Com. v. Caine

• Court: Massachusetts Supreme Judicial Court
• Writing for the Court: Before TAURO; TAURO
• Citation: 366 Mass. 366,318 N.E.2d 901
• Parties: COMMONWEALTH v. Charles E. CAINE, Jr.
• Decision Date: 13 November 1974

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318 N.E.2d 901 366 Mass. 366 COMMONWEALTH
v.
Charles E. CAINE, Jr. Supreme Judicial Court of Massachusetts, Suffolk. Argued Sept. 17, 1974.
Decided Nov. 13, 1974.

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John P. White, Jr., Boston, for defendant.

Thomas F. Reilly, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and WILKINS, JJ.

TAURO, Chief Justice.

The defendant appeals from a conviction of murder in the first degree pursuant to G.L. c. 278, §§ 33A--33G, assigning twenty errors, but arguing only nine. ¹ Because careful review of the transcript and record makes it clear that the defendant's assignments are devoid of merit, we deal with them briefly. We affirm.

The record discloses a lengthy trial with many witnesses and contradictory testimony. We therefore find it best to discuss the specific facts as it becomes necessary to do so in the course of this opinion. Suffice it to say at this point that the defendant was charged with the murder of one Cleophus Gilliam, who was shot four times with a gun later traced to the defendant. His defense was alibi: he claimed that he was elsewhere when the victim was shot and killed.

1. The defendant argues that the judge erred in allowing the victim's wife to testify to certain matters on redirect examination. On direct examination she had related a conversation she overheard between her deceased husband and the defendant. On cross-examination she agreed that she had not given this testimony previously at a probable cause hearing. On redirect she was permitted to testify, over the defendant's objection, that she had previously related the same information to a police officer. There was no error. It was perfectly proper to admit this evidence in order to rehabilitate the witness and to meet the possible argument of recent contrivance. Commonwealth v. Pickles, --- Mass. ---, ---, ^a 305 N.E.2d 107 (1973).

2. The defendant assigns as error the refusal of the trial judge to exclude questions asked by the district attorney which he alleges went beyond the permissible scope of redirect examination. The first line of inquiry challenged here by the defendant concerns questions put to Jesse Jackson, a witness for the prosecution, with regard to why the witness had not told police about one Greer's being present when the witness and the defendant were together the afternoon before the murder. On cross-examination, the witness had been asked when he told police about Greer. ² The questions asked on redirect were clearly proper to allow the witness to explain his prior testimony and were well within the scope of proper redirect examination.

One purpose of redirect examination is to allow a witness to 'explain, correct or modify the evidence elicited from (him) on cross-examination by the defendant.' Commonwealth v. Galvin, 310 Mass. 733, 747, 39 N.E.2d 656, 663 (1942). A party has a right on redirect to ask a witness to explain testimony given on cross-examination and to call his attention thereto as a basis for further evidence regarding the same subject matter. By proper inquiry, he may afford the witness an opportunity to 'explain, correct or modify

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such previous statements.' Commonwealth v. Smith, 329 Mass. 477, 479, 109 N.E.2d 120, 122 (1952), quoting from Mahoney, v. Gooch, 246 Mass. 567, 570, 141 N.E. 605 (1923).

The defendant also challenges questions asked of the witness Greer as to why it took him two hours to bring the gun given to him by the defendant from Jackson's house to the police. These questions were proper in light of a series of questions on cross-examination which attempted to discredit the witness by stressing the inordinate length of time it took him to make an otherwise short trip. There was no error in allowing these lines of questioning on redirect examination. ³

3. The defendant contends that the judge erred in excluding a question asked on cross-examination of the witness Greer as to whether he had been committed to Boston State Hospital. He urges that the question sought to elicit an answer material to the issue of the witness's competence and credibility, and argues that its exclusion prevented him from adequately impeaching the testimony of a critical witness.

The defendant argues further that this evidence was relevant to the impeachment of the witness's competence, credibility, and testimonial faculties. We agree that mental impairment, as well as habitual intoxication and drug addiction, may be the subject of proper impeachment if it is shown that such factors affect the witness's capacity to perceive, remember, and articulate correctly. Commonwealth v. Sacco, 255 Mass. 369, 439, 151 N.E. 839 (1926); Commonwealth v. Nassar, 351 Mass. 37, 48, 218 N.E.2d 72 (1966), appeal after remand, 354 Mass. 249, 237 N.E.2d 39 (1968), cert. den., 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969). In this case, however, the defendant made no showing that the testimony he sought to elicit would fall within the permissible scope of cross-examination. ⁴ Without more, evidence of the mere fact of commitment to Boston State hospital was insufficient to compel admission of this testimony. "(T)he scope of cross-examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown . . ..' Commonwealth v. Smith, 329 Mass. 477, 479, 109 N.E.2d 120, 122 (1952). Commonwealth v. Makarewicz, 333 Mass. 575, 593, 132 N.E.2d 294 (1956). The burden of showing the abuse of such discretion is on the defendant . . ..' Commonwealth v. Underwood, 358 Mass. 506, 513, 265 N.E.2d 577, 583 (1970). In failing to demonstrate on the record the particular relevance of the line of questioning sought to be pursued, the defendant is unable to carry his burden of showing abuse of discretion. There was no error in excluding the question.

4. The defendant assigns as error the admission of testimony by Mrs. Gilliam that a gun kept in her home, and later identified as the murder weapon, was missing a week before the death of the deceased. He contends that this testimony

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placed him in a position of defending against charges not contained in the indictment and thereby prejudiced him in the eyes of the jury. '(W)hile evidence of other criminal or wrongful behavior may not be admitted to prove the character or propensity of the accused . . ., it is admissible for other relevant probative purposes.' Commonwealth v. Chalifoux, --- Mass. ---, ---, ^b 291 N.E.2d 635 (1973). The fact that evidence otherwise relevant and material may indicate that the defendant committed another crime does not make it inadmissible. Commonwealth v. Green, 302 Mass. 547, 552, 20 N.E.2d 417 (1939). Commonwealth v. Abbott Engr. Inc., 351 Mass. 568, 572, 222 N.E.2d 862 (1967); Commonwealth v. Redmond, 357 Mass. 333, 338, 258 N.E.2d 287 (1970). The testimony in question is clearly relevant and material to show that the defendant possessed the means with which to commit the crime. Furthermore, this testimony, along with other evidence introduced, could well have a bearing on the critical issue of premeditation. The possibility that the jury might infer that the defendant stole the gun from the deceased's home was not sufficient to require exclusion of this testimony. ⁵ As we indicated in the Chalifoux case, supra, if the value of the statement as legitimate proof were outweighed by the danger of prejudice which cannot be corrected by instruction or by reliance on the good sense of the jury, a persuasive argument could be made for exclusion. But here, as in the Chalifoux case, 'the present record does not persuade us to such a...