Com. v. Doherty

• Decision Date: 29 April 1987
• Citation: 504 N.E.2d 681,23 Mass.App.Ct. 633
• Parties: COMMONWEALTH v. Thomas DOHERTY (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 681

504 N.E.2d 681

23 Mass.App.Ct. 633

COMMONWEALTH v. Thomas DOHERTY (and a companion case ¹).

Appeals Court of Massachusetts Middlesex.

Argued Oct. 14, 1986.

Decided March 13, 1987.

Further Appellate Review Denied April 29, 1987.

Isaac H. Peres, for Thomas Doherty.

Joseph Flak, Boston, for John Gillen, Jr.

Karen J. Kepler, Asst. Dist. Atty., for the Com.

Before ARMSTRONG, QUIRICO and DREBEN, JJ.

ARMSTRONG, Justice.

The defendants appeal from convictions of armed assault with intent to murder (with a shotgun) and assault by means of dangerous weapon (with a handgun). The principal witness was the victim, Joseph P. Bangs, a retired Metropolitan District Commission police officer, who testified under a grant of immunity (G.L. c. 233, §§ 20E and 20F). The gist of his testimony was that he received a telephone call from the defendant Doherty, a Medford police officer, who was his neighbor and business associate, in response to which he crossed the street with a package of "something" (against Doherty but not against the defendant Gillen, the "something" was identified as cocaine), entered Doherty's barn, mounted a spiral staircase, and opened the door to Doherty's office. Gillen, Doherty's brother-in-law, was crouched aiming a shotgun at the doorway. He fired, wounding Bangs in the right shoulder and chest. Bangs wheeled around, ran down the staircase (receiving a second shotgun blast to the back), turned around briefly at the outer door, saw Doherty aiming a long-barrelled handgun at him, and ran across the street to his own home, where his girlfriend, Deborah O'Malley, telephoned for an ambulance.

The judge correctly denied the defendants' motions for required findings of not guilty on the handgun charge. The evidence on this charge, the defendants argued, stood on the uncorroborated testimony of an immunized witness, in violation of G.L. c. 233, § 20I, because Bangs was the sole witness to Doherty's alleged aiming of the handgun. The statute requires corroboration only as to one element of the crime charged. Commonwealth v. DeBrosky, 363 Mass. 718, 730, 297 N.E.2d 496 (1973). Commonwealth v. Jacobs, 6 Mass.App.Ct. 618, 621-623, 381 N.E.2d 1109 (1978). Here there was evidence that two bullets were found in the jamb of the door through which Bangs had escaped. There was also O'Malley's testimony that Bangs, on reentering his own home (at the time in great pain and bleeding profusely), had told her that "Doherty and Gillen had shot him and Al Roberts was there." ² This testimony was properly admitted as a spontaneous declaration or excited utterance (Bangs was ordering her to get him his handgun, inferentially to guard against pursuit into his house, and to call the police and the fire department). See Commonwealth v. Hampton, 351 Mass. 447, 449-450, 221 N.E.2d 766 (1966); Commonwealth v. Sellon, 380 Mass. 220, 229-230, 402 N.E.2d 1329 (1980); Commonwealth v. Clary, 388 Mass. 583, 589, 447 N.E.2d 1217 (1983); Liacos, Massachusetts Evidence 350-351 (5th ed. 1981). The utterance, although that of the immunized witness, was made prior to any grant of immunity. As it stands on a different footing from his trial testimony, it may be treated as corroboration without violating the policy of the statute. O'Malley's testimony tended to corroborate Bangs's in another respect: she verified that he had received the phone call from Doherty, a point Doherty denied, and one which tended to support an inference that the defendants had been the aggressors. ³

The prosecutor's statement, in opening, that the Commonwealth would prove that Doherty fired two shots from the handgun, although Bangs didn't hear them, was a proposition fairly inferable from the bullets found in the door jamb. These entered from the direction of the staircase where Doherty (according to Bangs) stood while aiming. Bangs's inability to recall hearing those shots would go to the weight to be given his testimony in this regard ⁴ but would not vitiate the inference arising from the bullets, the aiming, and a setting consistent with ambush. We know of no rule that precludes a prosecutor from asserting in his opening a proposition fairly to be inferred from evidence he anticipates introducing. See Commonwealth v. Fazio, 375 Mass. 451, 454, 378 N.E.2d 648 (1978) ("The prosecutor in a criminal action in general may state in his opening anything that he expects to be able to prove by evidence").

Bangs's testimony that certain jewelry in the trunk of his car "was taken from a robbery ... Memorial Day weekend of Depositors Trust in Medford" did not require a mistrial. It was a direct answer to a question put to Bangs on cross-examination by Doherty's counsel ("Where did you get that jewelry?"). It is argued that the answer unfairly tainted Doherty because he and Bangs were "business associates" and because Doherty was known to be a prime suspect in the Depositors Trust robbery. Assuming that to be so, counsel should not have invited the answer. The judge was not required to declare a mistrial. He struck the answer and told the jury to disregard it. This sufficed in the circumstances.

Defense counsel, in support of their self-defense theory (see note 3, supra ), attempted to elicit from O'Malley in cross-examination specific instances of aggressive behavior by Bangs towards men he suspected of familiarity with O'Malley. The defendants were permitted to inquire concerning Bangs's reputation for violence and concerning any instances of violent behavior in O'Malley's presence directed towards Doherty, or towards other men in the presence of Doherty or Gillen. The defendants do not dispute the general rule that a witness may not be impeached by a showing of prior bad acts other than criminal convictions. See Commonwealth v. Cheek, 374 Mass. 613, 615, 373 N.E.2d 1161 (1978); Liacos, supra at 149-150. Here the defendants sought to go further: that is, their goal was only incidentally to impeach Bangs's credibility; their purpose was to show that Bangs was the aggressor in the incident being tried by showing that he had behaved similarly towards others in the past.

In general the law has been hesitant to permit such evidence to be offered. See McCormick, Evidence § 188 (3d ed. 1984), stating "that evidence of character in any form, whether reputation, opinion from observation, or specific acts will not generally be received to prove that the person whose character is sought to...