Com. v. Hoffer

• Decision Date: 09 June 1978
• Citation: 375 Mass. 369,377 N.E.2d 685
• Parties: COMMONWEALTH v. Carl Thomas HOFFER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 685

377 N.E.2d 685

375 Mass. 369

COMMONWEALTH v. Carl Thomas HOFFER.

Supreme Judicial Court of Massachusetts,Suffolk.

Argued Feb. 13, 1978.

Decided June 9, 1978.

Christopher D. Dye, Boston (Monroe L. Inker, Boston, with him), for defendant.

Jeremiah P. Sullivan, Jr., Asst. Dist. Atty. (James M. Lynch, Sp. Asst. Dist. Atty., with him), for the Com.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

The defendant Carl Thomas Hoffer (Hoffer) was indicted for murder in the first degree and armed robbery. After a trial by jury he was convicted of murder in the first degree and larceny. ¹ We conclude that there was no prejudicial error at the trial and that exercise of our powers under G.L. c. 278, § 33E, is not warranted. We affirm the convictions and the judgment entered as a result of the conviction of murder in the first degree.

We summarize first the evidence presented at the trial by the main witness for the Commonwealth, Gale Dubuque Hoffer (Gale), the wife of the defendant. During the early morning hours of November 10, 1974, Hoffer and John O'Sullivan (O'Sullivan) arrived at Gale's home. At this time Gale was Hoffer's girl friend. He asked Gale to drive someone back to the Massachusetts Correctional Institution at Walpole. Hoffer, O'Sullivan, and Gale then picked up this person and drove to Walpole.

During the drive, the defendant removed a box from a duffel bag which he was carrying. Gale testified that Hoffer took a "rifle," ² ammunition, and surgical gloves from the box. There was some general conversation concerning the possibility of going target shooting; the defendant said that he wanted "to show (O'Sullivan) how to use the gun so that in case they got into trouble robbing the bank he would know what he was doing."

When they arrived at Walpole, the prisoner directed Gale to drive around to the side away from the front entrance because he was returning late from furlough. Although Gale thought the man walked to the front entrance of the institution, she did not see him enter.

Hoffer then directed Gale to drive back by way of Turtle Pond. He stated that he wanted to show O'Sullivan how to use the gun. He told Gale to drop them off at a clearing in the Stony Brook Reservation, to drive around for twenty minutes, and to pick them up after that time. Hoffer took the duffel bag with him when he and O'Sullivan were dropped off.

When Gale returned, Hoffer was alone, and he no longer had the duffel bag. When Gale asked where O'Sullivan was, Hoffer said that he had to kill him because he thought O'Sullivan had been talking to the police about the bank robbery which they were planning. Hoffer pointed to the area below Gale's right ear and stated that that was where he had shot O'Sullivan. Hoffer also stated that he had taken everything out of O'Sullivan's pockets so that there wouldn't be any connection between himself and O'Sullivan. Among the items which Hoffer took was O'Sullivan's driver's license, which Hoffer said he planned to use.

During the period following the killing, the defendant proposed marriage to Gale on several occasions. He told her that she was "the only one that could hang" him and that she could not be forced to testify if they were married. After twice refusing to marry Hoffer because she was "scared," Gale married him on November 29, 1974.

O'Sullivan's body was found on November 10, 1974. His death was caused by a single gunshot wound in the neck beneath the right ear.

The police received a wage form which had been taken from the victim by the medical examiner. On the back of the form were the initials "C. T." and the telephone number of Hoffer's place of employment. The police called the number and talked with a person who identified himself as "C. T." The defendant told Gale that the police had called at his workplace looking for "C. T." He said that he told them that he was "C. T." and that "C. T." stood for "Carl Thomas." He thus avoided telling them his surname, and when he was asked about O'Sullivan, he merely stated that he knew him.

The police also received a key to the victim's room from the medical examiner. In the room was the name and telephone number of a Cambridge police detective. This detective confirmed that O'Sullivan was a police informant.

1. Evidence of Other Crimes and Bad Character.

The defendant first argues that the trial judge erred when he admitted evidence tending to show that the defendant had committed crimes which were not charged in the indictment.

A. Gale Hoffer testified that the defendant did not have a driver's license and that he drove without one. In general, evidence of other crimes is not admissible to prove bad character. Commonwealth v. Robinson, 146 Mass. 571, 577, 16 N.E. 452 (1888). However, evidence which is otherwise relevant to the crime being tried is not rendered inadmissible merely because such evidence would tend to prove the commission of other crimes. Commonwealth v. Eagan, 357 Mass. 585, 589-590, 259 N.E.2d 548 (1970). Commonwealth v. Stone, 321 Mass. 471, 473-474, 73 N.E.2d 896 (1947). Commonwealth v. Robinson, supra, 146 Mass. at 577-579, 16 N.E. 452. The defendant was charged with armed robbery of O'Sullivan's wallet and also specifically of his driver's license. There was evidence that Hoffer intended to use the license of the victim. The facts that the defendant drove and that he did not possess a license were thus relevant to his motive for taking O'Sullivan's license. There was no error.

B. In her testimony, Gale also referred to the facts that the defendant had escaped from jail and that he had taken part in a bank robbery. The judge struck both these references and promptly instructed the jury to disregard them. However, the judge denied the defendant's motions for a mistrial on the basis of these statements. By striking the testimony and instructing the jury to disregard it, the judge did all that was necessary to cure any possible error from the admission of the statements. The judge was not required to declare a mistrial; such a determination is within the judge's discretion. Commonwealth v. Early, 349 Mass. 636, 637, 212 N.E.2d 457 (1965). Commonwealth v. Bellino, 320 Mass. 635, 645, 71 N.E.2d 411, cert. denied, 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1947). No showing of an abuse of discretion has been made in the present case. In fact, it is unlikely that the defendant would have been prejudiced if the testimony had not been struck since testimony concerning the robbery and another escape from jail had earlier been admitted without objection. See Commonwealth v. Hanley, 337 Mass. 384, 149 N.E.2d 608, cert. denied, 358 U.S. 850, 79 S.Ct. 79, 3 L.Ed.2d 85 (1958).

C. During her testimony, Gale also stated that (1) while Hoffer was living with her, he was prone to unexplained absences; (2) Hoffer did not get along with her son; (3) she had avoided marrying the defendant because she was afraid of "a man who did things like that"; and (4) Hoffer associated with a convict knowing that he was overdue on furlough. The defendant contends that this evidence which, he argues, is indicative of bad character was improperly admitted.

The admission of such evidence is within the sound discretion of the judge. See Commonwealth v. Clifford, --- Mass. ---, --- - --- ^a, 372 N.E.2d 1267 (1978). No abuse of discretion appears in the present case. The probative value of these statements was not substantially outweighed by any danger of prejudice. If any prejudice would result from the admission of the first three statements, it would be trivial. The final testimony concerning bad character was inextricably intertwined with the description of events on the night of the killing and thus was highly relevant. There was no error.

2. Scope of Cross-Examination.

During his cross-examination of Gale, defense counsel asked, "Why didn't you say to her Honor and the jury yesterday, 'I don't remember any dates. I just remember certain events'?" This question was excluded. The defendant contends that its exclusion denied him the right of reasonable cross-examination.

The scope of cross-examination rests largely in the discretion of the judge. Commonwealth v. Aronson, 330 Mass. 453, 458-459, 115 N.E.2d 362 (1953). No abuse of this discretion has been shown. Even if there had been error in excluding this question, the defendant would not have been prejudiced because the substance of the question, that Gale could not remember specific dates, was thoroughly covered in several other questions. See Commonwealth v. Baker, 346 Mass. 107, 119-120, 190 N.E.2d 555 (1963).

Gale testified that she had seen the defendant burn O'Sullivan's driver's license, a picture of a woman holding O'Sullivan, and a picture of O'Sullivan holding a woman near a beach. A copy of the picture of a woman holding O'Sullivan was admitted as an exhibit. Margaret O'Sullivan, the victim's wife, identified the exhibit. During direct examination of Mrs. O'Sullivan, the prosecutor asked what other pictures were taken that day. The defendant excepted to the allowance of this question. Mrs. O'Sullivan testified that a photograph of O'Sullivan holding her was taken on that day and that it was missing from her photograph collection. The prosecutor asked Mrs. O'Sullivan what was in the background of the missing picture. Defense counsel excepted. Mrs. O'Sullivan testified that a beach was in the background. The defendant argues that he was unable to cross-examine Mrs. O'Sullivan effectively because some of the photographs referred to in her testimony were unavailable for his inspection.

The primary fact which the prosecution sought to prove at this point was the robbery of O'Sullivan's wallet. Evidence that Hoffer had pictures of O'Sullivan in his possession tended to confirm that he had stolen the wallet containing them. Evidence concerning the defendant's possession of the photograph admitted as an exhibit and Mrs....