Middlesex. Indictments found and returned in the Superior Court on December 10, 1975. The cases were tried before Nelson, J.
Hennessey, C.j., Quirico, Braucher, Wilkins, & Liacos, JJ.
Constitutional Law. Admissions and confessions, Waiver of constitutional rights, Felony-murder rule. Waiver. Homicide. Due Process of Law, Felony-murder rule. Practice, Criminal, Attendance of witnesses, Continuance, Mistrial. Evidence, Other offense, Admissions and Confessions. Jury and Jurors.
The opinion of the court was delivered by: Quirico
Evidence at a criminal trial that police interrogation of the defendant continued after the defendant had requested an attorney but that the questioning ceased sometime later after he again requested to use the telephone to call an attorney and that the defendant, rather than calling an attorney, called his mother and sister and then told the police he was ready to make a statement warranted findings that the later statements were not a product of his earlier illegally obtained statements since the later statements were different from the original statements [480-483]; the defendant's later interrogation, resulting as it did from his spontaneous declaration of his desire to make a further statement, was not barred by Miranda v. Arizona, 384 U.S. 436 (1966) [483-485]; the Judge was warranted in finding that in making the later statements the defendant knowingly and voluntarily waived his Miranda rights .
The felony-murder rule, as embodied in G. L. c. 265, § 1, is not unconstitutional. [485-488]
In the circumstances the Judge at a criminal trial did not abuse his discretion in denying the defendant's motions for compulsory process and a continuance to secure the attendance of a witness under arrest in another State and resisting extradition. [488-490]
At a criminal trial there was no error in denying the defendant's motion for a mistrial made on the ground that a witness had been allowed to testify that he had seen a handgun in the defendant's possession a few weeks before a shooting and to give an affirmative answer when asked by the prosecutor whether he had talked with the defendant "about any laws in Massachusetts." [490-492]
The Judge at a criminal trial did not abuse his discretion in denying the defendant's motion to excuse the jury from further deliberations for the evening after they had submitted a question to the Judge at a late hour. 
The defendant was indicted for murder in the first degree, armed robbery, and kidnapping. Before trial, the defendant moved to suppress, inter alia, *fn1 certain incriminatory statements made by him to Massachusetts police officers while in custody in Louisville, Kentucky. After a pretrial hearing, the trial Judge, in a statement from the bench, denied the defendant's motion. However, during the trial the Judge, on his own motion, conducted another hearing on the admissibility of the defendant's statements and excluded certain portions thereof from evidence. The remaining statements were introduced in evidence at trial and the defendant was convicted on all indictments.
On appeal, the defendant argues five specific assignments of error. *fn2 He claims that the trial Judge erred in (1) refusing to exclude from the trial all statements made to the police while he was in custody, (2) denying his motion to dismiss the murder indictment on the ground that the felony-murder rule, G. L. c. 265, § 1, is unconstitutional, (3) denying his motions for compulsory process and for a continuance to secure the attendance of a witness, Theodore Watkins, at trial, (4) denying his motion for a mistrial based on the testimony of a witness to the effect that a few weeks before the crime he saw a gun in the defendant's possession, and (5) denying his motion to excuse the jury from further deliberations for the evening after they had submitted a question to the Judge at a very late hour.
We hold that there was no error, and that there is no basis to modify the jury verdict or to grant the defendant any other relief under G. L. c. 278, § 33E.
Before discussing the alleged errors argued by the defendant, we review briefly the evidence introduced at the trial concerning the events surrounding the commission of the armed robbery, kidnapping, and murder. The evidence was introduced primarily through the testimony of four witnesses: Police Detective Lieutenant William Nally of the Massachusetts State police, who testified as to the statements made to him by the defendant when the latter was in custody in Kentucky; Theresa Nelson (Nelson), a female companion of the defendant, who was arrested with him in Kentucky; Fred Starling, an uncle of Nelson, with whom she was living while in Boston; and the defendant himself. The testimony of Detective Nally and of Nelson, which was similar in most respects, was essentially as follows.
In October, 1975, the defendant and Nelson came to Boston from Louisville, Kentucky. On November 17, 1975, in the late afternoon or early evening, they were together in Boston when Nelson hailed the driver of a green Buick automobile driving by. When the car stopped, the two entered and, after riding for a very short time, the defendant pulled out a pistol and held it on the driver. *fn3 Nelson searched the man, took his wallet and gave it to the defendant, who then forced the driver to get into the trunk of the car. The defendant and Nelson then drove to a place where they picked up a person known as Bobo or Beau Jack, who Nelson testified was the defendant's brother. The group drove for some time and stopped. The defendant and Bobo got out of the car, opened the trunk, and Bobo, using the defendant's gun, shot the man who was in the trunk. *fn4 The defendant and Nelson, with the defendant driving, brought Bobo back to his house. Nelson and the defendant then with the same car went to her uncle's (Starling's) house where they packed her belongings and left for Kentucky. Nelson further testified that she did not know whether the defendant had been drinking or using drugs on the day of the shooting, but he appeared normal and had no difficulty driving the car.
Starling testified at trial that, about two and one-half to three weeks before the shooting, he had observed the defendant with a .38 caliber handgun in his possession. However, he admitted that he did not know "much about guns" and was "ust guessing" as to the gun's caliber.
The defendant was the sole defense witness at his trial, and he testified to the following effect. On November 17, 1975, he and Nelson were at his brother's house in Roxbury. About 4:30 p.m., feeling sick and dizzy from smoking marihuana and drinking, he left the house with Nelson, and, with her assistance, staggered to a place where Nelson flagged down what the defendant thought was a taxicab. He entered the car and fell down onto the rear seat. The next thing he remembered was hearing the voice of his brother Theodore, who was also known as Bobo and Beau Jack. At this point the defendant realized he was not in a taxicab. He heard a loud noise, and, although still sick and dizzy, he raised himself from his prone position in the back seat of the car and saw Theodore get into the driver's side of the front seat and Nelson enter the passenger's side. The car then sped away. After a stop at the house of Theodore's girl friend, the defendant drove Nelson to her house in the car which was a green Buick. They both then left for Kentucky in that car. He did not bring the gun he had in Kentucky with him to Boston, but he had acquired a small .38 caliber gun in Boston, which he displayed in the presence of Starling.
In convicting the defendant on all the indictments, the jury apparently did not believe the defendant's testimony as given above, but rather ...