COMMONWEALTH vs. JOHN J. WHOOLEY.

QUIRICO, J. Separate indictments against John J. Whooley and David G. Murphy, Jr., charged that on March 4, 1970, with intent to commit larceny, they confined

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and put in fear one Josephine Votta for the purpose of stealing from a safe in a building of Sears, Roebuck and Co., and that, with intent to commit larceny, they compelled Miss Votta, by intimidation, force and threats, to disclose and surrender the means of opening the safe. G. L. c. 265, Section 21. They were both convicted at a trial held under the provisions of G. L. c. 278, Sections 33A-33G. Although the appeals of both defendants are before us, this opinion is limited to the appeal of Whooley (the defendant). [Note 1] The errors alleged and argued by the defendant relate to the denial of his motion for a separate trial, the admission of certain evidence against him, the denial of his motions for directed verdicts, and the judge's instructions to the jury.

We summarize the evidence pertinent to the issues requiring our decision. On Wednesday, March 4, 1970, and for some time prior thereto, Miss Votta was employed as the manager of the cashier's office at the store of Sears, Roebuck and Co. at 201 Brookline Avenue, in Boston. The office included a room referred to as a vault in which there were two large metal safes equipped with a burglar alarm system. Before Miss Votta left her work about 5:30 P.M. on that day, she locked the vault and safes with their combinations, secured the office doors and windows, and turned on the burglar alarm. There was then about $175,000 in United States currency in the vault or the safes at that time.

Upon leaving the office, Miss Votta went to her car in the store employees' parking lot and found that the car doors which she had locked that morning were now unlocked. The car engine would not start. The hood was ajar, and upon opening it she found that the battery cable was disconnected so she reconnected it. About this time two men walked behind her car to a small guard shack about twenty or twenty-five feet away and then watched her through a window of the shack.

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As Miss Votta started to enter her car a man pointed a gun at her and told her to shut up and get in the car. When she did so, the man also entered, sat to her left behind the steering wheel and held the gun on her. A second man whom she later identified as Murphy entered and sat to her right in the front seat. Since the validity of this identification is the subject of Murphy's pending appeal we will hereinafter refer to this individual only as the "accomplice." A third man whom she has never identified entered and sat in the rear seat. The men told her that they knew who she was, they knew there was "a lot of money in the vault," and that they wanted the combinations to the vault and to the two safes inside the vault. The accomplice sitting to her right gave her two pieces of paper and a pencil to use in writing the combinations. They told her to hurry and, as she started to write, the car was driven out of the lot to a nearby street where it stopped at the curb. She finished writing the combinations and gave the papers to them. They asked her questions about the safes, the location of the money and whether it was in a bag. She answered their questions and told them they would not be able to get into the safe containing the money because it was connected to an "ADT" alarm. They said they could take care of that. The man in the driver's seat and the man in the rear seat then left the car. All of this had taken ten to fifteen minutes from the time they first entered the car. The accomplice remained with Miss Votta in her car and from that position she could see that the lights were on in her office.

About one-half hour later the two men returned in a second car which stopped behind Miss Votta's car. The man who had driven her car to that spot again took the driver's seat of her car. He asked for a key which was also needed to open the safe containing the money, and for more information about opening that safe. He then drove her car down the street about one block and stopped at the curb. The second car followed and again stopped behind hers. The man who had previously been in the

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rear seat of her car then left the second car and entered the rear seat of her car. She gave the men the information they requested about opening the safe containing the money, and told them where the keys to that safe were. After about five or six minutes the same two men left in the second car, again leaving Miss Votta in her car with the accomplice. About one-half hour later a car came along the side of Miss Votta's car and the accomplice jumped out, got in the other car, and it left the scene.

We now turn to the evidence of events which occurred in or near Miss Votta's office while she was seated in her car with the accomplice and shortly thereafter. The ADT alarm on the safe containing the money sounded at 6:21 P.M. About 6:30 P.M. a store employee heard and saw the defendant, who was wearing a brown leather jacket, run from the direction of the cashier's office, and go down a corridor and into the ladies' room. About the same time one John Green, a security officer at the store, went to the cashier's office and saw that the outer door to the vault was ajar and that the office window was open. After speaking to the other employee he went into the ladies' room and came out carrying a brown duffle bag. The Boston police department was called and its officers Doherty and Conte arrived in about five minutes. Green and these officers searched the ladies' room and found a man's brown leather jacket hanging in a utility closet used by cleaning women. Officer Doherty saw the defendant on top of a ventilation duct near the ceiling of the ladies' room. He ordered him down and brought him to an office to await the arrival of the police van. The defendant was then wearing a sweater but no jacket. He asked the police if he could have his jacket back but they did not give it to him. In going through the pockets of the jacket, the police found the pieces of paper on one of which Miss Votta had written the combinations of the safes and which she had given to the men in her car earlier that evening.

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The first alleged error argued by the defendant is the denial of his motion for the severance of his trial from that of the accomplice. His argument on this point is based entirely on the decision of Bruton v. United States, 391 U.S. 123, which held that it was error in a joint trial of two defendants in a United States District Court to admit in evidence the confession of one defendant in which he inculpated the other defendant, even though the judge carefully instructed the jury that the confession was admitted only against the confessor. [Note 2] Since the accomplice made no confession whatever in this case, the rule of the Bruton case has no application. The defendant argues that the same rule should be applied to evidence of acts and statements by the accomplice to Miss Votta while he confined her in her automobile on the date of the crime and while the alleged crime was being committed. We do not agree. The evidence permits an inference that the accomplice and other persons were acting in concert in committing the crime, and it permits the further inference that the defendant was one of the other persons. Therefore, the acts and statements of the accomplice in the commission of the crime, or his part of the commission of the crime, could be shown against the other two participants. Commonwealth v. Conroy, 333 Mass. 751, 755, and cases cited.

The defendant next argues that it was error to admit against him evidence of what occurred in Miss Votta's car before there was any evidence showing him to have been a participant in a joint enterprise as to those acts. In our view the total evidence presented by the Commonwealth permitted an inference that the defendant was acting in concert with the persons in the car, if, indeed,

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he was not one of such persons. [Note 3] What is involved at most in this situation is whether the defendant has the right to require that the Commonwealth start its presentation of evidence by showing the part which he took in the total criminal effort. We conclude that he does not have that right. "If two or more [persons] are acting in concert for the accomplishment of crime the acts of each are admissible against the others where there is evidence of a common purpose. The testimony implicating each and all cannot be introduced in bulk, but must be put in by piecemeal." Commonwealth v. Cline, 213 Mass. 225, 226. Commonwealth v. Chapman, 345 Mass. 251, 255. See Commonwealth v. Kiernan, 348 Mass. 29, 57-58. In the trial of cases much must be left to the discretion of the presiding judge as to the order in which the evidence is to be introduced. There was no abuse of discretion here.

At the close of the Commonwealth's evidence the defendant filed a motion for a directed verdict and it was denied. He then called two witnesses who testified that between 5:30 and 5:50 P.M. on the date of the alleged crime they received telephone calls from the defendant. The defendant then rested and renewed his motion which was again denied. The exceptions to the denial of these motions do not require extended discussion. We have summarized the evidence in some detail above. It was clearly sufficient to permit the jury to find that the three men in Miss Votta's car confined her and otherwise acted toward her in the manner and with the intent alleged in the indictments against the defendant and Murphy. The only question remaining is whether the evidence was sufficient to permit the jury to infer either (a) that the defendant was one of the men present in the car when Miss Votta was thus confined and threatened, or (b) that he was acting in concert with the men in the car to commit

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the crime charged in the indictment against him. We hold that the evidence was sufficient to permit either of these inferences, and that there was no error in the denial of the motions for a directed verdict.

The defendant excepted to the judge's charge to the jury in two respects. The first exception was to the judge's obviously inadvertent statement to the jury that the defendant was charged with the crime of attempting to commit larceny. There is no merit to this exception. The judge started his instructions to the jury by reading the indictment against the defendant. When counsel called his attention to his mistaken reference to the crime charged, he immediately correctly instructed the jury in a manner which could leave no doubt about the crime charged against the defendant.

The second exception relates to some examples used by the judge in his instructions on the subject of the criminal responsibility of a person acting in concert with others in the commission of a crime. The defendant concedes that the examples "were correct in the abstract and stated the law correctly as to the facts of those particular examples," but he contends that they "were misleading . . . in that they gave the impression that in every criminal case involving a joint enterprise all the participants are liable for all the acts of the other participants even though they themselves play no role or have no knowledge of the act." We do not agree with this characterization of the examples used by the judge or with this interpretation of the instructions which he gave to the jury.

The sufficiency and correctness of instructions to a jury are to be determined by consideration of the charge as a whole, and not on the basis of fragments lifted from context and then subjected to scrutiny as though each fragment had to stand or fall on its own without the aid of the remainder of the charge. Commonwealth v. Aronson, 330 Mass. 453, 457. "The fairness of a charge cannot be determined by considering only a portion of it out of context. On appeal, the charge must be examined as a whole and portions of it will not be scrutinized apart

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from their content as isolated verbal phenomena." Charles A. Wright, Inc. v. F. D. Rich Co. Inc. 354 F. 2d 710, 713-714 (1st Cir.), cert. den. 384 U.S. 960. Harris v. United States, 367 F. 2d 633, 636 (1st Cir.), cert. den. 386 U.S. 915. "It is the impression created by the charge as a whole that constitutes the test." Commonwealth v. Pinnick, 354 Mass. 13, 15. Thus tested, the judge's charge to the jury in this case was legally sufficient, adequate and correct.

The only remaining alleged error argued by the defendant relates to testimony from a police officer about a police department practice followed in making entries in the police journal. We have considered this exception and find no error. It would add nothing to our jurisprudence to publish the details underlying this exception.

Judgment affirmed.