4 Mass. App. Ct. 845 | Mass. App. Ct. | 1976
The defendant was convicted of robbery and manslaughter. He makes numerous assignments of error, many of which are repetitious. 1. The exercise by the defendant’s wife of her privilege not to testify against her husband in a criminal proceeding, G. L. c. 233, § 20, Second, was sufficient to satisfy the requirement of unavailability for the purpose of determining whether the testimony of the defendant’s spouse at the probable cause hearing should be admitted under the prior recorded testimony exception to the hearsay rule. Wigmore, Evidence § 1409 (Chadbourn rev. 1974). McCormick, Evidence § 253, n.49 (2d ed. 1972). See Fed.R.Evidence 804 (a)(1); cf. Commonwealth v. Gallo, 275 Mass. 320, 328-334 (1931); United States v. Elmore, 423 F.2d 775, 778 (4th Cir. 1970). 2. The stenographer who had taken the testimony at the probable cause hearing identified her transcript of that testimony as a record of her past recollection recorded. That was clearly permissible under Commonwealth v. Mustone, 353 Mass. 490, 493 & n.1 (1968). See Fisher v. Swartz, 333 Mass. 265, 267 (1955). See generally Leach & Liacos, Massachusetts Evidence, 83-84 (4th ed. 1967). Accordingly, G. L. c. 221, § 91B, as in effect prior to St. 1975, c. 457, § 1, had no application to the circumstances. 3. It was not error to permit the transcript of the probable cause hearing to be admitted in evidence as an exhibit and taken into the jury room. Commonwealth v. Mustone, 353 Mass. at 494-495. 4. The defendant was not denied his right of confrontation under the Massachusetts and United States Constitutions by reason of the introduction of the testimony of his girl friend, now wife, as taken at the probable cause hearing. The defendant concedes that the material issue at both proceedings was the defendant’s intent to commit homicide. There was a substantial identity of issues on both occasions so as to satisfy the defendant’s right of cross-examination at the earlier hearing. Commonwealth v. Gallo, 275 Mass. at 334. Wigmore, Evidence § 1387 (Chadbourn rev. 1974). McCormick, Evidence § 257 (2d ed. 1972). It is immaterial that for tactical reasons the defendant did not cross-examine his girl friend in greater depth at that time.
Judgments affirmed.
The defendant’s additional contention that he was unable effectively to cross-examine his girl friend at the probable cause hearing because he did not know about the existence of a witness who testified only at the trial is totally devoid of merit.
In Massachusetts the privilege not to testify against one’s spouse in a criminal proceeding belongs solely to the witness. G. L. c. 233, § 20, Second.