Com. v. Fiore

• Decision Date: 25 March 1974
• Citation: 364 Mass. 819,308 N.E.2d 902
• Parties: COMMONWEALTH v. Richard M. FIORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 902

308 N.E.2d 902

364 Mass. 819

COMMONWEALTH v. Richard M. FIORE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 9, 1974.

Decided March 25, 1974.

John A. Sullivan, South Braintree (Richard K. Sullivan, Holliston and John P. Flynn, Braintree, with him), for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

The defendant, indicted for assault with intent to murder, and assault and battery by means of a dangerous weapon, was tried before a jury in the Superior Court. There the trial judge directed a verdict of not guilty on the indictment charging assault with intent to murder. A verdict of guilty was returned by the jury on the charge of assault and battery by means of a dangerous weapon. The case comes here on the defendant's exceptions.

The jury could have found that in the early evening of November 25, 1971, Thanksgiving Day, the defendant was in a group of youths present on Garfield Avenue in Hyde Park when some words were exchanged between them and one San Filippo, who was attending a party at a house on that street. San Filippo went into the house and emerged shortly thereafter to find that the group was 'banging on a car down the street.' He drove his car up to the group and came out therefrom wielding a bayonet and took hold of one member of the group, following which a general melee ensued. One Goodwin, a friend of San Filippo's who was in attendance at the party, left it to discover the brawl on Garfield Avenue and went to the aid of his friend. After several minutes of combat during which he was subjected to an assault, San Filippo left the fracas in a weakened and bloody condition. Goodwin, having joined in the affair and having been hit on the head by something he thought 'was a bottle,' was rendered unconscious, and awoke to find himself lying on the sidewalk, the victim of two extremely serious stab wounds in the abdomen and two in the back, which put him in the Carney Hospital for two and a half months. We discuss the several exceptions.

1. The defendant excepted to the denial of his motion for a directed verdict. The direct and corroborating circumstantial evidence which might have led a jury to conclude that the defendant was responsible for Goodwin's injuries was as follows. Leon Brady, a friend of the defendant and present at the scene of the scuffle, testified that sometime after the incident the defendant had come to his home and had made a telephone call to the Carney Hospital which Brady had overheard. The call constituted an inquiry about Goodwin's condition. After perusing his prior testimony before the grand jury, Brady testified that he heard the defendant say, 'That is good that he is all right, because I am the one that stabbed him!' On cross-examination Brady stated that he was not sure of what had been said.

Thomas Haywood, another friend of the defendant present at the scene of the fracas, originally stated on the stand that he saw the defendant later in the evening of the day when it occurred but had no memory of the substance of their conversation. The prosecutor then confronted him with a statement he had made at the probable cause hearing in the District Court when he said he heard the defendant say, 'I stabbed the kid that was on the ground.' Haywood testified that his earlier statement was not the truth and that he was coached into it. The trial judge then took up questioning Haywood on the discrepancy between his statement at the trial and his earlier statement in the District Court, and inquired if the witness understood what he was saying. To this Haywood responded that he did not understand and, after some reflection, testified that the defendant had told him, 'I think I stabbed him,' and that the 'him' referred to was San Filippo. The prosecutor on redirect examination then again confronted the witness with his prior statement at the probable cause hearing in the District Court that 'Fiore had said to you, 'I stabbed the man that was lying on the sidewalk," and the witness affirmed that it was the truth.

A detective, James Solari, testified that after the defendant was arrested and advised of his rights he stated that upon becoming involved in the fight he had pulled a knife from his pocket but had dropped it and had never recovered it.

There was sufficient evidence to submit the case to the jury. The evidence need not be such as to convince a judge beyond reasonable doubt. Commonwealth v. Baron, 356 Mass. 362, 365--366, 252 N.E.2d 220 (1969). So long as there is competent evidence comprehending all the necessary elements of the offence it is up to the jury to determine whether there is enough to support a guilty verdict. When the only source of such evidence is the defendant's admissions, those admissions have been held to provide the requisite minimum of proof. Commonwealth v. Kimball, 321 Mass. 290, 73 N.E.2d 468 (1947). Commonwealth v. Machado, 339 Mass. 713, 162 N.E.2d 71 (1959). The testimony of Brady and Haywood thus would have been sufficient to warrant denial of the motion for a directed verdict. In addition, the jury had evidence of the defendant's participation in the fray and his statement to the detective that he had pulled a knife from his pocket from which the jury might have inferred a readiness to use a dangerous weapon.

It is argued by the defendant that the testimony of neither Brady nor Haywood is to be labeled affirmative evidence since their statements were introduced by the prosecutor as prior inconsistent statements made by these witnesses at prior proceedings. These, it is argued, were hearsay unless admissible for the limited purpose of impeaching the testimony of these two individuals by self-contradiction. Salonen v. Paanenen, 320 Mass. 568, 575, 71 N.E.2d 227 (1947). The record however, negates this contention. On the failure of Brady to testify as he had before the grand jury on the defendant's relevant statement, the judge excused the jury and had Brady examine his earlier testimony. In response to the judge's inquiry, Brady then stated his memory was refreshed and that he would testify in the same manner at the trial, which he did. His earlier statement before the grand jury was not introduced at all but identical evidence was introduced as his firsthand recollection. The employment of the grand jury minutes to revive his present memory was perfectly proper. Commonwealth v. Rogers, 351 Mass. 522, 534, 222 N.E.2d 766 (1967), cert. den. sub. nom. Rogers v. Massachusetts, 389 U.S. 991, 88 S.Ct. 484, 19 L.Ed.2d 483 (1967); Commonwealth v. Mustone, 353 Mass. 490, 494, 233 N.E.2d 1 (1968), and does not diminish the force of the subsequent testimony. See discussion in Fisher v. Swartz, 333 Mass. 265, 130 N.E.2d 575 (1955).

With respect to Haywood's testimony, he made at first ambiguous and sometimes contradictory assertions. His prior statement in the District Court was then admissible only for the purpose of impeachment. Later on, however, he stated that it was the truth. In so doing he adopted his earlier testimony and it thus acquired full probative value. See Zimberg v. United States,142 F.2d 132, 136--137 (1st Cir. 1944), cert. den., 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573 (1944). See also Commonwealth v. Rudnick, 318 Mass. 45, 59--60, 60 N.E.2d 353 (1945). To be distinguished is the situation in Desmond v. Boston Elev. Ry., 319 Mass. 13, 15, 64 N.E.2d 357 (1946), where there was a lack of certainty as to whether a witness affirmed his prior statement or merely affirmed the fact that the statement had been made. Nor is Commonwealth v. Campbell, 352 Mass. 387, 395, 226 N.E.2d 211 (1967), cited by the defendant, helpful to him. In that case also the testimony of the witness did not constitute a plain adoption of an earlier statement, and in fact the witness immediately indicated that he rejected the validity of that statement. Here the affirmance was unequivocal and not a momentary lapse from repeated denials. That Haywood's testimony was somewhat confused and conflicting did not remove from the jury the power to decide which points of his testimony to believe, and all of the statements he made are to be considered affirmative evidence. Commonwealth v. Holiday, 349 Mass. 126, 129, 206 N.E.2d 691 (1965), and cases cited. The motion for a directed verdict was rightly denied.

2. The defendant next maintains error in the judge's rulings on a number of evidentiary points.

( a) San Filippo testified that on his first encounter with the group on Garfield Avenue he heard someone say, '(L)et's whip this car,' to which he responded, 'You will have to whip me first.' The defendant complains of the admission of this testimony. The testimony, however, was not hearsay which is confined to 'extrajudicial utterances . . . offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.' Wigmore, Evidence (3d ed.) § 1766 (1940). See Hughes, Evidence, § 453 (1961). The statement complained of here was not offered in support of the truth of any matter asserted herein but simply to demonstrate the state of mind of the group gathered on Garfield Avenue and of San Filippo. This was relevant in explanation of the circumstances preceding the encounter which culminated in the assault. Hartnett v. McMahan, 168 Mass. 3, 46 N.E. 392 (1897); Commonwealth v. Zaidon, 253 Mass. 600, 602, 149 N.E. 550 (1925). Reardon v. Marston, 310 Mass. 461, 464--465, 38 N.E.2d 644 (1941). The mere fact that the statement was made was material to the controversy, and whether it was true was irrelevant.

( b) Error is claimed in the limitation by the judge of the cross-examination by defence counsel of Leon Brady. On direct examination the judge had interrupted an answer from him concerning the telephone conversation of the defendant which Brady had overheard. When Brady tried to testify what he ...