JACK A. HARRIS vs. COMMONWEALTH.

LIACOS, J. The petitioner (Harris) was found guilty by a jury on an indictment charging armed robbery (G. L. c. 265, Section 18). After his trial, which occurred during October and November, 1963, he was sentenced to a term of imprisonment of fifteen to twenty-five years. In September, 1972, Harris filed a pro se petition for a writ of error in the county court. Counsel subsequently was appointed to represent Harris and a substitute petition for writ of error was filed. In April, 1974, a single justice ordered the case referred to a special master. A hearing before the master resulted in a report recommending that the writ of error be granted. Harris and the Commonwealth both filed objections to certain provisions of the report. A single justice

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then reserved and reported the case to the full court.

Harris argues that his Federal and State constitutional rights were violated at his trial in that: (1) after evidence had been presented at trial that he had been beaten prior to confessing to the police, the trial judge failed to hold a voir dire hearing on the admissibility of the confession; (2) trial counsel's failure to request such a hearing deprived Harris of the effective assistance of counsel to which he was entitled; (3) the confession should have been excluded at trial because Harris was not given his rights and did not confess voluntarily; (4) evidence was admitted at trial on the basis of an inadequate search warrant; and (5) testimony was allowed at trial to the effect that Harris failed to respond to certain questions put to him by the police after he was in custody. The Commonwealth argues that none of the above constituted error and also that the special master's report was defective because the master exceeded his authority under the order of reference from a single justice. We conclude, for the same reason that we have reversed Harris's convictions for murder and armed assault with intent to rob in Commonwealth v. Harris, ante, 462 (1976), that Harris's constitutional rights were violated and that a new trial is appropriate.

On June 24, 1962, Joseph W. Marshall, an employee of a Bay State gasoline station in Boston, was at work when two men entered the office of the station. In a period of three to five minutes the men stole some $80 in cash from the station office and from Marshall. After the police were summoned they took Marshall to the police station where he viewed hundreds of photographs. No identification resulted.

Harris was arrested on the night of July 23, 1962, on the basis of events described at length in Commonwealth v. Harris, supra at 465-466. He was taken to police headquarters where he subsequently confessed to participation in this crime and in several others under circumstances set out in Commonwealth v. Harris, supra at 466-467.

Although weapons seized at Harris's apartment at 31 Concord Square, Boston, were admitted in evidence at the

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trial below, no search warrant or supporting affidavit was produced at trial. However, Harris's counsel did not object to the production of these items. Harris's confession was also used at trial without objection. The only other significant evidence at trial was Marshall's identification of Harris as one of the two men who robbed him. As indicated previously, Harris was convicted by the jury.

1. We need spend but a moment on the Commonwealth's contention that the special master exceeded the scope of his authority. The gravamen of the Commonwealth's complaint is that the master's report was in effect "an opinion concerning the applicability of . . . [several cases] to the facts of the case presently before this Court," while the order of reference was limited to hearing the parties and making "findings of fact."

The simple and conclusive answer to this argument is that the master's report, while admittedly making reference to relevant decisions of this court and the Supreme Court of the United States, resulted only in findings of fact, the most important of which is set out in the margin. [Note 1] It is manifestly clear from a reading of that report that the master did not exceed his authority and that the Commonwealth's argument is without merit. It is equally clear that the master conducted his inquiry with both diligence and skill in a case of considerable difficulty.

2. With respect to Harris's claim that the trial judge should have held a voir dire, the only difference between this case and Commonwealth v. Harris, ante, 462 (1976), is that in the present case the judge submitted the issue

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of voluntariness to the jury. [Note 2] Despite this difference, we believe, for the reasons set forth in Commonwealth v. Harris, supra at 467-474, that the trial judge had an independent obligation to hold a voir dire and to make an affirmative ruling of voluntariness before submitting the confession to the jury. [Note 3]

This result might be reached solely on the basis of Jackson v. Denno, 378 U.S. 368 (1964), acknowledged to be retroactive in Johnson v. New Jersey, 384 U.S. 719, 729 (1966). Jackson expressly held that the then existing New York practice of submitting the issue of voluntariness only to the jury vitiated a defendant's constitutional rights. Even apart from the requirements of Jackson, the failure of the judge to follow our own long-established procedure requiring a judicial finding of voluntariness before an allegedly coerced confession may be considered by the jury necessitates reversal.

3. Because of our reversal on this basis, we need not reach or discuss the other issues presented herein. A number of them are similar to the issues presented in Commonwealth v. Harris, supra at 475-477, and our discussion therein should be referred to in the event of retrial.

4. For the reasons given in Commonwealth v. Harris, supra at 467-474 & n.6, we believe that, if the Commonwealth

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wishes to take further action against Harris on this indictment, a complete new trial is required.

Judgment reversed.

Verdict set aside.