Commonwealth v. ToneyCommonwealth v. Toney
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On March 7, 1979, the defendant was convicted by a jury of murder in the second degree on an indictment comprehending murder in the first degree. The defendant moved for a new trial on the ground that the verdict was against the weight of the evidence. After the motion was denied, the defendant filed her claim of appeal from both the verdict and the denial of the motion. New counsel was appointed, and on April 22, 1980, the defendant filed a second motion for a new trial on the ground of newly discovered evidence. Mass. R. Grim. P. 30, 378 Mass. 900 (1979). The trial judge denied the motion on the basis of argument and affidavits and without an evidentiary hearing. An appeal from this order was filed. All appeals have been consolidated for review by this court. The appeal from the denial of the first new trial motion has not been argued, and we do not address it except in connection with our review of the record pursuant to
We summarize the facts. At approximately 10:15 p. m . on August 13,1978, Robin Mines, Dianne Tinsley, and the victim, Denise Curry, were on Whitfield Street in Dorchester when a car passed them driven by a female accompanied by two male passengers. Some epithets were exchanged between the victim and one of the passengers, whereupon the
Shortly after the incident, Mines described the attacker to the police as a black woman, five feet, ten inches tall, weighing 165 pounds, and wearing an “Afro” type hair style. Tinsley also described the attacker as tall and wearing an Afro. Mines told the police that she recognized the assailant as one of the Toney sisters, and directed them to the home of Dorcas Toney, a sister of the defendant. The next day, Mines and Tinsley went with the police to see Dorcas Toney. After Dorcas was observed by Mines and Tinsley, they told the police she was not the assailant. Shortly thereafter one of the police officers mentioned the defendant’s name, whereupon Mines told them that that was the one who had committed the crime. No in-person or photographic identification procedure involving the defendant was conducted prior to trial.
The defense at trial was that of mistaken identity. There are approximately ten Toney sisters,
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and the defendant introduced evidence suggesting that one of her sisters was the proper suspect, and not the defendant. There was unrebutted evidence that the car involved belonged to the defendant. It was shown at trial that the defendant was five feet, six inches tall, weighed 135 pounds, and usually, if not al
As an alibi, the defense introduced evidence to show that on the evening of the incident, members of the Toney family had visited two sisters incarcerated at the Massachusetts Correctional Institution at Framingham. Several members of the family testified that, although the defendant drove her car to the prison, she returned with her father in his car directly to her sister Maryse Beane’s house where she stayed until 2 a.m. The evidence indicated that Doris had left the prison beforehand in the defendant’s car, accompanied by the defendant’s fiance“, brother-in-law, and several other family members. This was corroborated by the testimony of the correctional officer who was checking in visitors that evening. The officer testified that the defendant had put a pair of scissors and other belongings into a locker, but that another family member, who the defendant argues was Doris, emptied the locker and left the prison before the defendant did. The officer remembered the defendant’s being angry over the fact that someone else had emptied her locker. There was evidence that the defendant had put her car keys into her locker when she arrived at the prison. Finally, the correctional officer stated that the defendant wore her hair rolled up in a bun that evening. On rebuttal the prosecution introduced in evidence visitation records of the prison which did not list a Doris Toney as having been there that evening. There was also evidence, however, that these records were not always accurate.
1. Motion for a New Trial on the Ground of Newly Discovered Evidence.
The defendant offered the affidavits of seven witnesses in support of her motion for a new trial. She claims that the judge erred in denying the motion without an evidentiary hearing.
Rule 30 (b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 900 (1979), provides that a new trial may be granted “if it appears that justice may not have been done.” The mqtion may be decided on the basis of affidavits and without an evidentiary hearing “if no substantial issue is raised by the motion or affidavits.” Mass. R. Grim. P. 30 (c) (3), 378 Mass. 900 (1979). “The decision on a motion for a new trial, as well as the decision whether to decide the motion on the basis of affidavits or to hear oral testimony, is left largely to the sound discretion of the judge. Commonwealth v. Cook, 380 Mass. 314, 320 (1980). Commonwealth v. Heffernan, 350 Mass. 48, 53-54, cert. denied, 384 U.S. 960 (1966).” Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). We examine the affidavits to determine the seriousness of the issues asserted and the adequacy of the defendant’s showing on those issues. Id. at 257-258. There was no error in the judge’s denial of the motion without an evidentiary hearing.
Affidavits of Ralph Jackson and Jeffrey Beane.
Both Ralph Jackson and Jeffrey Beane stated in their affidavits that they were passengers in the car driven by the assailant
Affidavits of Cynthia Bruton and Irving E. Laval.
Cynthia Bruton shared an apartment with Robin Mines. Her affidavit stated that before the defendant’s trial Robin Mines told her that she (Mines) “knew it wasn’t Greer [the defendant], but if Greer was going to be funny and take the weight for someone else, Robin would say it was Greer, [because] somebody was going to pay for Denise’s death.” Laval, a boy friend of Mines, stated in his affidavit that “Robin told me that Denise Curry had been stabbed by Tracy Toney, with a butcher knife and that Robin had seen it.” When Laval challenged her identification of Tracy as the assailant, Mines replied, “Well, if it wasn’t Tracy, it was
The judge ruled that this evidence was merely cumulative, and that the defendant had failed to show that these witnesses were unavailable at trial. We agree. The testimony is hearsay, and is admissible only for its impeachment value. See generally P.J. Liacos, Massachusetts Evidence 141-142 (5th ed. 1981). It is cumulative of other evidence that was adduced at trial to impeach Mines’s testimony. Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial. Commonwealth v. Cassesso, supra at 576, and cases cited. See Commonwealth v. Stewart, 383 Mass. 253, 258 (1981). In addition, the defendant has not shown that the affiants were unavailable at the time of trial, or that the evidence could not have been procured by due diligence. See Sharpe, petitioner, 322 Mass. 441, 444 (1948). The defendant had the burden of proving these facts. Commonwealth v. Levia, ante 345, 352 (1982). Commonwealth v. Bernier, 359 Mass. 13, 15 (1971). The defendant asserted only that these witnesses did not come forward until after the trial. The judge did not abuse his discretion in concluding that this was insufficient to establish the unavailability of the witnesses. Cf. United States v. Young, 426 F.2d 93, 95 (6th Cir.), cert. denied, 400 U.S. 828 (1970). It is true that the judge would have been fully warranted in granting the defendant’s motion for a new trial on the basis of these affidavits. However, we cannot say, especially in light of the peculiar circumstances of this case (which we discuss in the last part of this opinion), that the judge exceeded his discretion in concluding as he did.
Affidavits of Mary Cournoyer, Gertrude Apkarian, and Willie Curry.
Mary Cournoyer and Gertrude Apkarian were employed at the Massachusetts Correctional Institution, Framingham, at the time of the incident. According to their affidavits, their testimony would tend to establish the time when the defendant left the prison on August 13, that she did not have an Afro hair style that evening, and
2. Motion for Directed Verdict.
After the close of the Commonwealth’s case, the defendant made a motion for a directed verdict, which the judge denied. The defendant contends that the denial of the motion was error.
Applying the standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), we must determine whether the evidence, read in a light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt. Commonwealth v. Rhoades, 379 Mass. 810, 815 (1980), and cases cited.
We conclude that the evidence was sufficient to warrant the submission of the case to the jury. The witness Robin Mines made a positive in-court identification of the defendant as the assailant. She testified that she had seen the defendant on a number of occasions before the murder — several times at a skating rink, and once at a party. She also testified that she knew the defendant and several other Toney sisters by sight. The fact that Mines’s in-court identification was inconsistent with the description given to the police shortly after the murder does not render the evidence insufficient. The credibility of a witness is for the jury to decide. There was no error in denying the motion for a directed verdict. Commonwealth v. Vitello, 376 Mass. 426, 457-461 (1978). Commonwealth v. Fitzgerald, 376 Mass. 402, 405-411 (1978).
3. Evidence of Flight.
Over the objection of the defendant, the Commonwealth introduced evidence that several law enforcement officers tried to locate the defendant by going to her house on several occasions, and by talking, either by telephone or in
The defendant concedes that evidence of flight is admissible to prove consciousness of guilt.
Commonwealth
v.
Gilday,
367 Mass. 474, 496 (1975).
Commonwealth
v.
Haney,
358 Mass. 304, 306 (1970).
Commonwealth
v.
Geagan,
339 Mass. 487, 512, cert. denied, 361 U.S. 895 (1959). She argues, however, that in this case the evidence was not probative of consciousness of guilt because the Commonwealth failed to introduce sufficient evidence to prove (a) that she knew that she was being sought by the police or (b) that she was absent from her home and place of work. First, we do not think it necessary for the Commonwealth to prove that at the time of flight the accused knew of police pursuit, in order for evidence of flight to be admissible. Evidence that a person flees from the scene of a crime or from his usual environs may be probative of a consciousness of guilt regardless of whether he has actual knowledge that he is being sought by the police. 2 J. Wigmore, Evidence § 276, at 129 (Chadbourn rev. ed. 1979). Moreover, even if we were to accept the defendant’s premise that such proof is necessary, the Commonwealth’s evidence of repeated police visits to the defendant’s home and inquiries made of relatives was sufficient to permit an inference that the defendant did in fact know that the police were looking for her. Second, there is no merit to the defendant’s suggestion that the Commonwealth was required to make a preliminary showing that the defendant was in fact absent from her usual environs before this evidence could be admitted before the jury. The Commonwealth’s evidence was relevant to show that the defendant was not at her home or at work during the two-
The defendant also argues that the judge erred in his instructions to the jury on evidence of flight by failing to bring to their attention the defendant’s innocent explanation for the alleged flight.
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The defendant did not object to this portion of the charge. Our review under
There are two assumptions that underlie the inference of guilt that may be drawn from evidence of flight, concealment, or similar acts. The first assumption is that a person who flees or hides after a criminal act has been committed does so because he feels guilt concerning that act. The second is that one who feels guilt concerning an act has committed that act. 1 J. Wigmore, Evidence § 173 (3d ed.
We think that a judge should instruct the jury (1) that they are not to convict a defendant on the basis of evidence of flight or concealment alone (see, e.g., Commonwealth v. Smith, 368 Mass. 126, 129 [1975]), and (2) that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant. We do not think it necessary, as suggested by the defendant, that the judge bring to the attention of the jury the defendant’s own innocent explanation for the alleged flight, although the judge may in his discretion do so. A general instruction of the type outlined above will suffice.
It is clear that the judge did not err in instructing the jury. The charge adequately cautioned the jury concerning the equivocal nature of evidence of flight. 6
The evidence at trial indicated that Robin Mines told the police that the defendant was the attacker only after one of the police officers had mentioned the name Greer Toney to her. The defendant argues that Mines’s in-court identification was for this reason a product of impermissible police suggestion. Analogy is drawn to cases involving one-on-one photographic or in-person confrontations. See, e.g., Commonwealth v. Venios, 378 Mass. 24 (1979); Commonwealth v. Botelho, 369 Mass. 860, 867 (1976). Trial counsel did not object to the in-court identification, presumably for tactical reasons. See Commonwealth v. Underwood, 358 Mass. 506, 509-512 (1970); Commonwealth v. Meggs, 4 Mass. App. Ct. 773 (1976). Cf. Commonwealth v. Levia, ante 345, 353 (1982). However, we consider the defendant’s contention pursuant to our § 33E powers.
The defendant does not cite, nor have we found, any cases holding that the mentioning of a name by police may by itself be so suggestive as to render any subsequent identification excludable.
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Assuming that it may, however, the record in this case does not show that the mention of the defendant’s name was unnecessarily suggestive. The defendant bears the burden of establishing that a confrontation is unnecessarily suggestive.
Commonwealth v. Venios, supra
at 26-27.
Commonwealth v. Botelho, supra.
The tran
5. Use Immunity.
The defendant filed a motion asking the judge for an order granting use immunity to Doris Toney in exchange for her testimony. As grounds for the motion, she asserted that Doris Toney would confirm the fact that the defendant was not at the scene of the murder and did not stab the victim. The judge took no action on this motion. The defendant has renewed her motion in this court.
This court has not decided whether the courts of this Commonwealth have the authority to grant immunity to a defense witness over the objection of the prosecutor,
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and
6.
Review under
Although the defendant has not specifically requested it, we are obliged pursuant to
The defendant’s principal argument is that a mistake in the identity of the assailant has occurred. Yet it is apparent from the record that if indeed Doris was the assailant, and not the defendant, the defendant had the means at her disposal to demonstrate her own innocence by establishing the
On appeal the defendant pursues the same tactic as at trial. Nowhere does she provide the evidence necessary to establish Doris’s guilt. It is obvious, however, that if her contention is true, she has the means to do so. This selective offering of evidence renders her claim of mistaken identity lacking in credibility. Moreover, the defendant’s request that Doris Toney be granted immunity for her testimony indicates that the defendant is playing what the judge aptly called a “shell game” with the Commonwealth. This we cannot allow.
We affirm the judgment of conviction and the orders of the trial judge denying the defendant’s two motions for a new trial. The motion for an order granting use immunity to Doris Toney is also denied.
So ordered.
Notes
The testimony was conflicting regarding whether there are nine, ten or eleven sisters in the Toney family.
At trial Beane’s wife implied that she had not seen him for at least six months. There is nothing else to indicate whether others knew of his whereabouts, or whether “due diligence” was exercised to locate him and procure his testimony. See United States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980). Jackson invoked the Fifth Amendment and refused to testify at the trial. Compare Commonwealth v. Grace, 370 Mass. 746, 752 (1976), with United States v. Guillette, 404 F. Supp. 1360,1372-1373 (D. Conn. 1975), and Ledet v. United States, 297 F.2d 737 (5th Cir. 1962).
The judge instructed the jury as follows: “Now, there has been mention made by each side of evidence of the type that the law calls ‘consciousness of guilt,’ and that is evidence of an accused, a person who suspects he or she is accused, whether or not they try to hide, conceal, or to prevent their being detected or convicted. I want to caution you however, that you should never convict a person of any crime based on evidence of consciousness of guilt alone. The reason is there are equally valid reasons for an innocent person to do what he or she may do.
“Evidence, if you believe it, of consciousness of guilt may be used, however, with other evidence in the case in determining for yourselves whether or not the defendant is guilty beyond a reasonable doubt.”
Although our comments speak in terms of evidence of flight or concealment, we note that they are for the most part applicable to other types of evidence offered to prove consciousness of guilt, for example, false statements made to police, destruction or concealment of evidence, or the bribery or threatening of a witness.
E.g., Wong Sun v. United States, 371 U.S. 471, 483-484 n.10 (1963); Alberty v. United States, 162 U.S. 499 (1896); Hickory v. United States, 160 U.S. 408 (1896); United States v. Myers, 550 F.2d 1036, 1050 (5th Cir. 1977); Austin v. United States, 414 F.2d 1155 (D.C. Cir. 1969); Miller v. United States, 320 F.2d 767, 770-771 (D.C. Cir. 1963) (separate opinion by Bazelon, C.J.); Vick v. United States, 216 F.2d 228 (5th Cir. 1954); Ryan v. People, 79 N.Y. 593, 601 (1880).
In light of our discussion, it would be appropriate for a judge, if requested, to caution the jury on the dangers inherent in drawing the infer ence of guilt from the fact of flight. When such a request is made, the judge should explain to the jury, in appropriate language, first, that since there are numerous reasons why an innocent person might flee, flight or similar conduct does not necessarily reflect feelings of guilt. Second, he should explain that, even where a person’s flight does demonstrate feelings of guilt, it does not necessarily mean that the person is in fact guilty, because feelings of guilt are sometimes present in innocent people. See Miller v. United States, supra at 773. Such an elaboration, if given prior to the required instructions, might help the jury to understand better the required instructions.
The defendant relies on Commonwealth v. Moon, 380 Mass. 751, 756-759 (1980). However, that case involved a one-on-one photographic confrontation that was held unnecessarily suggestive in part because of a comment made by the police (“That sounds like Andy Moon”).
Rather, the transcript suggests that the defendant’s name was mentioned only because the police officer had talked to the defendant’s children several months earlier in connection with an unrelated incident, and therefore knew the defendant as one of the Toney sisters.
Massachusetts has a statutory procedure for the granting of immunity to witnesses. See generally
A confession made by Doris might well have been admissible under the hearsay exception for declarations against interest, provided corroborating circumstances clearly indicated its trustworthiness. Commonwealth v. Carr, 373 Mass. 617 (1977). Evidence of flight on the part of Doris might also have been introduced.