Com. v. Martinez

• Decision Date: 19 August 1981
• Citation: 425 N.E.2d 300,384 Mass. 377
• Parties: COMMONWEALTH v. Jose Santiago MARTINEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 300

425 N.E.2d 300

384 Mass. 377

COMMONWEALTH v. Jose Santiago MARTINEZ.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 4, 1981.

Decided Aug. 19, 1981.

Robert S. Potters, Asst. Atty. Gen., for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The defendant was convicted on October 20, 1976, of murder in the second degree. He contends that the trial judge erred by refusing to allow the cross-examination of a Commonwealth witness concerning criminal cases pending against the witness and by refusing to permit the introduction of the grand jury testimony of three unavailable witnesses. He further requests that we exercise our power under G.L. c. 278, § 33E, and grant a new trial. ¹ We reverse the judgment.

The death occurred in a boarding house in Springfield, called the Carlton Rooms. The victim, Edward Premont, was a fifty-seven year old retiree. When the police arrived on the morning of September 13, 1974, they found Premont's body tied to a chair. A tie gagged his mouth; a scarf had been used as a blindfold; a pair of pants had been used as a ligature around his neck; a leather belt bound his wrists; an electrical cord was tied around his legs and wrists; a pillow had been placed over his head, and he had been severely beaten. His death was caused by asphyxiation due to the gag in his mouth and the pants tied around his neck.

Certain crucial events leading up to the murder were witnessed by Justino Santana who lived at the Carlton Rooms next door to the victim. On the evening of September 12, 1974, Santana saw the defendant and a companion outside the building at 6:30 P.M. and inside the building at 9 P.M. Santana was in Premont's room with two other men when the defendant and the other man appeared in the room. He had observed the defendant at the Carlton Rooms during the approximately three weeks that the defendant had lived there and was therefore able to recognize him that evening. While in the victim's room, Santana heard the defendant say to his companion in Spanish, "Let's kill him and take his money." After the defendant and his companion entered the victim's room, Santana left and returned to his own room where he could hear moans coming from the victim's room. Santana then went back and looked into Premont's room. He saw the defendant tying and holding the victim while the other man beat him. Santana, frightened, returned to his own room and locked his door. He still heard the defendant and the other man in the victim's room and later heard them leave. The next morning the victim was found with no wallet or money in his possession.

The proprietor of the Carlton Rooms, Leo Ryan, testified that he knew the defendant as Martinez had previously rented a room at the Carlton Rooms. On September 12, he observed the defendant in Premont's room along with Santana and several other men. At about 10:30 P.M., he again observed these men in Premont's room, and, when he made his final check shortly after 11 P.M. the door was closed but he heard indistinguishable voices from within. Sometime around 11 A.M. the following morning, Ryan used his key to open the door of the room and upon observing Premont slumped in his chair he immediately closed the door and telephoned the police. Ryan also testified he had posted bail for the defendant who subsequently defaulted.

The defense consisted of an alibi and an attempt to impeach the testimony of Ryan and Santana.

1. The evidence of pending appeals from District Court convictions of the witness Ryan on the issue of his possible bias should have been admitted. After the defense rested, the Commonwealth again called Leo Ryan, this time as a rebuttal witness. Ryan testified that he had seen the defendant fifteen or sixteen times at the Carlton Rooms and that he made bail for the defendant because of a friendly feeling toward him. During a bench conference, the defense counsel indicated that he would like to explore with Ryan the possibility of his having made some kind of arrangement concerning these pending appeals, which influenced Ryan to testify as he had. The defense counsel stated he wished to go into the question of either an existing agreement under which Ryan would receive favorable treatment, or that he testified in the hope of receiving such treatment on the matters under appeal. The judge refused to permit this line of questioning stating that the fact of the pending appeals was inadmissible. The defense did not make any other inquiries of the witness on the issue of bias. In the course of the bench conference, the judge demonstrated that he understood that defense counsel wished to explore with Ryan the possibility of his having made some kind of arrangement concerning the pending appeals which influenced Ryan to testify as he had. The judge ruled that defense counsel could not inquire into that area because pending appeals were not final convictions.

It was error for the judge to limit the defendant's inquiry on the issue of bias and there must be a new trial. It is a basic rule that reasonable cross-examination for the purpose of showing bias and prejudice is a matter of right. COMMONWEALTH V. JOYCE, --- MASS. ---, 415 N.E.2D 181 (1981)^A; Commonwealth v. Cheek, 374 Mass. 613, 615, 373 N.E.2d 1161 (1978); Commonwealth v. Ahearn, 370 Mass. 283, 287, 346 N.E.2d 907 (1976); Commonwealth v. Michel, 367 Mass. 454, 459, 327 N.E.2d 720 (1975). The record shows clearly that the defense was seeking to inquire into the matter of the pending appeals for the purpose of exploring the possibility that Ryan had a promise or expectation of leniency in those cases as a result of his testimony unfavorable to the defendant. ² This is not a case where defense counsel did not make clear whether he was inquiring into bias or prior bad conduct. Commonwealth v. Cheek, supra. Since defense counsel's expressed intent was free of ambiguity, he should not have been restricted in this line of inquiry at the threshold where the witness had testified to material facts. Commonwealth v. Sansone, 252 Mass. 71, 74-75, 147 N.E. 574 (1925). It is true that much is to be left to the discretion of the trial judge in testing bias, Commonwealth v. D'Agostino, 344 Mass. 276, 280, 182 N.E.2d 133 cert. denied, 371 U.S. 852, 83 S.Ct. 90, 9 L.Ed.2d 86 (1962); Commonwealth v. Harrison, 342 Mass. 279, 286, 173 N.E.2d 87 (1959), but it is not within his discretion to prohibit all inquiry into the subject. Nor is it sufficient to rule out the inquiry because to do so reveals an otherwise inadmissible fact. Commonwealth v. Redmond, 357 Mass. 333, 338, 258 N.E.2d 287 (1970); Dempsey v. Goldstein Bros. Amusement Co., 231 Mass 461, 464-465, 121 N.E. 429 (1919). Thus, by excluding inquiry into the matter of the witness's bias after having been given sufficient notice that the issue upon which the defense was seeking to inquire was bias and not prior bad conduct, the judge improperly restricted defense counsel's cross-examination of a material witness who placed the defendant in the victim's room on the night of the murder. We do not reach a different result because the attempt to impeach the witness arose on rebuttal. The witness's reiteration of his testimony placing the defendant at the scene on the night of the murder, coming, as it did, toward the end of the trial could only have magnified its original impact on the jury.

2. Since the issue may arise at retrial, we discuss briefly the defendant's argument that it was error to exclude the grand jury testimony of three witnesses who were unavailable to testify at the trial.

It has long been the rule in this Commonwealth in both civil and criminal cases that testimony of a witness at a former trial is competent in any subsequent trial of the same issues between the same parties, provided that the witness meets the test of unavailability and that the former testimony can be substantially reproduced in all material particulars. Commonwealth v. Meech, --- Mass. ---, --- - ---, ^b 403 N.E.2d 1174 (1980); Commonwealth v. Mustone, 353 Mass. 490, 492, 233 N.E.2d 1 (1968); Commonwealth v. Gallo, 275 Mass. 320, 328-334, 175 N.E. 718 (1931); Commonwealth v. Caruso, 251 Mass. 362, 366-367, 146 N.E. 664 (1925); McGivern v. Steele, 197 Mass. 164, 83 N.E. 405 (1908). The elements necessary to make such hearsay admissible are: the witness's unavailability, opportunity for cross-examination of the witness at the prior hearing by a person against whom the testimony is being offered; the ability to reproduce accurately the former testimony; and the substantial identity of the issues at both trials. Of these elements the opportunity for cross-examination and the identity of the issues raise questions here. We must first decide whether grand jury testimony offered by a defendant is the equivalent of testimony at a trial for the purposes of applying this exception to the hearsay rule. This court has admitted a victim's testimony at a probable cause hearing where the witness had been cross-examined by the defendant at great length. Commonwealth v. Mustone, supra 353 Mass. at 492-494, 233 N.E.2d 1. Although a probable cause hearing is preliminary in nature and in some ways similar to a grand jury hearing, Mustone is not clearly on point since in that case not only did the opportunity for cross-examination exist but extensive cross-examination of the witness actually took place. Such cross-examination is, of course, absent in grand jury proceedings. Furthermore, in Mustone it was clear that the issues at the probable cause hearing and at the subsequent trial were identical. The defendant argues that the requirement for cross-examination is not necessary where the defendant seeks to take advantage of grand jury testimony since the...