Com. v. Morrison

• Decision Date: 27 December 1973
• Citation: 1 Mass.App.Ct. 632,305 N.E.2d 518
• Parties: COMMONWEALTH v. Timothy MORRISON.
• Court: Appeals Court of Massachusetts

Page 518

305 N.E.2d 518

1 Mass.App.Ct. 632

COMMONWEALTH v. Timothy MORRISON.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 12, 1973.

Decided Dec. 27, 1973.

Harvey M. Pullman, Boston, for defendant.

Elizabeth C. Casey, Sp. Asst. Dist. Atty., for the Commonwealth.

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

HALE, Chief Justice.

The defendant has been convicted of the armed robbery of one James C. Chestnut and sentenced. The case is before us on the defendant's bill of exceptions. The jury heard testimony to the effect that Chestnut had heard that a woman with whom he had been acquainted was staying at the defendant's apartment. Chestnut, accompanied by one Jonathan Robinson, drove to the apartment. Robinson remained outside while Chestnut went to the apartment and inquired of the defendant if the woman was there. The defendant responded that he would see and invited Chestnut in. Chestnut entered the apartment, whereupon the defendant forced him into a corner at gunpoint and removed sixty dollars from his trouser pocket. The defendant then pushed Chestnut out the door. Chestnut returned to the automobile and related to Robinson what had happened. They crossed the street to a telephone booth and called the police. Detective Barrett, who arrived at the scene in response to the telephone call, testified that he went to the defendant's apartment. The defendant was not there. Detective Barrett returned later that night and saw the defendant, accompanied by one Anderson, run into the apartment. Detective Barrett arrested the defendant, searched him, and found a fully loaded gun on his person.

The defendant, his wife, his eight-year-old son, and one Floretta Morris testified for the defense. Their testimony was to the effect that while the defendant and his wife were out, Morris, who had been staying at the defendant's apartment, arrived there with Chestnut and the two went into a bedroom. Chestnut placed a gun on the dresser in the bedroom. When the defendant and his wife returned they were informed by their son that Chestnut and Morris were in the bedroom. There followed a scene during which Chestnut and Morris were told to get out, which they did. As Morris left the bedroom she took Chestnut's gun from the dresser. She returned to the apartment a few moments later and gave the gun to the defendant, who then left the apartment. The defendant denied robbing Chestnut. Each of the witnesses testified that no robbery had taken place.

The defendant was asked during the course of cross-examination by the assistant district attorney, 'Do you recall any conversation where Mr. Anderson said to Detective Barrett or Detective Montgomery that the reason that you were running was that you saw a police cruiser on that street behind your house?' The defendant's objection to that question was overruled, and an exception was taken. The defendant answered, 'No, I don't remember hearing anything like that, no.' The Commonwealth argues that the question was proper as the defendant had testified a moment before that he had not run back to his apartment but had run only down the stairs. The matters alluded to in the questions were hearsay and were inadmissible unless it could have been determined not only that the statement had been made, but also that the defendant's silence constituted an adoptive admission. See Commonwealth v. Kenney, 12 Met. 235, 237 (1847); Commonwealth v. Burke, 339 Mass. 521, 532, 159 N.E.2d 856 (1959); Commonwealth v. Rembiszewski, Mass., ^a, 293 N.E.2d 919. The short answer to the Commonwealth's argument is that the defendant had been arrested by the officers immediately after their entry into his apartment. The statement attributed to Anderson was necessarily made after the arrest. We are unable to determine from this record if any Miranda warning was given, but as he was under arrest, the defendant was under no obligation to say anything, let alone contradict a statement allegedly made in his presence. Commonwealth v. Silvia, 343 Mass. 130, 137, 177 N.E.2d 571 (1961). Commonwealth v. Freeman, 352 Mass. 556, 561--564, 227 N.E.2d 3 (1967).

Our opinion is that the question was improper and that it was error to have allowed it over the defendant's objection. See Commonwealth v. Lucas, 332 Mass. 594, 597, 126 N.E.2d 804 (1955); United States v. Rudolph, 403 F.2d 805 (6th Cir. 1968). The answer which the defendant gave was not harmful to his case. Nevertheless we must consider whether it was prejudicial to allow the question itself which contained a statement of facts not in evidence and which in all probability could not have been properly introduced as evidence. Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). See Commonwealth v. Homer, 235 Mass. 526, 534--536, 127 N.E. 517 (1920); Reardon v. Boston Elev. Ry., 311 Mass. 228, 231, 40 N.E.2d 865 (1942); Wigmore, Evidence (3d ed.) § 1808. We note that the asking of the question was entirely unnecessary as the preceding question, which referred less specifically to the defendant's recollection of hearing Anderson's conversation with the police, drew substantially the same response from the defendant. ¹ We need not consider whether the second question was asked by the assistant district attorney unmindful of the prejudicial effect it might have on the jury. In many cases a question such as this would have had no prejudicial effect on the jury and could thus be classified as harmless error. Commonwealth v. Brown, 150 Mass. 330, 23 N.E. 98 (1889). See Commonwealth v. Vaughn, 329 Mass. 333, 337, 108 N.E.2d 559 (1952). However, the instant case presents the testimony of witnesses for the prosecution on the one hand and the testimony of the defendant and his witnesses on the other hand relating a series of events at odds with that of the prosecution witnesses in every material detail. The jury had the task of determining which of the two groups of witnesses was credible. They had little assistance from circumstantial or other evidence in arriving at their determination. After consideration of the entire record we are unable to conclude that the question could not have contributed to the conviction. Commonwealth v. Anderson, 245 Mass. 177, 187--188, 139 N.E. 436 (1923); Commonwealth v. Stone, 321 Mass. 471, 474, 73 N.E.2d 896 (1947). The error, therefore, cannot be said to be harmless. Fahy v. Connecticut, 375 U.S. 85, 86--87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Commonwealth v. Guerro, 349 Mass. 277, 282, 207 N.E.2d 887 (1965). This...