Commonwealth v. CashCommonwealth v. Cash
A Suрerior Court jury found the defendant guilty of mayhem (
In his direct appeal, the defendant argues that the trial judge erroneously admitted as substantive evidence a police officer’s tеstimony concerning an extrajudicial identification of the defendant by the victim. The defendant also claims that trial counsel rendered ineffective assistance by failing to request and object to instructions about the use of the police offiсer’s testimony, and by failing to object to the prosecutor’s reference to the officer’s testimony in closing argument. In his motion for a new trial, the defendant argued that his right to due process of law was violated by the motion judge’s
1. Extrajudicial identification. At trial, after being reminded of testimony that he gave at the defendant’s probation surrender hearing, police Officer Steven Everett testified that approximately four hours after the incident, the victim selected a photograph of the defendant and stated that the defendant was the person who had attacked him. Defense counsel objected to this testimony, but only on the ground that the Commonwealth was trying to impeach the police officer with a prior inconsistent statement. It is clear from the record, however, that this objection was not apt and properly was overruled. There was no inconsistency; the proseсutor, after having laid the appropriate foundation, was using the officer’s prior testimony only to refresh his recollection.
The defendant now argues for the first time that Officer Everett’s testimony was inadmissible hearsay and that its erroneous admission warrаnts reversal. The Commonwealth concedes that
Subsequent to the briefing and oral argument of this сase, the Supreme Judicial Court decided Commonwealth v. Cong Duc Le,
The question remains whether Cong Due Le applies to the present case. The issue is not free from doubt because, in Cong Due Le, the question presented was not whether it was error to
Although Cong Due Le fundamеntally has changed the premise upon which the defendant claims (and the Commonwealth concedes) that the admission of Officer Everett’s testimony was error, we need not consider its effect on the case at bar. Instead, we decide the case on other grounds, agreeing with the Commonwealth that the admission of Officer Everett’s testimony, even if erroneous, created no substantial risk of a miscarriage of justice.
Quite apart from Officer Everett’s testimony, there was considerable additiоnal testimony from percipient witnesses that pointed to the defendant as the person who knifed the victim. This would be the case even if we were to discount Pedro’s trial testimony identifying the defendant as the assailant, which Pedro later sought to recant because he no longer was “sure.” Nicole Eaton, who had known the defendant before the evening of the fight, testified at trial that she witnessed the victim being pushed in front of the defendant; that she saw the defendant bringing his hand up and then back down in a downward motiоn; that after this movement by the defendant, the victim fell to the ground; and that when he stood up, there was blood everywhere. In addition, another of the victim’s brothers, Enrique Alaniz, placed the defendant in the immediate area of the fight, as did the victim himself.
A substantial risk of a miscarriage of justice exists when there is “a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph,
2. Ineffective assistance. In his direct appeal, the defendant argues that his counsel was ineffective. Although the defendant did not raise this issue in his motion for a new trial, the reсord before us allows us to exercise our discretion to decide the issue. See Commonwealth v. Vickers,
Having laid a proper foundation that Officer Everett’s memory was exhausted, the prosecutor reminded him of his prior testimony. In doing so, the prosecutor was not attempting to impeach the officer, but only to refresh his recollection. The defendant therefore was not entitled to an instruction that the testimony could be considered only to assess the officer’s credibility, and counsel was not ineffectivе for failing to ask for such an instruction or to object to the judge’s instructions as given. See, e.g., Commonwealth v. Vieux,
In reality, although couched in other terms, this claim of ineffective assistance arises only from trial counsel’s failure to object to the hearsay nаture of the testimony. Whether the issue is viewed as an unpreserved error or as ineffective assistance in failing to object, the substantial risk of a miscarriage of justice standard applies. See Commonwealth v. Randolph, supra at 297. As previously discussed and explained, we discern no such risk here.
3. Witness immunity. Pedro, the victim’s eldest brother, testified at trial that he witnessed the defendant cut the victim with a knife. Pedro later contacted defense counsel to express doubts about his testimony, and signed an affidavit stating that he no longer was sure that the defendant was the assailant. At the hearing on the defendant’s motion for a new trial, the judge appointed counsel for Pedro to advise him of his rights. After
The defendant argues that the judge violated his due process rights by failing to give Pedro immunity. We disagree. By statute, a Superior Court judge may immunize a witness at the request of a district attorney or the Attorney General. See
Although the court has left open the possibility that “in some unique circumstances . . . due process may require thе granting by a judge of a limited form of immunity” to a prospective defense witness, Commonwealth v. Curtis, supra, those circumstances have yet to be delineated. It has been observed, however, that whatever the criteria for such an exceptional ruling, a grant of judicial immunity wоuld not be warranted if, as is the case here, the proffered testimony is ambiguous, not clearly exculpatory, or cumulative. See Commonwealth v. Doherty, supra at 345.
Assuming that Pedro would testify consistently with his affidavit, his recantation would be equivocal at best. He merely would state that, by the timе of trial, he no longer had been “sure” that it was the defendant who had attacked the victim. Pedro still would identify the defendant as one of the three main participants in the attack and would not rule the defendant out as the assailant. Moreover, whilе Pedro may have been the only witness who stated that he saw the knife in the defendant’s hand, other witnesses placed the defendant at the scene, and the one witness who actually knew the defendant not only identified him but also described him raising and lowering his hand in a stabbing motion, after which the victim was left bleeding.
Other grounds asserted by the defendant in support of his request for witness immunity are equally without merit. The judge was entitled to find that therе was no basis for the defendant’s assertion that a judicial grant of immunity was required because the prosecutor intentionally attempted to distort the fact-finding process. There was no evidence here of “an attempt to harass or intimidate рotential witnesses, or . . . that the prosecutor deliberately withheld immunity for the purpose of hiding exculpatory evidence from the jury.” Curtis v. Duval,
Before Pedro testified at trial, he engaged in an extended discussion with the judge about his desire to “forgive” the defendant, thus implying his continued belief in the defendant’s guilt. Later, during his trial testimony, Pedro did not merely affirm his identification, he confidently defended it — stating at one point: “Sir, let me tell you, when they stab your brother and they come near you with a knife, you [sz'c] going to make sure a hundred percent — a hundred and ten percent you’re going to remember that face. . . . Remеmbering people, I am very good at it.” The fervency of this testimony belies Pedro’s subsequent assertion that he made his trial identification reluctantly.
The defendant also argues that the Commonwealth acted in bad faith in refusing to grant immunity to Pedro. However, we find nothing in the record to suggest that the prosecutor’s decision not to immunize Pedro was based upon anything other than the Commonwealth’s legitimate interest in preserving the integrity of the trial.
4. Conclusion. For the foregoing reasons the judgments of
So ordered.
Notes
The motion judge was also the trial judge.
We refer to Pedro Alaniz as “Pedro” to avoid confusion with another witness and the victim, all of whom have the same last name.
At trial, the victim was unable to identify the person who knifed him, although he did identify the defendant as being one of three men who approached and fought with him. The victim testified that he remembered being shown a photo array about four hours after the incident, and selecting pictures of several persons, including the defendant, who were at the fight. He also testified that he was not asked at that time to identify the man who had slashed him. Both the defendant and the Commonwealth characterize the victim’s testimony as neither denying nor acknowledging his prior identification of the defendant as the person who had slashed him.