Com. v. Basch

• Decision Date: 28 June 1982
• Citation: 386 Mass. 620,437 N.E.2d 200
• Parties: COMMONWEALTH v. Henry R. BASCH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 200

437 N.E.2d 200

386 Mass. 620

COMMONWEALTH v. Henry R. BASCH.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Feb. 3, 1982.

Decided June 28, 1982.

Ellen Y. Suni, Boston, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant appeals from a conviction, following a jury trial, of murder in the first degree. He seeks relief under G.L. c. 278, § 33E, and in addition, claims the trial judge erred in (1) denying the defendant's motions for required findings of not guilty; (2) excluding the medical examiner's preliminary report; (3) admitting evidence on consciousness of guilt and instructing on this evidence; and (4) failing to give a requested instruction on circumstantial proof. ¹ We reverse.

We recite facts that the jury could have found. The defendant's wife, Sandra Basch, died of a single gunshot wound to the head while she was sleeping. There was a bullet hole just behind the left ear and a track forward to the right side of the head where the bullet was found. A minimal flash burn appeared at the bullet hole, caused by heat or powder burning from the muzzle of a gun. Sandra Basch's body was found in bed in the couple's home on October 10, 1977. She had died between 5 A.M. and 7 A.M. that day.

The defendant and the couple's only child, a five-year-old daughter, left the home some time that morning. Their first stop was in Sharon Center where they arrived between 7:45 A.M. and 8:15 A.M. The defendant did not return home until around 4 P.M. that day. At that time, he did not enter his own house, but instead used a neighbor's telephone to call the police. The defendant told the police on that day, and thereafter, that he had seen a man running through his yard carrying a suitcase that he thought contained his coin collection.

The Baschs had been having marital problems for years, and, at the time of her death, Sandra Basch intended to seek a divorce. Custody of the daughter had been a particularly divisive issue.

1. Motions for required findings of not guilty. At the close of the Commonwealth's case and again at the close of all the evidence, the defendant moved for required findings of not guilty as to murder in both the first and second degree. He claims the judge's denial of these motions was error.

Applying the standard of Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (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. Toney, 385 Mass. 575, 582, 433 N.E.2d 425 (1982). We consider the state of the evidence both at the close of the Commonwealth's case, and at the close of all the evidence. ²

At both times, there was sufficient evidence to warrant a verdict of guilty of murder in the first degree. The evidence tended to show the following facts. The defendant's wife was about to file for divorce. He was threatened with the loss of his daughter and his home. Death occurred when the defendant and the victim were alone except for their five-year-old daughter. The defendant staged a break-in and made false statements to the police to conceal his guilt. The victim was killed with a gun, placed close to her head, from behind, while she was sleeping.

The evidence was sufficient to allow the jury to infer that the defendant killed his wife after reflection. Deliberate premeditation would have been present even if the killing followed reflection by only a few seconds. Commonwealth v. Blaikie, 375 Mass. 601, 605, 378 N.E.2d 1361 (1978). Commonwealth v. Tucker, 189 Mass. 457, 494-495, 76 N.E. 127 (1905). ³

2. Medical examiner's report. The medical examiner testified for the Commonwealth that the time of death was between 5 A.M. and 7 A.M. His preliminary report left open the possibility that the death occurred as late as 9 A.M. At the close of the defendant's case in chief, which was one week after the testimony of the medical examiner, the defendant offered this report in evidence as a prior inconsistent statement. The judge excluded it on the ground that it was hearsay, and the defendant claims error.

An out-of-court statement introduced to impeach a witness, and not to prove the truth of the matter asserted in the statement, is not hearsay. The document should not have been excluded as hearsay.

The Commonwealth offers a second ground for excluding the report. It notes that order of proof rests within the sound discretion of the trial judge and urges that this power allowed the judge to exclude the document because, isolated as it was from the medical examiner's testimony, the report might be taken as substantive evidence despite the judge's cautionary instructions.

A party has a right to impeach an adverse witness's testimony by means of prior inconsistent statements, and though a judge may limit that impeachment when the testimony concerns collateral issues in the case, he has no discretion to do so when the issue is material. Assessors of Pittsfield v. W. T. Grant Co., 329 Mass. 359, 360, 108 N.E.2d 536 (1952). Here, the time of death was critical to the case since the defendant had left his house by sometime between 7:45 A.M. and 8:15 A.M. Although the order of proof generally rests within the trial judge's discretion, Commonwealth v. Randall, 260 Mass. 303, 310, 157 N.E. 354 (1927), Commonwealth v. Dower, 4 Allen 297, 299 (1862), this does not mean that the judge can use this discretion effectively to preclude a party from exercising his right to impeach. The judge's ruling effectively precluded the defendant from using the document. This ruling was error.

While we hold that the medical examiner's report was improperly excluded, we note that the Commonwealth could have mitigated any perceived unfairness by recalling the medical examiner to explain any inconsistency between his testimony and his report. See Gould v. Norfolk Lead Co., 9 Cush. 338, 347 (1852) (dictum); Commonwealth v. Smith, 329 Mass. 477, 480-481, 109 N.E.2d 120 (1952) (quoting Gould with approval). See generally P. J. Liacos, Massachusetts Evidence 165-166 (5th ed. 1981); K. B. Hughes, Evidence § 244 (1961); 3A J. Wigmore, Evidence § 1044 (Chadbourn rev. ed. 1970).

Time, and particularly the medical examiner's assessment of the time of the murder, were central to the Commonwealth's case. The medical examiner testified that the killing occurred between 5 A.M. and 7 A.M., without leaving open the possibility it could have occurred later. His report cited the same range of time, but expressly left open the possibility that the killing occurred as late as 9 A.M. No other witnesses testified that the killing necessarily occurred before 7 A.M. Since the defendant left his house around 8 A.M., use of the report was critical to discrediting the Commonwealth's theory that the defendant, with the exception of his five-year-old daughter, had an exclusive opportunity to kill his wife. We cannot conclude that had the report been admitted, it would not have created a reasonable doubt in the minds of the jury. Therefore, we reverse.

We briefly consider other issues that are likely to recur on retrial.

3. Consciousness of guilt. The defendant argues that evidence of his statements to the police regarding burglary of his coins should not have been admitted. A defendant's intentionally false statements about material particulars show consciousness of guilt and are admissible. Commonwealth v. Smith, 368 Mass. 126, 129, 330 N.E.2d 197 (1975). Commonwealth v....