Com. v. Adrey

• Decision Date: 04 December 1978
• Citation: 376 Mass. 747,383 N.E.2d 1110
• Parties: COMMONWEALTH v. Jerry G. ADREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1110

383 N.E.2d 1110

376 Mass. 747

COMMONWEALTH v. Jerry G. ADREY.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 2, 1978.

Decided Dec. 4, 1978.

Michael T. Stella, Jr., Asst. Dist. Atty., for the commonwealth.

Harvey Brower, Boston, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

The defendant was convicted by a jury of murder in the second degree for killing Ronald Fregeau in Lawrence on December 3, 1973. His appeal is before us under the provisions of G.L. c. 278, §§ 33A-33H. The case presents for our decision these issues: ¹ (1) whether the trial judge impermissibly limited cross-examination of a prosecution witness, (2) whether the judge should have declared a mistrial when defense counsel learned that the prosecution had arguably suppressed allegedly exculpatory information, (3) whether the judge correctly instructed the jury on the meaning of proof beyond a reasonable doubt, and (4) whether the judge erred in instructing the jury that the prosecution need not prove that no-one but the defendant could have committed the crime. There was no error.

The evidence against the defendant consisted primarily in the testimony of Roy Weisenborn and Robert Burns, each of whom was granted immunity in exchange for testifying. Burns testified as follows: On the evening of December 3, 1973, he was present with the defendant, Weisenborn, Nancy Emory, and another individual in Burns's or Weisenborn's apartment in Lawrence. Following some conversation, Weisenborn drove Burns, Emory, and the defendant in Emory's car to the Beacon Courts housing project in Lawrence where Fregeau lived. During the trip, Burns rode in the back seat, the defendant sat in the right front seat, and Emory sat on the front seat between the defendant and Weisenborn.

On arrival at the housing project, the defendant said something to Emory about retrieving his clothes and identification from Fregeau's apartment. Emory left the car and returned about five minutes later. She said words to the effect that Fregeau wanted to cut the defendant's throat. After getting back into the car, Emory sat in the right front seat, and the defendant sat in the middle of the front seat.

Several minutes later, an individual appeared at the edge of the parking lot calling to the defendant to "come here." The defendant instructed Weisenborn to roll down the driver's side window and, when that was done, leaned across Weisenborn and fired "a couple" of shots. The person who had been standing at the edge of the parking lot fell down to his right.

After the shooting, all four occupants of the car drove to the home of Bradley Lyon in Pelham, New Hampshire, where they met Lyon and a young girl.

Weisenborn related essentially the same story as did Burns except for the following details. After Emory left the car at Beacon Courts, Weisenborn backed the car into a parking space. After the defendant fired one shot, the victim fell down. Weisenborn then allowed the car to roll forward a bit. The defendant asked Weisenborn to wait, said, "Dead men tell no tales," and fired a second shot. Weisenborn did not, however, recall rolling down the window.

In addition to the eyewitness testimony of Burns and Weisenborn, the Commonwealth presented testimony tending to show the following. A Lawrence police officer, who was on foot patrol in the Beacon Courts housing project area, heard three gunshots at about 10:30 P.M. He arrived in the Toye Avenue parking lot, which abutted Fregeau's building, a few minutes later and discovered a man, later identified as Fregeau, lying on his back and bleeding profusely from the head. Fregeau was taken to Lawrence General Hospital, where he died on December 4, 1973, from a bullet wound to his brain. An autopsy by the medical examiner disclosed a grazing bullet wound to the scalp and a second, penetrating wound caused by a .22 caliber bullet that entered, and was recovered from the skull. Both bullets entered the victim in the area of the right temple. On December 7, police obtained a .22 caliber revolver from underneath the defendant, who was lying on a bed when awakened by the police in Emory's apartment. Ballistic examination of this revolver was unable to establish whether it had fired the bullet removed from Fregeau's skull.

Several witnesses furnished corroborating details. See G.L. c. 233, § 2OI. One resident of Beacon Courts saw the victim, whom she knew personally, leave a nearby convenience store at about 9:40 P.M. On her way home, she observed a station wagon with three occupants in the front seat. At some later time, she observed the defendant in the rear seat of the same car. Thereafter, she heard two gunshots. A second resident observed a car with lighted headlamps backed into a parking space. She later heard two or three sounds like firecrackers and, after thirty or forty seconds, observed a light colored station wagon with three occupants in the front seat drive past her leaving the housing project area. Police officers searched Fregeau's apartment in Beacon Courts after the incident and discovered several identification cards bearing the defendant's name and a shirt labelled with the defendant's first name, which differed from that of the victim. Lyon and a young girl (housekeeper) living with Lyon in Pelham, New Hampshire recalled being visited one night in December by Emory, Weisenborn, Burns, and the defendant, and they stated that this visit was the only time the defendant came to their house. Several witnesses had seen the defendant display a revolver similar to the one confiscated by the police on December 7. When he was arrested for murder at the Lawrence District Court on December 8, ² the defendant initially denied knowing Fregeau. He then admitted knowing Fregeau and having his clothes at Fregeau's apartment. The defendant further asked the arresting officer to shoot him, inasmuch as he was "a waste" and would "never spend (his) life in jail."

The defendant introduced no evidence. Defense counsel relied instead on several inconsistencies in the Commonwealth's evidence. We summarize the most significant of these. We have already noted that one witness definitely placed the defendant in the Rear seat of the car. Two witnesses said they heard three shots in rapid succession; because the defendant's revolver was a single-action weapon, requiring that the hammer be cocked before each firing, three quick shots would be impossible to fire. Lyon said he was getting ready for bed when the defendant's party arrived, that he was not working that night, and that the party must therefore have arrived after 10 P.M.; it was stipulated, however, that December 3, 1973 was a Monday, and Lyon's housekeeper testified that Lyon would normally have worked that night beginning after midnight and would therefore not have gone to bed.

The jury evidently concluded that these inconsistencies did not create a reasonable doubt about the defendant's guilt, ³ and they convicted him of murder in the second degree.

1. Limitation of cross-examination. The defendant argues that the judge improperly limited cross-examination of the prosecution witness Robert Burns. Defense counsel elicited on cross-examination the information that, in exchange for Burns's testimony, the Commonwealth had granted Burns immunity and dropped a number of unrelated bad-check charges. Counsel was not permitted, however, to inquire, "Where did you get those checks that you cashed?" In addition, counsel established that Burns was under the influence of an amphetamine-like drug at the time of the incident, but was not allowed to ask, "How long had you been using drugs up to that point?" or whether Burns entered a drug rehabilitation center at a later time.

Counsel unquestionably had, and was granted, the right to test Burns's ability to perceive and remember by inquiring whether Burns had been using drugs near the time of the crime. See Commonwealth v. Barber, 261 Mass. 281, 290, 158 N.E. 840 (1927). Counsel had no right, however, to inquire further to establish a pattern of drug addiction or treatment without also showing how that specific information would affect Burns's credibility. Commonwealth v. LaCorte, --- Mass. ---, --- ^A, 369 N.E.2d 1006 (1977). Commonwealth v. Caine, 366 Mass. 366, 369-370, 318 N.E.2d 901 (1974). Commonwealth v. McLaughlin, 352 Mass. 218, 231, 224 N.E.2d 444, cert. denied, 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d 268 (1967). People v. Ortega, 2 Cal.App.3d 884, 902, 83 Cal.Rptr. 260 (1969). State v. Belote,213 Kan. 291, 296, 516 P.2d 159 (1973). State v. Cedre, 314 A.2d 790, 798-799 (Me.1974). But see People v. Freeland, 36 N.Y.2d 518, 525, 369 N.Y.S.2d 649, 330 N.E.2d 611 (1975) (evidence of heroin addiction admissible to impeach crucial identification by stranger). See generally Annot., 65 A.L.R.3d 705 (1975). The judge therefore properly excluded the questions.

With respect to the excluded question about where Burns obtained the bad checks, counsel argues that he sought to establish a connection between Burns and the victim and a motive for Burns to commit the crime. The colloquy between counsel and the judge clearly shows, however, that the judge excluded only the specific question about "where" the checks came from while preserving counsel's right to explore Burns's motive. Counsel could easily have asked whether Burns and Fregeau were involved together in the check scheme, but he apparently chose not to. In these circumstances, there was no abuse of the judge's discretion to limit cross-examination on collateral matters. See, e. g., Commonwealth v. Underwood, 358 Mass. 506, 513, 265 N.E.2d 577 (1970).

2. Alleged suppression of exculpatory evidence. During cross-examination of Lyon, defense counsel learned for the first time that Lyon had no independent memory of the date on which the defendant and his companions had visited Lyon's home in Pelham, New...