Com. v. Clary
| Decision Date | 29 March 1983 |
| Citation | 447 N.E.2d 1217,388 Mass. 583 |
| Parties | COMMONWEALTH v. Susan M. CLARY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jane Larmon White, Boston, for defendant.
Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.
The defendant, Susan M. Clary, was found guilty by a jury of assault and battery with a dangerous weapon. The trial judge put her on probation for two years. The defendant then appealed to the Appeals Court, asserting error in the trial judge's (1) denying her motion for a required finding of not guilty; (2) denying her defense counsel's motion to withdraw from representation in order for counsel to testify; (3) permitting introduction of an allegedly inflammatory and immaterial statement by the victim; and (4) allowing certain allegedly irrelevant, inflammatory, and nonevidentiary remarks made by the prosecutor to the jury in his closing argument. The Appeals Court affirmed the conviction in Commonwealth v. Clary, 13 Mass.App. 1034, 433 N.E.2d 1241 (1982). We granted the defendant's application for further appellate review. We reverse and remand for a new trial.
We agree with the Appeals Court that the trial judge did not err in denying the defendant's motion for a required finding of not guilty, or in admitting in evidence the allegedly inflammatory statement by the victim. We determine, however, that certain impermissible comments made by the prosecutor in his closing argument were so prejudicial as to require reversal of the judgment. We need not and do not reach the issue of the judge's refusal to allow trial counsel to withdraw in order to testify.
The following facts are uncontroverted. The victim, David J. Spillane, arrived at a bar in Worcester at approximately 1 a.m., on November 4, 1979. Spillane testified that prior to arriving at the bar that evening he consumed four beers, smoked two marihuana cigarettes, ingested a valium tablet, and snorted a white powder which he thought was cocaine, but which he later learned was mannitol, a substance used to "cut" cocaine. Denise Przygoda and Clary came into the bar. Przygoda, who was the sister of Spillane's girl friend of five years, told Spillane she wanted to speak with him outside. Przygoda, Clary, and Spillane then went outside, whereupon Przygoda asked Spillane what right he had to hit her sister. Przygoda then punched him repeatedly in the face with her closed fist. During this time Przygoda, who was nearly as tall as Spillane, stood directly in front of him, two inches away. Clary was standing next to Przygoda, to the right of Spillane.
There was conflicting testimony from several witnesses concerning what events occurred after Przygoda began hitting Spillane in the face. Spillane testified that, as he was leaning against a car with his back to the street, he placed his hand on Przygoda's head and held her by the hair, and then he saw a knife in Clary's right hand. He further testified that before he had a chance to lower his arms he was stabbed in the chest just above his heart. He threw off his coat and shirt, and one Patty Dyer put pressure on the wound in an attempt to stop the bleeding. He then called to Francis Davieau, manager of the bar, "Franny, those two 'lesies' stabbed me," and pointed to the defendant, stating, "She's the one don't let her get away." Spillane, accompanied by Dyer, was transported to City Hospital in a police cruiser driven by Officer Paul Maki. Spillane testified that he told the officer Susan Clary had stabbed him.
Davieau testified that he arrived at the bar about 10 p.m., and drank eight to ten mixed drinks while checking identifications at the door. After speaking to police outside the bar about an unrelated incident, Davieau walked around the side of the building where he saw Clary, Przygoda, and Spillane involved in a scuffle. Davieau testified that Spillane said to him, "Franny, she stabbed me." Davieau then went over to Spillane and applied pressure to his wound and told someone to summon the police who were just around the corner. Davieau testified that he asked Clary what had happened and that she said, "I stabbed him." Davieau then grabbed her and held her until the police arrived about five minutes later.
On cross-examination, Davieau testified that Clary's hair was a lighter blonde and shorter on the night of the incident than it was at trial. He further stated that he was certain that Clary wore bibbed overalls and a shirt or blouse. He also testified that Przygoda, the woman with Clary, was approximately six inches shorter than Clary and had long, dark brown hair. Davieau admitted, however, that during an interview with defense counsel a few weeks prior to the trial, he told defense counsel that he thought it was the shorter woman, not Clary, who said she had stabbed Spillane. He accused defense counsel of "pump[ing] [that description] into [his] head."
Paul Gully, an occasional employee of the bar, was not working on the night of the incident but was at the bar drinking beer with friends from 9 p.m. to about 1 a.m. He went outside about 1 a.m., after being informed that "there was trouble out there." He testified that he saw Davieau holding Clary and that he heard Clary say, "I did it, so what?" On cross-examination, Gully described Przygoda as being shorter and as having longer and darker-colored hair than the defendant. He further testified that the woman whom Davieau held wore coveralls with a bib and straps, and perhaps a plaid wool shirt. He admitted that later in the morning of November 4, 1979, he went to the police station and gave a statement that a police officer typed, in which he stated that the woman who said "I did it, so what?" was five feet, two inches tall, of chubby build, and with long, dark hair.
Patricia Dyer, who had spoken with Spillane several times at the bar prior to the night of the incident, was at the bar about 1 a.m. on November 4, 1979. She went outside when the band stopped playing, and observed Spillane talking to Przygoda and Clary, and a man whom she did not know. Dyer described Przygoda as heavyset, about five feet, four inches tall, with long, dark brown hair, and described Clary as having blonde hair and being taller than Przygoda. Dyer testified that she saw Clary stab Spillane. She further testified that she accompanied Spillane to the hospital in the police cruiser and that during this ride Spillane said that Susan Clary had stabbed him.
On cross-examination, Dyer stated that she was later transported by Officer Roland Almstrom from the hospital to the police station where she viewed Przygoda and Clary. Dyer testified at first that she had not identified either girl as the one who did the stabbing but later stated that she had told police that Clary had stabbed Spillane. She acknowledged that she had later made a statement, which Almstrom had typed out for her, and that she had signed it. She admitted that in the statement she had said that the girl who stabbed Spillane was a white girl, about twenty-five years old, approximately five feet, two inches or five feet, four inches tall, chubby, with brown, waist-length straight hair, who was wearing a rust-colored sweater, unbuttoned and open in the front. The statement also provided that Dyer had said that the girl who stabbed Spillane "looked a lot like a girl I looked at at the police station named Denise Prozgoda [sic ]." Dyer denied, however, naming Przygoda and stated that the police put her name in the statement.
Officer Paul Maki testified that he transported Spillane and a young woman in his cruiser from the bar to the hospital. Maki testified that during the ride Spillane told him that Susan Clary was the one who stabbed him. On cross-examination, defense counsel introduced in evidence Maki's police report, written within an hour after the event, which identified Spillane's assailant not as Susan Clary but as a "white female."
Detective John Brabbs testified that Gully, whom he had interviewed, described the woman who stabbed Spillane as being of chubby build, five feet, two inches in height, with dark hair. Officer Almstrom testified that upon seeing the two girls at the police station Dyer said that neither of the two girls had stabbed Spillane. He further testified that Clary was wearing a blue jogging suit on the night of the incident. Almstrom stated that at approximately 4 a.m. on November 4, 1979, he returned to the bar with Clary and Przygoda to bring them back to their car, and he saw a knife under the front seat of a Thunderbird automobile parked in front of the bar. He stated that he did not know to whom the car belonged. On cross-examination Almstrom testified that Clary's brother was also a police officer. He admitted that he had put in his report that no weapons were found.
Clary testified that she, Przygoda, and Spillane were outside the bar, and Przygoda slapped Spillane three or four times while telling him that she would not allow Spillane to slap her sister around. He yelled at Przygoda to stop and attempted to back away until he was leaning up against Davieau's car. Clary stated that she put her right hand on Przygoda's shoulder and her left hand on Spillane in an attempt to break up the scuffle. Przygoda punched Spillane, and Spillane responded by punching Przygoda squarely on the nose; Przygoda dropped to a squatting position and Spillane began pulling Przygoda's hair. Clary, who was directly behind Przygoda, testified that she grabbed Przygoda's arms from behind. Spillane then jumped away yelling that he had been cut.
Clary testified that she never saw a knife. She also stated that it was Przygoda who said, "I did it, so what?" in response to Davieau's inquiry. Clary stated that she was taken to the police station, where she made a statement, and that Almstrom and her brother later took her...
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