Com. v. Doherty

• Decision Date: 26 March 1985
• Citation: 476 N.E.2d 169,394 Mass. 341
• Parties: COMMONWEALTH v. James G. DOHERTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 169

476 N.E.2d 169

394 Mass. 341

COMMONWEALTH v. James G. DOHERTY.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Nov. 6, 1984.

Decided March 26, 1985.

Donald A. Harwood, Brockton, for defendant.

Natalea Skvir, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

ABRAMS, Justice.

The defendant appeals from the denial of his amended motion for new trial. Mass.R.Crim.P. 30, 378 Mass. 900 (1979). Following a jury trial with a codefendant, Robert Stewart, in November, 1974, the defendant was convicted of murder in the second degree (the Sherter murder), and of armed assault in a dwelling house with intent to rob. He appealed the convictions under G.L. c. 278, §§ 33A-33G, and we affirmed. ¹ Commonwealth v. Doherty, 371 Mass. 413, 357 N.E.2d 767 (1976). The defendant filed an amended motion for new trial in May, 1982. Following discovery, a judge of the Superior Court ² conducted an evidentiary hearing in November and December, 1982, on the motion and denied the motion in July, 1983. The defendant appealed the denial in August, 1983. We granted the defendant's application for direct appellate review.

At issue is whether the motion judge erred in denying the defendant's amended motion for new trial by: (1) refusing to grant immunity at the evidentiary hearing on the amended motion for new trial to a witness (Goldman) who had testified for the Commonwealth at the initial trial; (2) finding no substantial newly discovered evidence; (3) finding no merit in the defendant's claim of an improper limitation of cross-examination by the trial judge; and (4) finding no merit in the defendant's claim of an improper charge to the jury by the trial judge. We affirm the judge's denial of the defendant's amended motion and his refusal to grant immunity to the witness. The evidence at trial and the facts relating to the underlying crime are detailed in our first review of these convictions, Commonwealth v. Doherty, supra, and in the companion case, Commonwealth v. Stewart, 375 Mass. 380, 377 N.E.2d 693 (1978) (Stewart I ).

1. Defense witness immunity. At the 1982 evidentiary hearing on the defendant's amended motion for a new trial, the defendant called as a witness Lawrence Goldman, an unindicted participant in the Sherter murder and assault who had testified against the defendant without immunity at the 1974 trial. At the hearing, Goldman, represented by counsel, repeatedly asserted his privilege under the Fifth Amendment to the United States Constitution not to incriminate himself, and refused to answer questions relating to whether there had been an undisclosed arrangement between him and the Commonwealth in exchange for his testimony against the defendant at the trial. At the hearing, Goldman's attorney defended Goldman's refusal to testify by suggesting that because Goldman had testified at the 1974 trial that no deal existed, if his answers now revealed that a deal did exist, he might incriminate himself and be subject to a perjury charge. The motion judge denied the defendant's request for a grant of immunity to Goldman.

The defendant contends that the motion judge's refusal to grant immunity to Goldman violates the defendant's right to present evidence and confront and cross-examine witnesses as guaranteed by the Fifth and Sixth Amendments to the United States Constitution, see Davis v. Alaska, 415 U.S. 308, 315-317, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); Commonwealth v. Turner, 393 Mass. 685, 473 N.E.2d 679 (1985), and his "right to produce all proofs, that may be favorable to him [and] to meet the witnesses against him face to face ..." under art. 12 of the Massachusetts Declaration of Rights. The defendant argues that this court should grant the witness "judicial immunity" under its broad supervisory powers, G.L. c. 211, § 3, or remand the case to the trial court for the same remedy in order to vindicate his constitutional rights. ³

We have recently declined to recognize a defendant's constitutional right to a judicial grant of immunity to defense witnesses. Commonwealth v. Upton, 390 Mass. 562, 576-577, 458 N.E.2d 717 (1983), reversed and remanded on other grounds sub nom. Massachusetts v. Upton, --- U.S. ----, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Commonwealth v. Curtis, 388 Mass. 637, 643-645, 448 N.E.2d 345 (1983). Although "[w]e recognize that the assertion by a witness of his Fifth Amendment right may in some cases hinder a defendant's ability to present his most effective defense ... we do not believe that this potential problem justifies creation of a general doctrine of judicial immunity for defense witnesses.... '[T]he constitutional right of the accused to call witnesses is not without limit.' Commonwealth v. Blaikie, 375 Mass. 601, 608-610, 378 N.E.2d 1361 (1978). Nor is the defendant's right to present witness testimony in his own behalf absolute." Commonwealth v. Curtis, supra, 388 Mass. at 646, 448 N.E.2d 345. The decision whether to grant immunity generally lies in the hands of the prosecutor. Id. at 645, 448 N.E.2d 345. ⁴

The defendant's reliance on Government of the V.I. v. Smith, 615 F.2d 964 (3d Cir.1980), is misplaced. As we noted in Curtis, supra, 388 Mass. at 644-645, 448 N.E.2d 345, " 'Smith involved a totally bizarre situation.' ... The office of the Attorney General of the Virgin Islands, which had exclusive jurisdiction to prosecute the witness, agreed to grant use immunity for the witness, but, as a matter of 'prosecutorial courtesy,' conditioned its approval upon the consent of the United States Attorney, who inexplicably refused to consent.... To the extent that the court's decision was based on broader constitutional grounds we find its reasoning unpersuasive and generally agree with the reasoning put forth by the other Federal circuits in rejecting such claims for defense witness immunity" (citations omitted). See note 4.

Barring "some unique circumstances," Commonwealth v. Curtis, supra at 646, 448 N.E.2d 345, any inquiry into the question of immunity is foreclosed if the prospective witness is an actual or potential target of prosecution. Commonwealth v. Upton, supra, 390 Mass. at 577, 458 N.E.2d 717. In applying the Curtis standard to the case at hand, we find that there were no "unique circumstances" requiring a grant of judicial immunity to Goldman. See Commonwealth v. Stewart, 383 Mass. 253, 258-259, 418 N.E.2d 1219 (1981) (Stewart II ); ⁵ Commonwealth v. Toney, 385 Mass. 575, 433 N.E.2d 425 (1982). The judge found that there was no evidence to support the existence of an undisclosed "deal" between Goldman and the Commonwealth. It was within his discretion to exclude affidavits which alleged there was a deal, see infra at 174, and to conclude from testimony offered at the evidentiary hearing that no deal existed, and that at most there was an expectation on Goldman's part, later fulfilled, of favorable treatment from the Commonwealth if he testified against the defendant. Even if there were evidence of a secret deal, however, "[i]mmunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or ... relate[s] only to the credibility of the government's witnesses." Government of the V.I. v. Smith, supra at 972-973. Here, the evidence of a deal, if it existed, would merely raise again the question of Goldman's motives for testifying against the defendant. Defense counsel adequately explored this issue at the trial through cross-examination. The trial judge fully instructed the jury on motive and bias. Stewart II, supra, 383 Mass. at 258, 418 N.E.2d 1219.

Because the motion judge's factual findings do not support the defendant's claim of "unique circumstances" which would warrant Goldman's immunization, the judge properly declined to order immunity outside the prescribed statutory scheme. Commonwealth v. Upton, supra, 390 Mass. at 577, 458 N.E.2d 717; Commonwealth v. Curtis, supra, 388 Mass. at 646, 448 N.E.2d 345. 2. Newly discovered evidence. A new trial may be granted under Mass.R.Crim.P. 30(b ), 378 Mass. 900 (1979), "if it appears that justice may not have been done." The defendant's motion for a new trial is directed to the sound discretion of the judge. Stewart II, supra, 383 Mass. at 257, 418 N.E.2d 1219. Commonwealth v. Cook, 380 Mass. 314, 320, 403 N.E.2d 363 (1980). Commonwealth v. Heffernan, 350 Mass. 48, 53-54, 213 N.E.2d 399, cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673 (1966). "If however the original trial was infected with prejudicial constitutional error the judge has no discretion to deny a new trial." Earl v. Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498 (1969).

(a) Evidence regarding a "deal". The motion judge found that there was no substantial newly discovered evidence regarding promises, rewards or inducements made to Lawrence Goldman warranting a new trial. See Stewart II, supra, 383 Mass. at 259, 418 N.E.2d 1219. It was within the judge's discretion to find that the evidence of favorable treatment provided to Goldman after the trial did not merit the conclusion that a pretrial deal was made between the Commonwealth and Goldman. Commonwealth v. Cassesso, 360 Mass. 570, 575, 276 N.E.2d 698 (1971), vacated on other grounds sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2846, 33 L.Ed.2d 754 (1972). ⁶

(b) Extrajudicial statements. The defendant argues that the motion judge should have admitted in evidence at the hearing a number of affidavits which he contends establish the existence of a deal. ⁷ The judge correctly ruled that all of the affidavits and the testimony of a lawyer who spoke to Goldman were hearsay and inadmissible. In Stewart II, supra, 383 Mass. at 258, 418 N.E.2d 1219, we said of one of the very same affidavits that the defendant presents us with here: "The Hurley affidavit is hearsay,...