Com. v. Cadwell

• Decision Date: 01 February 1978
• Citation: 372 N.E.2d 246,374 Mass. 308
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 246

372 N.E.2d 246

374 Mass. 308

COMMONWEALTH v. Calvin T. CADWELL.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Oct. 3, 1977.

Decided Feb. 1, 1978.

Thomas J. O'Connor, Jr., Springfield, for defendant.

L. Jeffrey Meehan, Sp. Asst. Dist. Atty., for Commonwealth.

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

KAPLAN, Justice.

The jury verdict of guilty in this case must be taken to establish that the defendant Cadwell, living in his house in Pittsfield with Mrs. Judith Gerwaski and her two children, inflicted injuries on the child Walter which caused his death. Walter, aged four, was a frail boy, weighing about twenty-five pounds, a slow learner, not yet fully toilet trained. The jury could believe that the defendant, vexed by the child's ineptitude, pursued over a period of some weeks a course of slapping and punching him, striking him with a paddle, and abusing him in other ways so that he was bruised over a considerable extent of his body. On the morning of January 26, 1975, the child had trouble swallowing a doughnut. There was evidence that the defendant punished him by repeated slaps or blows, some to his head. Death probably came as the blows ceased or very shortly thereafter. Efforts at resuscitation by the defendant, the police, and staff at the hospital, to which the child was brought, failed of any effect. At an autopsy performed that afternoon, reflexion of the scalp revealed bilateral subdural hematomas. The pathologist concluded that death was caused by "multiple blunt force injuries to the head" (as by blows with the hand) inducing the hematomas.

The defendant was indicted for murder. On trial, the judge denied motions for a directed verdict on the whole case and on so much of the indictment as could be taken to charge murder in the first or second degree. The judge instructed the jury with regard to two types of murder in the first degree (in the words of G.L. c. 265, § 1: "(m)urder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty"), murder, in the second degree, and manslaughter, voluntary and involuntary. The jury returned a verdict of murder in the first degree, and from the judgment of conviction thereon the defendant takes his appeal pursuant to G.L. c. 278, §§ 33A-33G.

None of the refusals to direct a verdict is urged as error, so there is no challenge to the verdict for lack of adequate support in the evidence. ¹ Errors assigned and argued center on the judge's rulings during the appearance on the stand of Mrs. Gerwaski as a prosecution witness. They also cover a miscellany of other rulings. These challenges come to little, as we shall see, but a question remains as to our duty under G.L. c. 278, § 33E.

1. Rulings regarding the witness Gerwaski. Mrs. Gerwaski had herself been indicted for murder. (On her testimony in the present record it would appear that her fault lay chiefly in turning the "disciplining" of the boy over to the defendant and knowingly allowing him to carry on.) Mrs. Gerwaski testified at length to the defendant's acts. As her testimony began, the prosecution elicited from her that she had pleaded guilty to being an accessory to the crime of manslaughter, the murder charge being nol prossed. ² The defense objected that there was danger the jury would infer from this testimony that the defendant must be guilty of manslaughter, at least, for there could not be an accessory without a principal, who must have been the defendant. The position of the defense presumably was that the Commonwealth should have taken Mrs. Gerwaski through a direct examination without getting into the matter of her guilty plea; the defense would be then at liberty on cross-examination to use the plea to weaken her credibility by suggesting bias as well as conviction of crime. Possibly the defense was suggesting that neither side should interrogate on the subject.

The first difficulty with the objection is that it was not made at the threshold of Mrs. Gerwaski's testimony when she was led to make her statements about her guilty plea. It was not until after the defense had exploited the fact of the plea and its implications during cross-examination in an attempt to discredit the witness, that it got around to raising the question of the propriety of the prosecution's tactic. The remonstrance was late. Cf. United States v. Chamley, 376 F.2d 57, 60 (7th Cir. 1967).

Had the objection been timely made in the same form, the judge would have been justified in overruling it and permitting the prosecution to question Mrs. Gerwaski as it did. When the prosecution tenders as its witness a person with a criminal record, it sometimes starts by eliciting this history. (The defense sometimes does the same when offering such a witness on its part.) The interrogation should not be regarded as an impeachment of the prosecution's own witness prohibited by G.L. c. 233, § 23 ³ (see Commonwealth v. Garrison, 398 Pa. 47, 52, 157 A.2d 75 (1959); 3A J. Wigmore, Evidence § 900, at 666-667 n. 1 (Chadbourn rev. 1970); cf. Walter v. Bonito, 367 Mass. 117, 120-122, 324 N.E.2d 624 (1975)), nor can the defense claim a right to bring out the damaging facts for the first time in a perhaps more dramatic way on cross-examination. This "is not something which is to be reserved for the pleasure and strategy of the defense." United States v. Freeman, 302 F.2d 347, 350 (2d Cir. 1962). The jury are entitled to the information for its bearing on the value of the witness's testimony, and the prosecution might indeed on occasion suffer unfairly in the estimation of the jury for attempting to conceal the criminal record if it did not come forward with it. Instruction by the judge about the exact significance of the testimony is of course advisable.

The situation is more delicate when the prosecution uses a witness who has pleaded or been found guilty for involvement in one way or other in the commission of the crime being tried (see United States v. Mahler, 363 F.2d 673, 678 (2d Cir. 1966)), for the jury may leap improperly to conclusions about the guilt of the defendant. Here there is peculiar need for a measured instruction about the inferences that the jury can or cannot legitimately draw from the particular testimony. See State v. Costa, 11 N.J. 239, 249, 94 A.2d 303 (1953). Cf. Commonwealth v. LeBlanc, 364 Mass. 1, 9, 299 N.E.2d 719 (1973); Commonwealth v. Sousa, 350 Mass. 591, 595-596, 215 N.E.2d 910 (1966). In the present case the judge did so instruct after objection was taken by the defense, and he instructed further on the point in his final charge to the jury. No criticism is made of the instructions. There are cases where special pains should be taken with the assistance of the parties to formulate such an instruction to the jury, and other cases where the wisest course may be for counsel on both sides to refrain from referring to a conviction. See United States v. Aronson, 319 F.2d 48, 52 (2d Cir. 1963); United States v. Freeman, supra at 350. ⁴ These problems should, where feasible, be discussed with the judge before trial or before the witness is called. At any rate the present claim of error is seen to be unavailing.

The judge committed no error in directing defense counsel not to use the word "deal" when referring to the guilty plea. What actually occurred the witness' undertaking to testify in the defendant's trial, the recommendation of the assistant district attorney to the court, and so forth was made clear in less septic language, and the defense was not thereby unduly limited in examining the witness or in commenting on the facts in its closing speech.

On cross-examination of Mrs. Gerwaski, the defense asked to have the whole statement made by her to the police received as an exhibit. The judge refused, with the correct explanation that the document could be and had been used by the defense only to the extent it provided a basis for impeaching the witness through prior inconsistent statements. See W. B. Leach & P. J. Liacos, Massachusetts Evidence 118 (4th ed. 1967). The same reasoning applied to the use of Mrs. Gerwaski's testimony at the probable cause hearing and before the grand jury. Such inconsistencies as did appear and they were many were brought out in the extended cross-examination.

Questions put to Mrs. Gerwaski by the Commonwealth, objected to as going beyond the proper bounds of redirect examination, were proper because responsive to the cross-examination. The judge indeed has discretion to allow a redirect that ranges further. See Commonwealth v. St. Pierre, 362 Mass. 886, 291 N.E.2d 396 (1972); McCormick, Evidence § 32 (2d ed. 1972).

2. Other rulings. (a) Complaint is made of the judge's refusal to reject for cause two members of the venire who may be taken to have had a feeling or formed some opinion about the case but who said they felt they could hear it impartially. It is contended also that the judge should have excluded a venireman who said he knew the assistant district attorney favorably. The judge has a latitude in sizing up veniremen for service on the jury and there is no sound basis for overriding his judgment here. See Commonwealth v. Dickerson, --- Mass. ---, --- ^a, 364 N.E.2d 1052 (1977); Commonwealth v. Geagan, 339 Mass. 487, 505-506, 159 N.E.2d 870 (1959).

( b) Photographs of the boy's body before autopsy were admitted in evidence near the beginning of the trial and photographs after autopsy were first marked for identification and later admitted in evidence in connection with the testimony of the pathologist who gave an opinion (virtually unchallenged) as to the cause of death. These exhibits were relevant to issues in the case including cause of death and atrocity or cruelty, and we cannot conclude that the judge erred in considering that their probative value overcame any tendency they might have to stir irrationality in the triers. See Commonwealth...