Com. v. Drew

• Decision Date: 12 March 1986
• Citation: 489 N.E.2d 1233,397 Mass. 65
• Parties: COMMONWEALTH v. Carl H. DREW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1233

489 N.E.2d 1233

397 Mass. 65

COMMONWEALTH v. Carl H. DREW.

Supreme Judicial Court of Massachusetts,

Bristol.

Argued Nov. 4, 1985.

Decided March 12, 1986.

Francis M. O'Boy, Taunton, for defendant.

Patricia O. Ellis, Asst. Dist. Atty., for Com.

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

ABRAMS, Justice.

The defendant, Carl H. Drew, was convicted of murder in the first degree and sentenced to a term of life imprisonment at the Massachusetts Correctional Institution, Cedar Junction. The defendant's motion for a new trial was denied. ¹ On appeal, the defendant contends that the trial judge erred in (1) refusing to issue a writ of habeas corpus ad testificandum to procure the attendance of a witness necessary to his defense; (2) allowing the introduction of evidence regarding the defendant's alleged participation in Satanic cult rituals; (3) allowing the introduction of evidence of other crimes allegedly committed by the defendant; (4) denying the defendant's motion to sit at counsel table during trial; and (5) instructing the jury. The defendant also requests that we exercise our power under G.L.c. 278, § 33E. We affirm the conviction. We conclude there is no reason to exercise our power under G.L.c. 278, § 33E, in favor of the defendant.

We first sketch the facts as they may have appeared to the jury, later adding additional detail as needed for analysis. On April 13, 1980, a portion of a human skull was found in the woods near an area known as "Family Beach" in Westport, Massachusetts. A subsequent search of the area yielded various items of clothing, bloodstained rocks, jewelry, and a clump of hair. The remains were identified as those of the victim, Karen Marsden, a young woman from Fall River.

From February to November, 1979, Marsden had worked for the defendant as a prostitute in the Bedford Street area of Fall River. In the summer of 1979, Marsden met Robin Murphy, who was also acquainted with the defendant. There was evidence that Marsden and Murphy, along with other prostitutes and pimps from the Fall River area, attended Satanic ritual meetings conducted by the defendant. On the evening of October 12, 1979, while in the presence of Marsden, Murphy, and another, the defendant killed another prostitute, Doreen Levesque. According to Murphy's testimony, ² the killing was performed as a diabolic ritual during which the soul of Marsden was purportedly given to Satan.

Following the death of Levesque, the relationship between Marsden and the defendant deteriorated. Marsden attempted to sever her relationship with the defendant and with the Satanic cult. Marsden and the defendant frequently argued and the defendant threatened to kill her on several occasions. In December, 1979, Marsden went into hiding from the defendant. She began living with Murphy and another woman, Carol Fletcher. Also at this time, Marsden met five or six times with an officer of the Massachusetts State police who was investigating the death of Levesque. During December, 1979, and January, 1980, the defendant made repeated inquiries as to Marsden's whereabouts. On February 4, 1980, he told Fletcher that "in the right time and the right place he was going to kill Karen."

On the evening of February 8, 1980, Marsden, Fletcher, and Murphy were riding in Fletcher's automobile along Bedford Street. At some point, the defendant got into the car, along with one Carl Davis. Davis directed Fletcher to drive to Family Beach in Westport. When the group arrived there, the defendant ordered Murphy to take Marsden out of the car. Murphy dragged Marsden by the throat and hair into the woods. As she did this, the defendant walked alongside while Fletcher and Davis followed close behind. Murphy and the defendant then began striking Marsden with rocks. After further brutalizing Marsden, the defendant ordered Murphy to slit Marsden's throat and Murphy complied. The defendant then tore the head from the body and kicked it. Some months later, the defendant admitted to Lea Johnson, who was then working for and living with the defendant, that he had killed "a girl" in the presence of Murphy, Davis, and another woman. He recounted in detail how she had been killed, and told Johnson that he had killed the girl "because she wanted to leave the cult" and that "he wanted her to feel pain."

The defendant presented a defense of alibi. He testified that he had spent the evening of the murder in two bars on Bedford Street. Margarida Revorido testified that she worked for the defendant that evening as a prostitute and that she was never out of the defendant's presence for longer than fifteen or twenty minutes. On cross-examination, Revorido admitted that she had no way of distinguishing Friday, February 8, from any other Friday.

1. The denial of the request for a writ of habeas corpus ad testificandum. The defendant asserts that the judge erroneously denied his request for a writ of habeas corpus ad testificandum to procure the attendance of an inmate-witness. The defendant contends that this denial precluded his Sixth Amendment rights to present a defense. ³

The defendant called Carl Davis as a witness. At a voir dire hearing, Davis invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The defendant then requested that a writ of habeas corpus ad testificandum be issued for one Raymond Bertrand. The judge denied the request. The defendant's counsel, on the record, made an offer of proof in which he indicated that had the writ of habeas corpus been issued, Bertrand would have testified to the following facts. Following their indictments for the murder of Karen Marsden, the defendant and Carl Davis were incarcerated together in the Bristol County house of correction awaiting trial. On August 29, 1980, while in the presence of the defendant and Bertrand, Davis allegedly wrote out a statement in which he admitted "being present at the scene of the homicide and doing certain acts concerning it." Davis allegedly described who was present and specifically excluded the defendant, writing, "I don't know why Carl Drew's name was mentioned, he wasn't there." After writing this statement, Davis purportedly showed it to the defendant and to Bertrand, but then destroyed it, and refused to write another copy. At the defendant's request, Bertrand wrote down his recollection of Davis's statement.

Rule 17(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 885 (1979), requires a judge to issue a summons for a named witness on a showing by an indigent defendant that the witness is "necessary to an adequate defense." The rule is rooted in the defendant's right under the Sixth Amendment to the United States Constitution to "offer the testimony of witnesses, and to compel their attendance, if necessary, [which] is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosection's to the jury so it may decide where the truth lies." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). Both the United States Supreme Court's formulation of this right and its manifestation in our rule 17(b), extend only to witnesses who are "necessary" to the defense. Because the determination of necessity requires the trial judge to consider the proffered testimony in the light of other evidence, there is inevitably an element of discretion in the judge's determination. We reverse for an abuse of that discretion or an error of law. See United States v. Garza, 664 F.2d 135, 141 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1620, 71 L.Ed.2d 854 (1982); United States v. DeCoteau, 648 F.2d 1191, 1192 (8th Cir.1981). See also Commonwealth v. Watkins, 375 Mass. 472, 489, 379 N.E.2d 1040 (1978). The defendant sought to compel the testimony of an inmate-witness concerning the contents of a note written by Davis. The offered testimony thus would be hearsay, and unless it was admissible under an exception to the hearsay rule, the attendance of the witness cannot be said to be "necessary."

In his offer of proof, the defendant contended that Bertrand's testimony should be admitted under the exception to the hearsay rule for statements of a coconspirator. ⁴ The judge correctly rejected that argument. In this Commonwealth, "[i]t is well settled that, to be admissible against a defendant, the out-of-court statements of coconspirators or joint criminal venturers must have been made during the pendency of the criminal enterprise and in furtherance of it. See, e.g., Commonwealth v. White, 370 Mass. 703, 708-709 (1976); Commonwealth v. Flynn, 362 Mass. 455, 477 (1972) ('the same general rule of evidence applies to cases where a conspiracy or common enterprise is shown to exist even though not charged')." Commonwealth v. Borans, 379 Mass. 117, 146, 393 N.E.2d 911 (1979). See Commonwealth v. Bongarzone, 390 Mass. 326, 340, 342-343, 455 N.E.2d 1183 (1983). Because Davis's statement was made long after the crime while he and the defendant were imprisoned, the statement was not admissible.

Nor does the exclusion of Bertrand's testimony violate the defendant's Federal constitutional right of due process. ⁵ The United States Supreme Court has held that "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). In Chambers, the defendant was prevented under Mississippi's evidentiary rules from cross-examining one McDonald, who had confessed to the crime but subsequently recanted, and from introducing the testimony of witnesses to McDonald's confessions. The Supreme Court reversed the conviction because the indicia of trustworthiness of McDonald's confessions were so overwhelming that exclusion of evidence of the confession was a violation of fundamental fairness. McDonald was not a codefendant, had spontaneously...