Com. v. Ferrara

• Decision Date: 20 June 1975
• Citation: 368 Mass. 182,330 N.E.2d 837
• Parties: COMMONWEALTH v. Richard FERRARA (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 837

330 N.E.2d 837

368 Mass. 182

COMMONWEALTH

v. Richard FERRARA (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1975.

Decided June 20, 1975.

Christopher D. Dye, Dorchester, for defendant Ferrara.

Alfred P. Farese, Everett, for defendant Benjamin.

Philip T. Beauchesne, Asst. Dist. Atty. (Sandra L. Hamlin, Asst. Dist. Atty., with him), for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

These are appeals under G.L. c. 278, §§ 33A--33H. The defendants had been indicted and tried for the murder of George Pratt, and a jury returned verdicts of guilty of manslaughter against both defendants.

The defendants argue multiple assignments of error. We have concluded that they must have a new trial by reason of constitutional error in the denials of their motions to be allowed to use, in cross-examination, records of the juvenile offenses of a witness introduced by the Commonwealth.

We have considered only such other assignments of error as are likely to have a bearing on the new trials. Additionally, we have held, as will be seen, that manslaughter was properly submitted to the jury as a possible verdict, thereby determining that the defendants are now entitled at best to a new trial rather than to judgments of not guilty.

1. The defendants assign as error the denial during trial of their motions for the production of the records of juvenile offenses of the witness DeWolfe, fourteen years old, whom the prosecution offered as a witness. The defendants argue that they were entitled to use the records in cross-examination of DeWolfe to show that he had been adjudicated a delinquent for committing acts which would have been crimes if he had committed them as an adult. The judge ruled in substance that, under the statute G.L. c. 119, § 60, the records were not to be made available or referred to during trial. The defendants excepted.

DeWolfe proved to be the only witness who claimed in his testimony to have witnessed the shooting of the victim Pratt. DeWolfe testified that around 12 P.M. or 12:30 A.M., on June 4, 1973, he saw Pratt get out of a taxicab, go into 163 Orton-Marotta Way, South Boston, and then momentarily return to the taxicab; that during this time the defendants, Ferrara and Benjamin, were across the street. DeWolfe heard Ferrara say, 'Here comes a nigger,' and saw each of the defendants throw a bottle at Pratt. Subsequently, DeWolfe talked with Pratt behind 163 Orton-Marotta Way, then left Pratt there. A few minutes later, after meeting with two friends, Michele Talkowski and Michael Flaherty, DeWolfe walked toward 163 Orton-Marotta Way, where he saw Pratt leaning against the building, ten feet away. DeWolfe testified that he heard two shots ring out, looked up to the roof of 138 Orton-Marotta Way, across the street, and saw Richard Ferrara, wearing a gold jacket, and Francis Benjamin, wearing a sweater.

Ferrara was holding a rifle and was pointing it at Pratt. Benjamin was standing alongside Ferrara. 'As a third shot rang out, Pratt fell and I (DeWolfe) thought he was faking for a second.' A fourth shot rang out, and DeWolfe went to the body of the victim with Flaherty. DeWolfe then ran from the scene.

DeWolfe also testified that earlier that same evening he had seen the defendants at a ball park shooting out lights with a rifle. On that occasion, Benjamin was shooting the rifle.

We have before us a copy of the juvenile record of DeWolfe, together with a copy of the trial judge's findings as to that juvenile record. We summarize the facts as to the juvenile record. The record discloses multiple charges between 1972 and the date of the trial of the instant cases. Some of these are for such offenses as being a runaway and disorderly conduct; in addition there are two adjudications of delinquency, obviously separate and unrelated to each other. However, the fact that there were only two such adjudications on the record does not necessarily mean that the other matters might not be relevant on the issue of bias. Furthermore, as to one adjudication, relating to a breaking and entering charge, an order for confinement to the Youth Service Board had been suspended and remained in that status as of the night that Pratt was killed. DeWolfe was taken into custody three days after the shooting of Pratt, and remained in custody until the time of trial. The trial judge found that the custody changed to a protective custody at some time.

The defendants argue that the statute, G.L. c. 119, § 60, does not preclude the use of the juvenile record in these cases because the juvenile appeared as a witness only, and not a party. We do not agree.

General Laws c. 119, § 60, as amended through St.1973, c. 1073, § 16, provides in pertinent part: 'An adjudication of any child as a delinquent child under sections fifty-two to fifty-nine, inclusive, or the disposition thereunder of any child so adjudicated, or any evidence given in any case arising under said sections, shall not be lawful or proper evidence against such child for any purpose in any proceeding in any court, and records in cases arising against any child under said sections shall not be received in evidence or used in any way in any such proceeding.' From the plain language it is clear that the Legislature intended to provide broadly for the confidentiality of juvenile records. This purpose will not be served by the disclosure of such records, whatever the status, party or witness, of the juvenile. ² The judge properly construed the statute as requiring the protection of DeWolfe's records from disclosure or use.

We consider next the question whether the statute, G.L. c. 119, § 60, and its underlying legislative purposes, must yield to constitutional considerations.

The defendants contend that they were denied their rights under the Sixth Amendment because, as a consequence of the juvenile records not being afforded to them, they were deprived of their privilege of cross-examination as to bias and prejudice of the witness. We agree.

The defendants principally rely on the case of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In that case the Supreme Court held that the defendant's opportunity to cross-examine one Green, a crucial witness for the prosecution, was unconstitutionally denied. "Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination.' Douglas v. Alabama, 380 U.S. 415, 418, (85 S.Ct. 1074, 1076, 13 L.Ed.2d 934) (1965),' quoted in 415 U.S. at 315, 94 S.Ct. at 1110 (1974). It was shown that the juvenile records of the witness Green were offered, and should have been received, not merely to impeach the credibility of the witness, but also on the issue of bias.

We are aware of no constitutional principle which confers on a defendant in every case a right to impeach the credibility of a witness by proof of past convictions or past delinquencies. It follows that our inquiry in the instant case must be whether the juvenile records of the witness had a rational tendency, as in the Davis case, to show bias of the witness. For that purpose we must examine the facts of the Davis case as they related to the juvenile witness involved in that case.

Davis was charged with grand larceny and burglary; that larceny involved a metal safe. The broken safe was found abandoned near Green's home abour twenty-six miles from the scene of the burglary. Green told the police of seeing two men and an automobile at the place where the safe was later found, and that one of the men had a crowbar. He identified a picture of Davis as one of the men, and later picked Davis out of a lineup. At the time of trial and at the time of the events Green testified to, he was on probation by order of a juvenile court after having been adjudicated a delinquent for burglarizing two cabins. Green was questioned at the trial as to whether he had ever been interrogated by any law enforcement officers. He answered, 'No'; the answer was characterized by the Supreme Court as 'highly suspect at the very least.' 415 U.S. at 314, 94 S.Ct. at 1109 (1974).

The Commonwealth argues that there are significant differences between the facts in the instant cases and in the Davis case. The Commonwealth stresses that Green's juvenile record was for the same type of crime (burglary) as that charged against Davis. In contrast, the juvenile witness in the instant cases was never involved in an offense like that charged against Ferrara and Benjamin (murder) or any crime of violence, but rather was charged on several occasions with breaking into a building, and other nonviolent offenses. The argument proffered by the Commonwealth is that Green was thus more likely than the juvenile in the instant cases to think that he was a suspect in the crime. Further, the Commonwealth says, there was other evidence tending to show that Green was interested in deflecting suspicion from himself, because the safe was found near his home. The Commonwealth also points out that Green was on probation and could be found to be susceptible to police pressure; that the juvenile here, unlike Green, was cross-examined extensively, and that the cross-examination included inquiries as to prior misconduct not involving adjudications of delinquency. ³

We believe that the considerations which impelled the result reached in the Davis case are paralleled in the instant cases. DeWolfe testified that he was present at the scene of the crime when it was committed. The possibility of excessive desire by DeWolfe to please the police and prosecutor was present. Although DeWolfe was not an active probationer, ⁴ as Green was, DeWolfe was taken into custody three days after the crime was committed and was still in custody at the time of trial of these cases. The witness here ran away from the scene of the crime and hid from the police,...