Com. v. Clarke

Citation418 Mass. 207,635 N.E.2d 1197
PartiesCOMMONWEALTH v. David L. CLARKE (and five companion cases 1 ).
Decision Date11 July 1994
CourtUnited States State Supreme Judicial Court of Massachusetts

Bernard Grossberg, Boston, for David L. Clarke.

Robert A. George, Boston, for Steven A. James.

John E. Bradley, Asst. Dist. Atty., for Com.


The defendants, David L. Clarke and Steven A. James, appeal from their convictions of murder in the first degree, armed assault with intent to murder, and assault and battery by means of a dangerous weapon. The defendants were tried jointly, but raise separate issues on appeal. Clarke alleges error in the judge's refusal to admit as exhibits prior written inconsistent statements of the chief Commonwealth witness. He also claims that the judge abused his discretion in denying a motion for funds for a pre-sentencing psychiatric evaluation.

James's principal claim is that there was insufficient evidence to support his conviction of murder on a joint venture theory, and that the judge should have granted his motion for a required finding of not guilty. James also alleges error in the judge's instruction on joint venture and in the judge's refusal to grant his motion for severance. Both defendants request that we exercise our power under G.L. c. 278, § 33E (1992 ed.), to order a new trial or to enter a lesser degree of guilt on the convictions for murder in the first degree. We have reviewed the record and conclude that the convictions should be affirmed. We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendants.

The facts. The jury could have concluded that the Commonwealth's evidence established the following facts. On September 4, 1989, at approximately 7:30 P.M., Rolando Barros, Jose DeAndrade, and Maurice Ware were standing at the corner of Wyman Street and Walnut Street in Brockton. Suddenly, DeAndrade heard the sound of several shots being fired, and felt a sharp pain in his stomach. DeAndrade was seriously injured. Barros died as a result of the shooting.

Ware, who was not injured, said that two or three days before the shooting, James approached him while he was in a parked automobile and ripped gold chains from his neck. Ware also said that he was on Walnut Street one half hour before the shooting and saw James and Anibal Rodrigues-Lopes drive by the area slowly in a jeep-type vehicle. At around 7:30 P.M., Ware heard approximately thirty shots. Ware saw Barros and DeAndrade fall. Ware did not see the shooters.

Anibal Rodrigues-Lopes, a friend of both James and Clarke, was the principal witness for the Commonwealth. He testified pursuant to a grant of immunity. He testified that James had an argument with Maurice Ware and another member of the Ware family on the day of the shooting. The Ware family member threatened James. He said that "if he [James] didn't give him [Ware family member] the chain he was going to get him [James]." James and Rodrigues-Lopes then decided to go to Boston to locate James's brother to help James. They found James's brother, who promised to come back to Brockton that evening.

Later that day, Rodrigues-Lopes was at a party with Clarke, James, Anthony Greene, 2 and Caspar Forte. There was a discussion about the fact that James's brother had not appeared. Someone said, "Let's go up there ourselves to go get the Wares." Clarke then asked Rodrigues-Lopes to drive the group in his jeep. Once in the car, Rodrigues-Lopes saw that Clarke and Greene were armed with guns. Rodrigues-Lopes parked near the corner of Wyman and Walnut streets. Clarke and Greene walked down the street out of Rodrigues-Lopes's view. James and Forte remained in the car. At some point, James got out of the car. When they heard the gunshots, James looked to see if Clarke and Greene were coming back and told Rodrigues-Lopes, "Get ready to leave." When Clarke and Greene returned one of them said, "I think I got somebody." The five men then drove back to Clarke's apartment before going out to a club together that evening.

The next day, at Clarke's apartment, Rodrigues-Lopes told Clarke that it was his cousin, Rolando Barros, who was killed. Clarke apologized and said, "he [Barros] was at the wrong place at the wrong time." Samuel Jordan, a friend of the defendants, was at Clarke's apartment at that time. He overheard Clarke's comment to Rodrigues-Lopes about Barros. Jordan also said that Clarke admitted to shooting Barros, and described how he and Greene had fired. Clarke wasn't sure whether he or Greene had killed Barros.

During this conversation, Jordan saw James and Clarke packing to go to Boston. Clarke pulled a gun out of a shoebox and stated, "We won't be needing these no more." James responded, "Ant [Anthony Greene] might want his gun." Clarke then said, "We're going to get rid of them because they're going to get us caught and in trouble." Clarke suggested putting the guns in the woods. James disagreed and said he wanted to keep his. Jordan also testified that he witnessed the argument between Ware and James on the day of the shooting.

Neither defendant testified at trial. Clarke's defense was that Rodrigues-Lopes was not a credible witness. He impeached Rodrigues-Lopes's testimony with his lengthy criminal record. He also impeached Rodrigues-Lopes's testimony with several prior inconsistent statements in which he said that he had no knowledge of any crimes committed by Clarke, and that the five men were all at a bar in New Bedford at the time of the shooting. James's defense was that he was merely present in the car and not a participant in the crime. 3

Clarke and James were convicted of all charges. For murder in the first degree, the defendants each received a mandatory life sentence without parole. On the conviction for assault with intent to murder, each was sentenced to a term of eighteen to twenty years to be served concurrently with the life sentence. On the conviction for assault and battery by means of a dangerous weapon, Clarke received a six- to ten-year sentence to take effect from and after the life sentence; James received a three- to five-year sentence to be served from and after the life sentence.

Clarke's appeal. a. Prior inconsistent statements. On four occasions, Rodrigues-Lopes made statements inconsistent with his trial testimony. Those statements exculpated the defendants. The statements were reduced to writing by Mr. Jack Atwood, counsel for Greene, and signed by Rodrigues-Lopes. 4 Rodrigues-Lopes copied one of the statements, prepared by Mr. Atwood, into his own handwriting. Rodrigues-Lopes admitted making the statements and signing the written documents. He said he lied when making the statements. Rodrigues-Lopes said he was scared and in jail when he made the statements.

On cross-examination, Clarke's counsel was permitted to read the statements, in their entirety, to the jury. He then moved to admit the statements in evidence. The judge refused to admit the statements as exhibits because he did not want "to have them given any more weight than any other testimony." Clarke argues that the exclusion of the evidence violated his right to confront the witness and his right to present a defense. We do not agree.

The accused in a criminal case is guaranteed the right to cross-examine the witnesses against him. Commonwealth v. Franklin, 376 Mass. 885, 904, 385 N.E.2d 227 (1978). However, the right of confrontation is not absolute. Commonwealth v. Barnes, 399 Mass. 385, 393, 504 N.E.2d 624 (1987). The scope of cross-examination, including the extent of impeachment of a witness for credibility, is within the judge's sound discretion. Commonwealth v. Carrion, 407 Mass. 263, 273, 552 N.E.2d 558 (1990). P.J. Liacos, Massachusetts Evidence 287-288 (6th ed. 1994).

Rodrigues-Lopes was subject to thorough impeachment on cross-examination. The jury heard all the prior inconsistent statements, including the testimony of Mr. Atwood who transcribed the statements. Clarke's right to reasonable cross-examination was not impermissibly restricted. See Commonwealth v. Wilson, 381 Mass. 90, 118, 407 N.E.2d 1229 (1980).

Clarke relies on Commonwealth v. Cogswell, 31 Mass.App.Ct. 691, 583 N.E.2d 266 (1991), to support his argument that the judge had no discretion to exclude the statements. In Cogswell, the trial judge excluded a diary, in the complaining witness's own handwriting, which contradicted her trial testimony. The diary indicated that on the day of the alleged attack, she was not present where she claimed the attack occurred. The witness denied writing the inconsistent entry, but admitted writing the rest of the diary. The Appeals Court ruled that the diary should have been admitted to impeach her credibility. Cogswell, supra at 698, 583 N.E.2d 266.

Cogswell does not stand for the proposition, as argued by Clarke, that a judge has no discretion to exclude documentary evidence of prior inconsistent statements. The witness in Cogswell denied writing the inconsistent diary entry. In this case, Rodrigues-Lopes admitted making false statements. He said he made the statements because he was scared. Unlike the handwritten diary in Cogswell, the written statements were prepared by Greene's defense counsel and merely signed by Rodrigues-Lopes.

Furthermore, the jury had before it ample impeachment evidence to assess the credibility of Rodrigues-Lopes. The jury knew he was testifying pursuant to a grant of immunity. On cross-examination, defense counsel impeached Rodrigues-Lopes with approximately twenty prior convictions, many of them involving crimes of dishonesty. Most importantly, the statements themselves were read to the jury in their entirety. Admitting the statements as exhibits would have been cumulative of the evidence already before the jury. See Commonwealth v. Rodwell, 394 Mass. 694, 700, 477 N.E.2d 385 (1985). There was...

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