Com. v. Doherty

• Decision Date: 06 December 1976
• Citation: 357 N.E.2d 767,371 Mass. 413
• Parties: COMMONWEALTH v. James G. DOHERTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 767

357 N.E.2d 767

371 Mass. 413

COMMONWEALTH

v.James G. DOHERTY.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 4, 1976.

Decided Dec. 6, 1976.

Frank P. Marchetti, Somerville, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty. (Francis K. Monarski, Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

The defendant was indicted for murder and for armed assault in a dwelling house with intent to rob.After trial with a codefendant, James G. Stewart, he was convicted of murder in the second degree and of the assault charged, and was sentenced to two consecutive terms of life imprisonment.He appealed under G.L. c. 278, §§ 33A--33G, assigning error with respect to the admission and exclusion of evidence and instructions to the jury.We transferred the case here on our own motion, and we affirm the convictions.

There is no dispute that the victim and his wife were beaten and that the victim was shot and killed by intruders in their home in Newton about 4 A.M. on June 19, 1972.Lawrence Goldman, the chief Commonwealth witness, testified that he went to the victim's home to break in and commit a robbery with three other men: Anzalone, who died before the trial, the defendant and the codefendant.Goldman began serving a Federal sentence in May, 1973, for breaking and entering a post office.Subsequently, as a result of his disclosures, the defendant was arrested on November 20, 1973.Indictments were returned in December, 1973, and the trial was held in November, 1974.

Goldman was an unindicted and unimmunized accomplice in the murder.There was no other evidence placing the defendant that the scene, but numerous details of Goldman's testimony were corroborated by independent evidence.Thus police officers supported Goldman's testimony that, about 11:15 P.M. on June 18, 1972, the defendant was stopped less than two miles from the victim's home, and given a warning slip for failing to stop for a red light.Again, Goldman testified that the defendant shot his own little finger when he shot the victim, and that Goldman treated the wound later at Goldman's home; this testimony was supported by testimony of Goldman's wife.

The defendant filed twenty-one assignments of error, but argued only five of them.He also argued two additional issues, and moved for leave to file supporting additional assignments of error.We discuss the issues in the order in which he argued them.

1.Photographs of the defendant's hand.The arresting officer testified that after he arrested the defendant, on November 20, 1973, he noticed a scar on the little finger of the defendant's right hand.He also identified photographs of the hand taken that morning after the defendant was arraigned.On cross-examination counsel for the defendant inquired whether the taking of the pictures was discussed after the arrest and whether objections were raised.On redirect examination the officer was permitted to testify over objection that the defense attorney 'strongly objected, so we finally agreed we would let the Court decide.'

The defendant now contends that this evidence purported to be a vicarious admission of guilt, in violation of the hearsay rule.Cf.Commonwealth v. White, --- Mass. ---, ---^a, 352 N.E.2d 904(1976).He also contends that there was an improper comment on the defendant's exercise of his right to remain silent.Cf.Commonwealth v. Mitchell, --- Mass. ---, ---^b, 326 N.E.2d 6(1975).These arguments are entirely misdirected.The evidence in question was never used as an admission, vicarious or otherwise.It merely explained why the pictures were not taken immediately after arrest.Having raised the question of delay on cross-examination, the defendant cannot complain that the delay is explained on redirect examination.Cf.Commonwealth v. Caine, --- Mass. ---, --- - ---^c, 318 N.E.2d 901(1974).

2.Threat by the codefendant.Goldman testified that he had had a conversation with the codefendant Stewart about the possibility that Goldman might be a Commonwealth witness.At the request of the defendant, the judge ruled that the conversation would be evidence only against the codefendant and not against the defendant.Goldman then testified that Stewart had threatened to kill Goldman if Goldman testified against him.Among other things, the codefendant had said, "I hold Jimmy Doherty responsible for you because he vouched for you."This testimony was immediately followed by a bench conference and by a voir dire hearing requested on behalf of the codefendant, and it appeared that the conversation between Goldman and the codefendant had involved a completely separate crime, referred to as 'a Danvers armored-car robbery,' and had occurred before Goldman had become a police informant with respect to the murder in Newton.The judge granted the codefendant's motion to strike the testimony, and instructed the jury to put the alleged threat out of their minds.The defendant then moved for a mistrial, and the motion was denied.He claims error under the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476(1968).We think, however, that the excluded evidence was not such a 'powerfully incriminating extrajudicial statement' as to bring the Bruton rule into play.Id. at 135, 88 S.Ct. 1620.Commonwealth v. Devlin, 365 Mass. 149, 159--160, 310 N.E.2d 353(1974).Cf.Commonwealth v. Corradino, --- Mass. ---, ---^d, 332 N.E.2d 907(1975).Since the evidence was excluded as to both defendants, the jury were not called on to consider it as to one but not the other.

3.Evidence as to escape.Two assignments of error relate to evidence suggesting that the defendant intended to escape.He claims that the prosecutor improperly sought to attribute to him the acts of others, unknown to him and out of his presence.First, after the defendant's wife had given alibi testimony, the prosecutor elicited testimony on cross-examination, over the defendant's objection and exception, that she had purchased a hand gun a few days before the probable cause hearing.

Second, the defendant testified on direct examination that he never got into trouble after he was released from jail in 1964, except for automobile violations.He also testified that he was transferred in June, 1974, from the Billerica house of correction to the correctional institution at Walpole 'for security.'On cross-examination, he testified that the transfer was about a month after a visit to Billerica by his half brother.The prosecutor then asked, 'Did you ever see the hacksaw blades--.'The judge promptly excluded the evidence on his own motion, denied the defendant's motion for mistrial, and instructed the jury that an unanswered question is not evidence at all.

Neither of these two incidents produced evidence of significant relevance to the issues on trial, or indeed to the credibility of the witnesses.It seems unlikely that they had any adverse effects on the defendant.In any event, we think there was no error.The applicable principle is that the scope of cross-examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge.Commonwealth v. Hall, --- Mass. ---, ---^e, 343 N.E.2d 388(1976) and cases cited.We do not assume that jurors will ignore strong instructions to disregard certain matters.Commonwealth v. Walker, --- Mass. ---, ---^f, 350 N.E.2d 678(1976), and cases cited.

4.Murder by the accomplice witness.The judge excluded all cross-examination of Goldman as to whether Goldman had killed Anzalone.The judge said, 'He hasn't been indicted or convicted of it.'Later the defendant sought to introduce his half brother's testimony that Goldman had said he murdered Anzalone.The judge listened to the testimony on voir dire, including the statements, 'I wasn't too sure if he was telling the truth or just joking,' and 'I thought he was a liar, you know, couldn't really believe what he said.'The judge excluded the evidence.

The defendant did not raise this issue by assignments of error, but now seeks leave to file additional assignments of error covering it.He argues that the evidence should have been admitted 'to show the possible motive of Goldman in testifying against the defendant.'Cf.Commonwealth v. Graziano, --- Mass. ---, --- - ---^g, 331 N.E.2d 808(1975).We think the judge properly treated the evidence as relating to a collateral issue, and he could properly exclude it as creating dangers of confusion and prejudice outweighing its...