COMMONWEALTH vs. JAMES G. DOHERTY.
Supreme Judicial Court of Massachusetts
March 26, 1985
Middlesex. November 6, 1984.
394 Mass. 341
Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, & LYNCH, JJ.
At the hearing on a motion for a new trial of a criminal case the judge did not err in refusing a “judicial” grant of immunity to a witness who had testified for the prosecution at the trial, where the judge‘s factual findings did not support the defendant‘s claim that unique circumstances existed which would have warranted the judge in ordering immunity outside the statutory scheme. [343-346].
The judge who heard a motion for a new trial of a criminal case did not err in concluding that the defendant had proffered no substantial newly discovered evidence. [346-349] LIACOS, J., concurring.
At a criminal trial it was within the judge‘s discretion to permit cross-examination of a prosecution witness with respect to promises made to him and inducements of hopes of reward for his testimony, but to exclude questions concerning the facts of charges pending against the witness. [349-350]
There was no merit in a defendant‘s contention that the judge who presided at his murder trial improperly instructed the jury by misstating the burden of proof as to reasonable doubt, as to the defendant‘s claim of alibi, or as to the application of the felony murder rule, or that the judge, by delivery of a supplementary charge, improperly coerced the jury. [350-353]
INDICTMENTS found and returned in the Superior Court on December 11, 1973.
Following review by this court reported in 371 Mass. 412 (1976), a motion for a new trial, filed May 18, 1982, was heard by Thomas R. Morse, Jr., J.
The Supreme Judicial Court granted a request for direct appellate review.
Natalea Skvir, Assistant District Attorney, for the Commonwealth.
ABRAMS, J. The defendant appeals from the denial of his amended motion for new trial.
At issue is whether the motion judge erred in denying the defendant‘s amended motion for new trial by: (1) refusing to grant immunity at the evidentiary hearing on the amended motion for new trial to a witness (Goldman) who had testified for the Commonwealth at the initial trial; (2) finding no substantial newly discovered evidence; (3) finding no merit in the defendant‘s claim of an improper limitation of cross-examination by the trial judge; and (4) finding no merit in the defendant‘s claim of an improper charge to the jury by the trial judge. We affirm the judge‘s denial of the defendant‘s amended motion and his refusal to grant immunity to the witness. The evidence at trial and the facts relating to the underlying crime are detailed in our first review of these convictions, Commonwealth v. Doherty, supra, and in the companion case, Commonwealth v. Stewart, 375 Mass. 380 (1978) (Stewart I).
The defendant contends that the motion judge‘s refusal to grant immunity to Goldman violates the defendant‘s right to present evidence and confront and cross-examine witnesses as guaranteed by the Fifth and Sixth Amendments to the United States Constitution, see Davis v. Alaska, 415 U.S. 308, 315-317 (1974); Washington v. Texas, 388 U.S. 14, 19 (1967); Commonwealth v. Turner, 393 Mass. 685 (1985), and his “right to produce all proofs, that may be favorable to him [and] to meet the witnesses against him face to face . . .” under art. 12 of the Massachusetts Declaration of Rights. The defendant argues that this court should grant the witness “judicial immunity” under its broad supervisory powers,
The defendant‘s reliance on Government of the V.I. v. Smith, 615 F.2d 964 (3d Cir. 1980), is misplaced. As we noted in Curtis, supra at 644-645, “’Smith involved a totally bizarre
Barring, “some unique circumstances,” Commonwealth v. Curtis, supra at 646, any inquiry into the question of immunity is foreclosed if the prospective witness is an actual or potential target of prosecution. Commonwealth v. Upton, supra at 577. In applying the Curtis standard to the case at hand, we find that there were no “unique circumstances” requiring a grant of judicial immunity to Goldman. See Commonwealth v. Stewart, 383 Mass. 253, 258-259 (1981) (Stewart II);5 Commonwealth v. Toney, 385 Mass. 575 (1982). The judge found that there was no evidence to support the existence of an undisclosed “deal” between Goldman and the Commonwealth. It was within his discretion to exclude affidavits which alleged there was a deal, see infra at 346-347, and to conclude from testimony offered at the evidentiary hearing that no deal existed, and that at most there was an expectation on Goldman‘s part, later fulfilled, of favorable treatment from the Commonwealth if he testified against the defendant. Even if there were evidence of a secret deal, however, “[i]mmunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or . . . relate[s] only to the credibility of the government‘s witnesses.” Government of the V.I. v. Smith, supra at 972-973. Here, the evidence of a deal, if it existed, would merely raise again the question of Goldman‘s motives for testifying against the defendant. Defense counsel
Because the motion judge‘s factual findings do not support the defendant‘s claim of “unique circumstances” which would warrant Goldman‘s immunization, the judge properly declined to order immunity outside the prescribed statutory scheme. Commonwealth v. Upton, supra at 577; Commonwealth v. Curtis, supra at 646.
2. Newly discovered evidence. A new trial may be granted under
(a) Evidence regarding a “deal“. The motion judge found that there was no substantial newly discovered evidence regarding promises, rewards or inducements made to Lawrence Goldman warranting a new trial. See Stewart II, supra at 259. It was within the judge‘s discretion to find that the evidence of favorable treatment provided to Goldman after the trial did not merit the conclusion that a pretrial deal was made between the Commonwealth and Goldman. Commonwealth v. Cassesso, 360 Mass. 570, 575 (1971), vacated on other grounds sub nom. Limone v. Massachusetts, 408 U.S. 936 (1972).6
(b) Extrajudicial statements. The defendant argues that the motion judge should have admitted in evidence at the hearing a number of affidavits which he contends establish the existence
The defendant‘s argument that the extrajudicial statements are admissible in evidence as admissions is without merit because the declarant, Goldman, is not a party. P.J. Liacos, Massachusetts Evidence 275-277 (5th ed. 1981). The defendant also claims that Goldman had made remarks which could be viewed as against Goldman‘s penal interest because the statements might subject him to a charge of perjury. Even assuming the affidavits, some of which contain multi-level hearsay, were to be viewed as statements against Goldman‘s penal interest, the judge, before he admitted them, also could have considered “the degree of disinterestedness of the witnesses . . . as well as the plausibility of [the proffered evidence] in the light of the rest of the proof.” Commonwealth v. Carr, 373 Mass. 617, 624 (1977). Viewing the affidavits with these factors in mind, we conclude that the motion judge did not err in his determination that the affidavits should be excluded.
(c) Evidence of perjury. The defendant argues that a new trial was also warranted because newly discovered evidence established that Goldman committed perjury at trial by denying the existence of inducements or rewards and that the Commonwealth improperly permitted Goldman‘s testimony to go uncorrected and did not disclose the inducements to the defendant.
(d) Exculpatory evidence. The defendant also contends that a new trial is warranted because the Commonwealth suppressed two statements made by Goldman in 1973 which contain exculpatory evidence and indicate that the Commonwealth knowingly used perjured testimony. Through discovery motions on the defendant‘s amended motion for a new trial, the judge, in October, 1982, granted the defendant discovery of two statements made by Goldman in November and December, 1973, to investigating officers. There are statements concerning the Sherter murder which, the defendant contends, vary from Goldman‘s testimony at trial and therefore could have been used to impeach his credibility.
However, a discrepancy between Goldman‘s statements and his trial testimony would not merit a new trial, because the material disclosed was not exculpatory.10 The defendant argues that access to the statements at the trial would have been helpful in impeaching Goldman‘s credibility. However, for us to conclude that there was a constitutional violation, the defendant must show that the statements clearly are exculpatory. United States v. Turner, 490 F. Supp. 583, 609 (E.D. Mich. 1979),
3. Adequacy of cross-examination at trial. The defendant argues that he was not given an adequate opportunity to cross-examine Goldman at the trial. During cross-examination, the defendant attempted to introduce evidence of pending indictments against Goldman to establish his bias or motive for testifying against the defendant. When he tried to detail the nature of the offenses and the bail arrangements, the judge limited him by stating that he could only set forth that there were pending indictments and ask whether there had been any promises, inducements or hopes of reward. Although the defendant now alleges that this limitation improperly prevented him from impeaching Goldman‘s credibility by suggesting to the jury that he had received or expected to receive favorable treatment from the Commonwealth, the motion judge properly found that it was the defense counsel‘s misunderstanding of the limitation that caused him not to go forward with questioning about inducements and rewards.
The trial judge did not preclude all inquiry into the indictments. Contrast Commonwealth v. Martinez, 384 Mass. 377, 379-381 (1981), and Commonwealth v. Lewis, 12 Mass. App. Ct. 562, 571-573 & n.20 (1981). It was within the judge‘s discretion to limit the questioning to promises, inducements or hopes of reward and to exclude questions concerning the facts of the pending charges. See Commonwealth v. Jackson, 388 Mass. 98, 112-113 (1983). The defendant was accorded “reasonable cross-examination for the purpose of showing bias.” Commonwealth v. Martinez, supra at 380.
4. Jury charge. The defendant challenges the judge‘s charge to the jury. We review the claims based on newly developed constitutional issues. See Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). We find the new cases inapplicable. See id. at 130; Commonwealth v. Watson, 388 Mass. 536, 544 (1983); Commonwealth v. Moran, 387 Mass. 644, 651 (1982); Commonwealth v. Matchett, 386 Mass. 492, 506-507 (1982); Commonwealth v. Watson, 377 Mass. 814 (1979); Commonwealth v. Rodriguez, 370 Mass. 684, 691 (1976).
(a) Reasonable doubt instruction. The defendant asserts that the judge‘s instruction on “reasonable doubt” trivialized the Commonwealth‘s burden of proof and analogized it to decisions about events in the lives of the jurors. As we analyze the paragraph of this instruction as reproduced in the margin,11
(b) Instruction on alibi evidence. The defendant‘s assertion that the judge‘s instruction on alibi evidence shifted the burden of proof to the defendant is also without merit. The defendant criticizes (1) the judge‘s instruction to consider the testimony of “so-called” alibi witnesses and (2) the judge‘s question, “Do they have any interest in this case which would impel them to tell an untruth in order to bail out a relative or friend?” In Commonwealth v. Berth, 385 Mass. 784, 787 (1982), we criticized the following sentence in the alibi instruction: “You
(c) “Tuey-Rodriquez” charge. The defendant argues that the judge‘s premature delivery of a “Tuey-Rodriquez” charge and omission of the proper standard of reasonable doubt coerced the jury and impermissibly shifted the burden of proof to the defendant. See Commonwealth v. Rodriquez, 364 Mass. 87, 98, & app. (1973). All but one of these cases the defendant cites to support his argument were decided before his conviction. Because the defendant did not object to the charge at trial or raise the issue in his first appeal, we will only review the claim insofar as new constitutional law has developed since his conviction. Commonwealth v. Pisa, 384 Mass. 362, 366 (1981).
Unlike the instant case, the supplemental “Tuey-Rodriquez” instruction in Potter v. United States, 691 F.2d 1275, 1278 (8th Cir. 1982), the only case cited by the defendant and decided after his first appeal, omitted any reference to the burden of proof, failed to state that the defendant was to be acquitted if there was reasonable doubt as to guilt, omitted a clear statement that the majority, as well as minority, should reexamine their position, and omitted any caution as to the effect of the charge. The judge here clearly referred to the burden of proof and the need to acquit the defendant if there was reasonable doubt as to his guilt, and these instructions did not have to be repeated during the supplemental “Tuey-Rodriquez” charge. See Commonwealth v. Peters, 372 Mass. 319, 324 (1977); Commonwealth v. Redmond, 357 Mass. 333, 342-343 (1970). Nor did the judge use the majority and minority language criticised in Potter. Moreover, the judge followed the suggestion in Potter that the “Tuey-Rodriquez” charge be given as part of the regular jury charge so as to avoid undue coercion of the minority at the time of the deadlock. Id. at 1278. There is no error.
The defendant also suggests that the judge, in effect, stated to the jury that if they find that the defendant was committing a felony, and the victim died in the course of that felony, then the jury must find the defendant guilty of either first or second degree murder. This result and the felony-murder rule itself, the defendant argues, unconstitutionally relieve the Commonwealth of its burden of proving malice in a murder case, and thus violate due process requirements as set forth in In re Winship, 397 U.S. 358, 364 (1970). We do not agree.
We have said that the felony-murder rule may be applied “only if the jury find from the circumstances of the felony that the defendant consciously disregarded risk to human life.” Commonwealth v. Moran, 387 Mass. 644, 651 (1982). The only underlying felony presented for the jury‘s consideration was armed assault in a dwelling house with intent to rob. Commonwealth v. Doherty, at 414. An armed assault (by means of a gun) in a dwelling house “inherently involved a conscious disregard of risk to human life so as to justify [Doherty‘s] conviction of murder in the first degree on the theory of [felony-murder].” Commonwealth v. Watson, 388 Mass. 536, 543-544 (1983).
In sum, the judge‘s charge as a whole provides no basis for the granting of a new trial. We conclude that there was no error in the judge‘s refusal to grant immunity to Goldman, or in the denial of the defendant‘s amended motion for a new trial. The order denying the motion for a new trial is affirmed.
So ordered.
It is unnecessary for me to set forth the history of our prior opinions, since Justice Kaplan‘s excellent and thoughtful opinion sets it out in adequate detail. See Commonwealth v. Carr, supra at 620-623. The exception to the hearsay rule in the case of declarations against interest was at one time limited to statements against the declarant‘s own pecuniary or proprietary interests. 5 J. Wigmore, Evidence § 1476 (Chadbourn rev. 1974). Wigmore described the refusal of the courts to allow declarations against penal interest to qualify as an exception to the hearsay rule as a “barbarous doctrine.” Id. § 1477, at 360.
In recent years, this and other courts have modified the rule to allow admission of declarations against penal interest, with the limitation that when offered to exculpate the accused, the statement must be accompanied by corroborating circumstances which clearly indicate its trustworthiness. Carr, supra at 621-622. Cf.
Such a limitation cannot be justified on grounds of policy. “The only plausible reason of policy that has ever been advanced for [the old rule of exclusion of statements against penal interest] is the possibility of procuring fabricated testimony. . . .” Wigmore, supra § 1477, at 358. This policy cannot justify the corroboration requirement, for fear of fabrication “would be a good argument against admitting any witnesses at all.” Id. at 359. I believe that the corroboration requirement is particularly unnecessary in the hearing on a motion for a new trial where, as here, a judge, presumably astute at discerning perjury, hears the evidence rather than a jury.