Com. v. Bembury

• Decision Date: 25 January 1990
• Citation: 406 Mass. 552,548 N.E.2d 1255
• Parties: COMMONWEALTH v. Arthur A. BEMBURY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1255

548 N.E.2d 1255

406 Mass. 552

COMMONWEALTH v. Arthur A. BEMBURY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 3, 1989.

Decided Jan. 25, 1990.

Charles W. Rankin, Boston, for defendant.

Laura Callahan Burnham, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

On June 29, 1971, a jury in the Superior Court convicted the defendant of the murder in the second degree of Louise Simmons (on an indictment which charged him with murder in the first degree), and unlawfully carrying a firearm. The defendant filed a timely appeal from both convictions. A subsequent motion for a new trial was heard and denied. The order denying the motion for a new trial has not been appealed.

Represented by new counsel on appeal, ¹ the defendant argues that a new trial is necessary because the judge erred in (1) refusing to allow his trial counsel to suggest bias on the part of Faye Simmons, the principal witness against him, by disclosing her juvenile record to the jury; (2) permitting his impeachment by prior criminal convictions; and (3) improperly instructing the jury on malice and reasonable doubt. As the offense resulting in the defendant's conviction of murder in the second degree occurred before July 1, 1979, review under G.L. c. 278, § 33E, is appropriate. See Commonwealth v. Davis, 380 Mass. 1, 16, 401 N.E.2d 811 (1980). We find no basis to order a new trial and no occasion to grant relief under G.L. c. 278, § 33E. Accordingly, we affirm the defendant's convictions.

We recount the principal evidence presented by the prosecution and the defense.

1. The Commonwealth's case. In February, 1970, Faye Simmons (Faye) was fourteen years old, and was living with her father, Alexander Simmons, and the victim her mother, Louise Simmons, at 37 Schuyler Street in the Roxbury section of Boston. Faye and the defendant, nicknamed "Keetie," had been boy friend and girl friend for about six months. Her mother did not approve of Faye's keeping company with the defendant.

On Sunday, February 8, 1970, the day before Louise Simmons was murdered, the defendant visited Faye at 37 Schuyler Street. The defendant and Faye discussed breaking off their relationship but agreed to talk again. Their conversation concluded with Faye stating that she would call the defendant the next day, February 9. On February 8, Faye advised her parents that she would not be seeing the defendant again.

Faye did not call the defendant on February 9. This led to the defendant's calling and asking her to meet him at 6 P.M. at a cafe near her home. At first, Faye refused to meet the defendant, but she eventually agreed to see him just to get him off the telephone. She did not meet the defendant, nor did she talk with him again that day. Instead, she remained at home with her parents. Faye's father left for work about 3:40 P.M. When he left, Mrs. Simmons was "in good condition."

At about 5:45 or 6 P.M., the defendant called and Faye's mother answered the telephone. Five to ten minutes later, Faye heard the front doorbell ring. Faye was standing by the kitchen near the back of the house because she was planning to leave by the back door. When the doorbell rang, she went to the hall. From her position, Faye could not see the front door. Faye heard a door open and then heard her mother say, "It's Keetie." She recognized the defendant's voice, asking to speak with Faye. Faye's mother said that Faye did not want to see the defendant. The defendant then said, "Well, I want to see her." Mrs. Simmons said, "Well, she doesn't want to see you."

Faye could not understand the conversation that followed. She heard some movement, "like a stumble," coming from the porch. Faye's mother said, "Well, you just shoot then!" Faye heard a shot, and her mother calling her name. Faye immediately heard another shot. Her mother again called "Faye."

Faye went for help to a neighbor, who called the police. Officer Vincent D. Kelley of the Boston police department and his partner responded to Schuyler Street. There, Officer Kelley saw a man running into an alley. This man was stopped by Kelley, who approached him with his service revolver drawn.

Officer Kelley told the man, the defendant in this case, to stay where he was. The defendant had his hands in his pockets, and he was told by Kelley to put his hands in the air. The defendant raised his hands but then put them back into his pockets and appeared to fumble for something. The officer cocked his revolver and yelled for the defendant to put his hands back up in the air. The defendant did so.

Officer Kelley searched the defendant. He found a .22 caliber revolver in the defendant's pocket. The defendant was placed under arrest. The defendant said, "There was a shooting up the street." When the officer asked, "Where?," the defendant answered, "In the street, in the gutter." The defendant gave no address to identify the place of the shooting.

Officer Kelley handcuffed the defendant's left hand to his right hand. He then opened the defendant's revolver and took out five live rounds and two spent shells. The officer was eventually directed to 37 Schuyler Street, where he found Mrs. Simmons seriously wounded.

While he was still at 37 Schuyler Street with the defendant, Officer Kelley went into the kitchen. Faye was there; she grabbed a kitchen knife and went after the defendant. Kelley pulled out his night stick and knocked the knife from Faye's hand. Faye asked the defendant why he did it. The defendant said, "But I love you." She then went up to the defendant and put her arms around him, and said, "Sorry it had to end this way."

Mrs. Simmons died of gunshot wounds later that night. A ballistics test confirmed that two bullets found in Mrs. Simmons body had been fired from the revolver taken from the defendant.

2. The defendant's case. The defendant testified in his own defense. He recounted his relationship with Faye, who he thought was eighteen or nineteen years old. The defendant testified that on Sunday, February 8, he went to Faye's house and informed Faye that he was not coming back again. She asked him why and he did not give a reason.

On February 9, the defendant and Faye spoke again by telephone about the termination of their relationship. He eventually went to 37 Schuyler to talk with her about the problem.

The defendant went to 37 Schuyler Street and rang the doorbell. No one answered. He testified that the door was closed, but not locked. He rang the doorbell again. According to the defendant, he placed his hand on the door and found it open. The defendant went inside and saw Mrs. Simmons lying across the vestibule. He testified that he called, "Mrs. Simmons," twice, but that she did not respond. He then called, "Faye, Faye." He testified that he knew Mrs. Simmons had been hurt, but he did not know that she had been shot. The defendant saw a revolver lying on the floor about three feet from the body. He picked the revolver up, because he was scared, left the house, and ran down the street.

According to the defendant, he was apprehended shortly thereafter by Officer Kelley. The defendant told Kelley that a woman had been hurt and directed Kelley to 37 Schuyler Street. The defendant and Officer Kelley entered the Simmonses' house, walked past where Mrs. Simmons was lying, and went into the kitchen.

The defendant indicated that Faye came into the kitchen through the back door. According to the defendant, Faye said, "Where is my mother?" She went to the front of the house, came back, and grabbed a kitchen knife. Faye tried to attack the defendant, but Officer Kelley disarmed her. Faye ran over to the defendant and threw her arms around him and said that she loved him. One of the police officers asked Faye if she had seen the defendant commit the crime. Faye said that she had not because she had been next door.

3. Refusal of impeachment: Faye Simmons. Defense counsel filed a pretrial motion to inspect Faye's juvenile record with a view toward using the record to demonstrate bias on her part. The motion was denied, and counsel, as was the practice in 1971, took an exception. When Faye had completed her testimony, defense counsel again moved for access to her juvenile record. The motion was again denied. We now have that record before us. We also have a copy of the transcribed statement given by Faye to the police on the night of the murder and a transcript of her testimony before the grand jury. ² The defendant argues that the judge's denial of access to Faye's juvenile record deprived him of the opportunity to cross-examine her on possible bias resulting in a violation of his constitutional right to confront the principal witness against him.

The judge's ruling expressed the view, prevalent at the time of the trial, that a juvenile record was strictly confidential and, therefore, could not be introduced in evidence. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), decided three years after the defendant's trial, changed that view. The Davis decision held that, if information contained in a juvenile record indicated that the witness's testimony may be the product of official pressure or inducement, a claim that the record was confidential cannot prevail over the defendant's right to use the record to impeach the witness for bias. See Commonwealth v. Ferrara, 368 Mass. 182, 189-190, 330 N.E.2d 837 (1975). The defendant relies on the Davis and Ferrara decisions in making his argument. There is some irony in the fact that the defendant, by escaping and eluding detection for fifteen years, has gained the advantage of arguing that a change in the law requires a new trial. Nevertheless, the defendant is entitled to consideration of the issue because his experienced trial counsel carefully preserved the issue for appellate review and because the defendant's direct appeal has remained pending. See note 1, supra; ...