Com. v. Coleman

• Citation: 20 Mass.App.Ct. 541,481 N.E.2d 523
• Parties: COMMONWEALTH v. David COLEMAN.
• Decision Date: 12 August 1985
• Court: Appeals Court of Massachusetts

Page 523

481 N.E.2d 523

20 Mass.App.Ct. 541

COMMONWEALTH v. David COLEMAN.

Appeals Court of Massachusetts,

Suffolk.

Argued Feb. 15, 1985.

Decided Aug. 12, 1985.

Michael D. Cutler, Boston, for defendant.

Judy G. Zeprun, Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, KASS and FINE, JJ.

ARMSTRONG, Justice.

The defendant appeals from convictions on two indictments charging that he gave perjured testimony: the first instance on October 5, 1981, at a pretrial hearing in connection with a murder charge then pending against him, the allegedly false testimony being his denial of a statement by which he had confessed his guilt to an investigating detective sergeant named McConkey; the second on March 2, 1982, at the trial of one Evans for the same murder, the allegedly false testimony being his (Coleman's) denial that Evans was with him when he committed the murder. The first appeal is based in part on a claim that the trial of Coleman for perjury (and certain evidence at the trial) was barred by principles of double jeopardy and, derivative therefrom, collateral estoppel. The second appeal is based on a claim that the evidence was insufficient to show beyond a reasonable doubt the falsity of Coleman's testimony at Evans's trial.

The background of the perjury charges, as disclosed in the evidence adduced at the trial, is as follows. On the night of October 9, 1980, shortly before midnight, one Donna Hankins and a male friend, Smith, went to a third-floor apartment of a house on Georgia Street, in the Roxbury section of Boston, where Smith "was staying." The house or apartment was described as being that of Evans or Evans' girlfriend. No one was in the apartment when Hankins and Smith arrived; but some time around or shortly after midnight, Coleman arrived and joined them. Hankins and Smith were "getting high" on marijuana and cocaine; Coleman did not use either but was drinking. Evans arrived in the apartment and asked Hankins if she had two dollars he could use to pay a taxi cab driver. She said no. Evans then asked Smith, who apparently carried a gun, if he wanted to "take [the cab driver] off," a About 3:00 A.M. an Officer Jones and his partner, in response to a radio call, drove in their cruiser to Cheney Street, which, like Georgia Street, is in the vicinity of Grove Hall, and found the body of the cab driver, Butkiewicz, dead in his cab, shot twice through the head.

phrase Hankins understood to mean rob the cab driver. Smith declined, but Coleman said he would go. Coleman and Evans left the apartment at approximately 1:30 A.M., Coleman carrying a gun. Approximately ten or fifteen minutes later Hankins heard a sound like a firecracker. She and Smith left the apartment around 3:30 A.M. She did not see a cab in the streets near the apartment but walked down Georgia Street to catch a cab at a Grove Hall taxi stop. She did not hear of the murder of the cab driver, Walter J. Butkiewicz, for a week or so.

The subsequent investigation was conducted by Detectives McConkey and O'Meara. Coleman was arrested several days after the murder for an unrelated offense, and a ballistics test indicated that a .38 caliber handgun found on the ground near Coleman when he was arrested (and for which he was carrying .38 caliber bullets) was the gun that killed Butkiewicz. Coleman first told Detective McConkey that, on the night of the murder (October 9-10), at 12:30 A.M., he had purchased liquor in Grove Hall and then proceeded to Evans' apartment, where he spent the night, not going out again until morning. A day later, on being told the police had found a witness who saw him running from Cheney Street around the time of the murder, Coleman gave another alibi: that at midnight he had gone with Evans to the "Sky Cap," where he had smoked reefers with friends until about 2:30 A.M., when he had gone home. Detective McConkey obtained a warrant for Coleman's arrest for the Butkiewicz murder, then confronted him with the evidence amassed against him. He asked Coleman if he had anything to say, and, after a delay, Coleman, sobbing, is alleged to have said to Detective McConkey: "What do you want me to say? You know what? You're right." This statement was taken by Detective McConkey to be an acknowledgement by Coleman of his guilt, and McConkey committed it to writing as soon as possible after he left Coleman's cell. ¹

The two alibis and the alleged confession had been uncounseled, and before Coleman's trial on the murder charge there was a hearing on a motion to suppress. At that hearing Coleman testified under oath and denied both that he had confessed his guilt to Detective McConkey and that he had stated to McConkey, "What do you want me to say? You know what? You're right." He testified that what he had actually said was, "I know my rights." The motion to suppress was apparently denied, and the alleged confession was put in evidence against Coleman at his murder trial. Despite the introduction of the confession, the jury found him not guilty on the indictment.

Evans had also been indicted for the murder of Butkiewicz, but his trial was severed from that of Coleman and took place after Coleman's acquittal. Coleman had not testified at his own trial, but he appeared at Evans's trial as a witness for the defense. There he testified that he was in fact Butkiewicz's killer and that he had been alone at the time of the killing. ²

                He was asked if he had confessed to Detective McConkey, and he affirmed that he had and specifically that he had uttered the words, "What do you want me to say?   You know what?   You're right."   The jury acquitted Evans.  They had not been told that Coleman had previously been tried and acquitted of the murder
                

Coleman was then charged with perjury, the two indictments alleging, first that he had lied at the suppression hearing when he denied confessing to Detective McConkey and, second, that he had lied at the Evans trial when he testified that Evans was not with him when he killed Butkiewicz. The Commonwealth's evidence principally supporting the first charge consisted of the defendant's testimony at the Evans trial that he had confessed to Detective McConkey and the testimony of Detective McConkey that Coleman had confessed to him. The evidence principally supporting the second charge was the testimony of Donna Hankins, which paralleled her testimony at Evans' trial, to the effect that Coleman and Evans had left the Georgia Street apartment together armed and with the express purpose of "taking off" the waiting cab driver and that she had heard a sound like fireworks shortly thereafter. The judge denied motions for required findings on both indictments and, after the jury had returned guilty verdicts, sentenced Coleman to eighteen to twenty years in State prison on the first indictment and to life imprisonment on the second.

THE ALLEGED CONFESSION

Coleman bases his collateral estoppel defense on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), which held that collateral estoppel in criminal cases is an integral part of the protection against double jeopardy guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and on United States v. Nash, 447 F.2d 1382 (4th Cir.1971), and United States v. Drevetzki, 338 F.Supp. 403 (N.Dist.Ill.1972), each of which applied the holding of Ashe v. Swenson to the trial of a perjury charge based on an acquitted defendant's allegedly false testimony at his prior trial. ³ Coleman's alleged perjury in denying the jail confession did not occur at his murder trial, when he did not testify, but at a pretrial hearing; but his collateral estoppel argument is based on the fact that Detective McConkey testified at the murder trial that he (Coleman) had confessed to the crime ⁴ and the jury nevertheless acquitted him. This, Coleman argues, necessarily implies that the jury rejected McConkey's testimony that the defendant had confessed to him, a proposition on which the first perjury charge depends.

The cases interpreting the scope and application of the Ashe v. Swenson collateral estoppel doctrine in criminal cases are not always easily understood and reconciled (see Commonwealth v. Kline, 19 Mass.App. 715, 717 and n. 2, 477 N.E.2d 193 [1985] ), and they present particularly serious policy problems when applied to defendants who win acquittal through perjured testimony. See Commonwealth v. Mitchell, 15 Mass.App. 577, 582-583, 447 N.E.2d 17 (1983), quoting from Adams v. United States, 287 F.2d 701, 703 (5th Cir.1961). ⁵ Nevertheless, the particular facts of this case permit decision on a narrow basis that does not implicate the difficult policy considerations that faced the courts in the Nash and Drevetzki cases.

The collateral estoppel principle on which Coleman relies is "that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Commonwealth v. Scala, 380 Mass. 500, 503, 404 N.E.2d 83 (1980), quoting from Ashe v. Swenson, 397 U.S. at 443, 90 S.Ct. at 1194. "[C]ollateral estoppel requires the concurrence of three circumstances: (1) a common factual issue; (2) a prior determination of that issue in litigation between the same parties; and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar." Commonwealth v. Lopez, 383 Mass. 497, 499, 420 N.E.2d 319 (1981). The burden of showing these circumstances is on Coleman as the person raising the bar. Id.

The first condition is met here. The Commonwealth adduced evidence at the Coleman murder trial that Coleman had confessed being the killer to McConkey; thus, the question whether Coleman had so confessed was a factual issue at the murder trial. It was also an issue at the perjury trial, the gist of the charge being that Coleman lied when he denied at the suppression hearing that he had confessed to...