Commonwealth v. TiexeiraCommonwealth v. Tiexeira
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The defendant was convicted by a Superior Court jury of murder in the second degree. Based on the evi
1. Grand jury testimony of Naome Lopez. The defendant challenges the judge’s ruling permitting the Commonwealth to elicit from Naome Lopez the following testimony after she had been declared a hostile witness:
The Prosecutor: “Didn’t you testify to the Grand Jury that . . . “
Defense Counsel: “Objection.”
The Court: “Overruled.”
The Prosecutor — “ ‘As far as I could tell, he was standing over on top of the man, and the stick was in his hand right there like he had just brought it back down. I didn’t see the stick actually hit his head, but I could assume from what I saw.’ Didn’t you testify to that?”
The Witness: “Yeah.”
The defendant claims the question constituted improper impeachment, did not comply with the prerequisites for probative use of prior inconsistent statements enunciated by the Supreme Judicial Court in
Commonwealth
v.
Daye,
393 Mass. 55, 73-75 (1984), and contained an inadmissible as
The prosecutor could properly pose leading questions to the witness and attempt to impeach her by a prior inconsistent statement. Commonwealth v. Joyce, 18 Mass. App. Ct. 417, 425 (1984). The prior statement need not contradict in plain terms the testimony of the witness. It need only tend in a different direction from her current testimony. Commonwealth v. Pickles, 364 Mass. 395, 402 (1973). However, we need not concern ourselves with the defendant’s argument that the witness should have been given an opportunity to explain the statement or that the admission of the evidence contravened the prerequisites for probative use of prior inconsistent statements sworn to before a grand jury because the witness during her direct testimony, also, admitted that this statement to the grand jury was true. In so doing, she adopted her grand jury statement, and it thus acquired full probative value. Commonwealth v. Fiore, 364 Mass. 819, 823 (1974). Commonwealth v. Daye, supra at 67 n.13.
We also reject the defendant’s claim of reversible error on the ground that Naome Lopez’s statement to the grand jury contained an inadmissible assumption. Ordinarily, a witness may testify only to what she observed and may not state an inference or opinion based upon those facts. Olson v. Ela, 8 Mass. App. Ct. 165, 167 (1979). In certain instances, however, a witness may state the results of her observations, even though this does in some measure involve her opinion or judgment as to matters as they appear to the witness. See Crafts v. McCobb, 303 Mass. 172, 175-176 (1939). The inference drawn by Naome Lopez in her testimony was permissible because it was the result of her observations. It was the sense of what she saw. Even if it were not a permissible inference and its admission was error, it was harmless error. The evidence was merely cumulative of other evidence from which the jury could draw the same inference. See infra part 4.
The Prosecutor: “Now, you go up. You hear the bushes rustling. You hear something going on up there. You go up, and what do you see?”
The Witness: “Mingo (the defendant).”
The Prosecutor: “What is Mingo doing?”
The Witness: “See, like hitting the guy.”
After this testimony, the prosecutor received permission, over the objection of the defendant, to read another excerpt from the grand jury minutes for its probative value as follows:
The Prosecutor: “But you never said anything to Domingo [the defendant] about what you saw him do and Domingo never said anything to you about which you saw him do is that correct?”
The Witness: “(Witness shaking head in the negative).”
The Prosecutor: “You’re certain about that Jennifer?”
The Witness: “Yeah, I didn’t — it’s not like I saw him kill him. I know he didn’t kill the guy.”
The Prosecutor: “How do you know that?”
The Witness: “Because the guy was halfway dead already. He was.”
The defendant challenges the use of these excerpts as probative evidence on the ground that the prerequisites set forth in
Commonwealth
v.
Daye,
393 Mass. at 73-75, had not been met. In
Daye,
the Supreme Judicial Court ruled “that a prior inconsistent statement is admissible as probative if made under oath before a grand jury, provided the witness can be
There was no evidence presented that the statements of the witness had been coerced or were not in her own words. Nor are the witness’ grand jury statements the sole evidence in the case linking the defendant to the victim’s injuries. The sole remaining issue is whether Jennifer Rosado was available for effective cross-examination as to the accuracy of her statement. She testified that she had been drinking that evening, that she did not remember what she told the grand jury and that she did not remember what happened when the defendant left the car with a bat in his hand. Her memory of the events that evening up to the defendant’s encounter with the victim, however, is quite detailed. She remembered that the defendant left the car with a bat but did not remember where he went and what he did until he again got back in the car after the incident. The witness herself testified that she was not saying that she had no memory whatsoever of the events of that evening. Instead, she testified: “I am saying that I was drinking, and I’m not going to come on the stand and say something I am not sure of.” After observing the witness’ demeanor and listening to her testimony, the judge ruled that, while testifying at trial, she had a present memory of what happened on the night of the incident. We cannot say that he erred in allowing her grand jury testimony to be used for its probative value.
3.
Spontaneous utterances.
The defendant objected to the admission in evidence of statements made by Heather Ennes to the defendant immediately after his encounter with the victim. He claims they were not spontaneous utterances. The
The Prosecutor: “Tell the jury what the things were that were being said were?”
The Witness: “Mingo and Heather was arguing and they were swearing at each other and stuff.”
The Prosecutor: “Did you testify in front of the Grand Jury that she was mad with him and that she was cussing him out?”
The Witness: “Yeah.”
The Prosecutor: “Did you also testify that Heather said to him, ‘Why did you have to do that?’ ”
The Witness: “Yes.”
The Prosecutor: “And that he didn’t say anything in response to that question?”
The Witness: “Yes.”
The Prosecutor: “Then he said, ‘Don’t worry about.’ Do you remember saying that to the Grand Jury?”
The Witness: “Yeah. They was arguing. They were ....”
Upon further questioning by the prosecutor, Naome Lopez admitted that she testified in front of the grand jury that Heather was mad and said to the defendant (immediately after he got back in the car after his encounter with the victim), “Why did you have to hit him with the club? Why couldn’t you just — if you wanted — to him, why couldn’t you use your own hands?”
The judge admitted these statements of Heather Ennes to the defendant as part of the “res gestae.” The Supreme Judicial Court has indicated that it prefers the term “spontaneous exclamation” or “excited utterance” because the term “res gestae” is ambiguous, confusing, and unnecessary.
Commonwealth
v.
McLaughlin,
364 Mass. 211, 221 & n.3 (1973). Under the spontaneous exclamation or excited utterance exception to the hearsay rule, “a statement is admissi
4. Motion for required finding of not guilty. The defendant contends that if one excludes as evidence those portions of the grand jury testimony and trial testimony of Naome Lopez which the defendant claims were erroneously admitted, there was insufficient evidence to satisfy a rational trier of fact of the defendant’s guilt beyond a reasonable doubt. We, however, have ruled that this testimony was properly admitted.
The Commonwealth presented expert medical evidence that the victim sustained a “J-shaped” laceration which substantially contributed to his death and that a miniature bat, long and with a rounded end, was consistent with an instrument which would make the “J-shaped laceration” on the victim’s scalp. Naome Lopez, Heather Ennes, and Jennifer Rosado all testified that when the defendant left the car occupied by them, he had a miniature bat in his hands. Naome Lopez testified that after the defendant left the car she looked down at the floor, and when she next looked out the window she saw the defendant with the bat in his hands standing over the body of the victim on the ground. Jennifer Rosado, in her grand jury testimony, said she saw the defendant hit the victim. Naome Lopez also testified that the
5. Privilege against self-incrimination. The defendant claims it was error for the judge to deny Naome Lopez, Heather Ennes, and Jennifer Rosado the right to exercise the privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The defendant has no standing to raise the issue. See Commonwealth v. Simpson, 370 Mass. 119, 121 (1976); Smith v. Commonwealth, 386 Mass. 345, 349 (1982). In Simpson, supra, the Supreme Judicial Court ruled: “The defendant has no standing to argue that the testimony of the two purportedly immunized witnesses was the product of improper grants of immunity. The privilege against self-incrimination was a personal privilege of these witnesses, not assertable by the defendant (citations omitted). He would have had no right to object if a witness had been compelled to testify after the privilege had been validly asserted.” The defendant cannot assert a privilege which is personal to the witness. See also Petitions of the Dept. of Soc. Serv. to Dispense with Consent to Adoption, 399 Mass. 279, 290 n.21 (1987).
Judgment affirmed.