Com. v. Hogan

Citation7 Mass.App.Ct. 236,387 N.E.2d 158
PartiesCOMMONWEALTH v. Alan HOGAN et al. 1 (and two companion cases).
Decision Date20 March 1979
CourtAppeals Court of Massachusetts

Robert E. Dinsmore, Boston, for Gilbert LaRocque.

Alan P. Caplan, Boston, for Alan Hogan.

James B. Krasnoo, Boston, for Joseph F. Quartarone, Jr.

Peter Carrozza, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and GRANT and ARMSTRONG, JJ.

HALE, Chief Justice.

The defendants appeal (G.L. c. 278, §§ 33A-33G) from their convictions of kidnapping (G.L. c. 265, § 26), assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A) and mayhem (G.L. c. 265, § 14), 2 and among them argue numerous assignments of error. 3 We summarize the facts as they could have been found by the jury, adding later more details as needed for the determination of particular assignments of error.

Linda Condon spent the evening of Friday, August 8, 1975, in or around two Beverly bars while her husband, Theodore Condon, remained at home in their Newburyport apartment. She had met several friends and was intoxicated by 1:00 A.M. when the bars started to close. As she was leaving one of the bars she encountered the defendant Hogan, whom she recognized as an old acquaintance who had been a member of the Hell's Angels motorcycle club with her husband several years earlier. Hogan spoke with her briefly and then, while maintaining a strong grip on her arm, guided her against her will into the back seat of a large, white, four-door car with a black top, which was parked nearby. Already in the car were the driver, later identified as the defendant Quartarone, and a rear seat passenger, subsequently identified as the defendant LaRocque.

The car drove off after Hogan entered the front passenger's seat, starting a journey which would continue, punctuated by a series of stops, until approximately 5:30 A.M. on August 9. During the drive Hogan struck Mrs. Condon several times, expressed a desire to "get" her husband, and spent much time talking in whispers with the driver. LaRocque held on to Mrs. Condon to prevent her escape. Mrs. Condon could remember nothing eventful which occurred at the first several stops the car made. The third stop that she remembered was at the Condons' apartment in Newburyport, where Hogan forced her to give him the keys to her apartment. While LaRocque kept her in the back seat, she saw Hogan and Quartarone standing outside the car holding clubs. She saw them enter her apartment building with the clubs and return about twenty minutes later.

In the apartment Theodore Condon awoke to find Hogan and another person standing over him. He heard Hogan say, "Hello Teddy" and was then immediately knocked unconscious by a blow from a club. Condon was found the next morning suffering from severe injuries which included fractures of the right thigh bone (femur) and of both lower leg bones (tibiae) which had been caused by blows from a heavy instrument such as a club. 4

When Quartarone and Hogan returned and reentered the car, all proceeded to a motel in Peabody, where a room was hired. Quartarone and Hogan conferred briefly before leaving Mrs. Condon and LaRocque in the motel room at approximately 5:30 A.M. LaRocque soon fell asleep and Mrs. Condon called for the police. She climbed through a window, met the police officers as they arrived, and directed them to the room where LaRocque was found.

The jury could also have found that a white, four-door Cadillac with a black top occupied by Mrs. Condon, Hogan, Quartarone and LaRocque stopped for gasoline at a service station at approximately 2:30 A.M. on August 9. One Ricker, an attendant at the station that night who put gas in the car, and one Dalton, an off-duty employee of the station who stood near the station office, observed the features and activities of all four occupants of the car from close range. Each observed Mrs. Condon burst out of the car and run toward the station office, crying out for help. Hogan had gone to the office to use the telephone, and Mrs. Condon turned away from the office when she observed him there. Quartarone and LaRocque chased her as she ran. LaRocque caught her and, with Quartarone's help, forced her back into the car. Both made comments, apparently intended for Ricker's hearing, attempting to explain away her unusual behavior. At about the same time, Hogan threatened to kill Dalton if he contacted the police. Both Ricker and Dalton observed the license plate of the car and noted several of the digits of the license number, although their later descriptions of the numbers differed slightly from each other. Records of the Registry of Motor Vehicles disclosed that the only white Cadillac with a Massachusetts registration number which would match either of those described was registered to Quartarone, a police officer of the city of Beverly. Ricker recognized the driver as a Beverly police officer with whom he had previously had contact and mentioned this to Dalton, but at that time he was unable to recall the officer's name.

1. During the cross-examination of Linda and Theodore Condon, defense counsel attempted to show that a number of indictments were pending against both witnesses. 5 That evidence was offered for the stated purpose of demonstrating bias in the testimony of both witnesses because of a possible inference that their testimony had been elicited by offers of special consideration in the disposition of those charges. The judge held a voir dire examination of both witnesses. He determined over objection and exception that the Commonwealth had made no promises with regard to the outstanding drug indictments in exchange for the Condons' testimony. He then excluded all the defendants' questions directed to this subject. He also ruled that he would not allow a general question as to the existence of government promises, rewards, or inducements unless some factual basis other than the outstanding drug charges could be given. The defendants were unable to show such a basis, and no question concerning bias was allowed. The defendants voiced appropriate exceptions.

'The defendants are 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), and cases cited. 6 Commonwealth v. Ahearn, 370 Mass. 283, 287, 346 N.E.2d 907 (1976); Commonwealth v. Franklin, --- Mass. ---, --- B, 385 N.E.2d 227 (1978). A defendant has the right to present to the jury his theory of a witness's bias and facts that could support that theory. Alford v. United States, 282 U.S. 687, 693, 51 S.Ct. 218, 75 L.Ed. 624 (1931); Davis v. Alaska, 415 U.S. 308, 317-318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Commonwealth v. Franklin, 366 Mass. 284, 290, 318 N.E.2d 469 (1977); Commonwealth v. Ahearn, supra; Commonwealth v. Franklin, supra, --- Mass. at --- - --- C, 385 N.E.2d 227. Cf. Gordon v. United States, 344 U.S. 414, 422-423, 73 S.Ct. 369, 97 L.Ed. 447 (1953).

A trial judge may not entirely preclude inquiry regarding criminal charges pending against a witness simply because he does not believe that the facts would support an inference of bias. Compare Commonwealth v. Johnson, 365 Mass. 534, 542-544, 313 N.E.2d 571 (1974); Commonwealth v. Cumming, --- Mass.App. --- D, 376 N.E.2d 1231 (1978). Contrast Commonwealth v. Campbell, --- Mass.App. ---, --- - --- E, 366 N.E.2d 44 (1977).

The exclusion of a legitimate question for cross-examination is, however, a matter within the judge's discretion if the subject of the defendant's inquiry is brought adequately to the jury's attention by other questions during the course of cross-examination. See, e. g., Commonwealth v. Walker, 370 Mass. 548, ---, 350 N.E.2d 678, cert. denied 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976); F Commonwealth v. Franklin, --- Mass. at --- G, 385 N.E.2d 227 (1978); Commonwealth v. Dougan, --- Mass. at --- - --- H, 386 N.E.2d 1 (1979); Commonwealth v. Dominico, 1 Mass.App. 693, 713-714, 306 N.E.2d 835 (1974). In the present case the evidence which the excluded questions were calculated to adduce was not otherwise placed before the jury.

Although we agree with the judge that, under the circumstances, it was unlikely that the witnesses' testimony was motivated by promises of special treatment of the pending charges, we hold that the defendants were entitled to present their theory of bias by showing the existence and prosecutorial status of those charges for the consideration of the jury. 7 The jury could have inferred that those charges constituted "a prosecutorial threat to the witness(es)' freedom," (contrast Commonwealth v. Santos, --- Mass. at --- I, 384 N.E.2d at 1205, 1206 (1978)) and thus that the witnesses were particularly vulnerable to governmental pressure. This fact could have caused the jurors to discount the Condons' crucial testimony. We cannot say that the exclusion of this evidence was harmless. Reversal of the convictions is required.

LaRocque did not assign as error, nor did he brief, his exceptions to the rulings just discussed. Had he done so, we would have sustained them. The errors affected all defendants equally, and it would be anomalous if Hogan and Quartarone should receive a new trial but LaRocque should not. Compare Commonwealth v. Nelson, 3 Mass.App. 90, 101, 323 N.E.2d 752 (1975), Id., 370 Mass. 192, 195, 203, 346 N.E.2d 839 (1976). Accordingly, LaRocque is also to have a new trial.

2. LaRocque argues that a verdict should have been directed in his favor on the charge of mayhem (No. 86122) because the evidence adduced was insufficient to warrant submission of the case to the jury. "The appellate standard of review is whether the evidence, read in a light most favorable to the Commonwealth . . . is sufficient so that the jury 'might properly draw...

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