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November 16, 1977


Suffolk. Indictments found and returned in the Superior Court on December 12, 1975. The cases were tried before Tamburello, J.

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


Constitutional Law, Confrontation of witnesses. Evidence, Admissions and confessions. Practice, Criminal, Mistrial, Trial of defendants together, Variance. Pleading, Criminal, Indictment. Joint Enterprise.

The opinion of the court was delivered by: Hale

A mistrial was not required by the fact that one of three defendants being tried together defaulted on the second day of trial. [675-677]

A variance between an indictment charging the defendant with assault and battery by means of a dangerous weapon, to wit: a shoe, which specified that "the said shoe then worn upon the foot of the . . . " and the evidence at trial which established that a co-defendant was the one who actually kicked the victim did not require dismissal of the indictment where the defendant failed to show that any prejudice resulted from the variance and where he had been informed that the Commonwealth intended to proceed against him on a theory of joint criminal enterprise. [677-678]

At the trial of an indictment charging the defendant with unlawfully carrying a firearm under his control in an automobile, there was sufficient evidence to warrant a finding that the defendant knew the firearm was in an automobile in which he was riding and that he had exercised control over it either individually or in conjunction with two codefendants. [678-679]

After a jury trial in the Superior Court the defendants, Fred Clark, Jr., and Ernest L. Grayson, were convicted and sentenced on indictments charging armed robbery, entering a dwelling house being armed and with intent to commit a felony, assault and battery by means of a dangerous weapon (a handgun and a shoe), and unlawfully carrying a firearm. Both defendants have appealed from their convictions, and each has assigned as error and argued the trial Judge's denial of his motion for a mistrial and the Judge's subsequent allowance of testimony regarding a codefendant's absence. Grayson has additionally assigned as error and has argued the Judge's denial of his motions for directed verdicts with regard to two of the indictments. *fn2

The charges against the defendants arose from their alleged participation in a robbery and beating of one Charles Wright. On November 24, 1975, three men forced their way at gunpoint into Wright's home. Wright was beaten with a handgun, forced to lie on the floor, and repeatedly kicked by one of the intruders. The three threatened to shoot Wright in the leg unless he should tell them where he kept his money. Eventually the men took Wright's money, television set, stereo, and other valuable property. They then bound Wright and fled.

Wright was able to free himself and reported the robbery to the police almost immediately after his assailants had left. Shortly after hearing radioed information describing the robbery, the participants, and the getaway car, two Boston police officers saw a vehicle which corresponded to the radioed description and apprehended Grayson, Clark, and one Brimage. The automobile was driven by Brimage. Wright's stolen property was visible within the automobile to the officers at the time of the defendants' arrests. Wright subsequently identified Grayson, Clark, and Brimage as the men who had robbed and beaten him.

The three were tried jointly. All were present on the first day of trial, during which the jury were empanelled and the Commonwealth made its opening statement in which it was stated that the Commonwealth would prove a "joint venture participated in equally by each of the three defendants." On the second day of trial Brimage, the only defendant not in custody, failed to appear and was defaulted. Later in the trial a police officer testified that Brimage could not be found at his usual address. The trial continued with Brimage's attorney participating despite his client's absence. The jury ultimately found all three defendants guilty on all charges.

1. After Brimage was defaulted Grayson and Clark moved for a mistrial so that they might be tried in a separate proceeding apart from Brimage. These motions were denied. Grayson and Clark argue that this violated their rights to a fair trial and to confrontation of witnesses, as defined in Bruton v. United States, 391 U.S. 123 (1968).

The defendants concede that the Judge's conduct would have been proper in a proceeding against Brimage alone. *fn3 Nevertheless, they claim that because evidence of Brimage's flight could be considered as an extra-judicial admission of guilt by Brimage and because they and Brimage were tried for the same offense on a common enterprise theory, Brimage's admission by flight served to inculpate them as well. The defendants conclude that, because Brimage was absent from trial and his admission could not be rebutted on cross-examination, severance of their trial from Brimage's was constitutionally compelled under the Bruton rule. *fn4

Severance of trials is required under the Bruton rule when a substantial risk arises that in determining a particular defendant's guilt the jury will rely on "powerfully incriminating extra-judicial statements" which are admissible only against a different defendant. Commonwealth v. Devlin, 365 Mass. 149, 155-161 (1974), quoting from Bruton, supra at 135. Separate trials are indicated when a codefendant's admissions so incriminate the particular defendant as to cast doubt on the jurors' ability to comply with the Judge's instructions limiting their consideration of the admissions. See Commonwealth v. LeBlanc, 364 Mass. 1, 7-9 (1973); Commonwealth v. Corradino, 368 Mass. 411, 419-420 (1975). However, when the adverse effect of a codefendant's admissions on a particular defendant is only indirect or incidental, severance is not constitutionally compelled, and careful limiting instructions by the Judge may be sufficient to ...

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