Com. v. Hanger

• Decision Date: 13 March 1979
• Citation: 377 Mass. 503,386 N.E.2d 1262
• Parties: COMMONWEALTH v. Harry H. HANGER, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1262

386 N.E.2d 1262

377 Mass. 503

COMMONWEALTH v. Harry H. HANGER, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 2, 1979.

Decided March 13, 1979.

John Leubsdorf, Boston, for defendant.

Stephen M. Needle, Asst. Dist. Atty., for the Commonwealth.

HENNESSEY, Chief Justice.

After a trial by jury in the Superior Court, the defendant, Harry Hanger, was found guilty of assault with intent to rape, assault with intent to rob, kidnapping, assault and battery with a dangerous weapon, and simple assault. Sentenced to the Massachusetts Correctional Institution at Walpole, for a term of from twenty to thirty years, ¹ the defendant appealed pursuant to G.L. c. 278, §§ 33A-33G. Following the Appeals Court's affirmance of his convictions ² this court granted the defendant's application for further appellate review in order to consider whether the trial judge's allowance of the prosecution's midtrial motion to discover Hanger's alibi defense without the requirement of reciprocal discovery from the Commonwealth constituted prejudicial error.

It is our view that the judge acted improperly in granting the prosecution's discovery motion. Nevertheless, we conclude in the context of this case that the judge's mistake is one of those rare instances that can be identified as harmless error. Accordingly, we affirm the judgments of conviction.

We summarize the evidence as it was presented at trial. On the afternoon of April 27, 1977, eighty-three year old Mrs. Lucille Singleton was brutally attacked as she walked along Washington Street in the South End of Boston. At approximately 12:05 P.M. that day, Singleton testified, she was forced into the back of a yellow van with a camper-type top, where, after being driven a short distance, the driver attempted to have intercourse with her. When she refused, the driver "stomped" her in the stomach, tore off her clothes as he searched for money, and then threw her out on the sidewalk before he drove away. By the victim's account, the attack lasted approximately fifteen minutes.

John Mesiti, a bystander who had observed the yellow van parked alongside the curb, came to Singleton's aid on noticing her on the sidewalk. The police were called, and, when they arrived at the scene, they were given a description of the van by Mesiti and a description of the assailant by Singleton. In consequence, a police radio bulletin was broadcast for a black male with a heavy build, operating a yellow van with a camper-type top. Within twenty minutes, police Officer James Carr, traveling on Harrison Avenue, observed a van and a driver fitting the radio description. He, in turn, radioed for assistance and shortly thereafter the van was stopped and its driver, the defendant, was arrested.

The victim, Mrs. Singleton, was admitted to Boston City Hospital, where she remained for nearly two months, having sustained multiple fractures, including a broken pelvis, lacerations, and contusions. Soon after her arrival at the hospital, she offered a detailed description of her attacker which closely corresponded to the appearance of the man the police had apprehended. In addition, on May 4, 1977, Singleton, while still hospitalized, was shown a series of seven police mug shots, from which she positively identified the photograph of the defendant.

At trial, Singleton, Mesiti, and Officer Carr were called as witnesses to testify to the above facts. Paul Harrington, the assistant manager of a liquor store located across the street from the site where Singleton was abducted, also testified for the prosecution, stating that the defendant was a regular customer at the store, that he usually arrived driving a yellow van with a camper-type top, and that he had entered the store on the morning of the attack.

In defense, Hanger called seven witnesses. Two testified that no clothing fragments, bloodstains, or fingerprints of value had been found in the defendant's van; three others were called to dispute collateral matters in Singleton's testimony. The remaining two, Mrs. Eleanor Blasser (Blasser) and Michael Donahue (Donahue), were alibi witnesses.

Donahue, the dispatcher for THEM, Incorporated, a transportation agency for the handicapped and elderly, testified that the defendant was employed as a driver by that organization and was working the day Singleton was attacked. He stated that he remembered speaking with the defendant about 12:05 P.M. that day, instructing him via two-way radio to return from University Hospital to THEM's offices at 141 Milk Street in Boston. The defendant, according to Donahue, arrived at 12:12 P.M. and circled the block while Donahue came downstairs to meet him. Although it was not customary practice for a driver to return to the office for instructions, Donahue explained, the defendant's return was prompted by the fact that he intended to send the defendant into South Boston and did not wish to risk the driver's complaining over the air about being dispatched to a racially hostile neighborhood. After receiving his instructions, Donahue stated, the defendant set off at 12:17 P.M. for the New England Medical Center.

Once at his destination, the defendant picked up Blasser in order to transport her to her home in South Boston. The time of his arrival at the New England Medical Center remains unclear. Blasser stated that the defendant appeared at 12:20 or 12:25 P.M. However, Donahue testified that at 12:30 P.M. he received a call from the New England Medical Center, first inquiring as to the whereabouts of the van, and then saying that the driver had just arrived. Following examination of Blasser and Donahue, Officer Carr testified in rebuttal that he had met with both John Donahue, executive director of THEM, and his brother, Michael Donahue, shortly after the defendant's arrest. During this interview, Carr stated, it was reported by the Donahue brothers that Hanger had made no contact with THEM's offices between 11:50 A.M. and 12:30 to 12:40 P.M. on the day of the crime.

After the trial had commenced, as the first witness, Singleton, was beginning her testimony, the Commonwealth moved to discover: (1) whether the defendant intended to rely on an alibi defense; (2) the place the defendant was at the time of the offense; (3) the names and addresses of any and all prospective defense witnesses; and (4) any and all statements made to the defense by an witnesses. At the time the prosecution made this motion, it had already supplied the defendant with written statements of its prospective witnesses, see Commonwealth v. Lewinski, 367 Mass. 889, 329 N.E.2d 738 (1975), grand jury minutes, see Commonwealth v. Stewart, 365 Mass. 99, 309 N.E.2d 470 (1974), and photographs. While denying the request for witnesses' statements, the judge allowed those parts of the motion which asked for notification of alibi, the place the defendant claimed to have been, and the names and addresses of defense witnesses. Although the defendant opposed the motion's allowance and excepted to the judge's ruling, no order was made to compel the prosecutor to furnish the defense a list of rebuttal witnesses. ³

The defendant contends on appeal ⁴ that the prosecution obtained discovery in triple violation of the standards we enunciated in Commonwealth v. Edgerly, --- Mass. --- ^A, 361 N.E.2d 1289 (1977), a case decided approximately two and one-half months prior to the beginning of his trial. More specifically, the defendant maintains that the judge erred in allowing discovery by failing to order reciprocal disclosure of the prosecution's rebuttal witnesses, by entertaining the prosecution's untimely discovery motion, and by granting discovery of witnesses in addition to those permitted under Edgerly.

1. We agree that the judge erred. It is clear that his discovery order failed to accommodate the due process requirements set forth in Edgerly. As we held therein, a judge may constitutionally require disclosure to the prosecution of an alibi defense and the identity of alibi witnesses only so long as his order, taken in its entirety, is not fundamentally unfair to the defendant. Commonwealth v. Edgerly, --- Mass. ---, --- ^B, 361 N.E.2d 1289 (1977). In all instances the discovery order "must" be accompanied by a reciprocal order directing the prosecution to notify the defendant of the names and addresses of witnesses on whom it intends to rely to dispute the defendant's alibi. Id. at --- ^C, 361 N.E.2d 1289. "It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State." Wardius v. Oregon, 412 U.S. 470, 476, 93 S.Ct. 2208, 2212, 2213, 37 L.Ed.2d 82 (1973). See Gilday v. Commonwealth, 360 Mass. 170, 274 N.E.2d 589 (1971); Blaisdell v. Commonwealth, --- Mass. --- ^D, 364 N.E.2d 191 (1977). Thus, on this basis alone, the discovery order was defective.

It is also critical, however, that discovery of this nature take place sufficiently in advance of trial to permit investigation by the defendant of the witnesses the prosecution expects to call in rebuttal of the defendant's alibi. In Edgerly we did not specify a flat time limit on prosecutorial discovery motions; instead, we stated that motions should be filed reasonably in advance of trial. Commonwealth v. Edgerly, supra. Underlying this suggestion was our implicit belief that through delay the purpose of the notice-of-alibi rules could be frustrated. Mutual discovery provisions are designed "to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence." Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970). Hence, we think it imperative that this type of motion be brought sufficiently early so that the defendant, at...