Com. v. Funches

Decision Date30 November 1979
Citation379 Mass. 283,397 N.E.2d 1097
PartiesCOMMONWEALTH v. Sheila FUNCHES (and a companion case 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Wade M. Welch, Boston, for Gloria Jordan.

Joyce W. Poulin, Cambridge (Henry F. Owens, III, Boston, with her), for Sheila Funches.

Leonard J. Henson, Asst. Dist. Atty. (Deborah Goldman, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

Sheila Funches and Gloria Jordan were each indicted for murder in the first degree; armed assault with intent to rob; assault and battery by means of a dangerous weapon; armed assault in a dwelling; armed robbery; and assault and battery. Tried in the Superior Court to a jury, both defendants were found guilty of murder in the second degree and guilty on all other indictments. The trial judge sentenced the defendants to life imprisonment at the Massachusetts Correctional Institution at Framingham on the murder indictments, and he filed the other indictments. Motions for a new trial were filed and denied. Appeals were taken on both the convictions and the denials of the motions. The defendants' appeals are here for review under G. L. c. 278, §§ 33A-33G. We reverse the convictions as to both defendants.

The murder occurred on February 6, 1977, in Dolores Smith's apartment at No. 908, 7 Montpelier Road, Columbia Point housing project, Dorchester. About 11:15 P.M., Sharon Waddie, one of several people in the apartment, heard a knock and went to the front door. She had a brief conversation with defendant Funches through the door and saw Funches through the peephole. After a second knock, Dolores Smith's nineteen-year old son, Gregory, went to the door.

Gregory Smith testified on direct examination that he saw defendants Funches and Jordan through the peephole. When he opened the door slightly, Funches asked if his mother was at home, and he said his mother was asleep. Smith testified that there was no further conversation. He testified he then saw a man, later identified as Robert Thomas, running down the hall toward the apartment and carrying a sawed-off shotgun. Smith tried to close the door, but Funches and Jordan had their feet in the doorway and pushed against the door. Thomas soon joined them, and Smith could not hold them out. The two women did not enter the apartment, but Thomas and another man, identified as Donnie Stewart, burst in. Carrying a handgun, Stewart assaulted Gregory Smith and Sharon Waddie and demanded money. The two gunmen forced some of the occupants of the apartment into the kitchen. One of the occupants, Ronald Allen, spoke to Stewart. Stewart shot him, and he died ten days later. Thomas and Stewart got between $20 and $40 from Dolores Smith, and fled. 2

On cross-examination, it emerged that Gregory Smith had known Funches and Stewart for a long time and that he recognized Jordan from seeing her about the project. Also, Stewart had been in the Smith apartment at times before the shooting. Smith further testified that when Funches and Jordan came to the door on the night of the shooting they told him they had come to buy heroin.

Gregory Smith was the only witness who gave testimony concerning the details of the defendants' activity at the apartment door. However, the Commonwealth called two Boston police officers, Charles Edward Hardy and James Neal, who had taken statements from the defendants. Officer Hardy located Funches at 6 Blair Road, Dorchester, on the night of February 6, shortly after the shooting. He learned from her that she and Jordan were at the door of the Smith apartment speaking to Gregory when two armed males rushed by and pushed their way into the apartment; both woman then ran away. She said she did not recognize the men, but admitted to knowing a Donald Stewart. Officer Neal testified that Funches later told him she had been going with Robert Thomas. The trial judge gave a limiting instruction that this testimony of both Hardy and Neal was not admissible against defendant Jordan.

When Officer Neal arrested Jordan on February 12, 1977, she told him that she went to the Smith apartment late on February 6. She did not put her foot in the door. Thomas pushed his way in. Stewart followed and shut and locked the door behind him. Jordan admitted that she was with the two gunmen at 6 Blair Road both immediately before and immediately after the shooting. She told Neal that she had gone to 7 Montpelier Road to buy drugs, but had only $20 to spend. When asked if there was talk of a "rip-off" before she left for the scene of the shooting, she replied, "not in the open." The judge gave a limiting instruction that Neal's testimony was not admissible against Funches.

The Commonwealth presented other witnesses, but none whose testimony bore directly on the defendants' roles in the robbery and murder. At the close of the Commonwealth's evidence, both defendants moved for a directed verdict, and both motions were denied. The defendants presented no evidence.

A crucial incident at the trial occurred during the cross-examination of Gregory Smith. Counsel asked Smith whether the defendants, while at the door, had informed him of the purpose of their visit. 3 The prosecution objected on the ground that a response might require the witness to incriminate himself for conspiracy to violate the narcotic drug laws, G. L. c. 94C, § 40. The judge appointed counsel for Smith. During a voir dire, Smith invoked his privilege under the Fifth Amendment to the United States Constitution and refused to answer defense counsel's questions relating to the conversation at the door. Counsel offered to prove that, if Smith answered the questions, he would say that the defendants told him they wanted to buy heroin, but had only $20; Smith replied that he only had $30 bags to sell; and after bargaining, Smith agreed to cut a bag and sell them $20 worth.

Counsel contended that this testimony not only bore on Smith's credibility, but also supported the defense theory that the defendants went to the apartment for the purpose of buying drugs. Furthermore, counsel argued that Smith waived his privilege against self-incrimination by giving statements to the police and the grand jury and by answering at trial that the defendants told him they had come to buy drugs. Thus, the defendants moved that the judge compel the witness to answer or alternatively to strike his direct testimony or to declare a mistrial. The judge denied all motions, but permitted counsel to ask the incriminating questions before the jury. Smith again refused to answer.

Jordan and Funches join in attacking the judge's ruling on these motions, and Funches further asserts that the judge erred in denying her motion for a directed verdict. The defendants have made several other assignments of error, 4 but, in view of our ground for decision, we need not reach them.

We first consider whether Gregory Smith, having properly asserted his Fifth Amendment privilege against self-incrimination, nevertheless waived his right to remain silent. No one in the present case appears to dispute that Gregory Smith was entitled to invoke the Fifth Amendment. 5 However, the defendants argue that he waived his right by answering "Yes" to counsel's question, "And they told you they were there to buy some heroin; is that right?" 6 The defendants further argue that, having broached the subject of the conversation about drugs, he could not refuse to testify about the details of the conversation.

We apply Federal standards to determine whether a witness has properly invoked the privilege against self-incrimination. Gambale v. Commonwealth, 355 Mass. 394, 245 N.E.2d 246, Cert. denied, 396 U.S. 881, 90 S.Ct. 158, 24 L.Ed.2d 140 (1969). Murphy v. Commonwealth, 354 Mass. 81, 235 N.E.2d 552 (1968); Commonwealth v. Baker, 348 Mass. 60, 201 N.E.2d 829 (1964). A witness may refuse to testify unless it is " 'Perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) Cannot possibly have such tendency' to incriminate" (emphasis in original). Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951). "The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . ." Id. at 486, 71 S.Ct. at 818. This broad approach is consistent with a "strict, not lax, observance of the constitutional protection," Ullmann v. United States, 350 U.S. 422, 429, 76 S.Ct. 497, 501, 100 L.Ed. 511 (1956), for the Fifth Amendment "must not be interpreted in a hostile or niggardly spirit." Id. at 426, 76 S.Ct. at 500.

In Taylor v. Commonwealth, 369 Mass. 183, 189, 338 N.E.2d 823 (1975), we acknowledged a line of authority, both venerable and sparse, setting out the doctrine of waiver by testimony. See Evans v. O'Connor, 174 Mass. 287, 290-291, 54 N.E. 557 (1899); Commonwealth v. Pratt, 126 Mass. 462 (1879); Commonwealth v. Price, 10 Gray 472 (1858); Foster v. Pierce, 11 Cush. 437 (1853). According to these cases, "(T)he witness must claim his privilege in the outset, when the testimony he is about to give, will, if he answers fully all that appertains to it, expose him to a criminal charge, and if he does not, he waives it altogether." Foster v. Pierce, supra at 439. Thus, when a witness "not a party to a cause, voluntarily testifies to a Fact of an incriminating nature he waives his privilege as to subsequent questions seeking Related facts " (emphasis supplied). Taylor, supra, 369 Mass. at 189, 338 N.E.2d 823. As we noted in Taylor, supra at 190, 338 N.E.2d 823, the doctrine depends on two rationales. First, the witness's initial testimony, freely given, has incriminated him, so there is little risk that further testimony...

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