Com. v. Haywood

• Decision Date: 05 April 1979
• Citation: 377 Mass. 755,388 N.E.2d 648
• Parties: COMMONWEALTH v. Wilbert HAYWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 648

388 N.E.2d 648

377 Mass. 755

COMMONWEALTH v. Wilbert HAYWOOD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1978.

Decided April 5, 1979.

Monroe L. Inker, Boston, for defendant.

Daniel V. Mullane, Asst. Dist. Atty., for the Commonwealth.

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

ABRAMS, Justice.

Wilbert Haywood appeals from his conviction of the murder in the second degree of George Anthony Willis. G.L. c. 278, §§ 33A-33G. Haywood claims that reversal of his conviction is required because: (1) his constitutional right to cross-examine adverse witnesses on the issue of bias was infringed; (2) evidence of an independent crime was erroneously admitted; (3) there was insufficient credible evidence to warrant his conviction; and (4) the substitution of an alternate juror for a juror who became ill violated his constitutional right to a jury trial. ¹ Haywood also seeks relief under G.L. c. 278, § 33E, claiming that he should have a new trial or, alternatively, we should reduce the verdict to manslaughter. We find no error and conclude that we should not exercise our authority under G.L. c. 278, § 33E.

We summarize the facts. At approximately 8:00 P.M. on November 13, 1976, Haywood was seen in front of a store on Marcella Street in Boston. At the same time, Willis was standing with a group of friends on the porch of a house on the opposite side of the street.

Willis attempted to throw an empty soft drink bottle into a vacant lot across Marcella Street from the house. The bottle did not reach the lot, and shattered against the curb, landing approximately twenty feet from Haywood.

Haywood then turned to go into the store. As he did so, he met Harvey Johnson, who was leaving the store. Haywood asked Johnson whether he had a knife. Johnson said that he did not, and walked away.

About thirty minutes later, Willis decided to accompany one David McIntyre to McIntyre's home. The two men walked along Marcella Street and turned onto Thornton Street. As they proceeded along Thornton Street, Haywood came up behind them and asked Willis who threw the bottle. Willis responded, "I don't know."

Haywood then pulled out a knife, stabbed Willis and began chasing McIntyre along Thornton Street. McIntyre turned and talked with Haywood, whom he knew well. As a result, Haywood lowered the knife and left the scene.

After the stabbing, Willis ran back to Marcella Street where he collapsed. Police and an ambulance were called. Willis was taken to a nearby hospital where he died as a result of his stab wound.

Haywood was arrested by police at his home later the same evening. He told police that he had been in front of the store at the time the bottle was thrown. However, Haywood said that after the bottle-throwing incident, he went directly home. Haywood denied encountering Willis and McIntyre on Thornton Street, and said that he did not stab Willis.

The jury found Haywood guilty of murder in the second degree. The judge sentenced him to life imprisonment.

1. Bias and the Restriction of Cross-examination.

At trial, the defendant sought to introduce McIntyre's arrest record ² to show that McIntyre was motivated to cooperate with the police in order to gain favorable treatment in the disposition of unrelated charges then pending against him. The issue of McIntyre's arrest record was raised by the defendant during a voir dire on an unrelated issue, ³ at which Haywood showed that McIntyre was first arrested on December 16, 1976, and charged with operating a motor vehicle without a license, the unauthorized use of a motor vehicle, and possession of burglar's tools. The charge of operating a motor vehicle without a license was filed; the other charges were continued without findings to December 28, 1977.

On June 17, 1977, McIntyre again was arrested. He was charged with armed robbery and assault and battery by means of a dangerous weapon. These charges were pending at the time of the defendant's trial. Prior to any of these arrests McIntyre had made statements to police on November 13 and November 16, 1976, describing the stabbing.

McIntyre testified at the voir dire that he was under the impression that his 1976 arrests had already been "disposed of." He also denied that he had ever spoken about his armed robbery arrest with anyone connected with the defendant's case.

The judge found that McIntyre's arrest record was irrelevant to the question whether McIntyre was motivated by "bias or prejudice or promise of reward." ⁴ Thus the judge ruled that evidence of McIntyre's arrest record was not admissible to impeach him.

On appeal, Haywood claims that McIntyre's arrest record "permitted the inference that McIntyre felt he was free to commit crimes himself so long as the Commonwealth needed him to testify against (the) defendant." Haywood argues that "if the jury had had this evidence, they might have viewed McIntyre as being in the nature of an informant on whom the government regularly depends; and who used this dependency to shield himself from the consequences of his criminal conduct." Therefore, the defendant concludes that the judge's ruling deprived him of his constitutional right to confront the witnesses against him. We disagree.

Arrest or indictment alone is insufficient for general impeachment purposes. See G.L. c. 233, § 21. See also Michelson v United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948) ("Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness"); United States v. Ling, 581 F.2d 1118, 1121 (4th Cir. 1978); United States v. Amabile, 395 F.2d 47, 50-51 (7th Cir. 1968), vacated on other grounds sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), aff'd on remand, 432 F.2d 1115 (7th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 869, 27 L.Ed.2d 828 (1971). See generally W. B. Leach & P. J. Liacos, Massachusetts Evidence 123 (4th ed. 1967).

On the other hand, it is well established that a criminal defendant is "entitled, as of right, to reasonable cross-examination of a witness for the purpose of showing bias, particularly where that witness may have a motivation to seek favor with the government." Commonwealth v. Dougan, --- Mass. ---, --- ^A, 386 N.E.2d 1, 5 (1979); Commonwealth v. Ahearn, 370 Mass. 283, 287, 346 N.E.2d 907 (1976); Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975). See Commonwealth v. Marcellino, 271 Mass. 325, 326-327, 171 N.E. 451 (1930). See generally W. B. Leach & P. J. Liacos, Massachusetts Evidence 120-121 (4th ed. 1967). A defendant has the Right to bring to the jury's attention any "circumstance which may materially affect" the testimony of an adverse witness which might lead the jury to find that the witness is under an "influence to prevaricate." Commonwealth v. Marcellino, supra, 271 Mass. at 327, 171 N.E. 451, quoting from Day v. Stickney, 14 Allen 255, 258 (1867). See United States v. Garrett, 542 F.2d 23, 26 (6th Cir. 1976) ("there is a difference between general credibility and answers which might possibly establish untruthfulness with respect to the specific events of the crime charged"). See also Hart v. United States, 565 F.2d 360, 362 (5th Cir. 1978); United States v. DeLeon, 498 F.2d 1327, 1332-1333 (7th Cir. 1974).

Thus, if evidence bears directly on the issue of bias, any claim of confidentiality as to juvenile or criminal records cannot prevail. See Davis v. Alaska, 415 U.S. 308, 320, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Commonwealth v. Ferrara, 368 Mass. 182, 189-190, 330 N.E.2d 837 (1975). This rationale may extend to arrest records where charges are pending against the witness at the time of his testimony. Cf. Commonwealth v. Dougan, --- Mass. ---, --- ^B, 386 N.E.2d 1 (1979).

However, neither Davis nor Ferrara holds that a defendant may introduce into evidence the arrest or probation records of adverse witnesses in all circumstances. See Davis v. Alaska, supra, 415 U.S. at 321, 94 S.Ct. 1105 (Stewart, J., concurring); Commonwealth v. Ferrara, supra, 368 Mass. at 186-187, 330 N.E.2d 837. See also Commonwealth v. Santos, --- Mass. --- ^C, 384 N.E.2d 1202 (1978); Mills v. Estelle, 552 F.2d 119, 122 (5th Cir.), cert. denied, 434 U.S. 871, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). Therefore, the judge could make an appraisal of the materiality of the testimony sought in light of Haywood's right "to show specific bias or motive to prevaricate on the part of the government witness." Commonwealth v. Santos, supra, --- Mass. at --- ^D, 384 N.E.2d at 1205.

On the night of the stabbing, McIntyre went to the hospital, identified Haywood to police as the assailant, and volunteered to take police to an area where he thought Haywood lived. Three days later, McIntyre gave a statement to police describing events on the night of the stabbing.

At the time McIntyre gave his initial statements to police, he had no arrest record. The first entry on McIntyre's arrest record ⁵ is dated December 16, 1976, over a month After McIntyre made his initial statements to police.

The defendant asserts that the fact that McIntyre's own troubles with police commenced after the crime at issue here should not be dispositive. The defendant maintains that the critical date for determining whether McIntyre's arrest record is relevant on the issue of bias is the date of McIntyre's testimony at trial. The defendant argues that if there are charges pending against a witness, the witness has reason to be susceptible to official pressure at the time of his testimony and thus the arrest record is relevant to show bias. Cf. United States v. Garrett, 542 F.2d 23, 25-27 (6th Cir. 1976).

The defendant's argument would be persuasive if he were able to show that McIntyre's testimony changed once he became susceptible to official pressure. ⁶ However, McIntyre first identified Haywood to police on November 13, 1976. H...