26 Mass. App. Ct. 150 | Mass. App. Ct. | 1988
Michael Marple and Stephen Haynes, inmates at M.C.I., Cedar Junction, were indicted by a Norfolk County grand jury for the murder of John Blais, also an inmate, alleged to have been committed on April 13, 1984. Trial was to be joint. Just before jury impanelment, the trial judge accepted Haynes’s Alford plea of guilty to the lesser crime of manslaughter. See North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970). Trial proceeded in the defendant Marple’s case, and at the end the judge left to the jury whether to convict of either of the degrees of murder or to acquit. (The defendant preferred not to leave to the jury any question of a manslaughter verdict.) The jury brought in a verdict of murder in the second degree, and from the judgment of conviction the defendant takes his appeal.
We give a condensed account of the case, which will provide background for the defendant’s points of law.
Just before 7:05 p.m. on April 13, 1984, the body of John Blais was found sprawled on the steps leading upward from a landing between the second and third tiers of a rear stairway in the Bristol 1 cell block at Cedar Junction. A “code 99” alarm sounded at 7:05 which ordered all inmates back to their cells and brought a paramedical team promptly to the scene. We have the observations of Timothy Gagnon, one of the team, and Dr. George Katsas, a forensic pathologist, who later performed an autopsy. In short, the victim had been severely beaten and strangled to death with a garrotte of some cloth fabric. There was considerable letting of blood; smears and traces appeared on the landing and on the upward steps and the adjacent walls.
Correction Officer Samuel Wigfall, upon hearing the alarm, dashed to the rear stairwell of Bristol 1 and ran up the stairs, past Blais’s body (the medics had not yet arrived), to the third-tier landing. He saw the defendant Marple entering his cell 60,
Combining the testimony of Wigfall, Williams, and Robert Sullivan, the latter a forensic chemist who started his work in Bristol 1 in the late evening of April 13, we have evidence that a number of items in cell 60 and also in cell 58 carried stains testing positive for human blood, grouping “AB” (a sample stain from the stairs was also AB). This is a rare blood grouping (four percent of the population) to which the victim belonged: both the defendant Marple and Haynes fell in the common “O” grouping. Thus, for cell 60, stains on a bedpost and a towel (wet when Wigfall found it) tested AB; other items carried human blood, the sink and toilet occult blood, which could not be grouped. For cell 58, a white pillowcase and blue shirt, taken from a large cardboard box beneath the bed, tested AB; there was occult blood, not grouped, on the window handle, sink, and toilet.
Robert Akers had begun to serve a sentence at Cedar Junction a few days before the homicide. Some three days after the event he came forward and spoke to the orientation teacher,
It remains to mention the defendant’s statement. Trooper Murphy, after inspecting the grounds, had a talk with the defendant (first telling him that blood had appeared in his cell and informing him of his Miranda rights). The defendant said he and Blais had been in cell 60 smoking joints. Haynes was also there. Blais asked the defendant whether he wanted to play chess. The defendant told Blais to get a “hot pot” and cigarettes. Blais left, Haynes went to the cell of one Sarge Lee, and he, the defendant, went to the shower. Twenty minutes later (evidently near the time of the alarm) the defendant returned and saw Blais lying on the stairs.
So much for the evidence when the Commonwealth rested. On his part, the defendant presented as witnesses four inmates
It will be seen that the testimony of the inmates was at odds with the defendant’s own statement or at best in questionable or indifferent consistency with it. On the whole case a jury could well find that the defendant, in complicity with Haynes, accomplished the death of Blais by beating him, starting probably in cell 60, then along the stairway and landing, and at
1. Defense counsel moved in limine for advance rulings by the judge as to the putative use by the Commonwealth of prior convictions to impeach the inmate witnesses who would be called by the defense (counsel, however, did not indicate, when he made the motion, who specifically would be called). The judge declined to give advance rulings and indicated that he would rule as the individual witnesses were called and occasion arose. It is worth noting that this was not a question of using prior convictions to impeach a defendant testifying in his own behalf; it seems counsel had no design to call the defendant Marple. Even with regard to a defendant-witness, it has been held that a judge has a discretion whether to make an anticipatory decision or to abide the event, see Commonwealth v. King, 391 Mass. 691, 695 (1984), although the possible advantages of early assurance have been set forth, see Commonwealth v. Diaz, 383 Mass. 73, 81 (1981), and situations where that procedure would be highly desirable can readily be pictured. In the case of an ordinary witness, the advantages will typically be less evident, if indeed present at all. Where the witness is an inmate of a prison and his status as such is bound to be known to the jury, the whole question whether to deal ahead of time with the use of convictions becomes little short of trivial. See King, 391 Mass. at 695 n.2. Counsel’s contention, that the defendant in such an instance suffers deprivation of a constitutional right when decision is postponed, appears quite untenable. Cf. Commonwealth v. Fano, 400 Mass. 296, 301 (1987).
2. By a second threshold motion, counsel asked to be furnished by way of discovery with the statements of inmates concerning the homicide: the IPS (a police service acting within the prison) had interviewed the inmates and taken statements from those willing to give them.
After Kurt Brown testified on direct examination for the defense, the Commonwealth referred to a statement given by Brown that apparently was inconsistent with his account of remaining in the day room.
At all events, there is little to suggest that the contretemps about Brown was material error if it was error at all. The defense called Messere although his statement was disclosed and he was impeached by it; probably the defense would have been similarly uninhibited in the case of Brown. Brown in fact when confronted with his statement (see n.7) denied he had said what it recorded and asserted the statement was false.
3. The defense offered two inmates in Bristol 1, Albert J. Blake and Anthony P. Puckett, who were to follow Messere on the witness stand and testify about alleged statements by Haynes incriminating himself and exonerating the defendant. As the statements were hearsay, they were inadmissible unless the defense could qualify them affirmatively as declarations “against penal interest” within Rule 804(b)(3) of the Federal Rules of Evidence,
The judge discussed the law and held that the defense had not brought the Blake or Puckett hearsay testimony within the exception. The judge was right. The prosecution does not dispute that Haynes could be regarded as “unavailable.”
On the former point, since Haynes is reported as thinking that his case was lost and he could hope for no more than a sentence for manslaughter, he could lie about Marple’s participation, which involved his admitting his own guilt, without doing himself any particular harm. But it is the knowing accept
As to corroborating circumstances, a rundown of factors mentioned in Commonwealth v. Drew, 397 Mass. 65, 76 (1986), and other authority shows a distinct deficit. The character and reliability of the declarant were suspect.
The defendant now complains, although he did not make the objection below, that the judge should have charged, also in connection with joint enterprise, that to be found guilty the defendant must have apprehended, if he did not himself possess the ligature, that the other person had it. This specific finding can be required where use of a given instrument is a necessary element of a particular crime, e.g., a weapon in armed robbery. See Commonwealth v. Watson, 388 Mass. 536, 544 (1983). Where the crime charged is simply murder, the requisite shared state of mind of the malice can be proved in any suitable way, not limited to proof of knowledge of a particular weapon. Thus, the jury here, from all the circumstances, could infer the defendant’s malice, without reference to a ligature, from, among other things, the defendant’s participation in the severe beating of the victim Blais. Compare, on significantly different facts, Commonwealth v. Hennessey, 17 Mass. App. Ct. 160, 165 (1983).
The defendant objected that the effect of the judge’s charge was to urge upon the jury that they find a culpable joint enterprise. On the contrary, the judge repeatedly stated that fact-finding was for the jury and on the facts he, as judge, stood indifferent. At counsel’s request he said, in an additional
5. As noted, the defendant chose not to put to the jury the possibility of a manslaughter verdict. He complained that the instructions nevertheless dealt at length with manslaughter. The jury would understand that what was said on that subject was intended to provide a contrast with, and setting for, the discussion of murder, which was the question for their verdict.
6. Commencing his instructions, .the judge spoke of the history of the institution of the jury and then mentioned an essay by G. K. Chesterton describing the author’s experience as a juror. Chesterton wrote that as the jury received the case and entered the jury room “it seemed as if the Holy Ghost descended upon us.” The defendant objected and invokes the separation of church and state but we think the jury would take the remark as a literary flourish and nothing more.
Judgment affirmed.
The record at one point suggests that the occult blood in both cells did test AB, but this may be passed over.
Akers’ testimony was attacked on cross-examination. Apart from his uncertainty about the time of the encounter, he is found writing to the judge who sentenced him intimating a change of his sentence as reward for telling his story. There was doubt about Akers’ statement that, following the threat, he stayed for protection on the telephone near a guard’s station a lengthy period of time during the night.
At some point during the count of the inmates locked in their cells, runners are counted outside. We do not know when the runners’ count occurred. The practice tends to suggest that Blais was alive for some part at least of the period of the general count.
The defendant suggests, however, that he and Blais were friendly, that Haynes got into an altercation with Blais in the defendant’s cell while the defendant was in the shower, strangled Blais, dragged him down the stairs and abandoned him there, and returned to the defendant’s cell and attempted to clean it up before himself going to the shower.
Rock v. Arkansas, 483 U.S. 44 (1987), cited by the defendant, deals with a problem arising from hypnotic treatment of a defendant and throws no light on the issue here.
Such discovery would not be mandatory under Mass.R.Crim.P. 14(a)(1), 378 Mass. 874 (1979), but might be ordered by the judge under rule 14(a)(2).
According to the statement, Brown was sorting mail, obtaining and cooking spaghetti in someone’s cell, and eating dinner in another cell, when by his testimony he was in the day room.
For situations of undisclosed statements rather more serious for defendants where nevertheless material error was not found, see, e.g., Commonwealth v. Gilbert, 377 Mass. 887, 892-893 (1979); Commonwealth v. Cundriff, 382 Mass. 137, 148-150 (1980), cert. denied, 451 U.S. 973 (1981).
Rule 804 provides: “(b) Hearsay exceptions. — The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: ... (3) Statement against interest. — A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Although Haynes had pleaded on the Alford basis, it was assumed he might in his testimony incriminate himself of other crimes. See United States v. Zirpolo, 704 F.2d 23, 25 (1st Cir.), cert. denied, 464 U.S. 822 (1983).
See United States v. MacDonald, 688 F.2d 224, 233 (4th Cir. 1982), cert. denied, 459 U.S. 1103 (1983).
See Commonwealth v. Drew, 397 Mass. at 77.
Compare United States v. Thomas, 571 F.2d 285, 289 (5th Cir. 1978).
See United States v. Bagley, 537 F.2d 162, 165 (5th Cir. 1976), cert. denied, 429 U.S. 1075 (1977). McCormick, Evidence § 278, at 823 (3d ed. 1984).
Compare Commonwealth v. Drew, 397 Mass. at 77; United States v. Ospina, 739 F.2d 448, 452 (9th Cir.), cert. denied, 469 U.S. 887 (1984). But cf. Commonwealth v. Keizer, 377 Mass. 264, 271 (1979).
See United States v. Silverstein, 732 F.2d 1338, 1347 (7th Cir. 1984), cert. denied, 469 U.S. 1111 (1985).
The credibility or lack of it of the proffered witnesses (as distinguished from the declarant) may not figure in the judge’s assessment of “corroborating circumstances”; that is for the jury if the witnesses are allowed to testify to
A slip of the tongue in the additional charge, where the judge said of the fact-finding, “That’s my function and please don’t think it is,” would surely be corrected by the hearer to supply the word “not.”