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May 23, 1978


Suffolk. Indictments found and returned in the Superior Court on January 12, 1976. The cases were tried before Hallisey, J.

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


Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Assistance of counsel. Waiver. Homicide. Joint Enterprise. Error, Whether error harmful. Practice, Criminal, Charge to jury, Capital case, Assistance of counsel, Argument by prosecutor, Sentence.

The opinion of the court was delivered by: Liacos

Evidence at a hearing on a motion to suppress statements made by the defendant to police after his arrest warranted findings that the defendant was not unduly influenced by marihuana when he made the statements, and that he validly waived his constitutional rights. [287-290]

At the trial of an indictment charging the defendant with murder in the first degree on a theory of felony murder, the Judge was not required to charge the jury with respect to lesser included offenses where there was no evidence which would warrant a finding that the defendant was guilty of a lesser included offense. [290-292]

On appeal by a defendant from his conviction of murder in the first degree, this court declined to exercise its powers under G.L. c. 278, § 33E, where statements made by the defendant were properly admitted in evidence despite testimony by an attorney that he had attempted in vain to notify police to suspend questioning of the defendant until he arrived at the police station [292-295]; where the prosecutor's improper remarks to the jury during his closing argument were harmless beyond a reasonable doubt [295-297]; and where Justice did not require the entry of a verdict of a lesser degree of guilt by the fact that other participants in the crime either were not indicted or were permitted to plead guilty to lesser offenses [297-299].

The defendant appeals, pursuant to G. L. c. 278, §§ 33A-33G, from convictions on indictments of murder in the first degree, armed robbery, and armed assault in a dwelling house with intent to commit a felony. He claims error in the denial of his motion to suppress statements made by him to the police after his arrest, and in the failure of the trial Judge to instruct the jury on lesser included offenses. The defendant also seeks extraordinary relief, pursuant to G. L. c. 278, § 33E, in the nature of a new trial or entry of verdict of a lesser degree of guilt. We find no error and no occasion for exercising our extraordinary powers under § 33E.

We briefly summarize the events leading up to the defendant's arrest, as such events were recounted at the trial. Facts will be described in greater detail as necessary, in the context of our Discussion of the various arguments raised by the defendant.

According to testimony elicited by the Commonwealth, the defendant came on a group of friends congregated at a ball park in Jamaica Plain, about 9:30 p.m., on November 18, 1974. The defendant joined the group and entered an ongoing Discussion concerning the commission of a robbery. The defendant decided where and how the robbery was to take place. The group entered a car, and the defendant directed the driver to an address in the Mission Hill project in Roxbury. Two of the group stayed in the car while the defendant and four others walked the short distance to the apartment of the victim, Thomas Valentine. The defendant remained outside while the others went inside the apartment building. There was evidence that the persons entering the building were armed with a knife and a gun. The victim's wife opened the door in response to a knock, and three of the four members of the group who had entered the building rushed into the apartment. In the course of several struggles inside the apartment, the victim was beaten, stabbed, and fatally shot. The three members of the group removed stereo equipment and other property from the apartment, joined the defendant outside, and loaded the property into the car. The entire group then returned to Jamaica Plain where the property was divided among them.

The defendant's testimony regarding these events was markedly different from the Commonwealth's version. He testified that he met the group in the ball park, and they offered him a ride when he said he was going to Mission Hill. When they arrived, the defendant testified, he left the others and went looking for a certain drug dealer, known only as "Barefoot." He testified he returned to the car, and a short time later some members of the group returned, and loaded stereo equipment into the car. The defendant denied receiving any stolen property, and testified that he returned immediately to his apartment. More than a year later, on December 7, 1975, the defendant was in his apartment when several police officers came to the apartment, about 10:30 a.m., pursuant to an arrest warrant, handcuffed him, and took him to a police station where he was formally booked. The defendant made incriminating statements at the police station which were tape recorded.

1. The first assignment of error which we consider involves the trial Judge's decision to deny the defendant's motion to suppress the statements made by the defendant to the police. The defendant contends that during the questioning following his arrest on December 7, 1975, he was under the influence of marihuana and was thus unable to comprehend the warnings given to him by the police regarding his constitutional rights. He also contends that he had requested the presence of his attorney prior to the tape recording of his statement, which was made without an attorney present.

Detective Francis J. McCarthy, one of the arresting police officers, and the defendant both testified at a suppression hearing held on May 11, 1976. After hearing the testimony and argument, the Judge made findings of fact in which he made the following determinations. The defendant was arrested at his apartment about 10:30 a.m., on December 7, 1975, by Detective McCarthy and other police officers. He was taken to District 2 police station, where he was advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). He was again advised of his Miranda rights at the beginning of the interrogation.

The Judge found that the defendant was allowed to make two telephone calls, but the Judge disbelieved the defendant's testimony that one of the calls was an effort to reach and obtain counsel. The Judge further found that no counsel was reached by the defendant on December 7. This finding was based in part on the circumstance that the defendant did not call the attorney allegedly retained to testify at the suppression hearing, despite the defendant's testimony that an attorney had been obtained on his behalf. The Judge also based his finding on the circumstance ...

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