COMMONWEALTH vs. WENDELL J. TABOR, JR.

ABRAMS, J. Pursuant to G. L. c. 278, Sections 33A-33G, the defendant Wendell J. Tabor, Jr., appeals his convictions of armed robbery and murder in the first degree of Francis X. Garrison. Tabor argues assignments of error concerning (1) the denial of his pretrial motion to suppress certain evidence; (2) the denial of his motions for directed verdicts on the armed robbery and felony-murder; (3) the admission of a prior criminal conviction of the defendant; and (4) the claim that the defendant's conviction of both murder in the first degree and armed robbery constitutes double jeopardy. He also argues as error the denial of a second motion for a new trial, based on newly discovered evidence of an alleged conflict of interest on the part of the assistant district attorney [Note 1] by the representation of the widow in a claim for compensation as the widow of the victim of a violent crime under G. L. c. 258A. We conclude that the judge correctly denied the motion for a new trial, based on the arguments made by Tabor. However, the issue raised by the defendant's motion involves the apparently unintentional violation of a statute, G. L. c. 12, Section 30. We think such a violation, even though unintentional, amounts to an error of law requiring a new trial. Commonwealth v. Gibbs, 4 Gray 146, 148 (1855).

We summarize the evidence. Garrison, a retired painting contractor, walked with a severe limp. He was seen with Tabor at a Store 24 in Brockton at approximately 2:45 A.M., on August 30, 1975, where Garrison was characterized as "obviously drunk."

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At the store, Garrison asked for a sandwich and two packs of cigarettes. He then handed Tabor a ten dollar bill and Tabor paid for the purchases with the money. The store manager handed the change ($7.81) to Tabor, and Tabor handed the money to Garrison. Garrison and Tabor then left the store. Garrison stumbled as he left the store but then was seen walking with Tabor along Belmont Street toward the center of town.

A few minutes later, Garrison's cry for help brought a passerby who found him bleeding from stab wounds. Police and an ambulance were summoned. Garrison was taken to Brockton Hospital, where he died as a result of his wounds.

Although Garrison had been seen carrying a substantial amount of money in his wallet late in the afternoon of August 29, no wallet was found in his possession at the hospital. [Note 2] Moreover, no money was found in Garrison's pockets. Concealed in his shoes, however, were a twenty dollar bill and two one dollar bills.

On August 29, Tabor tried to obtain some money from the manager of a restaurant where he had worked for a short period of time. The manager refused and Tabor became belligerent and told the manager that he would "get money one way or another." [Note 3] Nonetheless, early the next morning Tabor was seen at the restaurant with money.

Moreover, after the stabbing but before Tabor learned of Garrison's death, Tabor told a number of people that he had "made a big score the night before," that he "almost had to kill somebody to get it [money]," and that he "almost had to break somebody's head to get it [money]." Tabor paid his landlord $40, the day Garrison died. [Note 4]

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The next day, the police talked to Tabor. He told them that he met Garrison on Main Street, that Garrison asked him (Tabor) where he (Garrison) could buy some cigarettes, and that Tabor gave Garrison directions to a store. Tabor said he decided to go to the store with Garrison because he (Tabor) thought he could get some money from Garrison.

He told the police that, after leaving the store, Garrison punched him and as a result Tabor then knocked Garrison down. Tabor said that when Garrison stood up, he hit him (Garrison) again. Tabor stated that when Garrison came at him a third time, he (Tabor) pulled a knife out of the sleeve of a heavy green jacket which he was wearing, stabbed him (Garrison) and left. Tabor admitted that, after the fight started, he could have left the scene without stabbing Garrison, but said that he "didn't run away from anything."

Tabor denied taking any money from Garrison. However, he told the police that at the time of the crime he was unemployed, and supported himself by panhandling. He also told the police that he usually carried a knife, that he wore the heavy green jacket to conceal the knife, and that he kept the knife in the sleeve of the jacket, secured by an elastic cuff. According to Tabor, he used the knife to "roll stiffs and to protect himself against queers."

The jury found Tabor guilty of both armed robbery and murder in the first degree. [Note 5] The judge sentenced him to concurrent terms of life imprisonment for each offense.

1. Motion for a New Trial.

Approximately one month after his conviction, the defendant filed a second motion for a new trial [Note 6] pursuant to

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G. L. c. 278, Section 29. He alleged that "newly discovered evidence has revealed a conflict of interest" on the part of the assistant district attorney who prosecuted the case.

In support of his motion, counsel for the defendant filed an affidavit in which he stated that at the same time that the assistant district attorney prosecuted the defendant, the same assistant district attorney was representing the victim's widow in an action for compensation under G. L. c. 258A, as the widow of the victim of a violent crime. Counsel for the defendant also denied any knowledge of the alleged conflict of interest until June 9, 1976, sometime after the judge denied his first motion for a new trial. After hearing arguments of counsel, [Note 7] the judge denied the defendant's motion for a new trial.

In his motion, the defendant claims that the assistant district attorney's representation of the widow in the civil action denied him a fair trial. He alleges that because the assistant district attorney failed to reveal his representation of the widow to the defendant during the trial, the defendant was foreclosed from a potentially fruitful area of cross-examination of the victim's widow and daughter during the trial. He further alleges that the fact that the assistant district attorney would be entitled to attorney's fees from the successful representation of the widow, see G. L. c. 258A, Section 4, "bore directly on prosecutorial conduct and discretion." Therefore, the defendant concludes that he should have a new trial.

The Commonwealth agrees that the assistant district attorney who prosecuted the case was counsel for the widow in a civil action under G. L. c. 258A. It is agreed that this civil claim was pending at the time the criminal case was tried. [Note 8] The Commonwealth also agrees that the

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assistant district attorney did not disclose his civil representation of the widow to the court or to the defendant prior to June 9, 1976.

The Commonwealth argues, however, that the civil representation of the widow created no conflict of interest. The Commonwealth further maintains that, even if such representation was a conflict of interest, the defendant points to no specific instances of "overreaching or overzealousness" at trial. Therefore, the Commonwealth contends, the defendant can show no actual prejudice from the assistant district attorney's representation of the widow. The Commonwealth concludes that the representation of the widow by the assistant district attorney in an action brought under G. L. c. 258A provides no grounds for a new trial in the criminal proceedings, even if it were "inappropriate."

As argued by the defendant, his motion does not warrant a new trial. The defendant's claim that knowledge of the "conflict of interest" would have opened a new area of cross-examination of the victim's widow at trial is without merit. To the extent that the defendant did not cross-examine the widow concerning whether or not she had filed a claim under G. L. c. 258A, he was not precluded from such inquiry. [Note 9]

Next, the defendant relies on a series of cases involving claims of ineffective assistance of counsel arising out of a joint or dual representation by defense counsel to support his assertion that the assistant district attorney's "conflict of interest" requires a new trial. See, e.g., Commonwealth v. Geraway, 364 Mass. 168, 170-173 (1973); United States v. Donahue, 560 F.2d 1039, 1040-1041 (1st Cir.

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1977). The Commonwealth argues, and we think correctly, that these cases are inapplicable to a question of prosecutorial conflict of interest because each of them is grounded in a conflict of interest on the part of defense counsel which may have divided his loyalty to his client. See Commonwealth v. Geraway, supra; United States v. Donahue, supra at 1043. Compare Commonwealth v. Davis, ante 777, 782-783 (1978); Commonwealth v. Wright, ante 725 (1978); Commonwealth v. Leslie, ante, 647, 652-653 (1978); id. at 656-657 (Liacos, J., concurring). The Commonwealth argues that, even if the assistant district attorney's representation of the widow in the civil action created a "conflict of interest," the conflict does not divide the loyalties of the assistant district attorney, since "whatever conflict existed involved a purely unitary purpose, and not a situation in which a Counsel faced two distasteful alternatives in terms of dividing loyalties when clients assumed antagonistic postures." Accordingly, the Commonwealth argues, the defendant is not entitled to a new trial. [Note 10]

However, in reviewing the defendant's claim we are confronted with an apparently unintentional violation of a statute. [Note 11] General Laws c. 12, Section 30, provides that "[n]o

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prosecuting officer shall receive any fee or reward from or in behalf of a prosecutor for services in any prosecution or business to which it is his official duty to attend, nor shall he be concerned as counsel or attorney for either party in a civil action depending upon the same facts involved in such prosecution or business."

In Commonwealth v. Gibbs, 4 Gray 146, 147 (1855), we held that a violation of the statute required a new trial. In that case, the prosecuting attorney represented persons in civil actions involving the defendants and depending on the same set of facts. We ordered a new trial without regard to whether there was actual prejudice to the defendants and without regard to whether the prosecutor received any fee in the civil actions. We stated that "propriety and fitness" required a new trial because violation of the statute is "irregular" and amounts to legal error. Id. at 147-148.

Since the enactment of G. L. c. 12, Section 30, [Note 12] we have held that in criminal proceedings neither the public prosecutor nor any attorney assisting him could receive compensation from any private party. "In such cases the statute supposes that the prosecution will be conducted by the law officers, for their salaries, and without any other compensation whatever." Commonwealth v. Knapp, 10 Pick. 477, 481-482 (1830). See Commonwealth v. Williams, 2 Cush. 582, 585 (1849).

Gibbs, Williams, and Knapp express the policy of this Commonwealth that the office of the district attorney is to be administered "wholly in the interests of the people at large and with an eye single to their welfare." Attorney Gen. v. Tufts, 239 Mass. 458, 489 (1921). See Commonwealth

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v. DeChristoforo, 360 Mass. 531, 545-546 (1971) (Tauro, C.J., dissenting); Smith v. Commonwealth, 331 Mass. 585, 591 (1954). See also Berger v. United States, 295 U.S. 78, 88 (1935).

Further, we think it irrelevant that the defendant failed to show actual prejudice in his trial. [Note 13] The legislative policy is clear, [Note 14] as is our construction of the statute. The purpose of our statute is to guard the district attorney's office from private interests and from private influence. A prosecuting attorney's obligation is to secure a fair and impartial trial for the public and for the defendant. His obligation to the defendant in this regard is as great as is his obligation to the public. The district attorney

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is vital to the administration of justice and to the vindication of constitutional rights. In view of his great responsibilities, a district attorney may not compromise his impartiality. See Attorney Gen. v. Tufts, 239 Mass. 458, 489 (1921). See also Smith v. Commonwealth, 331 Mass. 585, 591 (1954). We therefore require a new trial.

We examine those assignments of error which are likely to raise issues at a new trial.

2. Other Issues.

a. The motion to suppress. Prior to trial, the defendant filed a motion to suppress statements he made to police, claiming that he was not properly advised that he had a right to have an attorney appointed to represent him prior to and during any interrogation, and that absent a clear understanding of this right there could be no valid waiver of his constitutional rights. In his motion, the defendant sought to have his statements suppressed, and also any physical evidence seized as a result of the incriminating admissions, particularly a green army-type jacket and a knife.

We summarize the judge's findings. On August 31, 1975, at approximately 1:45 P.M., the police went to Tabor's apartment in Brockton. There, a Brockton police officer read Tabor his constitutional rights from a "Miranda card." Tabor was advised "[t]hat he could remain silent; that anything he said could be used against him in court; that he had a right to be represented by a lawyer during any interrogation, and that if he could not afford to hire an attorney, one would be provided; that if he chose to speak, he could stop at any time and insist at that point on his right to a lawyer."

Some fifteen minutes later, at the Brockton police department, a lieutenant orally repeated the warnings to Tabor. The lieutenant then presented Tabor with a form containing information as to his rights. Although the form did not contain the statement that a lawyer would be provided if the defendant were unable to secure one at his own expense, the judge found that the lieutenant

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wrote that information on the form and then handed the form to Tabor, who read it. Tabor signed the form, which recited the fact that it was signed voluntarily. He then made an oral statement.

A subsequent statement made by Tabor was recorded by a stenographer. The recorded statement indicates at its outset that the police had informed Tabor of his constitutional rights earlier, and then repeated the so called "Miranda warnings" before taking the recorded statement. [Note 15]

The judge found that Tabor made a knowing and intelligent waiver of his rights. He further found that near the end of the recorded statement Tabor asked to speak with a lawyer, and that thereafter the police asked four questions which Tabor answered. [Note 16] The judge suppressed the last four questions and answers and any evidence seized as a result of the four questions and answers. The motion to suppress was denied as to all other statements and as to any evidence found as a result of the earlier statements. The defendant duly excepted to the denial of the major part of his motion.

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The defendant does not deny that there was evidence to support the judge's finding that the defendant was repeatedly advised of his constitutional rights prior to making his statement to the police. However, he claims that the judge's ultimate finding of a voluntary waiver is erroneous because the testimony before the judge was conflicting and the evidence supporting a finding of voluntary waiver is not "credible."

"In reviewing a trial judge's determination that a voluntary waiver was made, the judge's subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted." Commonwealth v. Santo, 375 Mass. 299, 303 (1978). Commonwealth v. Mahnke, 368 Mass. 662, 666 (1975), cert. denied, 425 U.S. 959 (1976). While the defendant correctly argues that the judge's ultimate findings and conclusions of law are open for this court to review, see, e.g., Commonwealth v. Santo, supra at 303 a finding of voluntary waiver is "entitled to substantial deference by this court." Commonwealth v. White, 374 Mass. 132, 138 (1977), aff'd, 439 U.S. 280 (1978). Commonwealth v. Roy, 2 Mass. App. Ct. 14, 19 (1974). See United States v. Springer, 460 F.2d 1344, 1348-1349 (7th Cir.), cert. denied, 409 U.S. 873 (1972). The defendant claims that the credibility of the evidence on the issue of voluntary waiver makes the judge's ultimate conclusion of a voluntary waiver erroneous. Tabor essentially argues that the weight of the evidence is against the ultimate finding of voluntary waiver. Not only is this not borne out by the record, but also it is clear that "[w]e cannot properly be asked ... to review the weight of the evidence related to the findings" made by the judge. Commonwealth v. Valliere, 366 Mass. 479, 486 (1974), quoting from Commonwealth v. Murphy, 362 Mass. 542, 550 (1972) (Hennessey, J., concurring).

Next the defendant argues that he did not understand his right to have appointed counsel present at his interrogation. He points to his expression near the end of his

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recorded interrogation of a desire to see an attorney as evidence that he did not understand his rights prior to that time. However, a request to meet with counsel near the end of interrogation is not inconsistent with a knowing and intelligent waiver as to statements made before the request. See Commonwealth v. Roy, supra at 20; United States v. Alexander, 441 F.2d 403, 404 (3d Cir. 1971). Moreover, it is for the judge to determine whether the defendant's testimony that he did not understand his rights is to be believed in light of the conflicting testimony offered by other witnesses at the hearing. See, e.g., Commonwealth v. Santo, supra at 303-304. [Note 17]

We think there was more than ample evidence to support the judge's findings that the defendant was repeatedly informed of his rights before making any statement to the police, and that the defendant understood his constitutional rights and voluntarily waived them.

Finally, the defendant moved to suppress a knife and a jacket seized by the police as a result of his statements. He argued to the judge that the knife and jacket should have been suppressed because they were seized as a result of an illegal interrogation. [Note 18]

The defendant's testimony was that, after giving the oral statement at the police department, he went with the police to the car where the knife was located and removed the knife himself. He then gave the knife to the police. The defendant's statement also indicates that the knife was taken long before the last four questions of the recorded statement. There was no error in not suppressing

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the knife, since its seizure was not tainted by any earlier illegality. [Note 19] See Commonwealth v. Amazeen, 375 Mass. 73, 79 (1978).

b. Directed verdict. The defendant challenges the denial of his motions, made at the close of the Commonwealth's evidence, for directed verdicts of acquittal on the armed robbery and murder indictments. The facts set forth in the summary of facts, [Note 20] supra, considered in their light most favorable to the Commonwealth and the permissible inferences therefrom, provide ample evidence from which the jury could find the defendant guilty of armed robbery and felony-murder. [Note 21] See Commonwealth v. Hoffer, 375 Mass. 369, 377 (1978); Commonwealth v. Clifford, 374 Mass. 293, 296-297 (1978).

c. Prior conviction of the cefendant. The defendant claims that the Commonwealth should not have been allowed to use his prior conviction of assault and battery with a dangerous weapon to impeach him. The record of his prior felony conviction was admissible under G. L. c. 233, Section 21. If a conviction is admissible under the statute, a judge may exclude it, but it is not error to admit it. See Commonwealth v. Chase, 372 Mass. 736, 750-751 (1977); Commonwealth v. DiMarzo, 364 Mass. 669, 680-683 (1974)

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(Hennessey, J., concurring); Commonwealth v. West, 357 Mass. 245, 249 (1970).

d. Double jeopardy. The defendant claims that his convictions of murder in the first degree and armed robbery, for which he was sentenced to concurrent terms of life imprisonment, constitute multiple punishment for the same offense and thereby violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. Where, in a single proceeding, a defendant is convicted of two offenses, one of which is an essential element of the other, and he is sentenced to concurrent terms, the double jeopardy clause is not violated. See Brown v. Ohio, 432 U.S. 161, 165 (1977). Cf. Commonwealth v. Stewart, 375 Mass. 380, 393 (1978). [Note 22]

The denial of the defendant's second motion for a new trial is reversed, the judgments are reversed, the verdicts are set aside, and the case is remanded for a new trial.

So ordered.