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05/17/78 COMMONWEALTH v. ROLAND S. STROUD

May 17, 1978

COMMONWEALTH
v.
ROLAND S. STROUD



Hampden. Indictment found and returned in the Superior Court on November 9, 1972. The case was tried before Linscott, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

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

SYLLABUS BY THE COURT

Evidence, Admissions and confessions, Relevancy and materiality. Constitutional Law, Admissions and confessions, Waiver. Arrested Person. Waiver. Practice, Criminal, Admonition of counsel by Judge, Voir dire, Appearance by counsel.

The opinion of the court was delivered by: Hennessey

Statements made by a defendant to a police officer prior to being apprised of his statutory right to use a telephone were properly admitted in evidence at a criminal trial where the defendant's determination to make a statement was completely voluntary, where the opportunity to make a telephone call was not intentionally withheld, and where there was no prejudice to the defendant. [268-270]

At a criminal trial there was no error in admitting in evidence inculpatory statements volunteered by the defendant to a police officer while in an airplane bound for Massachusetts even though the officer did not repeat his earlier Miranda warnings in full. [270-271]

Where the defense counsel in a criminal case moved for a directed verdict in the presence of the jury, the Judge's mild admonition of defense counsel and denial of the motion in the jury's presence did not constitute prejudicial error. [271-272]

The fact that the prosecutor at a criminal trial held a blood-stained shirt in his hand in the jury's view prior to its introduction in evidence did not constitute reversible error where the defendant had not requested a voir dire on its admissibility and where the shirt was properly admitted in evidence. [272-273]

There was no merit to a defendant's contention that the Judge at a criminal trial erred by allowing the trial to proceed without requiring defense counsel to file an appearance in accordance with Rule 19 of the Superior Court. [273]

The defendant Roland S. Stroud was tried before a Superior Court jury on an indictment charging him with the murder of one Noah Dennis. The jury found the defendant guilty of manslaughter, and the Judge imposed a sentence of eight to ten years at the Massachusetts Correctional Institution at Walpole.

The defendant appeals the conviction, arguing that the trial Judge erred by: (1) allowing in evidence certain inculpatory statements which the defendant had made to Tennessee and Massachusetts police officers; (2) denying the defendant's motion for a directed verdict in the presence of the jury; (3) admitting in evidence certain bloodstained garments alleged to have been worn by the victim at the time of the incident; and (4) allowing trial counsel to represent the defendant without determining whether the attorney had filed an appearance in accordance with Rule 19 of the Superior Court (1954). We conclude that there was no error. Accordingly, we affirm the conviction.

The pertinent facts are as follows. On the evening of September 4, 1972, pursuant to an invitation by Dennis, the defendant and his girl friend went to Dennis's apartment for drinks. The couple arrived at the apartment building at approximately 10:45 p.m. On ascending the stairs, they saw Dennis on the landing outside his second floor apartment. There was testimony tending to show that Dennis was highly intoxicated.

Although there is conflicting evidence as to the specific details, it is clear from the record that initial verbal exchanges between Dennis and the defendant soon became hostile. Shortly thereafter, a fight ensued. The struggle continued down the staircase and into the front hallway. The defendant's last blows pushed Dennis against the front door of the building and outward onto the cement stoop.

Several bystanders testified that they observed the fight. There was evidence that Dennis appeared to be unconscious, and that he was bleeding profusely in the areas of the chest and face. Although subsequent to the fight a redstained knife was found in the vicinity, all witnesses testified that they did not see a knife in the defendant's hand during the struggle. Nevertheless, the medical examiner testified that Dennis ...


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