Com. v. Henson

• Citation: 394 Mass. 584,476 N.E.2d 947
• Parties: COMMONWEALTH v. Albert HENSON, Jr.
• Decision Date: 18 April 1985
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 947

476 N.E.2d 947

394 Mass. 584

COMMONWEALTH v. Albert HENSON, Jr.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Jan. 7, 1985.

Decided April 18, 1985.

Jane Larmon White, Boston, Committee for Public Counsel Services, for defendant.

John P. Corbett, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

In his appeal from convictions of assault with intent to murder, while armed with a dangerous weapon (G.L. c. 265, § 18), and assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A), the defendant challenges rulings denying him the right to impeach certain witnesses for bias by showing that criminal charges were pending against them. We agree that as to one significant witness cross-examination was improperly and prejudicially barred and that there must be a new trial. We deal further with two issues that will arise at any retrial of the indictment charging assault with intent to murder: the nature of the intent the Commonwealth must prove and the extent to which the jury should consider a defendant's intoxication from alcohol or other drug in deciding whether the defendant had the requisite criminal intent.

We recite facts the jury could have found, leaving certain facts for development in the discussion of the issues. In the early morning of July 21, 1981, the defendant was a passenger in the front seat of a motor vehicle driven by Regina DiBlasio in Brockton. ¹ Lori Newton, who had already been with the defendant and DiBlasio for several hours, was a passenger in the back seat of the motor vehicle. This vehicle passed the victim, Ernest Hill, who was walking in the opposite direction on a sidewalk. DiBlasio said that Hill was the person who had "jumped" her a year or two previously. The defendant said that no one was going to get away with hurting his girl friend and directed DiBlasio to turn the vehicle around. After various intermediate events that are not crucial to the issues on appeal, the vehicle was parked at the curb adjacent to the side door of John's Lounge on Clinton Avenue in Brockton. Hill was in the lounge. DiBlasio was still in the driver's seat, and the defendant was in the front passenger seat, closer to the curb, with a gun in hand and the window open. Hill came out of the lounge and stood with a friend, Melvin Williams, who left after several minutes. The defendant then said to Hill, "Can I talk to you for a minute?" Hill responded affirmatively and walked toward the vehicle. The defendant then shot Hill in the face, but not fatally. DiBlasio drove the car away. She and the defendant were arrested shortly thereafter. Newton was with DiBlasio and the defendant at the time they were arrested. A police officer told her that, if they found that she was the other woman in the vehicle, there would be a warrant issued for her arrest. About four months later, in November, Newton, who was eighteen years old at the time of the trial, made a recorded statement to an assistant district attorney concerning the activities of the defendant, DiBlasio, and herself before, during, and after the shooting. The defendant had been drinking alcoholic beverages at his apartment before entering the vehicle that night. DiBlasio testified at trial that the defendant was drunk when he entered the vehicle.

1. The judge erred in totally foreclosing the defendant's attempt to cross-examine certain witnesses concerning pending criminal charges in order to show their bias. See Commonwealth v. Connor, 392 Mass. 838, 841, 467 N.E.2d 1340 (1984); Commonwealth v. Martinez, 384 Mass. 377, 380, 425 N.E.2d 300 (1981); Commonwealth v. Joyce, 382 Mass. 222, 231, 415 N.E.2d 181 (1981); Commonwealth v. Hogan, 379 Mass. 190, 191-192, 396 N.E.2d 978 (1979); Commonwealth v. Haywood, 377 Mass. 755, 760-761, 388 N.E.2d 648 (1979); Commonwealth v. Lewis, 12 Mass.App. 562, 572-573, 427 N.E.2d 934 (1981). Cf. Commonwealth v. Ahearn, 370 Mass. 283, 287, 346 N.E.2d 907 (1976) (pending civilian complaints by defendant against police witnesses); Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1109-1110, 39 L.Ed.2d 347 (1974) (confrontation clause of the Sixth Amendment). As will be seen, the issue was squarely raised by defense counsel with respect to witnesses who had testified to material facts. See Commonwealth v. Cheek, 374 Mass. 613, 615, 373 N.E.2d 1161 (1978) (issue of bias not properly raised); Commonwealth v. Caine, 366 Mass. 366, 370 n. 4, 318 N.E.2d 901 (1974). This is not a case in which, after cross-examination concerning pending charges, the judge in his discretion appropriately limited further cross-examination. See Commonwealth v. Dougan, 377 Mass. 303, 310, 386 N.E.2d 1 (1979). Nor, as will also be seen, is this a case in which a voir dire hearing showed that pending charges against a witness arose after the witness had given statements to the police with which his trial testimony was consistent in every material respect. See Commonwealth v. Haywood, supra. In such a case, a witness's arrest record would not be probative of bias. Commonwealth v. Joyce, supra 382 Mass. at 230, 415 N.E.2d 181. When a possibility of bias exists, however, even if remote, the evidence is for the jury to hear and evaluate. See Commonwealth v. Connor, supra; Commonwealth v. Hogan, supra 379 Mass. at 191-192, 396 N.E.2d 978. The possibility that a prosecution witness is hoping for favorable treatment on a pending criminal charge is sufficient to justify inquiry concerning bias, even if the Commonwealth has offered no inducements to the witness. We grant that in a particular case a voir dire hearing might show no possibility of bias arising from charges (particularly minor charges) pending against a witness in another county (or jurisdiction). The general rule, however, is to permit cross-examination for bias in favor of the Commonwealth arising from the pendency of charges against a prosecution witness.

One witness for the Commonwealth, Melvin Williams, testified that he saw a motor vehicle parked near the side door of John's Lounge shortly before the time of the shooting. He identified Newton as a passenger in the rear of the vehicle. He further testified that there was a woman, whom he did not identify, sitting in the driver's seat and a man sitting in the front passenger's seat. He saw the motor vehicle and the same occupants at a traffic light near the scene of the shooting shortly after the shooting. He identified the defendant as the man. Williams was a friend of the victim and had talked with him outside the side door of the lounge shortly before the shooting.

In the course of his cross-examination of Williams, defense counsel stated to the judge at the side bar that a complaint charging the witness with rape--a "[c]ase that occurred before this incident"--was pending in the Brockton District Court. Defense counsel sought the judge's permission to impeach Williams on bias, adding, without contradiction from the prosecutor, that "the district attorney's office said they were investigating with the possibility that [the complaint] would be dismissed the next time in court." Counsel contended that Williams was "being very careful with the Commonwealth because he thinks there's a good chance that they will dismiss it." The judge denied the defendant the right to impeach Williams for bias.

On this record the judge had no discretion to deny the defendant the right to impeach the witness for bias in favor of the Commonwealth. The defendant had the right to inquire into the possible effect on the witness's testimony of a charge of serious crime pending in the same county as that in which the defendant was being tried, particularly where it was represented, and not denied, that the charge was pending at the time of the shooting and the district attorney's office was considering dismissing the charge. However, in considering whether the error was prejudicial, we note that Williams was not an eyewitness to the shooting and his testimony was cumulative. We need not resolve this point because we have no doubt that there was reversible error in denying the defendant the right to cross-examine the witness Newton concerning charges pending against her.

A more crucial witness for the Commonwealth, Lori Newton, the passenger in the back seat of the vehicle from which the shot was fired, also had criminal charges pending against her at the time she testified. Her testimony was particularly relevant because she testified to what was said and done by the defendant and the codefendant DiBlasio before, during, and after the shooting. She was said to be in default since July 3, 1981, on a complaint pending in the Boston Municipal Court charging her as a disorderly person. She was also said to be in default on two complaints pending in the Brockton District Court charging her with "disturbance and affray" on which she had been arraigned in January, 1982.

The judge acted within his discretion in discounting the minor charge pending in Suffolk County because the defendant made no specific representation that the pendency of that charge might have affected Newton's testimony and because the defendant did not request a voir dire hearing concerning that charge. The other charges were pending in Plymouth County, the county in which the trial was being held, but arose after November, 1981, when the witness Newton gave a tape-recorded statement to an assistant district attorney. If Newton's trial testimony had differed in no material respect from her earlier statement, the judge would have been warranted in his discretion in denying the defendant the opportunity to impeach Newton for bias. Commonwealth v. Haywood, 377 Mass. 755, 762-763, 388 N.E.2d 648 (1979). The defendant did not ask for a voir dire hearing concerning these pending charges. The prosecutor presented the judge with a copy of the statement Newton made to the assistant district...