Com. v. Chase, 87-764

• Citation: 26 Mass.App.Ct. 578,530 N.E.2d 185
• Decision Date: 29 December 1988
• Docket Number: No. 87-764,87-764
• Parties: COMMONWEALTH v. Jerry CHASE.
• Court: Appeals Court of Massachusetts

Page 185

530 N.E.2d 185

26 Mass.App.Ct. 578

COMMONWEALTH v. Jerry CHASE.

No. 87-764.

Appeals Court of Massachusetts,

Middlesex.

Argued Oct. 12, 1988.

Decided Nov. 16, 1988.

Further Appellate Review Denied Dec. 29, 1988.

Maureen B. Brodoff, Committee for Public Counsel Services, Boston, for defendant.

Michael Fabbri, Asst. Dist. Atty., for the Com.

Before WARNER, CUTTER and FINE, JJ.

FINE, Justice.

A Superior Court jury convicted the defendant of burning a dwelling (G.L. c. 266, § 1) and possession of an infernal machine (G.L. c. 266, § 102A). The dwelling in question, on Norfolk Street in Cambridge, was the residence of the defendant's landlord, one Manuel Barros, and the fire occurred in the early morning hours of January 10, 1985.

According to the evidence presented at trial, the device which, when ignited by a match, caused the fire consisted of two propane canisters, connected to two telephone books by means of masking tape and a coat hanger wire, and a flammable agent, epoxy thinner. When the police questioned the defendant on the morning of the fire, he denied that he had purchased propane canisters or epoxy thinner. The defendant was a witness at trial, however, and admitted in his testimony on direct examination that he had purchased two propane canisters and epoxy thinner at a hardware store in Cambridge on the afternoon of January 9, 1985. There was other circumstantial evidence linking the defendant to the crime. It included, among other things, the proximity of his apartment to the building which was burned, the presence in his apartment on the day of the fire of matchbooks and masking tape similar to the matchbook and masking tape used in starting the fire, and the absence in the apartment of any telephone books. There was also evidence of a possible motive. The defendant had fallen behind in his rent in the months preceding the fire, and Barros, his landlord, had begun eviction proceedings.

In November of 1984, because of the pending eviction, the defendant had written a female acquaintance, Cheryl Caswell, that he was seeking a home for a cat he had adopted. Ms. Caswell was unwilling to assist. Nevertheless, the defendant persistently sought her out on the subject, expressing to her increasing agitation about his uncertain living arrangements. A mediation hearing on the subject of the eviction was held at the Cambridge rent control board on January 8, 1985, two days before the fire. At that hearing, the defendant raised the issue of certain code violations in his apartment. Barros took umbrage at this, and in response raised the issue of the presence in the defendant's apartment, without Barros's permission, of the cat. The defendant responded by becoming angry and defensive. The outcome of the mediation was that the defendant would have several weeks to pay the rent due. If he should fail to meet the deadline, however, the eviction would proceed, and, presumably, his cat would face an uncertain future. On the day the fire occurred the defendant told police officers investigating it: "he [presumably Barros] couldn't get to me, so he is trying to get to me through the cat."

On appeal the defendant claims: (1) that it was error for the judge not to allow him to explain why, shortly after the fire, he lied to the police; (2) that a substantial risk of a miscarriage of justice was created by the admission in evidence of four taped telephone messages from the defendant to Ms. Caswell a day or two prior to the fire; (3) that a portion of the prosecutor's closing argument created the risk of a miscarriage of justice; and (4) that several errors of his trial attorney resulted in a violation of his right to the effective assistance of counsel. Although errors were made at trial, none, in our view, requires reversal of the convictions.

1. Evidentiary ruling. The defendant claims that the judge erred in not permitting him in his direct examination to explain why he lied to the police shortly after the fire about purchasing the propane canisters and epoxy thinner. He was asked by his attorney on direct examination why he had lied. The prosecutor objected, and the judge sustained the objection. The defense attorney requested a side-bar conference, but the judge repeated his ruling, and the trial proceeded. ¹ No offer of proof was made. The matter of the lie was brought up again when the prosecutor cross-examined the defendant, but he was not asked by the prosecutor to explain why he lied. No effort was made to put the question to the defendant again when he was questioned on redirect.

We agree with the defendant that the judge's ruling was erroneous. The defendant had an unqualified right to negate the inference of consciousness of guilt by explaining to the jury why he had lied. See Commonwealth v. Goldberg, 212 Mass. 88, 91, 98 N.E. 692 (1912); Commonwealth v. Fatalo, 345 Mass. 85, 86-87, 185 N.E.2d 754 (1962); Commonwealth v. Ferreira, 373 Mass. 116, 130, 364 N.E.2d 1264 (1977); Commonwealth v. Hicks, 375 Mass. 274, 277, 376 N.E.2d 558 (1978); Commonwealth v. Errington, 390 Mass. 875, 880, 460 N.E.2d 598 (1984). Moreover, the fact that he lied, indicating consciousness of guilt, was a key factor in the Commonwealth's case. ²

The Commonwealth contends, however, that the failure of defense counsel to make an offer of proof as to what the defendant would have answered is fatal to the defendant's claim on appeal. We agree. Ordinarily, an offer of proof is required to preserve the right to appellate review of the denial of an offer to introduce evidence through the direct examination of a witness. See W.A. Robinson, Inc. v. Burke, 327 Mass. 670, 677, 100 N.E.2d 366 (1951); Commonwealth v. Baker, 348 Mass. 60, 63, 201 N.E.2d 829 (1964); Commonwealth v. Hubbard, 371 Mass. 160, 174, 355 N.E.2d 469 (1976). See Fed.R.Evid. 103(a)(2) and Proposed Mass.R.Evid. 103(a)(2) (offer of proof required unless "the substance of the evidence ... was apparent from the context within which questions were asked"). Contrast Muskeget Island Club v. Nantucket, 185 Mass. 303, 306, 70 N.E. 61 (1904); Ford v. Worcester, 339 Mass. 657, 659-660, 162 N.E.2d 264 (1959); Ratner v. Canadian Universal Ins. Co., 359 Mass. 375, 385, 269 N.E.2d 227 (1971); Commonwealth v. United Books, Inc., 389 Mass. 888, 894-895, 453 N.E.2d 406 (1983) (no offer of proof necessary when judge erroneously excludes expert testimony on basis of proposed witness's qualifications).

The offer of proof requirement serves several purposes. An offer of proof may assist the trial judge in making the correct ruling. And the presence of an offer of proof in a record on appeal enables an appellate court to determine whether an error was made and, if so, how harmful it was to the defendant. See Commonwealth v. Baker, 348 Mass. at 63-64, 201 N.E.2d 829; Commonwealth v. Kleciak, 350 Mass. 679, 693, 216 N.E.2d 417 (1966); Commonwealth v. Gordon, 389 Mass. 351, 353-354, 450 N.E.2d 572 (1983); Holmgren v. LaLiberte, 4 Mass.App.Ct. 820, 821, 349 N.E.2d 379 (1976); Liacos, Massachusetts Evidence 78 (5th ed. 1981); Thomas v. Wyrick, 687 F.2d 235, 239 (8th Cir.1982), cert. denied, 459 U.S. 1175, 103 S.Ct. 824, 74 L.Ed.2d 1020 (1983).

In this case, the trial judge did not need an offer of proof to make the correct ruling. Any explanation the defendant would have sought to offer would have been admissible. Nor is an offer of proof in the record necessary to convince this court that the ruling was erroneous. An offer of proof was required, however, to preserve for appellate review the issue of the degree of prejudice caused by the erroneous ruling. Certainly not every erroneous evidentiary ruling in the course of a criminal trial should result in reversal, only those that are harmful to the defense.

This is not a case in which it is apparent from the context in which the question was asked what answer the defendant would have given. Compare United States v. Wright, 783 F.2d 1091, 1098-1099 (D.C.Cir.1986). The prosecutor suggested in his closing argument that the defendant's probable explanation would have been that he was covering up for Joseph Scully, his former roommate. Such an answer would have been consistent with the over-all thrust of the defendant's testimony. We feel fairly assured, however, that, had the defendant been permitted to give that or a similar explanation, it would have made no difference to the jurors who had heard both the defendant's testimony implicating Scully and Scully's testimony denying any role in starting the fire. Without an offer of proof we can only guess what other explanation the defendant might have offered and whether that explanation would have helped his case.

2. The taped telephone messages. Four telephone messages, the admissibility of which are in issue, were left by the defendant on Ms. Caswell's telephone answering machine. The messages, lasting no longer than ten to fifteen seconds each were made a day or so before the fire, either in the late evening hours of January 8 of 1985, or the early morning hours of January 9. Contending that admission of the messages, all highly inflammatory and scurrilous, would deny him a fair trial, the defendant filed pretrial motions to exclude the evidence. The motions were denied, and, not only were the tapes played to the jury, but the defendant was asked...