Com. v. Harris

• Decision Date: 02 November 1973
• Citation: 303 N.E.2d 115,364 Mass. 236
• Parties: COMMONWEALTH v. Harry HARRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 115

303 N.E.2d 115

364 Mass. 236

COMMONWEALTH v. Harry HARRIS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 19, 1973.

Decided Nov. 2, 1973.

Robert V. Greco, Boston, for defendant.

John M. Lynch, Asst. Dist. Atty., for the Commonwealth.

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

BRAUCHER, Justice.

The defendant was convicted of arson of a synagogue and of breaking and entering the synagogue in the nighttime with intent to commit arson. Upon appeal under G.L. c. 278, §§ 33A--33G, the Appeals Court affirmed the convictions. COMMONWEALTH V. HARRIS, MASS.APP., 295 N.E.2D 687.^A We granted further review to consider the single question whether in the circumstances it was error to allow the prosecution to impeach the defendant's testimony by a prior inconsistent statement made to the police without compliance with the procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We follow the decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and affirm.

We summarize the evidence bearing on the issue before us. Early in the morning of May 27, 1970, two separate fire broke out in the Congregation Agudath Israel Synagogue in Boston. Fire officials gave testimony supporting the conclusion that the fires were incendiary in nature, and a young man acquainted with the defendant testified to admissions by the defendant on the afternoon after the fires that he had participated in setting them and to threats made by the defendant to prevent the witness from testifying. A number of witnesses for the defendant contradicted the testimony as to the defendant's admissions and supported the defendant's own testimony that he was at home at the time of the fires and learned about them for a friend.

On cross-examination the defendant was asked about a conversation with police. The judge interrupted the examination and ordered a voir dire. On voir dire, a police officer testified that the defendant was arrested on Saturday, June 27, 1970, sent to the Youth Service Board over the weekend, and taken to court for a probable cause hearing on Monday morning. In the lockup downstairs in the court house, the defendant told the officer that he was wallpapering at a woman's house on the night of the fire, that he heard of the fire, and that he watched it. Also on voir dire, the prosecuting attorney at the probable cause hearing testified that he discussed with defence counsel the defendant's oral statements as to the wallpapering alibi, told defence counsel that he would not use those statements as part of the Commonwealth's case, and made a notation on the defendant's motion to discover statements made by the defendant that the Commonwealth had 'none it intends to rely upon, or use.' The defendant offered no evidence at the voir dire.

At the conclusion of the voir dire, the judge found that the defendant's statements were made without the safeguards guaranteed by the Miranda rule, and that the Commonwealth so conceded, but he ruled the statements admissible under the principle of Harris v. New York, supra. He found that no deception had been practised by the Commonwealth, and that the promise of the prosecuting attorney not to use the statements applied only to the probable cause hearing and to the Commonwealth's case in chief at trial.

The trial resumed, and the defendant was cross-examined about the wallpapering alibi. He admitted telling the story except for watching the fire, and said he had lied because he was scared. On redirect examination he testified that he had been interrogated at length on several occasions and did not think anyone would believe he was at time. He formulated the wallpapering story at the Youth Service Center on Sunday with the help of his mother and two women, one of whom was prepared to testify for him at the probable cause hearing but was not called. In rebuttal two police officers gave testimony substantially like that given on voir dire and contradicted the defendant's testimony as to extensive interrogation.

1. The defendant attacks as incredible the judge's finding that the promise of the prosecuting attorney, made at the probable cause hearing, did not extend to cross-examination of the defendant or to rebuttal of his testimony at trial. We insist that the Commonwealth keep its promises in such matters. Commonwealth v. St. John, 173 Mass. 566, 569--570, 54 N.E. 254 (1899). Commonwealth v. Benton, 356 Mass. 447, 252 N.E.2d 891 (1969). But the promise was oral, the testimony of the prosecuting attorney was uncontradicted, and the Appeals Court did not think it incredible. The evidence sufficiently supported the finding.

2. The defendant's main argument, the focus of our limited grant of further appellate review, is addressed to the question whether Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), is the law of Massachusetts. We are asked to hold that art. 12 of the Declaration of Rights of our Constitution provides greater protection to defendants than is provided by the United States Constitution as interpreted in that case. We are free to take this course, and at least one State has done so. State v. Santiago, 53 Hawaii 254, 265--267, 492 P.2d 657 (1971). Cf. Butler v. State, 493 S.W.2d 190, 197--198 (Tex.Cr.App.1973) (statute); United States v. Jordan, 44 C.M.R. 44, 47 (U.S.C.M.A.1971) (Manual for Courts-Martial); see State v. Spunaugle, Or.App., ^b (decision of higher court). Like most courts which have considered the point, however, we decline the invitation to adopt the reasoning of the dissenting justices in the Supreme Court of the United States. See Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (dissenting opinion of Brennan, J.); Riddell v. Rhay, 404 U.S. 974, 92 S.Ct. 336, 30 L.Ed.2d 291 (1971) (dissenting opinion of Douglas, J.).

In Harris v. New York, supra, the Supreme Court held that statements to the police elicited in violation of Maranda safeguards, if not 'coerced or involuntary,' and if 'the trustworthiness of the evidence satisfied legal standards' (401 U.S. at 224, 91 S.Ct. at 645 (1971)), may nevertheless be used to impeach the credibility of a criminal defendant whose testimony in his own behalf is inconsistent with those statements. So far as the exclusionary rule serves the purpose of deterring proscribed police conduct, 'sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.' Id. at 225, 91 S.Ct. at 645. The privilege of the criminal defendant to testify or to refuse to do so 'cannot be construed to include the right to commit perjury.' Ibid. at 225, 91 S.Ct. at 645. 'The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.' Id. at 226, 91 S.Ct. at 646.

The principal objections to the decision in Harris v. New York, supra, raised by dissenting justices, are three. First, the decision repudiates the declaration in the Miranda case that 'statements merely intended to be exculpatory by the defendant' and 'used to impeach his testimony at trial' are 'incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.' 384 U.S. at 477, 86 S.Ct. at 1629 (1966). Second, so far as the impeaching evidence bears directly on the elements of the crime charged, its use 'fetters' the right of the defendant to testify in his own defence, cutting down the right by making its assertion costly. See Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). It is fiction, in this view, that the prejudicial effect can be overcome by instructing the jury to use the evidence only for impeachment. See Bruton v. United States, 391 U.S. 123, 129--133, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Third, 'the possible use of tainted statements . . . opens the door to a calculated risk by police interrogators.' Riddell v. Rhay, 404 U.S. 974, 976, 92 S.Ct. 336, 30 L.Ed.2d 291 (1971) (dissenting opinion of Douglas, J.).

The present case does not require us to enter into this dispute. The defendant contends that he 'was warranted in taking the stand on the assumption that' his statements to the police 'could not be used,' and thus claims the very license to testify without impeachment which was denounced in Harris v. New York, supra. It is not our province to resuscitate a Supreme Court dictum which has been...