Com. v. Baldwin
| Citation | 431 N.E.2d 194,385 Mass. 165 |
| Parties | COMMONWEALTH v. Walter J. BALDWIN. |
| Decision Date | 01 February 1982 |
| Court | United States State Supreme Judicial Court of Massachusetts |
William P. Homans, Jr., Boston (Anne E. Braudy, Watertown, with him), for defendant.
Kevin Connelly, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.
The defendant was convicted by a jury on November 21, 1979, of murder in the second degree for fatally shooting Kenneth J. Tierney outside a South Boston tavern. The shooting occurred shortly after midnight, on the morning of Sunday, April 11, 1976. The defendant was sentenced to a term of life imprisonment and filed a notice of appeal. G.L. c. 278, § 33E. 1 We transferred the case to this court on our own motion.
Baldwin's primary claim of error on appeal is that the judge improperly denied his motion for a mistrial or dismissal. The motion was made after it became apparent that the testimony of an important prosecution witness varied, at several points, from a written summary made by a police officer of a statement made by the witness several months prior to trial. This summary had been disclosed to defense counsel prior to trial; the discrepancies allegedly first came to defense counsel's attention only when the witness was on the stand. The second claim of error arises from the cross-examination of the defendant. The defendant argues that the judge committed error by allowing the prosecutor to use a record of an arrest, which did not result in conviction, in an attempt to impeach the defendant. We affirm the conviction. We also conclude that there is no reason to exercise our power under G.L. c. 278, § 33E, to order a new trial or to otherwise mitigate punishment.
The direct evidence against the defendant consisted primarily of the testimony of two witnesses, John P. Shaheen and Clifford J. Sutton. It is on their testimony that we focus most of our attention.
Testimony of John P. Shaheen. Shaheen testified that on the evening of April 10, 1976, he was working as a "bouncer" and part-time bartender at Barney Grogan's Cafe, a South Boston establishment. 2 While seated at a table with a friend, he saw the defendant, with whom he was acquainted, sitting at the bar with his wife and another couple. Approximately twenty people were in the cafe at that time. Between 11:30 p. m. and 12:30 a. m., the victim, Kenneth Tierney, entered the cafe and walked to the end of the bar. Shortly thereafter, the defendant left his place at the bar and approached Shaheen's table. Referring to Tierney, he said to Shaheen, 3 When Shaheen scoffed at this, the defendant, who was standing, leaned over the table, opened his sports coat, and drew a handgun from the waistband of his trousers. He showed the gun to Shaheen. Shaheen was unalarmed at this demonstration by the defendant, although he knew Baldwin had been drinking for four or five hours. He watched as Baldwin put the gun back in his waistband and approached Tierney, who was still standing at the end of the bar. The two men conversed for approximately thirty seconds, but Shaheen was unable to overhear them.
At about this time, Donna Baldwin, the defendant's wife, left the bar area and went to the lavatory. Tierney turned and walked casually past Shaheen toward the main door of the cafe, followed closely by Baldwin. Shaheen's table was five or six feet from the door. He watched as Tierney pushed open the door and left the cafe. The door had almost closed when Baldwin pushed it open with his left hand while at the same time reaching with his other hand to his waistband. Baldwin went through the doorway, and the door closed behind him. A few seconds later Shaheen heard "a pop like a firecracker" sounding outside the bar. When he opened the door a few seconds after this, he found Tierney's lifeless body on the ground directly in front of him. Baldwin was nowhere in sight.
Shaheen told everyone present to leave. He opened the door and told Harold Ploof, another employee, who was standing in the doorway, to take over, whereupon he turned to leave. At this point he heard Katherine Rae, who was standing behind the bar, exclaim that "That son of a bitch just shot my best friend's brother." Shaheen went into the cafe to get his friend out and went home. 4 Shaheen did not inform the police of what he had seen and never discussed the incident with a law enforcement official until August or September of 1977, when he was under an indictment, and then met with representatives of the district attorney's office. 5
Tierney died on May 5, 1976, three weeks after the shooting. A ballistics examination revealed that the fatal bullet could have been fired from a number of different .32 caliber pistols. The murder weapon has never been recovered.
Testimony of Clifford J. Sutton. Clifford Sutton, the defendant's uncle, was the other key prosecution witness. His testimony, especially as it diverged from the account prepared by a police detective of his pretrial statement, is the focus of the present appeal. We treat the police report first. 6
On May 1, 1979, Detective Sergeant Robert G. Hudson, who was assigned to the office of the district attorney for Suffolk County as an investigator, met with Sutton at a motel in Hershey, Pennsylvania. During the ensuing conversation, which lasted for about one hour, Hudson jotted down some notes and later made a summary of the conversation, which was reduced to typewritten form. Hudson showed the handwritten notes to Sutton, who told him they were basically correct, although Sutton testified later that the notes were "a little hard to read." Sutton did not see the typed report until about a week before he testified. At that time he mentioned to Hudson that the report was inaccurate in several respects.
The pertinent details of the Hudson report are as follows: In November, 1975, the defendant and his family made a weekend visit to the Sutton home at 303 Wall Street, Hummelstown, Pennsylvania. At this time, Sutton owned many firearms, including a .32 caliber Harrington & Richards revolver, all of which he kept on the premises. Some time after December 21, 1975, the date of a fire in his home, Sutton made an inventory of his firearms. The box for the .32 caliber revolver was in its usual place, but the weapon was gone. Later, possibly in January, 1976, he reported the gun as missing or stolen to the Pennsylvania State police, the county sheriff's department, and the local police. The gun had disappeared some time between November, 1975, and the date of the fire.
On the morning of April 18, 1976 (Easter Sunday), the defendant called Sutton at his new home at 27 South John Street in Hummelstown. The defendant asked permission to visit for a while. He told Sutton that he could be in Hummelstown later that same evening. He arrived at about 9:30 p. m. accompanied by three friends who returned to Boston shortly thereafter. About ten days later, Baldwin's wife joined him at the Sutton home. After another week, Baldwin informed Sutton that he had to return to Boston for a court case arising from a shooting. Baldwin left Pennsylvania in the middle of the week, and the following Saturday his mother called Sutton to tell him that Baldwin was in Boston City Hospital recovering from gunshot wounds.
After Baldwin had recuperated sufficiently, Sutton brought him back to his home in Pennsylvania. Baldwin stayed with the Suttons until June or July of 1976, when he moved to an apartment in nearby Hershey. Baldwin and Sutton formed a contracting partnership, which fell apart in a dispute over work habits.
Some time in October, 1976, Baldwin's father and brother Daniel came to Sutton's home for the weekend. At some point during this time Sutton remarked negatively on the defendant's behavior. According to Hudson's report, Daniel Baldwin responded, "My brother will blow you away like he did Tierney, the Councilman's brother, with your gun that he had stolen."
In the fall of 1977, the defendant and Sutton made efforts at reconciliation. The defendant and his wife visited the Suttons, and Sutton informed the defendant of what his brother Daniel had said earlier. The defendant admitted that he shot Tierney with a .32 caliber revolver stolen from Sutton and provided details of the events surrounding the shooting. He told Sutton that Tierney was responsible for his getting shot "the first time." 7
The report concluded that Sutton was fearful of his safety if the fact of his cooperation were to be known. He was willing to testify against Baldwin, but only if he were guaranteed protection.
The Commonwealth disclosed information required under the rule enunciated in Commonwealth v. Lewinski, 367 Mass. 889, 329 N.E.2d 738 (1975), but secured a protective order covering the Hudson report and the identity of the witness. By the terms of the order, that information was to be made available to defense counsel only, and no earlier than four days prior to trial. The document was released to defense counsel on November 1, 1979. At a subsequent hearing, defense counsel was given permission to disclose the contents of the report to Baldwin at such time as the Suttons were in Massachusetts under police protection. Sutton arrived here on November 7, a Wednesday. Defense counsel requested and was granted a one-day continuance to discuss the report with the defendant. The trial began on Friday, November 9. Sutton testified on the following Friday, November 16.
Sutton's testimony was not wholly in accord with his statement as reflected in Hudson's report. Sutton testified that the first visit of the Baldwin family to Pennsylvania took place not in November, but in October, 1975. At this time he was not living at 303 Wall Street in Hummelstown, but in a mobile home near town. 8
Sutton's testimony, as it...
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