLANC



Suffolk. Indictment found and returned in the Superior Court on November 14, 1975. Pre-trial motions to suppress evidence were heard by Zarrow, J., and the case was tried before him.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

Homicide. Arrest. Search and Seizure. Constitutional Law, Search and seizure. Probable Cause. Practice, Criminal, Charge to jury, Examination of jurors, Motion to suppress. Malice. Evidence, Admissions and confessions.

The opinion of the court was delivered by: Quirico

A warrantless arrest of the defendant in his home was lawful where there was probable cause for the arrest and where the peaceful daytime entry into the defendant's home for the purpose of investigating a murder was justified by exigent circumstances. [483-486]

Statements made by the defendant after his arrest and after he had made a knowing and intelligent waiver of his right to remain silent were admissible at his trial even if the arrest was unlawful. [486-488]

Where an affidavit in support of a search warrant contained detailed information linking the defendant to a car identified as being at the scene of a murder and where the defendant had admitted owning a gun but gave an unconvincing story that he had sold it to a "strange kid," the Judge did not err in ruling that the issuance of the search warrant was based on information sufficient to constitute probable cause and was valid. [488]

At the trial of a defendant charged with murder in the first degree, evidence of the circumstances in which a policeman was shot, including evidence that the defendant was present at the scene of the crime, and that several shots had been fired at the victim from two different guns, one of which belonged to the defendant and the other to his father, was sufficient to permit the jury to find that the defendant killed the victim with deliberately premeditated malice aforethought. [488-490]

Where there was no evidence in a capital case from which the jury could reasonably have found that the victim was killed upon reasonable provocation or sudden combat, or that his death was unintentionally caused, the Judge did not err in refusing to instruct the jury on manslaughter. [490-492]

At the trial of a defendant charged with murder in the first degree, the Judge did not err in instructing the jury that they might consider whether the amount of alcohol drunk by the defendant on the night of the killing had "reached that state which . . . affected the mind with reference to the matter of premeditation." [492]

There was no error at a criminal trial in the Judge's instructions on reasonable doubt. [492]

At the trial of a defendant charged with shooting a police officer, a witness's testimony that she had seen the defendant in possession of two guns prior to the day of the murder was admissible to establish the defendant's familiarity with guns and his practice of carrying guns. [492-493]

At the trial of a defendant charged with the murder of a police officer, the Judge did not err in refusing to allow the defendant to examine the wife of the chief of police who was a member of the venire but was not called as a prospective juror. [493]

The defendant was found guilty of murder in the first degree of police Sergeant Richard F. Halloran and was sentenced to life imprisonment. In this appeal under G. L. c. 278, §§ 33A-33G, he presses various claims of error which may be grouped as follows: (1) the denial of motions to suppress statements and a gun, (2) the denial of motions for directed verdicts of acquittal of murder in the first and second degrees, and of lesser included offenses, (3) statements excluded from the Judge's charge, (4) the admission of certain evidence, and (5) the denial of the request by the defendant to question a member of the venire who was not called as a prospective juror. We find no error, affirm the judgment, and decline to exercise our powers under G. L. c. 278, § 33E.

We summarize the evidence introduced at the trial and at the hearing on the defendant's motions to suppress, and the Judge's findings on those motions. During the early morning of November 6, 1975, the victim, Richard F. Halloran, a sergeant in the Boston police department, was on patrol duty in East Boston. He was seen driving a police cruiser at 3:25 A.M. by one Frank Tavella. About 3:40 A.M., a police officer found Halloran wounded, unconscious, and lying on his back beside the cruiser on Bremen Street near the intersection of Neptune Road in East Boston. Halloran was holding his unfired service revolver in his hand, but his body showed no signs of a struggle. He was dead ...


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