The defendant was tried to a jury on one indictment for burning a dwelling house (arson), one indictment for burning insured property, and four indictments for larceny of over $100. He was found guilty on each of the six indictments. 1 He was sentenced to concurrent two and one-half year terms in the Hampden County house of correction on the arson indictment and one larceny indictment and to three years probation on the indictment for burning insured property. The remainder of the convictions were placed on file. We reverse the conviction on the arson charge, and affirm the other judgments.
Prior to trial the defendant filed a motion requesting a continuance until the cases against his two codefendants, Melvin Davis and Raymond Bednarz (who had pleaded guilty to all charges), had been disposed of by way of imposition of sentence. In this motion the defendant asserted that Raymond Bednarz was a potential defense witness but might assert his Fifth Amendment privilege against self-incrimination if called to testify prior to sentencing. After a hearing the motion was denied. A renewed motion for continuance was filed in which the defendant asserted that Raymond Bednarz had indicated that he would give essential exculpatory testimony only if sentenced first. This motion was accompanied by the defendant’s affidavit to the same effect. The judge took no action on this motion. As a result of the defendant’s motion, the Commonwealth moved for sentencing in the Bednarz case, and Bednarz was sentenced prior to the resting of the Commonwealth in the instant case.
The defendant raises the following issues in this appeal: (1) whether the trial judge erred in ruling that the Commonwealth could comment to the jury on the failure of the defendant to call Bednarz as a witness; (2) whethеr the judge erred in instructing the jury that they could infer from the defendant’s failure to call Bednarz that he would have testified adversely to the defendant; (3) whether the judge erroneously instructed the jury that the defendant’s pretrial statement to police was an admission inconsistent with innocence; (4) whether the judge erred in instructing the jury concerning the elements of the crime of arson; (5) whether the Commonwealth’s closing argument concerning a Federal tax lien on all the defendant’s property was of such an improper and prejudicial nature as to require reversal of the defendant’s convictions; (6) whether the judge erred in excluding from evidence certain records of criminal convictions of two of the prosecution witnesses.
We conclude that there was error in the judge’s chаrge concerning the elements of arson and therefore we reverse the defendant’s conviction on the arson indictment. Because there was no other error, we affirm the convictions of burning insured property and larceny over $100.
The facts may be summarized as follows. On November 23, 1976, a fire occurred at the defendant’s three-family house located at 59-61 Sorrento Street in Springfield. The house was insured by Aetna Life and Casualty Company, from which the defendant received insurance payments for
The Commonwealth presented no physical or scientific evidence of arson. Former Fire Chief Joseph McClellan testified that he responded to the fire and was of the opinion that it was incendiary in nature.
The main witness for the Commonwealth was Melvin Davis, who claimed to be the intermediary between Raymond Bednarz, the defendant’s alleged agent for procuring an arsonist, and Norman Babineau, the man who actually set the fire. Davis’s testimony set up the following chain of events. Davis first met the defendant through Raymond Bednarz at a time when Davis was employed by Bednarz on a part-time basis. In a conversation which took place at Bednarz’s place of business in November, 1976, and which involved the defendant, Bednarz, and Davis, the defendant told Davis that he was in financial difficulty and that he would like to have his house “torched.” On the evening this conversation occurred, Bednarz gave Davis $250 as a down payment on the cost of burning the defendant’s house. Davis, in turn, gave this money to Norman Babineau. The following evening, Babineau came to Davis’s home and the two made preparations for the fire and proceeded to the defendant’s property where Babineau set the fire.
Davis saw the defendant the following day at Bednarz’s place of business. The defendant showed Davis a picture of the burned house which had appeared in the morning newspaper. The defendant told Davis that he and Babineau had done a “good job. ” The defendant then gave Bednarz $500. Bednarz kept $250 as repayment of the $250 that he had already given Davis, and gave Davis $250 as the balance to be paid to Babineau for burning the house.
The Commonwealth also called Kenneth Ingram. He testified that he had known the defendant for about five years. Ingram stated that at the request of the defendant he went to the house on Sorrento Street one month before the fire in order to repair the roof. However, Ingram found the roof to be beyond repair. When Ingram informed the de
Approximately two weeks later Ingram was with the defendant and Raymond Bednarz at Bednarz’s place of business. The defendant asked Ingram if he knew of anyone who would burn his house, or if Ingram would burn his house. Ingram responded negatively to both of these questions . About a week later the defendant telephoned Ingram at his home and asked once more if Ingram would find someone to burn the house. Ingram again rejected the defendant’s request.
The Commonwealth introduced the defendant’s pretrial statement through Officer Michael Dowd. The first paragraph stated that the defendant and Raymond Bednarz had had a conversation “[sjometime in October of 1976” about having the defendant’s house “torched.” The remainder of the statement said that no arrangement had been made between the defendant and Bednarz to have the house burned. On cross-examination, Officer Dowd was unable to furnish any more detail on the substance of the October, 1976, conversation between Bednarz and the defendant; nor could he clarify whether it was Bednarz or the defendant who brought up the subject of arson. Raymond Bednarz was not called as a witness for the Commonwealth, although it was conceded that he was available.
The defendant took the stand on his оwn behalf. He stated that Davis and Ingram had come to him after the fire and announced that they were responsible for setting it. He also testified that they requested money which he refused to pay.
The defendant explained his October, 1976, conversation with Raymond Bednarz. He testified that Bednarz had mentioned torching the house in response to the defendant’s complaints about repeated vandalism of the house. The defendant recalled having said that he did not want the house burned and that he was going to move into it. There was no further conversation between the two on the subject and no agreement was made.
1. The judge ruled that, under the particular facts of this case, it was permissible for the Commonwealth to comment
The defendant contends that it was erroneous as a matter of State law to permit this comment. We disagree.
2
“We have in a series of cases, both civil and criminal, permitted, when justified, comment on a party’s failure to call witnesses.”
Commonwealth
v.
Franklin,
One crucial factor is whether the missing witness was available to the defendant. Id. The so called “missing witness” in the instant case, Raymond Bednarz, was indicted with the defendant and others for the arson of the defendant ’s house and a related crime. But verdict and sentencing were complete and unconditional in Bednarz’s case prior to the Commonwealth’s resting its case against the defendant. Thus, there was no impediment to Bednarz’s being available as a witness on behalf of the defendant, and the judge so found.
The defendant argues that, at the time the Commonwealth sought leave of the court to make the comment in question here, Bednarz was equally available to both parties and that this situation should have precluded the Commonwealth’s comment. However, “[although it has been fre
The defendant argues further that our cases also require that the missing witness be more likely to be known to the defendant than to the representatives of the government. Again this interpretation misconceives the inquiry by attempting to create hard and fast rules whereas in fact “ [n]o case purports to state those conditions required as a minimum before the inference is permissible.” Commonwealth v. Franklin, supra at 292. The Franklin case does state that, in addition to the other pertinent factors, “the judge may consider whether the defendant has superior knowledge of the identity of the witness and his whereabouts” (emphasis added). Id. at 293. Without placing an inordinate amount of weight on this factor we observe that Bednarz was (according to the defendant’s own testimony) a “friend” of the defendant.
Other factors mentioned in
Franklin
as bearing upon our present inquiry include “the posture of the . . . case and the state of the evidence.”
Id.
at 292-293, quoting from
Commonwealth
v.
O’Rourke,
The defendant also argues that, in concluding that this was an appropriate case for comment, the judge considered certain information that was not before the jury, viz., that the defendant had made efforts before trial to have Bednarz made available as a defense witness. The defendant suggests that it was improper for the judge to rely on matters not in evidence (such as the defendant’s pretrial motions and affidavits) when ruling in favor of allowing comment.
We agree with the defendant’s basic contention that the judge should permit the comment in argument of counsel, and refer to the unfavorable inference as permissible, in his charge to the jury, only if those rulings are warranted, based solely on the evidence heard by the jury. Nevertheless, we do not accept the defendant’s conclusion, for two reasons.
Second, it is clear from our discussion above of the posture of the case and the state of the evidence that the prosecutor was warranted in making his comment and the jury were warranted in drawing a negative inference based solely on the evidence that was actually before the jury. Therefore, an effort on our part to divine whether any additional factors influenced the judge’s decision to allow the comment would be superfluous at best.
The defendant further contends that the comment to the jury by the prosecution concerning the defendant’s failure to call Bednarz violated the defendant’s Fourteenth Amendment right to due process of law by shifting the burden of proof to the defendant. It is well established that the Commonwealth bears the burden of proving each and every ele
The defendant also argues that the instruction invaded the province of the jury by directing them to draw an inference adverse to the defendant. We do not agree that the jury were so directed. First, the judge gave а lucid and accurate general description of inferences and their proper role. Speaking more specifically of the inference permissible from the defendant’s failure to call Raymond Bednarz, the judge added: “Now, as to the matter of a witness by the name of Raymond Bednarz, a potential witness in this case not appearing and testifying.
You may draw
a negative inference adverse to the defendant from the defendant’s failure to call Raymond Bednarz as a witness for the defense.
The defendant argues further that the judge’s instruction violated the defendant’s Sixth Amendment right to confront the witnesses against him. See
Pointer
v.
Texas,
3. During its case-in-chief, the Commonwealth introduced the defendant’s written statement in evidence through Officer Dowd. In the first paragraph of this statement, the defendant said that in October, 1976, he had had a conversation with Raymond Bednarz about having his house “torched.” The remainder of the statement indicated that the defendant never made an arrangement to have his house burned. Officer Dowd had no personal knowledge of either the character or the substance of the October, 1976, conversation.
It is the defendant’s contention that the judge’s instructions to the jury on the subject of the defendant’s pretrial statement usurped the fact-finding function of the jury by directing the conclusion that the defendant’s statement was an admission inconsistent with his claim of innocence, thus allowing the jury to decide merely whether the defendant had madе the statement. We think that, fairly interpreted as a whole, the judge’s charge properly left to the jury the question whether the statement was an admission and the weight to be attached to it. If the initial portion of the charge implied a belief on the part of the judge that the defendant’s statement did indeed constitute an “admission,” this was offset by such subsequent phrases as “[wjhether there has been an admission is a question of fact to be found by the jury” and “[i]f you find that this defendant at any time said anything . . . inconsistent with his present claim of innocence, you have a right to consider this . . . .” Moreover, the closing sentence of that portion of the judge’s charge succinctly and accurately clarified the respective roles of the judge and jury, placing with the jury the responsibility to find the facts and apply the law as explained to them by the judge. Additionally, the judge had warned the jury at two prior times in the course of his charge as follows: “If you believe that I have expressed or intimated any opinion as to the facts, you should disregard it” and “if I, in this charge, give you an indication as to what the facts should be, and I will attempt not to . . . you should simply disregard it. It’s only your belief as to the evidence, to the weight of the evidence and to the strength of the evidence in inducing a belief in you that matters.”
Finally, there is a logical reason, apart from our analysis of the judge’s language, which assures us that no fatal con
4. We agree with the defendant’s contention that there was error in the judge’s instruction on the elements required for an arson conviction. The judge charged the jury in the following language. “The first indictment which is . . . the one commonly called arson . . . charges this defendant . . . did wilfully and maliciously set fire to, burn or cause to be burned a dwelling house .... [Tjhis is а violation of our Massachusetts General Laws, Chapter 266, Section 1, and I’m going to refer to that right now. ... In order to find the defendant guilty of this crime, the Commonwealth must prove beyond a reasonable doubt — and here are the elements, first, that the defendant wilfully and maliciously, second, burned or caused to be burned or aided, counseled or procured, third, the burning, and fourth, of a dwelling house. The statute’s use of both wilful and malicious does not indicate a requirement that malice has a meaning different from its ordinary meaning in criminal law and malice in criminal law in this case is a little different from malice as used in common English usage. Malice which is a necessary element in the crime of arson need not be expressed. Malice may be inferred from the wilful act of setting the fire or causing the fire to be set.”
The first deficiency in this charge is the judge’s failure to give the jury any definition of the term malice — a necessary element of the crime of arson. The judge’s charge merely told the jury that they could not rely on the “com
This failure to define one of the elements of the offense charged required the jury to speculate in reaching its decision. The jury could not determine, without knowing what mаlice meant in the context of this case, whether the Commonwealth had carried its burden of establishing the existence of this element beyond a reasonable doubt. See
In re Winship,
The deficiency in the charge was compounded by the judge’s statement that “[mjalice may be inferred from the wilful act of setting the fire or causing the fire to be set.” Allowing the jury to draw an inference of malice without having defined that term is in direct contradiction of our case law (see
Gagne
v.
Commonwealth,
The third problem with the judge’s instructions relative to the arson charge was in his explanation of the intent requirement. During his specific discussion of the arson count the judge еxplained nothing to the jury about the intent necessary for an arson conviction, mentioning only that the defendant must act “wilfully.” However, prior to his specific discussion of the elements of the individual crimes with which the defendant was charged the judge undertook
The flaw in this portion of the charge is in the final sentence. “The words chosen by the judge came perilously close to establishing a presumption in favor of the Commonwealth which the defendant must overcome.”
Commonwealth
v.
Collins,
Although this ill-chosen sentence in the general instructions on intent apparently was meant to apply to the intent requirement of all three felonies with which the defendant was charged, we conclude that it did nоt fatally infect the respective charges on burning insured property and larceny for two reasons. First, the charges on those two crimes were not flawed by any definitional deficiency as was the arson charge. Second, the judge added an acceptable explanation of the intent requirement to his specific charges on burning insured property and larceny, which was conspicuously lacking from his charge on arson. 5
5. The defendant contends that the prosecutor’s closing argument regarding a Federal tax lien on all the defendant’s property was of such an improper and prejudicial nature as to require reversal of his convictions. The argument was as follows.
The prosecutor: “Let me ask you this. What do you get in trouble with the I.R.S. for?”
Defendant’s counsel: “Objection, your Honor.”
The prosecutor: “What do you get in trouble with the I.R.S. for where, in fact, they filed . . . .”
Defendant’s counsel: “My exception.”
The prosecutor: “A tax lien. Five Thousand Dollars. . . . We’ve introduced that in evidence. . . . He paid in June 30th of 1976.”
There was evidence before the jury that there had been a Federal tax lien of approximately $5,000 against all the defendant’s property and that the lien was satisfied prior to the fire by the sale of property other than the Sorrento Street house. Thе defendant argues that the prosecutor’s comments were irrelevant, confusing and constituted an impermissible attack on the defendant’s character.
6. During the course of the Commonwealth’s case, Kenneth Ingram and Melvin Davis testified. Each of them had been involved in criminal activity in the past, and defense counsel sought to take advantage of this to impeach their credibility.
When Kenneth Ingram was on the stand, defense counsel sought to introduce the records of convictions obtained the previous day for masked armed robbery and assault and battery with a dangerous weapon. The judge ruled that evidence of these convictions was inadmissible under G. L. c. 233, § 21 (as amended through St. 1974, c. 502), 6 because Ingram had not yet been sentenced.
The defendant argues that the judge’s decision not to allow these records of conviction to be shown to the jury was prejudicial error and grounds for reversal. Clearly the judge erred in ruling that G. L. c. 233, § 21, does not permit the introduction of a prior conviction to affect a witness’s credibility unless the witness has already been sentenced. This ruling is in conflict with the explicit language of the statute, specifically the last sentence of paragraph two: “[A] plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section.”* *****
7
However, no reversible prejudice resulted from this erroneous ruling because the trial judge later realized that his interpretation
After the testimony of both Davis and Ingram had been completed, almost at the close of the defendant’s case, the defendant offered as exhibits additional records of criminal convictions of the two which had not been offered earlier when they were on the stand. The judge refused to admit as exhibits thе records offered at that late point. There was no error. The exclusion was a permissible exercise of the judge’s discretion. At the time the two witnesses testified, defense counsel, for no enunciated reason, simply had not obtained the records. This was not accomplished until nearly the close of the case. The defendant cannot now complain of the exclusion of this cumulative evidence which should have been introduced, if at all, at the time that the witnesses were on the stand. The judge also, in exercising his discretion, may well have considered that admission of the records when finally offered could have brought special emphasis to the records and thus given the defendant an unwarranted advantage.
7. It follows that as to the indictment for arson the judgment is reversed and the verdict set aside. As to the indictments for larceny and burning insured property the judgments are affirmed.
So ordered.
Notes
A seventh indictment charging conspiracy to commit arson was still pending at the time of trial.
As we observed in
Commonwealth
v.
Franklin,
The judge instructed the jury as follows: “Let me discuss with you first the presumption of innocence. This defendant is presumed to be innocent . . . and a defendant is not to be found guilty on suspicion or conjecture but only upon evidence produced in this Court.
“ Now, as to the burden of proof. The burden is on the Commonwealth tо prove beyond a reasonable doubt. . . that the defendant is guilty of the charges made against him. . . . There is no duty resting on the defendant to prove or otherwise establish his own innocence. Before there can be a conviction of the defendant, the Commonwealth must prove each and every element of the alleged crimes . . . beyond a reasonable doubt.”
In discussing the matter with the judge prior to closing arguments the prosecutor followed the suggestion of this court in Franklin, supra at 294-295, that the issue whether the inference is permissible preferably should be the subject of such a conference.
The judge spoke as follows regarding the intent required for the crime of burning insured property. “The elements of this crime which the Commonwealth must prove beyond a reasonable doubt to your satisfaction are one, that the defendant caused the property to be burned, two,
The judge gave the following explanation of the intent required for larceny. “Still again, the wrongful taking of personal property from the possession of another with intent to deprive them of such property permanently. The necessary intent need not be proved directly but may be inferred from all of the facts. Intent may be found if one takes property without authority and uses it as to show indifference as to whether the owner recovers possession or not. Obtaining property by false pretense is a form of larceny which consists of knowingly making false representations of a fact made with the intent that the alleged victim rely on it by means of which the personal property of another is obtained.”
“The conviction of a witness of a crime may be shown to affect his credibility, except as follows:
“First, The record of his conviction of a misdemeanor shall not be shown for such purpose after five years from the date on which sentence on said conviction was imposed, unless he has subsequently been convicted of a crime within five years of the time of his testifying.
“Second, The record of his conviction of a felony upon which no sentence was imposed or a sentence was imposed and the execution thereof suspended, or upon which a fine only was imposed, or a sentence to a reformatory, prison, jail, or house of correction, shall not be shown for such purpose after ten years from the date of conviction, if no sentence was imposed, or from the date on which sentence on said conviction was imposed,whether the execution thereof was suspended or not, unless he has subsequently been convicted of a crime within ten years of the time of his testifying. For the purpose of this paragraph, a plea of guilty or a finding or verdict of guilty shall constitute a conviction within the meaning of this section.
“Third, The record of his conviction of a felony upon which a state prison sentence was imposed shall not be shown for such purpose after ten years from the date of expiration of the minimum term of imprisonment imposed by the court, unless he has subsequently been convicted of a crime within ten years of the time of his testifying.
“Fourth, The record of his conviction for a traffic violation upon which a fine only was imposed shall not be shown for such purpose unless he has been convicted of another crime or crimes within five years of the time of his testifying.”
This sentence was a result of a 1950 amendment which effectively overrules the holdings of such cases as
Boston
v.
Santosuosso,