Com. v. Breese

• Decision Date: 26 June 1980
• Citation: Com. v. Breese, 406 N.E.2d 1292, 381 Mass. 13 (Mass. 1980)
• Parties: COMMONWEALTH v. Glen J. BREESE.
• Court: Supreme Judicial Court of Massachusetts

Page 1292

406 N.E.2d 1292

381 Mass. 13

COMMONWEALTH v. Glen J. BREESE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 4, 1980.

Decided June 26, 1980.

John C. McBride, Everett, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Jan Roller, Legal Asst. to the Dist. Atty., Cambridge, with him), for the Commonwealth.

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

BRAUCHER, Justice.

The defendant appeals from his conviction of murder in the first degree. See G.L. c. 278, §§ 33A-33G; St.1979, c. 346; Mass.R.A.P. 1B, Mass. (1979) (effective July 1, 1979). Early in the morning of Wednesday, May 31, 1978, the body of the victim, a prostitute working in the "Combat Zone" in Boston, was found in an apartment used by several prostitutes as a "trick pad" for entertaining "dates." Among other things the defendant claims that the prosecutor in her opening described the testimony of a witness who later failed to appear, and that her statement was "irretrievably and fatally prejudicial to the defendant." See Commonwealth v. Bearse, 358 Mass. 481, 487, 265 N.E.2d 496, 499 (1970). We affirm the conviction.

The Commonwealth produced evidence tending to prove the following facts. The defendant spent the evening of May 30, 1978, with his girl friend. They argued about his drinking, he went to her apartment "still sort of mad and evil," and he left a few minutes before midnight. A prostitute named Marie saw him in a Combat Zone bar, about six minutes' drive from the girl friend's apartment. Meanwhile, the victim and a prostitute named Linda had spent much of the evening in the same bar and another bar in the Combat Zone. About 1 A.M. the victim left Linda; she returned about 1:30 A.M. to ask Linda for the keys to the "trick pad" apartment, and she agreed to meet Linda about 2 A.M. to return the keys. At 1:45 A.M. the defendant backed his car into the car of a prostitute named Ruth in a Combat Zone parking lot. Ruth confronted him and copied his identification from his license. The victim was present and told Ruth that defendant was her date. She then got into his car, and they drove off. About 1:55 A.M. Marie came out of the "trick pad" apartment, met the victim and the defendant on the front steps of the building, and conversed briefly with the victim. A neighbor testified to a woman's screams from the apartment at 2 A.M., and the victim died about that time from forty-three stab and incised wounds. When the victim failed to meet Linda, Linda went to the apartment and found the body.

Between 6 and 7 A.M. the same morning, police officers visited the defendant at his apartment in Everett. He told them of the accident in the parking lot and said he had left with a female but had dropped her off when they could not agree on a price. When shown a picture of the victim, he said it looked like her. At 7:30 A.M. he called his girl friend, and told her what he had told the police about various details. She asked why he lied about the clothes he wore and he gave an explanation and asked her to corroborate his statements. There was evidence that a bloody footprint found in the "trick pad" apartment matched the "somewhat unusual" footprint of the defendant, and that a hair matching his was found on a towel there.

1. The missing witness. In her opening statement the prosecutor said that Alice Thompson would testify that about the time the defendant was arraigned she asked him, "Aren't you the man who killed Karen (the victim)?" and he answered, "Yes, I killed that prostitute, and what's more I am going to kill the witness, too." Thirteen days after the opening statement a police officer testified that Alice Thompson had been in the court house on three trial days in the previous week, but that since then he had been unable to locate her. The judge called a bench conference and said, "I am just puzzled and noticed that puzzled look on some of the jurors' faces. Who is Alice Thompson?" After full discussion with counsel, the judge denied the defendant's motions for dismissal and for mistrial. The judge indicated that he thought it more prudent to instruct the jury in general terms than to remind them of the prosecutor's opening statement.

The prosecutor in her opening said that "what I say in the opening statement is not evidence" and explained that evidence would come only from witnesses and exhibits. She made a similar statement in her closing argument, referring specifically to "anything I said in my opening statement" that "was not presented in evidence." The judge gave general instructions to the same effect, and said specifically that the jury were "not to speculate as to what a witness who was not produced for whatever reason would have said or would not have said," regardless of mention in an opening statement. He added that "we had some mention of . . . maybe another woman who the police attempted to find, but were unable to, they said, and you are not to let that enter into your deliberations at all."

As a general rule, counsel is free to state in his opening anything that he expects to be able to prove by evidence. If the expected testimony does not materialize, it will not be presumed that the prosecutor acted in bad faith. Commonwealth v. Fazio, --- Mass. ---, --- - ---, ^a 378 N.E.2d 648 (1978) and cases cited. Like the Fazio case, the present case does not present a situation where the force of the prosecutor's opening remarks was overwhelmingly prejudicial and likely to leave an indelible imprint on the jurors' minds. Contrast Commonwealth v. Bearse, 358 Mass. 481, 487, 265 N.E.2d 496 (1970), where the missing testimony was presumptively inadmissible and transformed the "core" of the Commonwealth's case. In the present case the curative statement by the prosecutor and the judge's curative instructions were clear, and we think the judge did not abuse his discretion in deciding against dismissal or a mistrial.

2. Witness fear. In her opening statement, the prosecutor stated that Marie would testify that she was taken to a bar to see if she could identify the man she had seen with the victim, that thereafter certain things began to happen to her, "and she will tell you about them when she is on the stand, and these things caused her to have her phone cut off and to change the color of her hair."

Marie did testify to the visit to the bar with the police, but the judge excluded testimony as to the phone cut-off, the change of hair color, and the events that caused those decisions. She testified that she recognized the defendant in the bar but did not so inform the police until several days later. When asked the reason, she said, "I was scared on one point." The judge permitted the prosecutor to ask what the "one point" was, but ordered the answer struck: "I was scared because of my life was in danger and also my daughter. I have a little girl." Later a police officer testified without...