Com. v. Fatalo
| Decision Date | 05 November 1962 |
| Citation | 345 Mass. 85,185 N.E.2d 754 |
| Parties | COMMONWEALTH v. Angelo M. FATALO (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. Irwin, Asst. Dist. Atty., (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.
F. Lee Bailey, Boston (Charles E. Orcutt, Jr., Boston, with him), for defendant.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.
Shortly after six o'clock on Labor Day morning, September 4, 1961, Joseph F. McAdams was assaulted and beaten by four men in the basement of an apartment house in Woburn. Subsequently, the defendant was charged with participation in the crime in an indictment for assault and battery by means of a dangerous weapon. The defendant in another indictment was charged with having assaulted McAdams on August 23, 1961. At the trial of the cases, which were ordered to be tried subject to the provisions of G.L. c. 278, §§ 33A-33G, the jury returned verdicts of guilty. The defendant's appeals come here with numerous assignments of error relating to various rulings made at the trial.
By way of defence, the defendant attempted to establish an alibi. He testified that on the morning of September 4, when the alleged offence occurred, he was in bed in a rooming house in Boston, and that Frank Espisito, who was sharing his room, was with him at that time. The defendant's testimony was corroborated by Espisito. On cross-examination, the defendant admitted that when he was arrested he did not tell the police that he was in his room with Espisito at the time of the alleged assault. He unsuccessfully attempted to explain. On redirect examination the defendant was asked to explain why he did not tell the police officers that he was in his room with Espisito at the time of the alleged crime. The district attorney objected on the ground that the evidence was self-serving. The judge agreed that it was, and excluded the question, subject to the defendant's exception. The defendant offered to prove that he would testify that he did not tell the police officers that Espisito had been with him because Espisito was on probation and he, the defendant, was afraid it would 'got * * * [Espisito] in trouble.' The correctness of this ruling is presented by assignment of error No. 16.
This evidence was clearly admissible. By eliciting on its cross-examination the fact that the defendant had omitted to tell the police when arrested that he was with Espisito, the Commonwealth had seriously impeached his alibi. The defendant, on redirect examination, had a right to explain his failure to mention Espisito. Bay State Paper Co. v. Duggan, 214 Mass. 166, 100 N.E. 1083; Mahoney v. Gooch, 246 Mass. 597, 570, 141 N.E. 605; Commonwealth v. Galvin, 310 Mass. 733, 747, 39 N.E.2d 656. The evidence sought to be introduced was not 'self-serving' in the sense that that expression is used in the law of evidence. There is no principle of law which excludes evidence merely because it is 'self-serving.' Most testimony of a party is self-serving. 1 Evidence which is excluded under the so called 'self-serving' doctrine is the extrajudicial declarations of a party which are offered in his own behalf as evidence of the truth of the facts declared. Actually such statements are excluded not because they are self-serving but because they are obnoxious to the hearsay rule. Wright v. Boston, 126 Mass. 161, 164; Wirthlin v. Mutual Life Ins. Co., 56 F.2d 137, 140, 86 A.L.R. 138 (10th Cir.). Wigmore on Evidence (3d ed.) § 1048. McCormick on Evidence, § 275. See discussion by Allen, J., in Caplan v. Caplan, 83 N.H. 318, 325-327, 142 A. 121. It was said in the Caplan case, 'The fact that the statements which * * * [the hearsay rule] bars have a self-serving quality and invite suspicion of 'manufacturing' evidence strengthens the argument for their exclusion.' For illustrative cases see Maloney v. Philpot, 219 Mass. 480, 482, 107 N.E. 369 (); Wagman v. Ziskind, 234 Mass. 509, 125 N.E. 633 (); Curtis v. Boston Ice Co., 237 Mass....
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