Com. v. Cheek

• Decision Date: 13 March 1978
• Citation: 374 Mass. 613,373 N.E.2d 1161
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1161

373 N.E.2d 1161

374 Mass. 613

COMMONWEALTH v. Dorothy L. CHEEK.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 3, 1978.

Decided March 13, 1978.

Albert L. Hutton, Jr., Boston, for defendant.

James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.

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

BRAUCHER, Justice.

The defendant was indicted for murder in the first degree and convicted by a jury of murder in the second degree. Her appeal brings to us the question whether her cross-examination of a prosecution witness as to bias was unduly restricted. She also complains that questions asked by the prosecutor improperly put before the jury certain conversations, and that the prosecutor's closing argument asked the jury to draw inferences not supported by evidence. We affirm the conviction.

The defendant conceded that Lawrence Rooney shot the victim, Ezra McClain, and that McClain died from the wound. There was evidence of the following facts. About 1:00 P.M., on Sunday, June 6, 1971, the defendant knocked on the door of McClain's apartment and said, "Ezra, let me in, I have something important to tell you." As McClain opened the door, Rooney burst in and pointed a shotgun at McClain, and the defendant followed Rooney into the room. Rooney said, "This is for the fifty stitches," fired one shot which missed McClain, pumped the gun and shot McClain, and started swinging the gun at McClain's head. Rooney and the defendant ran out of the apartment and left in the defendant's automobile.

The trial was largely concerned with the defendant's participation in events earlier the same day. The defendant was Rooney's girl friend. Rooney had accused McClain of stealing money from him, they had fought, and McClain had stabbed Rooney. The defendant and John Brant (an acquaintance of Rooney) had taken Rooney to a hospital; the defendant had then visited McClain and his girl friend in McClain's apartment; Brant and Rooney had obtained the shotgun and some shells, and the three had driven together to the vicinity of McClain's apartment. Brant then left.

The defendant testified that she had knocked on McClain's door to warn him that Rooney was coming. Rooney had been tried earlier and found guilty of murder in the second degree. See Commonwealth v. Rooney, 365 Mass. 484, 313 N.E.2d 105 (1974). That fact was not disclosed to the jury.

1. Limitation of cross-examination. On cross-examination of Brant, defense counsel asked three questions about the stabbing and the procurement of the shotgun. He then asked, "Were you ever yourself charged with anything in connection with this case?" On objection the question was excluded. He noted his exception and said he had no further questions. The defendant now contends that the trial judge violated her right to confront her accusers halting her inquiry into bias of the witness at the threshold. See Commonwealth v. Dominico, 1 Mass.App. 693, 712, 306 N.E.2d 835 (1974).

"It has long been the law in the Commonwealth that parties are entitled as matter of right to reasonable cross-examination of a witness for the purpose of showing bias." Commonwealth v. Michel, 367 Mass. 454, 459, 327 N.E.2d 720, 723 (1975). But evidence of prior bad conduct may not be used to impeach a witness's credibility except by production of records of criminal convictions. Commonwealth v. Clifford, --- Mass. ---, --- ^a, 372 N.E.2d 1267 (1978). It was not clear whether defense counsel was inquiring into bias or into prior bad conduct. "Where the materiality of the evidence is unclear, the record must disclose the cross-examiner's reason for seeking an answer to the excluded question . . . ." Commonwealth v. Caine, 366 Mass. 366, 370 n.4, 318 N.E.2d 901, 905 (1974). Where the judge is unable to see the relevance or purpose of a question, the cross-examiner may reasonably be expected to make some explanation as to how he expects to show bias by means of the witness's answer. See Commonwealth v. Ahearn, 370 Mass. ---, --- - --- ^b, 346 N.E.2d 907 (1976). Where this is not done, consideration of the alleged error in excluding the question would defeat "an important policy which requires parties to give sufficient notice so that the trial judge may reconsider his or her ruling." Pires v. Commonwealth,--- Mass. ---, --- n.5 ^c, 370 N.E.2d 1365, 1371 (1977).

The failure of defense counsel to pursue the point bolsters our conclusion. The judge made no "unequivocal adverse ruling" against a line of questioning, as in Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975), nor did he exclude "the total inquiry by his several rulings," as in Commonwealth v. Ahearn, 370 Mass. ---, --- ^d, 346 N.E.2d 907 (1976). Defense counsel could have pursued the point, but he chose not to. See Commonwealth v. DeBrosky, 363 Mass. 718, 727, 297 N.E.2d 469 (1973). He was not entitled to secrete an error for use on appeal in case the verdict went against him.

2. Conversations. The defendant argues that the prosecutor, in his opening statement and in cross-examination of the defendant, improperly put before the jury the contents of two conversations. First, on the way to the hospital, with the defendant in the back seat of the car, Brant and Rooney "were discussing, telling a story that the wounds of Rooney were received at a ball park and attacked by four boys rather than from wounds received from Ezra McClain from the knife of Ezra McClain." Second, while the defendant was in the back seat of the car shortly before the crime, Rooney said to Brant "something to the effect of, I, or we don't want you to get involved, why don't you leave."

In a lobby conference before trial the judge instructed the prosecutor not to include in his opening statement the first of these conversations. Although the conference dealt generally with the prosecutor's intention to include conversations in his opening, he did not mention the second conversation during the conference. In his opening statement he said that there was conversation in the car on the way to the hospital, but did not further describe that conversation. As to the second conversation, he said, "At this time John Brant indicated falsely that his daughter was sick and he had to go home. Rooney had him drive up to Ferry Street, park approximately where the bus is, and told him 'I don't want you' or something to the effect that I or we don't want you to get involved in this, at which time John alighted from the car, went across the street, and called a cab." After the opening, defense counsel asked that the prosecutor be required to specify whether the pronoun was "I" or "we." The judge denied the request, and the defendant excepted.

During the direct examination of Brant by the prosecutor, after a voir dire hearing, the judge excluded testimony as to the conversation on the way to the hospital because it was not sufficiently shown "that she was in fact a participant in concocting the story." Later Brant testified that after he stopped the car near McClain's apartment, "Larry told me to leave, he didn't want to get me involved." The judge sustained the defendant's objection to the conversation, and struck the testimony. In a bench conference, the judge said, "The person in the back seat of the car doesn't necessarily hear everything that is said in front." He also said that "she was under no compulsion to make any comment."

During cross-examination of the defendant by the prosecutor, she testified that on the way to the hospital Brant and Rooney were talking about the fight, but that she did not remember the details. The prosecutor then asked the first question now objected to, with the preface, "Does it refresh your recollection that . . . ." The judge overruled the defendant's objection and told the jury that the question was not to be accepted as evidence. The defendant...