Com. v. Heffernan

• Decision Date: 04 January 1966
• Citation: 350 Mass. 48,213 N.E.2d 399
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Myles F. HEFFERNAN.

Page 399

213 N.E.2d 399

350 Mass. 48

COMMONWEALTH v. Myles F. HEFFERNAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 4, 1965.

Decided Jan. 4, 1966.

F. Lee Bailey, Boston (Robert A. Barton, Boston, with him), for defendant.

Donald L. Conn, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

Before SPALDING, WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

REARDON, Justice.

This is an appeal under G.L. c. 278, §§ 33A-33G, as amended, from the conviction of the defendant by a judge sitting without jury in the Superior Court. The defendant had been indicted under G.L. c. 268A, § 2(d), in that he, being a State trooper, 'did corruptly ask for and receive something of value for himself in return for being influenced in the performance of an official act.'

It is undisputed that on the morning of November 1, 1964, while driving easterly on Route 2 in Concord, Travis K. Stone and Thomas M. Price, both army privates at Fort Devens, were stopped by the defendant and that Stone was the operator of the car. Although it had one registration plate attached, the car was in fact unregistered and uninsured. Stone was found by the defendant to be operating without an inspection sticker. Conversation ensued between Stone and the defendant, during which Price left and returned to Fort Devens by hitchhiking. There was conflicting testimony as to whether the police cruiser containing the defendant and Stone drove off prior to the departure of Price. It was testified by Stone and denied by the defendant that sometime later, in the cruiser, the defendant said to Stone, 'If you would give me enough money to buy two fifths of Canadian Club Whiskey, I will let you go,' and that Stone gave Heffernan $9 in response to this request. It is undisputed that Heffernan, at 8:30 A. M. made a radio transmission calling for a wrecker to tow the car which he termed 'abandoned.'

We turn to a consideration of the exceptions taken during trial and those relating to the denial of the defendant's amended motion for a new trial, including the denial of certain 'requests for rulings of law.' The defendant has assigned as error twelve matters.

1. The defendant complains of the judge's exclusion of a question which had reference to an appearance by Stone in the Concord District Court sometime prior to trial. The question was, 'Did you refuse to testify [in that appearance] on the grounds that you might incriminate yourself?' The intention of defence counsel was to offer the evidence of a claim of the privilege against self-incrimination for the purpose of impeaching Stone's previous testimony that he had had a civic motive in informing certain police officials regarding the alleged bribe. There is no need to pass upon the defendant's contention based on the witness's privilege against self-incrimination. We hold the judge's ruling to be proper on the basis of his broad discretion to make rulings on the scope of cross-examination on collateral facts which reflect on credibility. Commonwealth v. Sacket, 22 Pick. 394, 396; Commonwealth v. Patalano, 254 Mass. 69, 72, 149 N.E. 689; Commonwealth v. Makarewicz, 333 Mass. 575, 593, 132 N.E.2d 294; Commonwealth v. Palladino, 346 Mass. 720, 723, 195 N.E.2d 769. Further, shortly after taking the exception, the defence counsel elicited testimony from Stone tending to show that he had claimed the privilege. Commonwealth v. Corcoran, 252 Mass. 465, 468, 148 N.E. 123; Commonwealth v. Beal, 314 Mass. 210, 229, 50 N.E.2d 14; Commonwealth v. Makarewicz, 333 Mass. 575, 593, 132 N.E.2d 294; Commonwealth v. Palladino, 346 Mass. 720, 723, 195 N.E.2d 769.

2. During cross-examination of Stone he admitted that he had talked with a number of officers of the law about the case. He said that right after the alleged bribe he had 'conversation' with a person who gave him a ride to his car and with the service station attendant where he left his car. Concerning these two, who were not officers, his answers did not imply that he had discussed the bribe with them. Defence counsel examined Stone's motive for not reporting the alleged bribe until he was arrested on a charge not related to this case, counsel's theory being that the bribe was an invention to discourage the Ayer police from prosecution of Stone on the charge against him. On redirect examination the Commonwealth attempted to dispel the implication that the story was an invention springing from the arrest. After the prosecution asked whether Stone had conferred with anyone about the alleged bribe on arriving at his barracks on the first of November, 1964, defence counsel objected. The judge permitted the answer, 'Yes.' The next question was, 'And with whom did you confer?' Again defence counsel objected but the judge allowed the question. The defendant responded, 'PFC Price and----.' Defence counsel then interrupted with his exception, 'Would you save my rights on this, your Honor?' The witness continued, 'PFC Price and--well, almost everyone in the barracks heard about it sooner or later.' Counsel said, 'I object to that and move it be stricken.' The judge replied, 'That last may be stricken out.'

The Commonwealth urged that defence counsel's two objections and his single tardy exception were not taken in a manner which would permit his challenging the questions or answers in this court. Randall v. Peerless Motor Car Co., 212 Mass. 352, 384, 99 N.E. 221; Commonwealth v. Gray, 314 Mass. 96, 102, 49 N.E.2d 603; G.L. c. 278, § 33B. Rule 72 of the Superior Court (1954). See Commonwealth v. McGarty, 323 Mass. 435, 439, 82 N.E.2d 603; State v. Laundy, 103 Or. 443, 505-506, 204 P. 958, 206 P. 290.

Putting to one side the tardiness of the exception, we note that the question and answer were both proper. 'It is the general rule that a witness cannot be corroborated by showing that he has previously made statements similar to those given by him at the trial. * * * But there is an exception where it is claimed that the testimony is a recent invention or fabrication * * *.' Walsh v. Wyman Lunch Co., 244 Mass. 407, 409, 138 N.E. 389.

During the closing argument the prosecution adverted to the conversation between Stone and Price in the barracks concerning the alleged bribe. It was permissible, in the light of what we have already stated concerning this evidence, for the judge in making his findings to give such weight as he deemed warranted to the occurrence of this barracks conversation. Damon v. Carrol, 163 Mass. 404, 409, 40 N.E. 185; Hubbard v. Allyn, 200 Mass. 166, 171, 86 N.E. 356; O'Kane v. Travelers Ins. Co., 337 Mass. 182, 184, 148 N.E.2d 397. The prosecution's use of the statement in argument, analogizing it to 'fresh complaint,' was not improper argument since it was not 'unfair, prejudicial and unwarranted.' Commonwealth v. Dascalakis, 246 Mass. 12, 28, 140 N.E. 470. See Commonwealth v. Cabot, 241 Mass. 131, 147-148, 135 N.E. 465.

3. We turn now to the problem of the denial of the defendant's amended motion for a new trial. The disposition of the motion as originally made hinged upon the affidavits of army personnel and of the defendant's own investigator. These affidavits were offered to prove that Price had stated on two occasions prior to the trial that he had never seen the police cruiser move. Price said at the trial that he had seen the cruiser move.

The defence argued that if Price's testimony were not credible (a) the conviction would be against the weight of the evidence, (b) there would be insufficient evidence to support the conviction, and (c) the action of a State police major, one Murgia, in failing to reveal the potentially impeaching fact of Price's deviation from his previous story was such a withholding of evidence that the conviction was as a matter of law vitiated under the Fourteenth Amendment of the Constitution of the United States even though there might be sufficient other evidence to support the conviction.

Subsequent to the motion and requests for rulings of law, the defendant filed the amendment to his motion, later incorporated into the motion by the trial judge. The affidavits supporting the amendment to the motion for a new trial were from six service men who gave testimony therein concerning obscene statements made by Stone following the conviction of the defendant and tending to indicate his pleasure at the result. It was argued that these affidavits were new evidence which, combined with the earlier ones, indicated that Stone harbored a malice toward the defendant which was his prime motive in report-in the bribe--that his motive was not inspired by a citizen's duty. The defendant also urged that the affidavits substantiated the existence of a conspiracy between Stone and Price to perjure themselves and harm the defendant.

We consider both sets of affidavits in the light of the well known rules concerning new evidence. Davis v. Boston Elev. Ry., 235 Mass. 482, 495-496, 126 N.E. 841; Commonwealth v. Dascalakis, 246 Mass. 12, 24-25, 140 N.E. 470; Commonwealth v. Devereaux, 257 Mass. 391, 153 N.E. 881; Commonwealth v. Sacco, 259 Mass. 128, 136, 156 N.E. 57. The weight and import of the affidavits submitted in support of the defendant's motion were for the trial judge's discretion. Commonwealth v. Crapo, 212 Mass. 209, 210, 98 N.E. 702; Sherman v. Collingwood, 221 Mass. 8, 9,...