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09/19/78 COMMONWEALTH v. WILLIAM R. HORTON & OTHERS

September 19, 1978

COMMONWEALTH
v.
WILLIAM R. HORTON & OTHERS



Essex. Indictments found and returned in the Superior Court on January 10, 1975. The cases were tried before Linscott, J., and motions for a new trial were heard by him.

Quirico, Braucher, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Trial of defendants together, Examination of jurors, Mistrial, New trial. Evidence, Admissions and confessions, Motion to strike, Photograph. Witness, Cross-examination.

The opinion of the court was delivered by: Quirico

At the trial of three defendants on charges of armed robbery and murder in the first degree, the admission of evidence of extra-judicial statements made by each defendant, in which each defendant admitted his participation in the robbery from which the homicide resulted, did not require severance of the cases under the rule of Bruton v. United States, 391 U.S. 123 (1968) [388-390]; nor was severance required by the admission of testimony by two witnesses as to out-of-court statements by one of the defendants where the statements were inculpatory solely as to that defendant [390].

There was no merit to the contention of a defendant in a criminal case that he was entitled to severance of his trial from that of a co-defendant because counsel for the co-defendant pursued an antagonistic trial strategy in introducing certain evidence. [390-391]

In a criminal case, the Judge's inquiry of all potential jurors as to their indifference and of the potential jurors called subsequent to the time the Judge learned of a Discussion of the pending case in the jury room as to whether they had discussed the cases with anyone who claimed to know the facts was adequate to ensure jury impartiality, and the Judge was not required to ask further questions as to the substance of the Discussion in the jury room as requested by the defendants. [391-395]

At a murder trial, the Judge did not err in refusing to strike the testimony of a State chemist as to finding three brown smears on the vinyl covering of an automobile owned by one of the defendants even though counsel argued that they knew from a prior hearing in a District Court that the witness could not establish that the smears were of human blood where, at that stage of the proceedings, the questions were admissible [396-397]; nor did he err in denying the defendants' motions for a mistrial after the testimony was struck because the chemist was unable to identify the stains as human blood where any prejudicial effect of the testimony was overcome by the Judge's instructions to disregard it and by the subsequent testimony of another chemist who had determined that the stains were of human blood [397].

At the trial of three defendants on charges of armed robbery and murder in the first degree, the Judge did not err in admitting in evidence a photograph of the victim's body after it had been moved by police from a trash can in the office of a service station and placed on the floor and a photograph of the body at the time of the post mortem examination, depicting several stab wounds on the body. [397-399]

At the trial of three defendants, the Judge did not err in refusing to allow counsel for one of the defendants to call a prosecution witness back to the stand for cross-examination after she had been excused and had left the court room. [399-400]

At the trial of indictments charging armed robbery and murder in the first degree, there was sufficient evidence, including the defendant's admission of his involvement in the crimes, to support the jury's verdict of guilty as to both charges. [400]

A Judge did not abuse his discretion in denying a defendant's motion for a new trial based on newly discovered evidence. [401-402]

The defendants William R. Horton, Roosevelt Pickett, and Alvin L. Wideman were convicted after a jury trial of armed robbery and murder in the first degree. Motions for new trials were denied as to all defendants. The cases are before us pursuant to G. L. c. 278, §§ 33A-33G, on argued assignments of error as to certain pretrial and trial rulings and the denial of the defendant Horton's motion for a new trial based on a claim of newly discovered evidence. We conclude that there was no error, and that there is no basis to modify the jury's verdicts or the Judge's decision on the motion for a new trial or to grant the defendants any other relief under G. L. c. 278, § 33E.

Before addressing the defendants' assignments of error, we summarize the evidence. On the evening of October 26, 1974, between 9:45 p.m. and 10 p.m., the body of Joseph Fournier (Fournier), a seventeen year old service station attendant, was found in the office of the Marston Street Mobil service station in Lawrence. Testimony by the medical examiner indicated that Fournier died as a result of multiple stab wounds to the neck, chest, and other areas of the body. Fournier was last seen alive and working at the service station between 9:25 p.m. and 9:40 p.m. At that time he was carrying a roll of money which consisted of some of the service station's receipts for the day. Apart from a small accumulation of change, no money was found on Fournier's body by the medical examiner. A five dollar bill was found by police officers on the ground outside the service station. A subsequent inventory of the service station's sales for October 26, 1974, showed that $276.37 of the day's receipts was missing.

There was no testimony that any persons matching the defendants' descriptions were seen on the service station premises between the hours of 9 p.m. and 10 p.m. on October 26, 1974. However, one witness, John A. Greenwood, who lived in the close vicinity of the service station, testified as to several observations he made of a car and its occupants in the area on that evening. About 8:45 p.m., he observed a 1963 four-door Chevrolet automobile, with a bluish green bottom and white top, occupied by three black males, traveling very slowly past his house with its headlights on. Ten to fifteen minutes later, Greenwood observed the same car, this time with its headlights off but again traveling at a slow rate of speed and in the same direction. Greenwood left his house, and at approximately 9:30 p.m., when returning home, he again saw the same car and occupants. The car was parked with its headlights off, on a hill close to and facing the service station. Another witness, Michael Byron, testified that as he was approaching the service station at approximately 9:45 p.m. his car was cut off by a large car proceeding very fast down the same hill described by Greenwood. Byron arrived at the service station shortly thereafter and discovered Fournier's body.

Witnesses Jesse Thomas (Thomas) and Thelma Thomas (Mrs. Thomas) testified that on October 26, 1974, the defendant Wideman was living with them at their house in Lawrence. Between 10:30 p.m. and midnight on that evening Wideman arrived at the Thomas house and told both Mr. and Mrs. Thomas that he had killed someone. Wideman told them that he had gone to a place and asked the man there to give him all his money, that the man complied and pleaded for his life, but that Wideman became angry, started stabbing him, and could not stop. Wideman also told them that he did not know whether the man was dead or not but thought that it would be in the newspaper the next day. Mr. and Mrs. Thomas dismissed Wideman's story at that time as being untrue. Two days later, on October 28, 1974, Mrs. Thomas read a newspaper article about Fournier's death and showed the article to Thomas and Wideman, whereupon Wideman stated, "I told you." When Thomas expressed disbelief in Wideman's story, Wideman said it was good that Thomas did not believe him and he hoped no one else would.

About 1:30 a.m., on November 8, 1974, Thomas met with Captain Stephen S. Sciuto, Jr., of the Lawrence police at the house of Fred Sciuto, who is Captain Sciuto's cousin and Thomas's foreman at work. Fred Sciuto had previously called Captain Sciuto saying he had information on Fournier's death. After a brief meeting with Captain Sciuto, Thomas went home. About 2:05 a.m., Captain Sciuto and other police officers went to the Thomas house, arrested and handcuffed Thomas in the presence of his wife, and brought him to the police station. There Captain Sciuto had a conversation with Mr. and Mrs. Thomas, subsequent to which certain police officers went back to the Thomas house and brought Wideman to the police station. *fn1

At the station, Wideman was informed of his Miranda rights and he had a conversation with Captain Sciuto, after which Captain Sciuto and other officers went to the defendant Pickett's house. When they arrived there about 3:20 a.m., Pickett was walking down the outside stairs. A 1963 four-door Chevrolet automobile with a blue bottom and white top was parked in front of the house. Pickett was stopped, and, after being informed of his Miranda rights and acknowledging that he understood them, he admitted that the car was his. Although Pickett was advised that he could refuse to let anyone search the car without a warrant, he gave Captain Sciuto permission to look through it. In searching the car Captain Sciuto found a knife under the front seat and Pickett admitted the knife was his. *fn2 Pickett was then handcuffed and taken to the police station.

The defendant Horton was picked up by police officers at his house about 5 a.m. The police read him his Miranda rights which he indicated he understood, and then they ...


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