Suffolk. Indictments found and returned in the Superior Court on May 15, 1974. Pretrial motions were heard by McLaughlin, C.J., and the case was tried before Robert Sullivan, J. A motion for a new trial was heard by Donahue, J.
Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.
Evidence, Materials produced on demand. Practice Criminal, New trial, Capital case, Disclosure of statements by witnesses, Suppression of evidence by prosecutor.
The opinion of the court was delivered by: Kaplan
Statement of reasons by this court for reciting the details of the record of convictions of the defendant for armed robbery and for murder in the first degree, and of the record of the denial by a Judge of the Superior Court, other than the trial Judge, of the defendant's post-conviction motion for a new trial. [16-17]
Upon appeals from conviction of a woman of armed robbery in a pawnshop and of murder in the first degree of a police officer, crimes in which three men participated, and on appeal from the denial of the defendant's motion for a new trial, this court stated that a combination of circumstances put in question the value of testimony of the two men participants who were the key witnesses against the defendant at her trial and who gave at least three basically different accounts of the crimes, and who recanted their trial testimony by affidavits and by testimony on the new-trial motion [18-20]; the prosecutor's failure to turn over exculpatory material to the defendant on specific requests, especially the initial statements of the two key witnesses, which were silent as to the defendant but not for that reason exempt from disclosure as the prosecutor and the trial Judge erroneously believed, denied the defendant due process of law as stated in United States v. Agurs, 427 U.S. 97, 106 (1976) [20-22].
The rule in Leonard v. Taylor, 315 Mass. 580 (1944), was totally inapplicable to a situation in a criminal case in which the defendant sought discovery of exculpatory material. [22-23]
Where throughout proceedings leading to convictions of a woman, on dubious proofs, of armed robbery and of murder in the first degree, the defendant filed timely specific requests for disclosure by the prosecutor of exculpatory material which left him in no doubt as to what was wanted, identification of the vehicle used and of the robbers, and the prosecutor made only late, piecemeal and incomplete disclosures, and at trial there was no satisfactory substitute for the material withheld, the withholding of the material sought, and this court's "profound doubt" as to the defendant's guilt, necessitated reversal of the judgments and setting aside of the verdicts, with leave to the Commonwealth to retry the cases. [23-27]
For involvement in the robbery of a pawnshop during which a man was killed, a jury found the defendant Ella Mae Ellison guilty on an indictment for murder in the first degree and on four indictments for armed robbery. She received concurrent life sentences. *fn1 This is an appeal pursuant to G. L. c. 278, §§ 33A-33G, from the judgments of conviction; consolidated herewith is an appeal from the denial of her post-conviction motion for a new trial.
The defendant contends that her convictions should be reversed and a new trial ordered because of the unsatisfactory character and thinness of the case made against her and because of the illegal withholding by the prosecution of exculpatory evidence. *fn2
We conclude that these two related weaknesses put the convictions so far in question that we are obliged to set aside the verdicts with leave to the Commonwealth to retry the case. It becomes necessary to examine the facts or alleged facts in considerable detail, and in particular to examine the shifting statements given from time to time by the two participants in the crime on whose testimony the defendant's conviction actually depended. As the accounts of the two men are set forth, starting with their arrests, it should be observed that the jury in the present case were not made aware of the entire content of this material, and only after the defendant's conviction did defense counsel secure full access to it.
1. Undisputed facts of the crime. About noon of November 30, 1973, three young black residents of the Columbia Point housing project in Dorchester entered the street level premises of Suffolk Jewelers, Inc., a pawnshop on Washington Street in Roxbury. These were Nathaniel Williams, aged twenty, Anthony Irving, seventeen, and Terrell Walker (evidently of comparable age). All were armed. They ordered employees to produce money and jewelry and open the safe, and then began collecting trays of jewelry and the like. A scuffle broke out with John Schroeder, a Boston police officer in civilian clothes who happened to be present, in the course of which Walker shot him dead. *fn3 The three robbers fled with about $900 and some 250 rings and watches, and perhaps other things.
The three (whether the defendant was a fourth is in question) went from the robbery to the apartment of Darlene Freeman (the fiancee of Walker's brother, Arnold) at Columbia Point in Dorchester. Terrell Walker and Irving, at least, had been at that apartment in the morning. During the afternoon the proceeds of the crime were divided up. Williams received Schroeder's .38 caliber police revolver. Williams and Irving used some of their share of the money to buy heroin which they took by intravenous injection.
In the late afternoon these two decided to flee to Atlanta and boarded a southbound bus leaving at 6 p.m. Walker preferred to remain in Boston. Boston police, having obtained descriptions of Schroeder's assailant from eyewitnesses, and knowing of two outstanding warrants for Walker's arrest, proceeded in the late afternoon to Darlene Freeman's apartment in quest of Walker. Freeman in response to police demand managed to release a door bolt and the police entered and arrested Terrell Walker. From Freeman the police learned that Williams and Irving were Walker's partners in the crime. An alert went out to police forces along the bus route to pick up the two men.
Sometime next day, December 1, police in Danville, Virginia, boarded the bus and arrested Williams and Irving. In their possession were found heroin, weapons (Williams had Officer Schroeder's gun), and jewelry taken from the pawnshop.
2. Statements at Danville. The men were questioned separately by the Danville police within a few hours of arrest. Each gave a signed statement. The import of the statements was that Williams at his apartment received a telephone call from Walker on the morning of November 30. Walker proposed that they rob the Suffolk pawnshop. Williams agreed, and later Walker and Irving came by in a stolen white car -- according to Irving, a Mercury stolen by himself and Walker the day before, November 29. Williams said Walker gave him a gun when they met. The three robbed the store around noon, the policeman being killed. They drove off. Neither statement made mention of the defendant or any fourth participant.
Next day, December 2, Boston police officers who had come to Danville interviewed the two men there. The conversations were taped. Irving's account was essentially unchanged, but he added that the white car had a dark top and now stated that only three men engaged in the holdup and no one stayed in the car. Williams, however, put a black girl in the picture -- she was previously unknown to him, looked to be eighteen, and was "lighter-skinned" or "medium." Williams reiterated that the group picked him up, then they drove to the pawnshop in a stolen white car (he was not sure of the make). The girl, according to Williams, drove the car, waited in it while the robbery took place, returned to Freeman's with the three, and was given some money and rings there. He and Irving took a taxi to a bus station later in the day.
3. Plea bargains of Williams and Irving. The two were confined at the Charles Street jail in Boston, where they shared a cell for some months. They were indicted for murder in the first degree and armed robbery on December 13. Around the new year, appointed counsel interviewed their respective clients. About February, 1974, counsel each spoke with the prosecutor to see whether a plea bargain was possible despite the great strength of the Commonwealth's case against them stemming from the confessions, apprehension with the jewelry, and other impressive evidence. According to Irving's attorney, he told his client that negotiations could succeed only if the whole story was told including the identity of the girl driver Williams had introduced. As appears from counsel's testimony at the new-trial hearing later described, Irving at first resisted. By April, agreements had been reached with the prosecutor that both Irving and Williams would be allowed to plead guilty to murder in the second degree in exchange for their cooperation, including testimony against Walker. *fn4
In early May, after talking to counsel, Officer Robert Hudson of the Boston police interviewed Williams and Irving separately. Both confessed their involvement, and now stated that a woman named "Sue," known to them from the Columbia Point project, drove them to and from the robbery. They described her car. There is no dispute that the Sue mentioned was the present defendant. She was arrested in May in Rochester, New York, where she had moved with her children, and was indicted on the murder and armed robbery charges on May 15.
4. Testimony of Williams and Irving at the Walker trial. Williams and Irving both testified for the Commonwealth at the July, 1974, trial of Terrell Walker, and repeated what they had told Officer Hudson. These new stories of the men departed from the Virginia accounts (though not wholly agreeing with each other) as to how Williams met the others; how guns were distributed; the identity of the driver and of the automobile; how the loot was shared; and how they went to the bus station. The two men were now in accord on a central theme: that the present defendant drove them to and from the pawnshop in her own car.
Williams testified that Walker, telephoning him on November 30, said he was calling from the defendant's apartment on Monticello Road at Columbia Point. Williams agreed to join in the suggested robbery, and walked over to the defendant's apartment -- he was not picked up -- arriving between 9:30 and 10 a.m. There he saw Walker, Irving, and the defendant, and there guns were handed out. The four proceeded directly to the pawnshop in the defendant's car with the defendant driving; there was only a stop to buy cigarettes. After the robbery they drove to Freeman's apartment. At that place they divided four ways a cash take Williams put at $300, after which the defendant left. The three men went into the bathroom to divide the jewelry. Toward the end of the day, Williams and Irving paid a man (not a taxi) to drive them to the bus station. On cross-examination Williams said he first found out about the prosecutor's promise to recommend acceptance of a plea the day before he took the stand, and that the promise had never been discussed with him previously. The prosecutor then stated for the record that the plea bargain had been agreed in April.
Irving testified that he and Walker together had formed the robbery plan. They had stolen a car but did not want to use it because it was "hot." They went to the defendant's apartment and she agreed to drive them for some unspecified part of the take. Irving (not Walker) telephoned Williams, who agreed to join. The three left, and with the defendant driving picked up Williams en route. Irving now repeated a detail he had told Officer Hudson which differed from Williams's account, that the group stopped at Darlene Freeman's and secured guns there. Thence the four drove to the pawnshop in the defendant's four-door Ford LTD or Galaxie 500 automobile with the defendant still driving. After the robbery the defendant drove the men back to Freeman's. In the kitchen ...