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May 11, 1978


Suffolk. Indictments found and returned in the Superior Court on February 18, 1975. The cases were tried before Zarrow, J.

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


Constitutional Law, Confrontation of witnesses. Evidence, Admissions and confessions, Hearsay, Relevancy and materiality, Record of past knowledge. Practice, Criminal, Trial of defendants together. Search and Seizure.

The opinion of the court was delivered by: Hale

Severance of a defendant's criminal trial from that of a co-defendant was not constitutionally compelled by the doctrine of Bruton v. United States, 391 U.S. 123 (1968), by reason of the admission in evidence of damaging extra-judicial remarks made by both men after they had voluntarily relinquished their Miranda rights, where the co-defendant testified at the trial, denied making the damaging statement, and was available for cross-examination concerning it, and where the remarks were directly admissible against the defendant under the adoptive admission exception to the hearsay rule [339-341]; nor, in these circumstances, did an abuse of discretion appear [341].

At a criminal trial no abuse of discretion appeared in the exclusion of testimony by the defendant as to a statement allegedly made by a police officer to him and a codefendant, offered for the limited purpose of qualifying the meaning of subsequent admissions which had been described in the testimony of a second police officer concerning a conversation with the defendant and co-defendant four hours later. [341-343]

At the trial of indictments for rape, kidnapping, and robbery there was no error in the exclusion from evidence of a police journal entry, which could be viewed as contradicting a police officer's testimony that the victim had given him a specific description of her assailants, where testimony already received had advised the jury of the omissions from the description that the defendant considered significant. [343-344]

Admission of testimony referring to the victim's identification of a jacket belonging to a criminal defendant was proper notwithstanding the circumstances that the jacket had been taken from the defendant with neither his consent nor a search warrant while he was in custody on unrelated charges, since, at the time of the seizure, the police had probable cause to arrest him for the crimes to which the identification related. [344-345]

The defendant, Charles C. Murphy, was tried along with a codefendant, Eugene J. Zarella, Jr., before a jury in the Superior Court, and both were found guilty on charges of rape (by sexual intercourse and by unnatural sexual intercourse), kidnapping and robbery. Murphy appeals and assigns error in several of the Judge's rulings, including his refusal to sever the proceedings against the two defendants, as well as other rulings on the admission or exclusion of evidence at the joint trial. Those assignments of error not briefed and argued by the defendant are deemed waived. Rule 1 : 13 of the Appeals Court, as amended, effective February 27, 1975, 3 Mass. App. Ct. 801.

At about 9:00 A.M. on November 16, 1974, the victim left her apartment on Commonwealth Avenue in Brighton, accompanied by her roommate. As the two women walked along Warren Street in Brighton they were passed by a red Volkswagen sedan. The automobile stopped, and a man, later identified by the victim as Murphy, alighted and approached the women. Murphy demanded that the women hand over all of their money, and they complied. At that moment the Volkswagen turned around and pulled up next to the women. The driver, later identified by the victim as Zarella, demanded that the women get in. As Murphy grabbed the victim by the arm and forced her into the automobile, the victim's roommate backed away and screamed. Murphy got into the automobile, and the automobile pulled away. The roommate immediately went to a nearby liquor store and phoned the police.

Zarella drove the Volkswagen from Brighton to Lexington. During the ride, which lasted about forty minutes, Zarella and Murphy smoked cigarettes and passed a bottle of wine between themselves. Zarella eventually drove into a cemetery in Lexington and stopped. The two men then stripped the victim and repeatedly raped her. After both men had sexually abused the victim for a period of about an hour and a half, they left her on the ground, got into the Volkswagen, and drove away. The victim then made her way to a house near the cemetery, where she was given assistance and the Lexington police were contacted.

At about 11:30 that night there was an automobile accident on Park Drive in Boston. One of the automobiles involved in the accident was a red Volkswagen sedan with two male passengers. After the accident the two men removed the license plates and other, unidentified, objects from the Volkswagen and ran off. Soon afterward two Metropolitan District Commission (M.D.C.) police officers arrived at the scene of the accident. The officers arranged for the Volkswagen to be towed to the garage a the M.D.C. police lower basin station. The officers found a wine bottle on the front seat of the Volkswagen.

At about 3:00 A.M. on November 17, 1974, two M.D.C. police officers observed a van being driven along a section of Park Drive in Boston which was about one-half mile from the scene of the earlier accident involving the Volkswagen. The officers noticed that the van had paper license plates and that its rear lights were out, They stopped the van and arrested the occupants, Zarella and Murphy. Zarella and Murphy were given Miranda warnings and transported to the M.D.C. lower basin station. At the station they were again provided with Miranda warnings and booked on charges of using a motor vehicle without authority and possession of burglarous tools. They were placed in adjoining cells in the basement of the station.

Later on the morning of November 17, 1974, two Boston police officers went to the apartment where the victim was staying. They showed her a display of about twelve photographs of white males, and she selected a photograph of Murphy from that group and identified him as one of the men who had raped her. Zarella's photograph was not included in the display. The officers left after the identification was made. At about 9:00 that morning another member of the Boston police, Officer Moran, went to the victim's apartment and showed her the same set of photographs. She again selected the photograph of Murphy. *fn1 She ...

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