Com. v. Hesketh

• Decision Date: 06 May 1982
• Citation: 386 Mass. 153,434 N.E.2d 1238
• Parties: COMMONWEALTH v. Edward HESKETH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1238

434 N.E.2d 1238

386 Mass. 153

COMMONWEALTH v. Edward HESKETH.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 6, 1982.

Decided May 6, 1982.

Michael A. Lappin, Cambridge, for defendant.

Carmel A. J. Motherway, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant Edward Hesketh was convicted of assault and battery by means of a dangerous weapon (a baseball bat) and malicious destruction of property. ¹ On appeal, the defendant claims error in (1) the judge's refusal to allow a witness for the defense to invoke the privilege against self-incrimination in front of the jury; (2) the exclusion of two questions on cross-examination during the trial; and (3) the judge's decision to allow the prosecution to use the failure to report exculpatory information to law enforcement officials to impeach two defense witnesses. We affirm.

At trial, the main issue was whether one John Roberts or the defendant committed these crimes. All of the defendant's claims of error bear on the issue of identification. We summarize the evidence in light of the identification issue. At approximately 6 P.M. on January 2, 1979, the victim and his brother were sitting in an automobile parked at the Western Junior High School in Somerville. Edward Hesketh, John Roberts, Joseph Costa, Joseph Dixon, and William Ghiozzi were seated in a nearby automobile. A man came out of that automobile and asked the victim if he knew someone. The victim indicated that he did not recognize the name, and the man told the victim to leave. When the victim refused to leave, the man smashed the windshield of the victim's automobile with a baseball bat owned by the defendant. Glass from the windshield fell on the victim and scraped him.

The automobile from which the assailant came drove away. The victim followed in his automobile. He obtained the registration number and went to the Somerville police station. At the station, the police showed the victim several albums containing 400 photographs. The victim did not identify the attacker from those photographs.

Sometime later, the victim was shown twelve loose photographs. These photographs included pictures taken from the albums the victim had seen the night of the crimes. In addition, there were two new photographs, one of Roberts and one of the defendant. The victim selected the photograph of the defendant as the man who smashed his windshield. The victim also made an in-court identification of the defendant.

1. Witness taking Fifth Amendment in front of the jury. On February 4, 1980, ² defense counsel told the court that he planned to call Roberts as a witness. The defendant's lawyer claimed that Roberts committed the crime and asked the court to appoint counsel to advise Roberts on the privilege against self-incrimination. The judge (not the trial judge) appointed an attorney to represent Roberts.

Immediately before trial, defense counsel informed the trial judge that he planned to call Roberts as a defense witness. Defense counsel told the judge that it was his understanding that Roberts might invoke the privilege against self-incrimination. He said that he planned to call Roberts as a witness before the jury. Counsel for the defendant told the judge that he had a right to have Roberts invoke the Fifth Amendment privilege before the jury. Defense counsel told the judge that he thought "there's even a case on point." The judge took the matter under advisement and the empanelment commenced.

During the empanelment, the judge told the prospective jurors the names and addresses of all the witnesses who would testify for the prosecution, and the names and addresses of the witnesses who would appear for the defense. The judge informed the potential jurors that Roberts would testify for the defense. The defendant did not object.

After the prosecution completed its case, the judge conducted a voir dire outside the presence of the jury to determine whether Roberts intended to invoke the privilege against self-incrimination and whether the privilege was properly invoked. If Roberts planned to take the Fifth Amendment, the judge ruled that Roberts would not be allowed to do so in front of the jury, and that Roberts could not be called as a witness merely to invoke the privilege.

Defense counsel agreed that the privilege was properly invoked. However, he objected to that portion of the ruling which did not permit Roberts to invoke the privilege in front of the jury. Citing art. 12 of the Declaration of Rights of the Massachusetts Constitution, and the Sixth Amendment to the United States Constitution, the defendant's attorney argued that Hesketh had a right to have Roberts invoke the privilege against self-incrimination in front of the jury. ³ The judge did not agree and denied the defendant's request to have Roberts invoke the privilege before the jury. There was no error.

"(T)he right to confront and to cross-examine (witnesses) is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Commonwealth v. Francis, 375 Mass. 211, 214, 375 N.E.2d 1221 cert. denied, 439 U.S. 872, 99 S.Ct. 205, 58 L.Ed.2d 185 (1978), quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045-1046, 35 L.Ed.2d 297 (1973), and cases cited. "The Fifth Amendment privilege against self-incrimination, when properly invoked, is clearly one of those interests." Commonwealth v. Francis, supra. Therefore, the Sixth Amendment does not give the defendant the right to have a witness invoke the privilege against self-incrimination in front of the jury.

The Sixth Amendment "must be considered in light of its purpose, namely to produce testimony for the defendant.... Calling a witness who will refuse to testify does not fulfill (that) purpose." United States v. Roberts, 503 F.2d 598, 600, (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); Dodd v. State, 236 Ga. 572, 576, 224 S.E.2d 408 (1976). Further, a witness's reliance on the Fifth Amendment "may have a disproportionate impact upon the minds of the jurors." People v. Thomas, 51 N.Y.2d 466, 472 (434 N.Y.S.2d 941, 415 N.E.2d 931) (1980). "The jury may think it high courtroom drama of probative significance when a witness 'takes the Fifth.' In reality the probative value of the event is almost entirely undercut by the ... fact that it is a form of evidence not subject to cross-examination." Bowles v. United States, 439 F.2d 536, 541-542 (D.C.Cir.1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). Because the impact of a witness's refusal to testify outweighs its probative value, "(i)t is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense." Bowles v. United States, supra at 541. United States v. Lacouture, 495 F.2d 1237 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974). Commonwealth v. Greene, 445 Pa. 228, 231, 285 A.2d 865 (1971); Faver v. State, 393 So.2d 49 (Fla.App.1981). See Commonwealth v. Martin, 372 Mass. 412, 362 N.E.2d 407 (1977). Cf. Commonwealth v. Spencer, 212 Mass. 438, 452, 99 N.E. 266 (1912); Commonwealth v. Labbe, 6 Mass.App. 73, 80, 373 N.E.2d 227 (1978).

As we read the record, the defendant's insistence on calling Roberts as a witness was solely for the purpose of creating an inference of guilt to be drawn by the jury from Roberts' assertion of the privilege against self-incrimination. This he cannot do. "(A) defendant has no right to put a witness on the stand simply to require him to assert his Fifth Amendment privilege before the jury." United States v. Reese, 561 F.2d 894, 899 (D.C.Cir.1977); United States v. Espinoza, 578 F.2d 224, 228 (9th Cir.), cert. denied sub nom. Oropeza-Briones v. United States, 439 U.S. 849, 99 S.Ct. 151, 58 L.Ed.2d 151 (1978); Williams v. State, 600 P.2d 1092, 1093 (Alaska 1979).

On appeal, the defendant bases his claim of error on a somewhat different theory. The defendant concedes that ordinarily a witness should not exercise the privilege against self-incrimination in front of the jury. Commonwealth v. Martin, 372 Mass. 412, 421 n.17, 362 N.E.2d 407 (1977). Commonwealth v. Labbe, 6 Mass.App. 73, 79, 373 N.E.2d 227 (1978). Nevertheless, the defendant argues that a trial judge should allow a witness to take the Fifth Amendment in front of the jury when there is a legitimate reason to do so. Commonwealth v. DiPietro, 373 Mass. 369, 390, 367 N.E.2d 811 (1977). ⁴ The defendant asserts that in this case the judge's announcement during the empanelment that Roberts would testify for the defense is a sufficient reason.

Relying on Commonwealth v. Bolduc, --- Mass. ---, Mass.Adv.Sh. (1981) 1353, 422 N.E.2d 764, the defendant claims that the judge erred when he told the jury the names of the witnesses who would testify for the defense. In light of this error, the defendant argues that the judge should have permitted Roberts to invoke the privilege against self-incrimination in front of the jury. Thus, the defendant asserts that by excluding Roberts as a witness, the judge left the jury speculating as to why Roberts did not appear as a witness for the defense.

In support of his argument, the defendant asserts that after deliberations began, the jury returned with a question. The jury asked for the identity of the persons who they were told would appear. ⁵ In response, the judge forcefully instructed the jury that they should not draw any inference from the presence or the absence of a witness whom he announced would appear for either side. ⁶ The defendant moved for a mistrial but he did not object to the instructions.

Since the defendant did not object to disclosing his witnesses, the only issue under Bolduc is...