Com. v. Meech

• Decision Date: 29 April 1980
• Citation: 403 N.E.2d 1174,380 Mass. 490
• Parties: COMMONWEALTH v. James K. MEECH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1174

403 N.E.2d 1174

380 Mass. 490

COMMONWEALTH v. James K. MEECH.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 8, 1980.

Decided April 29, 1980.

Matthew H. Feinberg, Boston, for defendant.

Susan A. Ghetti, Legal Asst. to the Dist. Atty., Boston, for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

The defendant James K. Meech did not deny that he killed Edward Gerke in a Lowell rooming house in the early evening of January 7, 1978, but he put in issue his criminal responsibility at the time. A jury found him guilty of murder in the first degree, as well as assault and battery with a dangerous weapon. He brings his appeal pursuant to G.L. c. 278, §§ 33A-33G, and Mass.R.A.P. 1B (effective July 1, 1979), ¹ claiming that the judge erred in excluding the grand jury testimony of a witness who died before trial, and in permitting repeated references by prosecution witnesses to the defendant's prior incarcerations. We outline the circumstances of the homicide and the testimony of expert witnesses as a background for the questions presented.

The victim's body was found about 9 P.M., January 7. His throat had been cut. There was testimony that the defendant had been drinking with the victim and arguing with him about money earlier that day. The defendant was seen wielding a knife and stabbing superficially another resident of the rooming house that afternoon. A knife with a distinctive handle belonging to the defendant was recovered in the evening without difficulty not far from the house. It was covered with blood.

Barbara McLaughlin, the defendant's sister, testified that the defendant, intoxicated and unruly, appeared at her apartment in North Billerica about 7 P.M. His clothes were stained with blood. He had arrived by taxi which he apparently had summoned from a bar near the murder scene. To McLaughlin and her friend Kenneth Moody the defendant volunteered that he "had cut (a) guy's throat." Concerned about her children seeing the defendant in his dishevelled condition, McLaughlin urged the defendant to clean himself, which, after awhile, he did. He washed and changed and told Moody to burn his discarded clothes. Instead, Moody placed them in a back hall outside the apartment. The defendant fell asleep about 10:30 P.M. and did not awaken until 3 A.M., just before the arrival of the police.

Detective Lt. Thomas Spartachino of the State police made the arrest shortly after 3 A.M. After Miranda warnings the defendant denied acquaintance with the victim. But McLaughlin handed the discarded clothes to the police. Taken to the Lowell police station, the defendant agreed to submit to a benzidine test which, when applied to his hands and forearms, indicated the presence of blood. At this point the defendant asked to speak privately with Spartachino, to whom he offered to tell the "whole story" in exchange for a promise of favor. (The police received no statement from the defendant.)

At trial, the Commonwealth showed that the blood on the defendant's clothing and knife was type A, the victim's type, not the defendant's. Two bloody fingerprints were found on a beer can in the defendant's room. The prints were the defendant's; the blood was type A.

To turn to the testimony of experts at the trial, the defendant offered Harold Willey, principal psychologist at Bridgewater State Hospital, who had several times dealt with the defendant since 1971, and during that period had supervised four separate appraisals of the defendant by means of the Minnesota Multiphasic Personality Inventory test. Willey concluded that the defendant showed signs of a borderline personality which could lapse into paranoid schizophrenia (typified by delusions and distortions of reality) when under stress. Dr. James J Gilligan, a psychiatrist and medical director at Bridgewater State Hospital, after two interviews with the defendant and a study of his Bridgewater record together with a reading of police reports of the defendant's conduct after the killing, concluded that the defendant suffered from chronic and severe paranoid schizophrenia, ² although earlier he had been a psychopath and at times could even now be in touch with reality. He thought alcohol could increase the defendant's vulnerability to psychotic delusions. Dr. Gilligan ended by testifying that the defendant was criminally irresponsible under the McHoul ³ standard at the time of the homicide. A similar judgment was expressed by Dr. Jerome Rogoff, associate chief of psychiatry and chief of in-patient psychiatry at Faulkner Hospital, who also took note of the defendant's actions after the homicidal event.

On its part the Commonwealth suggested that the defendant was responsible for the acts on January 7, 1978, and was feigning mental illness. Dr. Martin Kelly, a psychiatrist at Peter Bent Brigham Hospital, held that the defendant displayed a personality disorder, but that it was of the antisocial type, not the paranoid schizophrenic. Thus criminal responsibility remained. Upon his review of the defendant's history in correctional institutions, Dr. Kelly found that the defendant had repeatedly attempted to manipulate himself out of M.C.I. Walpole and into the Bridgewater hospital. Dr. James Donovan, a clinical psychologist at Peter Bent Brigham, reevaluated the test data used by Willey. He testified that three of the four tests were invalid because the defendant had either failed to answer a sufficient number of questions or had answered falsely (according to the test's built-in validation scales). Contradicting Willey, Dr. Donovan thought the most recent test (the only one the witness thought valid) indicated an antisocial personality.

1. John McDonald testified before the grand jury that he encountered the defendant outside the rooming house between 7:30 to 8 P.M. the night of the homicide. The defendant's pants pockets were shredded and his hands bloody. McDonald and the defendant went back into the house and shared some beer. They were together a short time. The defendant threatened McDonald with a knife (McDonald thought, by reference to a newspaper picture, that it was the same as the one recovered) and made homosexual advances toward him. ⁴

This grand jury testimony, given a month and a half after McDonald told essentially the same story to the police, was offered by the defendant at trial in order to establish the defendant's criminal irresponsibility more particularly, his indifference or callousness just after the homicide.

Conceding that McDonald's statement, offered by the defendant through a reading of the grand jury transcript, had the character of hearsay, the defendant argues that it should have been admitted here under the "prior recorded testimony" exception to the rule barring hearsay. The common model for the exception is one where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered. See Commonwealth v. Canon, 373 Mass. 494, 500, 368 N.E.2d 1181 (1977); McCormick, Evidence §§ 255-257 (2d ed. 1972). In some prior cases, we have thus allowed a carry-over of testimony from one criminal trial to a later criminal trial (see Commonwealth v. Clark, 363 Mass. 467, 470, 295 N.E.2d 163 (1973); Commonwealth v. Gallo, 275 Mass. 320, 328-334, 175 N.E 718 (1931)), and from a preliminary hearing to the trial. See Commonwealth v. Caine, 366 Mass. 366, 371-372, 318 N.E.2d 901 (1974); Commonwealth v. Mustone, 353 Mass. 490, 492-493, 233 N.E.2d 1 (1968).

The usual formula would not be fulfilled if grand jury testimony were subsequently offered against the indicted defendant, for he would not have had a chance to cross-examine. See United States v. Fiore, 443 F.2d 112, 115 and n.3 (2d Cir. 1971), cert. denied, 410 U.S. 984, 93 S.Ct. 1510, 36 L.Ed.2d 181 (1973). ⁵ Nor is it nominally fulfilled where, as here, the defendant offers the testimony against the Commonwealth, for the Commonwealth was not in the position of a cross-examiner at the grand jury hearing; rather it was presenting the testimony through direct examination. However, it has been recommended by commentators, ⁶ and on occasion held by courts, ⁷ that a party's having tendered the testimony on direct should serve as the equivalent for the present purpose of his having cross-examined upon it. There is some support for this view as to grand jury testimony on the theory, perhaps, that the government should be considered bound to the trustworthiness of the evidence it chose to present to the grand jury as a basis for an accusation of crime. ⁸ (See, however, note 12 infra.)

But even if the proposition were accepted that the defendant might in some circumstances use the grand jury testimony of a now unavailable witness at trial, McDonald's testimony would still be of dubious acceptability. For it is an important ground of this hearsay "exception" that there be substantial identity between the issues at the earlier and later proceedings this to ensure "that the former handling of the witness was the equivalent of what would now be done if the opportunity were presented." ⁹ Where this similarity is absent, the testimony will not be fortified in the material respect that is, in its relation to the particular proposition sought to be proved in the later proceeding. See United States v. Wingate, 520 F.2d 309, 316 (2d Cir. 1975); State v. Augustine, 252 La. 983, 999, 215 So.2d 634 (1968). The problem is encountered here. The Commonwealth's purpose in examining McDonald before the grand jury was not to inquire into the defendant's criminal responsibility; it was to provide eyewitness proof about the defendant's possession of the supposed murder weapon in the vicinity...