Com. v. Nawn

• Decision Date: 07 February 1985
• Citation: 394 Mass. 1,474 N.E.2d 545
• Parties: COMMONWEALTH v. Paul Francis NAWN, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 545

474 N.E.2d 545

394 Mass. 1

COMMONWEALTH v. Paul Francis NAWN, Jr.

Supreme Judicial Court of Massachusetts Worcester.

Argued Oct. 3, 1984.

Decided Feb. 7, 1985.

Michael S. Gallagher, Cambridge, for defendant.

Bradford S. Mauro, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

After being convicted of larceny, see G.L. c. 266, § 30, by a jury of six, the defendant, Paul Francis Nawn, Jr., was sentenced to thirty days in the Worcester County house of correction, seven days to be served. The remainder of the sentence was suspended and Nawn was placed on probation for two years. As a condition of his probation, Nawn was ordered to pay restitution of $2,000. On appeal, Nawn alleges error in (1) the empanelment, (2) four rulings by the judge, and (3) the procedure used to determine restitution. We affirm the conviction. However, we conclude that the procedure used to determine the amount of restitution was faulty and therefore we vacate the sentence and remand this matter for a new sentencing hearing.

We summarize the facts. Carol Lee Hulten, the larceny victim, worked at the Pickadilly Pub in Auburn. After completing her shift on the evening of February 8, 1983, Hulten joined a group of her friends and the defendant, with whom she was acquainted, for a drink at the bar. Approximately forty-five minutes later, Hulten left the group to go to the restroom. She left her purse on the floor beside her bar stool. When she returned a few moments later, both her purse and the defendant were gone. After she announced that her purse was missing, one of the group told her that he had seen the defendant, who previously had removed his flannel shirt, leave the pub with the shirt tucked under his arm. The manager of the pub telephoned the police. An officer arrived and interviewed Hulten and her friends. Hulten told the officer that her purse contained a pair of diamond earrings, a gold necklace, one new fifty-dollar bill, three twenty-dollar bills, and several one dollar bills.

After the officer left the pub, he observed the defendant leaving another bar located a short distance from the Pickadilly Pub. He detained the defendant, searched him, and discovered one fifty-dollar bill, five twenty-dollar bills, one ten-dollar bill, and twenty-nine one-dollar bills in the defendant's pocket. The defendant was arrested that night for the theft of Hulten's purse.

During jury empanelment, the clerk announced the prospective witnesses to the jury pool. He stated that a possible witness for the defendant was Paul F. Nawn, Sr. (the defendant's father). Defense counsel unsuccessfully objected, and moved for a mistrial the next day on the ground that it was error for the court to identify which party would be calling a potential witness. The judge denied the motion and the defendant's father testified at the trial.

During the trial, the judge sustained the Commonwealth's objection to defense counsel's attempt to elicit testimony from the officer that the defendant denied stealing the purse when he was arrested. In addition, the judge permitted the officer to testify that he had gone to the defendant's home on the day after the arrest for a purpose other than to investigate the present case.

After conviction, the Commonwealth moved for sentencing. In determining the appropriate sentence, the judge considered the issue of restitution. The victim told the judge that she estimated the value of the property in her purse to be $3,000, but she then agreed to accept $2,000. She was neither under oath nor subject to cross-examination. The defendant was not afforded an opportunity to rebut this evidence.

1. The defendant argues that his conviction must be reversed because the clerk improperly announced to the prospective jurors that the defendant's father would testify on his behalf and the judge refused defense counsel's attempt to object or request a recess. Although, as we said in Commonwealth v. Bolduc, 383 Mass. 744, 747, 422 N.E.2d 764 (1981), the judge should not have allowed the clerk to indicate before trial which witnesses were testifying for the defense, the action here was not so prejudicial as to result in reversible error. Unlike Bolduc, the defendant in this case did call his witness to testify and therefore there was no occasion for the jury to speculate as to why a named witness did not testify. No Federal or State constitutional right was violated and no prejudice resulted from the error. Commonwealth v. Hesketh, 386 Mass. 153, 159, 434 N.E.2d 1238 (1982). ¹

2. The defendant challenges four rulings of the judge. He argues that the judge erred by (a) refusing to permit the arresting officer to testify that the defendant denied stealing the purse when he was arrested, (b) refusing to permit the defendant's father to testify whether the fifty-dollar bill could have been part of his payment to the defendant; (c) allowing testimony of the arresting officer that implied the defendant was part of another, unrelated investigation; and (d) prohibiting defense counsel from stating grounds for his objections, making offers of proof, or explaining his evidence. These contentions are without merit a. The defendant contends that it was error for the judge to exclude the defendant's denial of the accusation of larceny made to the arresting officer. The defendant concedes that "[a] defendant's denial of accusation is inadmissible evidence for the Commonwealth." Nevertheless he contends that we should abandon our long-standing rule that if a defendant is charged with a crime and unequivocally denies it, that denial is not admissible in evidence. See Commonwealth v. Cantor, 253 Mass. 509, 512-513, 149 N.E. 205 (1925); Commonwealth v. Trefethen, 157 Mass. 180, 197 (1892); Commonwealth v. Rogers, 8 Mass.App. 469, 474, 395 N.E.2d 484 (1979); Commonwealth v. Hosey, 5 Mass.App. 138, 141, 359 N.E.2d 1316 (1977). See also P.J. Liacos, Massachusetts Evidence 288-289 (5th ed. 1981). The defendant asserts that a denial of guilt after Miranda warnings have been given has sufficient indicia of reliability that we should permit the admission of an unequivocal denial.

Evidence that an accused remained silent after Miranda warnings have been given him is not admissible. See Doyle v. Ohio, 426 U.S. 610, 617-618, 96 S.Ct. 2240, 2244-2245, 49 L.Ed.2d 91 (1976); Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624 n. 37, 16 L.Ed.2d 694 (1966); Commonwealth v. Haas, 373 Mass. 545, 559, 369 N.E.2d 692 (1977). The defendant does not cite any authority for the proposition that we should distinguish between defendants who remain silent after being advised of their Miranda rights and those who deny the accusation after being so advised. To so distinguish would diminish the right to remain silent, a step which we are not inclined to take. Therefore, we adhere to the rule that neither denial of an accusation nor evidence of an accused's silence after being advised of Miranda warnings is admissible.

b. The defendant's father stated he was not sure whether he had given his son a fifty-dollar bill a few days before the larceny. Since the father's testimony as to the fifty-dollar bill was speculative, the judge was within his discretion in excluding it. Further, contrary to the suggestion in the defendant's brief, the judge had discretion to exclude it on his own motion. Commonwealth v. Haley, 363 Mass. 513, 518, 296 N.E.2d 207 (1973).

c. The judge's decision to allow the officer's testimony on redirect examination, that when he went to the defendant's home the day after the arrest, it was not solely for the purpose of this case, was similarly within the judge's discretion. The defense counsel brought this fact out in cross-examination of the officer. The Commonwealth then clarified the matter on redirect examination. There is no error. "The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination.... [E]ven if the redirect examination had exceeded the scope of cross-examination, the judge has discretion to allow or limit redirect concerning matters not touched on in cross-examination." Commonwealth v. Hoffer, 375 Mass. 369, 375, 377 N.E.2d 685 (1978).

d. The defendant asserts that at the trial the judge's attitude was not impartial. He argues that the evidentiary rulings should be viewed in light of the fact that on occasion the judge denied him the opportunity to state the ground for his objection at sidebar or to make an offer of proof at the bench. The defendant likens the judge's rulings to the "silent communication" in Commonwealth v. Webster, 391 Mass. 271, 276-277, 461 N.E.2d 1175 (1984). The defendant cites no specific statement by the judge which resembles a rebuke or would in any way prejudice the jury. Further, the record does not disclose coercive behavior on the part of the judge toward counsel or any juror. Thus, the record in this case is unlike that in the Webster case. "Error cannot be based on mere assertion or speculation...." Commonwealth v. Haley, supra, 363 Mass. at 521, 296 N.E.2d 207. ²

3. The last issue raised by the defendant concerns the appropriate procedure to be followed if a judge determines that the defendant should make restitution to the victim for the property stolen. ³ After the jury returned their verdict, the judge considered the matter of restitution in determining an appropriate sentence. Without being under oath or subject to cross-examination, Hulten, the victim, was called before the judge and asked to estimate the value of the stolen property. She valued the stolen property at $3,000. ⁴ The judge asked if she would accept $2,000. She agreed to accept $2,000. The judge ordered that, in addition to serving seven days of a thirty-day sentence, and being placed on probation for two years, the defendant also must pay $2,000 in restitution. Defense counsel...