Com. v. Liberty

• Decision Date: 16 February 1989
• Docket Number: 88-P-1141,Nos. 87-756,s. 87-756
• Citation: 27 Mass.App.Ct. 1,533 N.E.2d 1383
• Parties: COMMONWEALTH v. Spencer E. LIBERTY.
• Court: Appeals Court of Massachusetts

Page 1383

533 N.E.2d 1383

27 Mass.App.Ct. 1

COMMONWEALTH v. Spencer E. LIBERTY.

Nos. 87-756, 88-P-1141.

Appeals Court of Massachusetts,

Plymouth.

Argued Oct. 14, 1988.

Decided Feb. 16, 1989.

Thomas B. Vawter, Gloucester, for defendant.

Ann E. Rascati, Asst. Dist. Atty., for the Com.

Before DREBEN, KAPLAN and KASS, JJ.

DREBEN, Justice.

In the aftermath of an altercation over fifty dollars, both the defendant and the victim were injured. The argument began over money the defendant had given the victim for the purchase of cocaine for the defendant's girlfriend. The victim, Edward Pina, had failed to procure the drugs or return the money. As might be expected, the accounts of the episode, which took place on December 29, 1984, in Plymouth, differed. After hearing testimony from both Pina and the defendant, as well as from others, a Superior Court jury found the defendant not guilty on an indictment charging assault with intent to murder. They found the defendant guilty on an indictment charging assault and battery with a dangerous weapon.

The defendant's appeals from his conviction and from the denial of his motion for a new trial raise the following claims: the judge abused his discretion in denying a continuance; the prosecutor improperly examined a defense witness about his pretrial silence and about pending charges against him; the prosecutor misstated evidence to the defendant's prejudice in his closing argument; and the defendant was denied the effective assistance of counsel because, as a result of counsel's failing to file a request for a bill of particulars, the Commonwealth was able to rely on three possible incidents of assault and battery with a dangerous weapon and was not limited to just one. The defendant also claims that counsel failed to argue self-defense or to insist that the jury be given a specific unanimity instruction. Although the trial was not free of error (some of the cross-examination of a defense witness should not have been allowed, and the prosecutor impermissibly strayed from the evidence in closing argument), when the trial is looked at as an entirety, we conclude that reversible error did not occur.

The fight began in front of an establishment called Maggie's Pub. The defendant sought the return of his money. When Pina claimed he had none, the defendant struck him. Although Pina claimed the defendant was the first to draw a knife, the defendant testified that the knife was Pina's, that Pina first slashed him, and that he, the defendant, managed to pull it away. He explained that he hit Pina with the butt of the knife while he was lying on the street on top of Pina.

Pina testified that, through the ruse of stating that he had money in his pocket, he managed to get up and extricate himself from the defendant's grasp. He ran, but was caught by the defendant, who came after him, carrying the knife, and Pina was then stabbed. Pina again broke free and the fight resumed a few minutes later at a third location, in or in front of the Governor Bradford Hotel. The defendant testified that he, from above, saw Pina ripping chains from the defendant's girlfriend's neck and trying to strangle her. The defendant jumped ten to fifteen feet onto a cement area to assist her, at which point, he again, according to his own testimony, hit Pina. The police arrived shortly thereafter.

1. Continuance. By agreement the case was assigned a trial date of July 29, 1986. On September 16, 1986 (apparently the date for trial had been continued to that day), the defendant requested a continuance because his former girlfriend, a percipient witness, was unavailable. The motion was allowed, and trial was set for September 30, but, on that day, the defendant sought another continuance. The trial was rescheduled for October 14, 1986, but after the jury were impaneled, an assistant district attorney received a phone call from the same defense witness, who was in New York, saying that she could not come up to Boston because her son had suffered an accident. The defendant's counsel sought a continuance, although admitting that he was not sure the witness would come on her own. Questioned by the judge, counsel indicated that it would take two weeks if he had to procure the attendance of the witness under the uniform act to secure the attendance of witnesses, G.L. c. 233, §§ 13A-13D. The judge stated that counsel should use his best efforts to get the witness to Boston, but that he would proceed with the trial. The defendant objected.

There was no abuse of discretion in not granting yet another continuance after the jury were impaneled, particularly since the voluntary appearance of the witness was doubtful, and involuntary attendance would have required a delay of at least two weeks. See Commonwealth v. Bettencourt, 361 Mass. 515, 517-518, 281 N.E.2d 220 (1972); Commonwealth v. Gilchrest, 364 Mass. 272, 276, 303 N.E.2d 331 (1973); Commonwealth v. Bryer, 398 Mass. 9, 15-16, 494 N.E.2d 1335 (1986).

2. Cross-examination of defense witness Steven Crosby on the subject of his pretrial silence. Crosby was Pina's friend and had known him since Crosby was thirteen years old. At the time of trial, Crosby was an inmate in the Plymouth County house of correction. He testified that while in jail Pina had spoken to him about this case; that Pina had told Crosby that he owed the defendant money and that during an argument outside Maggie's Pub, Pina had drawn a knife and had slashed the defendant over the eye, that during the ensuing scuffle the defendant had ended up with the knife, and that Pina "got stabbed."

Pina's statement to Crosby came to the defendant's attention, according to Crosby, when the latter's attorney was interviewing Crosby in the visiting room at the Plymouth County house of correction. On that occasion the defendant, his attorney, and Pina were returning from court. This prompted a conversation between Crosby and his attorney regarding the incident at Maggie's. Crosby's attorney and the defendant's attorney were from the same public counsel office, and the defendant's attorney learned that Crosby was willing to corroborate the defendant's story as to who had first drawn the knife.

The prosecution attempted to impeach Crosby's testimony by suggesting that since he knew of this exculpatory information many months before trial and had said nothing until the second day of the trial, his pretrial silence was inconsistent with his trial testimony. Although "a citizen ordinarily has no legal obligation to offer exculpatory information to law enforcement authorities," sometimes it is natural to expect a witness to come forward to avoid a mistaken prosecution of a friend or relative. Commonwealth v. Brown, 11 Mass.App.Ct. 288, 295, 416 N.E.2d 218 (1981). In those circumstances, the silence of a witness "is akin to a witness's 'prior inconsistent statement,' and, therefore, has probative value." Id. at 296, 416 N.E.2d 218. To impeach in this manner, the prosecution, however, must establish "that the witness knew of the pending charges in sufficient detail to realize that he possessed exculpatory information, that the witness had reason to make the information available, that he was familiar with the means of reporting it to the proper authorities, and that the defendant or his lawyer, or both, did not ask the witness to refrain from doing so." Commonwealth v. Egerton, 396 Mass. 499, 507, 487 N.E.2d 481 (1986), quoting from Commonwealth v. Brown, 11 Mass.App. at 296-297, 416 N.E.2d 218.

Through its cross-examination of Crosby, the Commonwealth elicited that Crosby knew of the charges pending against the defendant, that he had the opportunity to speak with the defendant, and that he did not reveal the exculpatory information to him. It is less clear whether Crosby knew of the pending charges in sufficient detail to know that the story Pina had told him was inconsistent with Pina's account to law enforcement authorities of the events of that morning. Crosby, however, admitted to having knowledge which would have helped the defendant.

There was no indication that the defendant or his attorney had asked Crosby not to reveal information he possessed. More important, there was no showing that Crosby had a reason to tell this exculpatory information to the defendant or to law enforcement authorities. To the contrary, Crosby was, as indicated earlier, Pina's long-time friend. While Crosby stated that he wanted to be a good citizen, this was elicited only after the Commonwealth had thrice asked Crosby whether it was correct that he had had this knowledge for the last four or five months and "suddenly decided at the very last minute to come forward and tell the jury about what Eddy Pina supposedly told [him]." Crosby testified that he liked to mind his own business, that he had not known the defendant prior to the incident, that he had met him in jail, and that he had never discussed the case with him.

As the Commonwealth failed to lay the requisite foundation to impeach Crosby, see Commonwealth v. Egerton, 396 Mass. at 507, 487 N.E.2d 481, the judge should not, over the defendant's objection, have allowed the prosecutor to question Crosby about his prior silence. The prosecutor also improperly commented on Crosby's sudden revelation and previous silence during his closing. The error, however, was harmless. "A defendant challenging the judge's ruling in [this] regard has the burden of showing an abuse of discretion and resulting prejudice." Commonwealth v. Egerton, 396 Mass. at 507, 487 N.E.2d 481.

The defendant argues that where, as here, the parties have conflicting stories, credibility is crucial, and the improper impeachment of Crosby prejudiced his case. Even assuming, however, that the jury believed the defendant's version of who drew the knife first during the Maggie's Pub incident, they were unlikely to consider the defendant to have been acting in self-defense in circumstances where the...