Com. v. Cobb

• Decision Date: 15 June 1977
• Citation: 363 N.E.2d 1123,5 Mass.App.Ct. 421
• Court: Appeals Court of Massachusetts

Page 1123

363 N.E.2d 1123

5 Mass.App.Ct. 421

COMMONWEALTH v. Harold COBB.

Appeals Court of Massachusetts, Suffolk.

Argued May 10, 1977.

Decided June 15, 1977.

Susan J. Baronoff, Cambridge, for defendant.

Kathleen M. Curry, Asst. Dist. Atty., for the Com.

Before HALE, C.J., and GOODMAN and ARMSTRONG, JJ.

HALE, Chief Justice.

The defendant was tried by a jury, found guilty and sentenced on indictments charging him with armed assault in a dwelling, assault and battery with a dangerous weapon and armed robbery. He appeals pursuant to G.L. c. 278, §§ 33A--33G, claiming that the judge's charge to the jury was erroneous in that it singled out alibi evidence for special scrutiny. ¹

The testimony may be summarized as follows. At approximately 5:30 p.m. on November 11, 1975, two men forced their way into the second floor apartment of Artis and Audrey Myers in Dorchester. They threatened the Myerses and stole money and personal property from them at knifepoint. Shortly after the men left, Mr. and Mrs. Myers went to the District 3 police station, where they identified the defendant by photograph. The defendant was arrested on December 9, 1975.

The Commonwealth's case rested solely on identifications of the defendant by Mr. and Mrs. Myers. The defendant presented an alibi to which he and one other witness testified.

The defendant alleges that the trial judge erred in giving the following charge to the jury on the subject of the alibi presented by the defendant: 'The defense is one of alibi. The law in this Commonwealth is that alibis, the testimony of alibi witnesses, should be scrutinized with great care. It should be examined for possible bias, prejudice, all the circumstances that come to you, ladies and gentlemen. The reason for that should be obvious. It is because the person offers an alibi as a defense. Obviously he can't be two places at one time. He denies any complicity in this crime because he was someplace else. And in order to substantiate that story, he produced a witness, and it is up to you to assess her testimony and see whether it is entitled to a decree of credibility which is sufficient to create a reasonable doubt in your minds.'

Defense counsel objected and requested the judge to instruct that an 'alibi defense may be the last refuge of an innocent man' as suggested in Commonwealth v. McLeod, --- Mass. ---, --- - --- ^a, 326 N.E.2d 905 (1975). The judge refused to do so. ² The defendant argues that the instruction given by the judge, singling out alibi testimony for special scrutiny, impermissibly shifted to the defendant the burden of proving his nonpresence at the place of the crime, thereby lessening the Commonwealth's burden of proving the defendant's guilt beyond a reasonable doubt. In the McLeod case, the Supreme Judicial Court, in examining a charge on alibi evidence similar to that given here, warned 'against the clear error which would be involved if the burden of proof as to alibi evidence were put on the defendant, as was done in Commonwealth v. Webster, 5 Cush. 295, 319, 324 (1850). See Commonwealth v. Leaster, 362 Mass. 407, 416--417 (1972), and cases cited. Cf. Sullivan v. Scafati, 428 F.2d 1023, 1025--1026 (1st Cir. 1970), cert. den. 400 U.S. 1001, 91 S.Ct. 478, 27 L.Ed.2d 452 (1971). It is therefore unwise to refer to alibi as a 'defense.' Indeed, we think it is not ordinarily helpful to single out alibi evidence for subjection to 'rigid scrutiny' and the like. If such a charge is given, it should also be pointed out that an alibi may be the only refuge of the innocent.' Commonwealth v. McLeod, supra, at --- - --- ^b, 326 N.E.2d at 906.

While it is true that the instructions here did not contain the burden shifting language of Webster ³ to which the Supreme Judicial Court referred, it did, however, indicate that the defendant bore the burden of presenting sufficient evidence to 'substantiate (his) story' and to 'create a reasonable doubt in (the jury's) minds' as to his presence at the scene. Even though this language did not, in so many words shift to the defendant the burden of proving his innocence, it at least confused the issue of who had the burden of proof.

The trial judge twice referred to an alibi as a 'defense' and singled out the alibi testimony as requiring careful scrutiny. Even if the references in this charge to an alibi as a defense and the instruction that alibi testimony be scrutinized with great care do not constitute 'clear error,' the charge was clearly of the type disapproved by the Supreme Judicial Court in McLeod, and the judge should have given the essence of the requested instruction that an alibi may be the only refuge of the innocent. Failure to do so was error, especially in a case such as this one where the Commonwealth's entire case is based upon the testimony of the two victims, whose...