397 Mass. 440 (1986), Commonwealth v. Reed

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation397 Mass. 440,492 N.E.2d 80
Docket Number.
PartiesCOMMONWEALTH v. Paul S. REED.
Date29 April 1986

Page 440

397 Mass. 440 (1986)

492 N.E.2d 80

COMMONWEALTH

v.

Paul S. REED.

Supreme Judicial Court of Massachusetts, Plymouth.

April 29, 1986

Argued Nov. 5, 1985.

Walter T. Healy, East Boston, (Roger Witkin, Boston, with him), for defendant.

Mary Ellen O'Sullivan, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ. [492 N.E.2d 81] ABRAMS, Justice.

On November 8, 1981, the body of a young woman was found strangled to death in a wooded area of

Page 441

Middleborough. The defendant, Paul S. Reed, stands convicted of murder in the first degree for the victim's death. Critical to the Commonwealth's case was the evidence provided by one Patton Flannery, an inmate at the Massachusetts Correctional Institution at Bridgewater. Flannery said that the defendant admitted to him that he had killed the victim. At the Commonwealth's urging and over the defendant's timely objection, the judge admitted testimony from Flannery that he (Flannery) had a conversation with the defendant's wife, in the defendant's absence. In that conversation, the defendant's wife told Flannery that the defendant had told her that he (the defendant) had committed the crime. The judge admitted this hearsay evidence as an adoptive admission and in his instructions told the jurors that they could consider the evidence of this conversation as "corroborative evidence." There is no dispute that the judge's ruling is erroneous. At issue is whether the admission of that evidence was prejudicial error. We conclude that the error is prejudicial Consequently, we reverse and remand for a new trial.

Apart from Flannery's testimony that the defendant admitted to him that he was the culprit, there was evidence that on November 8, 1981, the defendant's wife reported the theft of her automobile to the Bridgewater police. The police recovered the vehicle from an area in Plympton where the defendant frequently went to pick grapes and blueberries. The vehicle had been burned. A State police chemist found traces of rabbit hair in the automobile which were similar to the hairs from a rabbit fur coat worn by the victim and found near her body.

1. The Conversation as an Adoptive Admission. On Monday, November 9, 1981, the defendant's wife visited Flannery at M.C.I., Bridgewater. 1 According to Flannery, the defendant's wife said that the defendant told her that he had slain the victim on Saturday, November 7. On Saturday, November 14, 1981, the defendant visited Flannery. Again according to Flannery, and at Flannery's prompting, 2 the defendant told him the

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details of the homicide. In his instructions, the judge told the jury that the evidence of the wife's conversation with Flannery was admitted under the adoptive admission exception to the hearsay rule for the purpose of corroborating the admissions made by the defendant to Flannery. The admission of the conversation between Flannery and the defendant's wife was error.

An adoptive admission is "a statement ... made in the hearing of another, in regard to facts affecting his rights, and [that person's] reply, wholly or partially admitting their truth." Commonwealth v. Kenney, 12 Met. 235, 237 (1847). The declaration and the reply are admissible, as an exception to the hearsay rule, because "the reply ... is the act of the party, who will not be presumed to admit any thing affecting his own interest, or his own rights, unless compelled to it by the force of truth; and the declaration ... give[s] meaning and effect to the reply" (emphasis in original). Id. See Commonwealth v. Earltop, 372 Mass. 199, 201-202, 361 N.E.2d 220 (1977); Commonwealth v. Sazama, 339 Mass. 154, 156-157, 158 N.E.2d 313 (1959); Commonwealth v. Boris, 317 Mass. 309, 317, 58 N.E.2d 8 (1944); P.J. Liacos, Massachusetts Evidence, 287-289 (5th ed. 1981).

Because the defendant was not present at the conversation between his wife and Flannery, there was no adoptive admission. The evidence was hearsay not within an exception and therefore should not have been admitted. We turn to the question whether the admission of this evidence was prejudicial.

[492 N.E.2d 82] Flannery testified that the defendant made admissions to him; the defendant denied the conversation took place. Thus, the jurors were faced with a classic duel of credibility. The Commonwealth's evidence apart from Flannery's testimony was not decisive of the defendant's guilt, but merely corroborated bits and pieces of Flannery's testimony, or attempted to establish Flannery's reputation for truth and veracity in his community (M.C.I., Bridgewater). A witness for the defendant asserted that he was with Flannery and the defendant on November 14, 1981, and that they did not have a private conversation. Defense witnesses also testified differently from

Page 443

the Commonwealth's witnesses as to Flannery's reputation for truth and veracity. In these circumstances, testimony by Flannery of a private conversation between the defendant and his wife may have had a decisive bearing on the verdict. Further, the prosecutor, on redirect, had Flannery identify the defendant's wife in the courtroom, thus, perhaps, encouraging the jurors to draw a negative inference from her failure to testify. 3

In his summation, the prosecutor argued that Flannery's credibility was the critical issue. He reminded the jury that the defendant's wife was the first person to take Flannery "into their confidence about the facts of this murder." The prosecutor then said that because of the conversation between Flannery and the defendant's wife, the defendant had no choice but to take Flannery into his confidence. We cannot say that the evidence and the prosecutor's argument did not have the effect the Commonwealth intended it to have.

Nor can we say "with fair assurance," that the jury did not attach substantial significance to evidence of a private conversation between husband and wife or that such evidence did not have a substantial impact on the issue of Flannery's credibility. We conclude that the...

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1 practice notes
  • The doctrine of harmless error in criminal cases in Massachusetts.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy Vol. 18 Nbr. 2, June - June 2013
    • June 1, 2013
    ...v. Sinnott, 507 N.E.2d 699, 705 (Mass. 1987) (applying effect-on-jury-or-verdict test for harmless error); Commonwealth v. Reed, 492 N.E.2d 80, 82 (Mass. 1986) (discussing effect of error on jury); Commonwealth v. Elliot, 473 N.E.2d 1121, 1125 (Mass. 1985) (same); Commonwealth v. Schulze, 4......
1 books & journal articles
  • The doctrine of harmless error in criminal cases in Massachusetts.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy Vol. 18 Nbr. 2, June - June 2013
    • June 1, 2013
    ...v. Sinnott, 507 N.E.2d 699, 705 (Mass. 1987) (applying effect-on-jury-or-verdict test for harmless error); Commonwealth v. Reed, 492 N.E.2d 80, 82 (Mass. 1986) (discussing effect of error on jury); Commonwealth v. Elliot, 473 N.E.2d 1121, 1125 (Mass. 1985) (same); Commonwealth v. Schulze, 4......

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