Kiley v. Commonwealth

Massachusetts Supreme Judicial Court

Kiley v. Commonwealth

263 N.E.2d 463, 358 Mass. 800, 1970 Mass. LEXIS 988

CourtMassachusetts Supreme Judicial Court

DecidedOctober 28, 1970

StatusPublished

Cited by4 cases

This text of 263 N.E.2d 463 (Kiley v. Commonwealth) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kiley v. Commonwealth, 263 N.E.2d 463, 358 Mass. 800, 1970 Mass. LEXIS 988 (Mass. 1970).

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Opinion

On this petition for a writ of error which comes to us by reservation and report of the single justice, we need consider only whether the rule enunciated in Bruton v. United States, 391 U. S. 123 (May 20, 1968) is applicable, and, if applicable, is decisive. The petitioner’s convictions of murder in the second degree and of conspiracy were reviewed and upheld in Commonwealth v. Dougherty, 343 Mass. 299 (1961). The Bruton case had not then been decided. The rule of the Bruton case was, however, given retroactive application in Roberts v. Russell, 392 U. S. 293 (June, 1968). Tested by that rule, the petitioner’s convictions cannot stand. Police officers testified to a statement incriminating the petitioner made to them in the petitioner’s absence by one Polcaro then a codefendant. Polcaro did not testify. 343 Mass. 299, 300-302. The limiting instructions given by the judge, viewed retrospectively under the Bruton rule, were as matter of law unavailing. It is difficult for us now to say to the degree of certainty required (see Harrington v. California, 395 U. S. 250) from a rereading of the record that the retroactive error was harmless.

Judgments reversed.

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On this petition for a writ of error which comes to us by reservation and report of the single justice, we need consider only whether the rule enunciated in Bruton v. United States, 391 U. S. 123 (May 20, 1968) is applicable, and, if applicable, is decisive. The petitioner’s convictions of murder in the second degree and of conspiracy were reviewed and upheld in Commonwealth v. Dougherty, 343 Mass. 299 (1961). The Bruton case had not then been decided. The rule of the Bruton case was, however, given retroactive application in Roberts v. Russell, 392 U. S. 293 (June, 1968). Tested by that rule, the petitioner’s convictions cannot stand. Police officers testified to a statement incriminating the petitioner made to them in the petitioner’s absence by one Polcaro then a codefendant. Polcaro did not testify. 343 Mass. 299, 300-302. The limiting instructions given by the judge, viewed retrospectively under the Bruton rule, were as matter of law unavailing. It is difficult for us now to say to the degree of certainty required (see Harrington v. California, 395 U. S. 250) from a rereading of the record that the retroactive error was harmless.

Judgments reversed.

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Bluebook (online)

263 N.E.2d 463, 358 Mass. 800, 1970 Mass. LEXIS 988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiley-v-commonwealth-mass-1970.

Opinion

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