Com. v. Caldron

Citation383 Mass. 86,417 N.E.2d 958
PartiesCOMMONWEALTH v. Jesus CALDRON.
Decision Date04 March 1981
CourtUnited States State Supreme Judicial Court of Massachusetts

Ellen A. Howard, Brookline, for defendant.

Charles M. Campo, Asst. Dist. Atty., for the Commonwealth.

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

KAPLAN, Justice.

We accepted for direct review, on our own motion, the appeal of Jesus Caldron from convictions of robbery (G.L. c. 265, § 19) and of assault and battery with a dangerous weapon (G.L. c. 265, § 15A), on which he received sentences of eighteen years and nine years, respectively, in M.C.I. Concord, to be served concurrently. He raises issues regarding (1) the exclusion of questions to elicit testimony by him as to his intent at the time of the commission of the alleged criminal acts, and (2) the refusal to exclude evidence of his prior convictions of crime. We hold for the defendant on the first issue, and accordingly reverse the convictions, the cases to stand for retrial. We say only a word about the second issue which may recur at retrial.

At the trial to a jury in December, 1979, the Commonwealth called two witnesses, the victim Paul F. Sullivan and Officer A. James Shula of the Boston police. The victim testified on direct that on July 20, 1976, about 11:10 P.M., he was approached by two men near the corner of Essex and Kingston Streets, Boston, as he was walking toward his parked car. One of the men was the defendant Jesus Caldron, the other was Joseph Pope (as later identified). No one else was on the street. The lighting was poor. Pope asked the victim for the time, then said, "This is an old fashioned robbery." According to the victim, the defendant hit him in the face and grabbed his arms. Pope went through the victim's pockets and removed a fisherman's knife and a wallet (containing, the victim believed, four one dollar bills); he also took a wrist watch from the victim. The victim managed to free an arm, whereupon Pope stabbed him in his left side with the fisherman's knife. The defendant and Pope then fled.

Further testifying, the victim said he ran to his car nearby to fetch a club he kept there, and pursued the assailants. During the chase he met Shula and Shula's partner patrolling in a cruiser. The officers took the victim aboard, rode for two blocks, and spotted the defendant and Pope on Tyler Street. Five to fifteen minutes had passed since the robbery. As the victim watched, the officer apprehended and searched the two men, finding the victim's knife in the process. Ten stitches were needed later to close the victim's stab wound.

Officer Shula's testimony added that the victim's knife was found in Pope's pocket and bore fresh blood. Pope had two one dollar bills in his pocket; the defendant had four one dollar bills.

This was the testimony when the prosecution rested, apart from what was elicited on cross-examination of the victim, which we mention below.

The defense called only the defendant. He said he had met Pope about two weeks before the robbery through their attendance at the Center for Attitude Change in Boston. They had come to the downtown area to look for Pope's girl friend. Walking down Essex Street, they encountered the victim. Pope suddenly and unexpectedly grabbed the man, began to search his pockets, and removed something that the defendant could not see at the time. Pope told the defendant to hold the victim, but the defendant did not do so; rather he asked Pope what he was doing and tried to pull him off the victim. He might have touched the victim during the struggle but, if he did, it was when he was trying to grab Pope. He did see two dollar bills and something "shiny" in Pope's hands as Pope let go of the victim. Even then the defendant did not realize that there had been a stabbing until he heard about it after the arrest.

To revert to the cross-examination of the victim Sullivan: As noted, the victim maintained on direct that the defendant had hit him in the face and Pope had emptied his pockets and stabbed him while the defendant held his arms. Before the grand jury in August, 1976, he had testified only that "they" had hit him, and that it was the defendant who had gone through his pockets (he was consistent in charging Pope with the stabbing). He conceded that at the grand jury he was "confused" as to what each assailant had done. He conceded further that he had told the defendant's attorney the day before trial that the stabbing occurred during a struggle between Pope and himself, and that the defendant had stood by without participating. But his direct testimony had the defendant holding his arm during the stabbing.

1. Exclusion of proffered testimony on intent. On direct examination of the defendant, counsel sought to ask him whether he intended at any time to rob the victim. The judge excluded the question on the Commonwealth's objection, and exception was taken. At three other places in the direct examination, counsel asked the defendant what he had said to Pope just after the robbery. These questions were likewise excluded on the Commonwealth's objection and counsel made known his exception to the rulings. 1

(a) The exclusion of testimony by the defendant describing his own intent was error. 2 See Commonwealth v. Reynolds, 338 Mass. 130, 134, 154 N.E.2d 130 (1958); Commonwealth v. Woodward, 102 Mass. 155, 161 (1869); Commonwealth v. Huffman, --- Mass.App. ---, --- - --- a, 414 N.E.2d 1032 (1981); Commonwealth v. Kraatz, 2 Mass.App. 196, 202, 310 N.E.2d 368 (1974). See also Crawford v. United States, 212 U.S. 183, 202-203, 29 S.Ct. 260, 267, 53 L.Ed. 465 (1909); Whiting v. United States, 296 F.2d 512, 519 (1st Cir. 1961). Wrongful intent or purpose is an element of the crime of robbery as well as of assault and battery with a dangerous weapon. See G.L. c. 265, § 19, and Commonwealth v. Weiner, 255 Mass. 506, 509, 152 N.E. 359 (1926); id., § 15A, and Salemme v. Commonwealth, 370 Mass. 421, 424, 348 N.E.2d 799 (1976). See also Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973) (regarding mental state in relation to criminal joint venture). Indeed the trial judge instructed on the intent ingredient of these crimes. Thus the testimony was relevant, and should have been received, unless there is some particular rule that excludes. There is none. Wigmore found in some cases an "obscure suggestion" that a party (and sometimes even a witness) was disabled from testifying about his own intent, but he found also that the rejection of this suggestion was "virtually unanimous." 2 J. Wigmore, Evidence § 581, at 840 (Chadbourn rev. 1979). It is not a basis for excluding such testimony that it is self serving. As L. Hand, J., remarked in United States v. Matot, 146 F.2d 197, 198 (2d Cir. 1944), in a situation not dissimilar: "The prosecution seeks to defend the exclusion on the theory that the testimony would have been 'self-serving,' and that it was not part of the 'res gestae.' What else but 'self-serving' the testimony of an accused person on his direct examination is likely to be, we find it difficult to understand; and as for 'res gestae,' it is a phrase which has been accountable for so much confusion that it had best be denied any place whatever in legal terminology; if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms." On the same point, see also Commonwealth v. Fatalo, 345 Mass. 85, 87, 185 N.E.2d 754 (1962); State v. Abbott, 36 N.J. 63, 79, 174 A.2d 881 (1961) (Weintraub, C. J.).

(b) We consider next the testimony the defendant probably would have given about his conversation with Pope immediately following the robbery. From the defendant's attempted partial answer the first time the question was put (the judge cut him off), it appears he was going to describe an argument he had with Pope. The conversation would likely have been evidence from which the defendant's mental state at the time of the utterance could be inferred; it might have been a direct statement by him descriptive of that state. 3 The Commonwealth seeks to justify the exclusion by reference only to the hearsay rule. So far as the conversation provided inferential or indirect evidence of mental condition, the defendant's testimony about it would not be regarded as hearsay. See Commonwealth v. Wampler, 369 Mass. 121, 123, 337 N.E.2d 892 (1975); Commonwealth v. Ferreira, --- Mass. ---, --- b, 408 N.E.2d 871 (1980) (citing Wampler ); W.B. Leach &amp P.J. Liacos, Massachusetts Evidence 184-187 (4th ed. 1967); McCormick, Evidence § 249, at 590 (Cleary ed. 1972); 4 J. Weinstein & M. Berger, Evidence par. 803(3)(02), at 803-94 to 803-95 (1979). It would be otherwise, as to testimony of a direct statement. See McCormick, Evidence, supra at 590. But a distinction between statements bearing "circumstantially," and those bearing directly on mental set is at best thin, for the statements would seem of equal reliability. See McCormick, supra § 249, at 590 n.92; 4 J. Weinstein & M. Berger, supra at 803-95. We think the distinction, such as it may be, is not significant here. If there was a direct assertion of mental condition, it would nevertheless be admissible under a hearsay exception for declarations of such current states of mind. "Statements of a person as to his present friendliness, hostility, intent, knowledge or other mental condition are admissible to prove such mental condition." W.B. Leach & P.J. Liacos, supra at 248. See COMMONWEALTH V. FERREIRA, SUPRA AT ---- , 408 N.E.2D 871;C Commonwealth v. Wampler, supra at 123; Commonwealth v. Fiore, 364 Mass. 819, 824, 308 N.E.2d 902 (1974); Commonwealth v. Trefethen, 157 Mass. 180, 188, 31 N.E. 961 (1892); Fed.R.Evid. 803(3); Proposed Mass.R.Evid. 803(3) (July 1980). That the statement in this case was uttered a few minutes after the alleged robbery should not render it inadmissible: it was so close in time...

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