Com. v. Carr
| Decision Date | 09 November 1977 |
| Citation | 369 N.E.2d 970,373 Mass. 617 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert F. Muse, Boston, for defendant.
Peter D. Feeherry, Boston, Asst. Dist. Atty. (Eileen M. O'Connor, Boston, Sp. Asst. Dist. Atty., with him), for the Commonwealth.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.
This case reached the Appeals Court on report of the trial judge, and we transferred it here under G.L. c. 211A, § 10(A). The defendant Thomas Carr was tried to a jury on an indictment charging him with distributing a class B controlled substance, cocaine, in violation of G.L. c. 94C, §§ 31-32, and he was found guilty of that offense. In the course of the trial, the defense offered three witnesses who were prepared to testify that one Nelson Wood, indicted for the same crime but not joined as a defendant, had made extrajudicial statements tending to incriminate himself and exonerate the defendant. The judge excluded this testimony as inadmissible hearsay, applying the doctrine in the Commonwealth that a declaration "against penal interest" did not figure as an exception to the rule barring hearsay. He did not accept the defendant's argument that Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), required admission of the testimony as a matter of due process of law. On the defendant's postverdict motion for a new trial, the judge reported the question raised by his ruling, stating that if the exclusion was error, he would grant the motion for a new trial as matter of law, otherwise he would let the verdict stand.
We conclude, in line with the weight of modern authority in this country, that the doctrine mentioned should be reformulated. The trial judge is to decide the new-trial motion in that light. There is no material due process question.
1. We describe the content of the judge's brief report of the evidence at trial to which is appended a transcript of the voir dire testimony of Wood and the defendant's offers of proof.
Special Agent Sullivan, testifying as the principal witness for the Commonwealth, stated that he met Ralph Chute by prearrangement on the night of December 23, 1974, and proceeded with Chute to Broadway, Somerville, where they met Mendousa and Tommaro. The group drove to 71 Parkton Road, Jamaica Plain, Boston, and parked in front of the building. Sullivan remained on the sidewalk while the other three entered. In a few minutes, the three emerged, accompanied by men introduced to Sullivan as "Frank" and "Otto." Mendousa told Sullivan that the pair were the source of an unlimited supply of high quality cocaine. Frank said he was the "main man" but the transaction would be handled by Otto. Sullivan then paid $450 for a packet of cocaine handed to him by Otto. Having made arrangements for future dealings, Sullivan left, as did Chute, Mendousa, and Tommaro. Sullivan concluded his testimony by identifying the defendant as Otto. This was the only testimony identifying the defendant as the seller.
Nelson Wood, identified as "Frank" by the police, was arrested for a narcotics law violation based on the same transaction. Later the defendant was arrested. At the time of the defendant's trial, the indictment against Wood was still outstanding but he had not been tried.
The defendant's defense was that he had not taken part in the sale to Sullivan. Several witnesses testified that while the sale was going on the defendant remained in his apartment at 71 Parkton Road for all but a few seconds and that he had not been on the street. Witnesses testified that the defendant had a full beard at the time. Sullivan testified that Otto was clean shaven. Special Agent Kenney, who observed the transaction through binoculars, testified that the person who made the sale was clean shaven; he was unable to identify the defendant positively as the seller.
Wood was called by the defense as a witness but on voir dire claimed and was allowed his privilege against self-incrimination in refusing to answer any questions of substance regarding his relation with the defendant or his out-of-court statements. Offers of proof were then made as follows.
Phyllis Carr, the defendant's mother, would testify that Wood, with whom she was friendly, spoke to her on the night he was indicted and perhaps fifteen times thereafter and told her that the police were trying to involve the defendant and that the defendant had not been on the street. He asked what he could do to get the defendant out of the situation. Joseph Moscaritolo, a friend of the defendant, would testify that Wood, within a week of his indictment, told him he could not understand why the police had arrested the defendant as the defendant had not been on the street and had nothing to do with the sale. The defendant would testify that Wood spoke to him after being indicted and said he had made the sale while sitting in the car with Sullivan; that Sullivan asked him whether Otto lived in the apartment and he answered yes; that Sullivan said Mendousa and Tommaro claimed "Otto Carr" was involved, but he, Wood, had answered that Carr had nothing to do with the business. After the defendant was arrested, Wood apologized for involving him and told him on several occasions that he would see that the defendant was cleared and would take the stand and testify truthfully that the defendant had nothing to do with the sale.
2. Reserving further discussion of the trial judge's report to point 3 below, we reexamine this court's generally unexplained recognition of a much criticized common-law distinction: whereas statements against a declarant's pecuniary or proprietary interest are admissible as an exception to the hearsay rule, statements against his penal interest are excluded. In Commonwealth v. Chabbock, 1 Mass. 144 (1804), the court refused to admit testimony about a third person's confession to the crime being tried because "it was no more than hearsay." But as early as Pool v. Bridges, 4 Pick. 378 (1826), the court admitted the statement of an absent individual that property in the declarant's possession belonged to the plaintiff, stating that this declaration was part of the "res gestae," id. at 379, and finding its reliability supported by the fact that it was "against the interest of the party" making it, id. at 380. See Currier v. Gale, 14 Gray 504 (1860). One imagines that this and other courts might have come to apply the same reasoning to declarations tending to expose the maker to punishment, had this development not been inhibited by a decision with the authority of the House of Lords, the Sussex Peerage Case, 11 Clark & Fin. 85, 8 Eng.Rep. 1034 (1844), which was read by contemporary writers as limiting the hearsay exception to statements tending to impair the declarant's pecuniary or proprietary interest. 1 When an opportunity occurred in Commonwealth v. Densmore, 12 Allen 535 (1866), to extend the exception to a declaration against penal interest, the court refused, id. at 537, but without attempting to justify the difference thus established. Subsequent cases have likewise excluded evidence of out-of-court self-incriminating statements without defending the distinction. 2
The total rejection of declarations against penal interest was attacked by Mr. Justice Holmes in a dissenting opinion in Donnelly v. United States, 228 U.S. 243, 277, 33 S.Ct. 449, 461, 57 L.Ed. 820 (1913), set out in the margin, 3 and the doctrine has been a target of leading Anglo-American treatise writers. 4 Both the American Law Institute's Model Code of Evidence, rule 509 (1942), and the 1953 version of Uniform Rules of Evidence, rule 63(10), 5 provided for the admission of declarations against penal interest equally with declarations against pecuniary interest and on the same ground of putative reliability as justifies various other exceptions to the hearsay rule. California and New York, overruling their older cases, have taken this course. People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964) (Traynor, J.). People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970). Other appellate courts have adopted a like view, with many of them imposing a requirement of corroboration as a condition of accepting these declarations 6 a precaution indeed intimated by Holmes. 7
Most suggestive and significant is the resolution of the problem appearing as rule 804(b)(3) of the Federal Rules of Evidence enacted in 1975 after lengthy study. 28 U.S.C. App. (Supp. V 1975). The draftsmen started with the assumption that complete exclusion of declarations against penal interest is indefensible. But reacting, like the many State courts mentioned, to an apprehension that there are hazards of fabrication or unreliability with respect to such statements that are more serious than those attaching to statements against pecuniary interest, 8 the rule insists on strong safeguards as to the former. After laying down the threshold definition that a statement, to qualify for admission, must have tended so far to subject the declarant to criminal liability that a reasonable man in the declarant's position would not have made it unless he believed it to be true, the rule goes on to provide that such a statement tending to expose the declarant to criminal liability, and offered to exculpate the accused, is not admissible "unless corroborating circumstances clearly indicate . . . (its) trustworthiness . . . ." 9
3. Impressed favorably by the Federal solution, we hold that it should be followed in substance, pending any action we may take in response to recommendations on the subject that may be made by the Advisory Committee on Rules of Evidence appointed by this court in 1976 and now pursuing its mission.
In applying the corroboration requirement, judges are obliged to exercise a discriminating judgment and in practice under the ...
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