Com. v. Noble, 92-P-699

• Decision Date: 01 July 1993
• Docket Number: No. 92-P-699,92-P-699
• Parties: COMMONWEALTH v. David W. NOBLE.
• Court: Appeals Court of Massachusetts

Page 258

612 N.E.2d 258

34 Mass.App.Ct. 415

COMMONWEALTH v. David W. NOBLE.

No. 92-P-699.

Appeals Court of Massachusetts,

Suffolk.

Argued Feb. 11, 1993.

Decided April 29, 1993.

Further Appellate Review Allowed July 1, 1993.

Juliane Balliro, Boston, for defendant.

Kenneth H. Anderson, Asst. Dist. Atty. (Daniel C. Mullane, Boston, with him), for Com.

Before FINE, JACOBS and LAURENCE, JJ.

FINE, Justice.

The victim was shot and killed by an individual, apparently (according to testimony at trial) a Michael Driggers, who has never been apprehended. A jury convicted the defendant of the victim's murder (second degree) on a joint venture theory. The defendant contends on appeal that the judge erred in admitting as substantive evidence against him the statement of a witness before the grand jury inconsistent with her testimony at trial. The issue turns on whether the statement before the grand jury was adequately corroboratedat trial by "other evidence tending to prove the issue." Commonwealth v. Daye, 393 Mass. 55, 75, 469 N.E.2d 483 (1984). ¹

We summarize the evidence, apart from the statement to the grand jury, presented through the victim's fiancee and two young women who lived near the scene of the shooting. The victim and his fiancee lived in Dedham and used crack cocaine. Between 8:00 and 9:00 P.M. on September 4, 1990, they drove to the Franklin Hill Housing Project in Boston. They stopped the car, and the victim, in the passenger seat, told a man who approached them that he wanted to buy drugs. The man, wearing dark clothes with a hood, walked away about ten feet, leaned over, and returned with crack cocaine, which he handed to the victim. Once the drugs were in his hand, the victim told his fiancee to "hit it," and they drove off without paying. The evidence suggested that Driggers was the individual dressed in dark clothes who approached the victim's car. Although the defendant and Driggers were cousins, and although the defendant, Driggers, and a third young man sometimes sold drugs together in the area, there was no evidence that the defendant was present or had anything to do with this incident.

A few hours later (at around 2:00 A.M.), having smoked the crack cocaine and wanting more, the victim and his fiancee returned to a spot about one hundred yards from where they had stopped previously. They were in the same car, with the victim again in the passenger seat, and again with no intention of paying for the drugs. The defendant, dressed in a light-colored jacket, approached the car and asked what the victim wanted. When the victim said he wanted cocaine, the defendant walked around a building, out of sight of the victim and his fiancee, and had a conversation with Driggers. The two exchanged jackets, inferably so that the victim and his fiancee would think the person returning was the one from whom they had just sought drugs, and not the one with whom they had dealt earlier in the evening. Driggers then walked to the car in which the victim and his fiancee were waiting. The Commonwealth's evidence was conflicting as to whether the defendant remained behind the building or followed Driggers and stood some distance away from the car. When Driggers asked the victim what he wanted and was told "a couple," Driggers said, "All's you're going to get is this," and he pulled out a gun and shot and killed the victim.

A Boston police officer testified that a few days later he stopped the defendant on the street. A police radio, loud enough for the defendant to hear, reported that the defendant was "wanted by homicide." The defendant immediately knocked over two other officers and fled, finally being arrested a quarter of a mile away.

The grand jury testimony in issue came from Alicia Carr, one of the two young women who lived near the scene of the incident and testified at trial. At both the trial and at the proceedings before the grand jury, which took place only three weeks after the shooting, she testified that she had observed the defendant and Driggers in conversation before the shooting. A member of the grand jury asked her, "[W]hat were they talking about?" Carr answered: "They came the first time and they wanted five gems and they had run off with their five gems and they didn't pay them. So [Driggers] said when he seen them, he was going to shoot them." According to Carr's grand jury testimony, the conversation took place "[o]utside earlier that night before he shot at them." At trial, Carr denied knowing what the defendant and Driggers said in the course of their conversation. On voir dire and on cross-examination, she admitted that she made the statement before the grand jury but testified that she had misunderstood the juror's question and that she had been told about the conversation between Driggers and the defendant but hadn't actually heard it.

Defense counsel objected to Carr's grand jury testimony on various grounds, including a lack of sufficient corroboration, but the judge overruled the objection, stating his view that there was other sufficient evidence linking the defendant to the victim's death. There was, to be sure, no other direct evidence, independent of the grand jury testimony, of one of the crucial facts essential for the defendant's conviction of murder, a specific intent crime, on a joint venture theory: that the defendant knew that Driggers intended to shoot the victim. See Commonwealth v. Soares, 377 Mass. 461, 470, 387 N.E.2d 499 (1979); Commonwealth v. Longo, 402 Mass. 482, 486, 524 N.E.2d 67 (1988); Commonwealth v. Mandile, 403 Mass. 93, 100, 525 N.E.2d 1322 (1988); Commonwealth v. Walsh, 407 Mass. 740, 743, 555 N.E.2d 593 (1990); Commonwealth v. Stewart, 411 Mass. 345, 350, 582 N.E.2d 514 (1991); Commonwealth v. Smith, 413 Mass. 275, 281, 596 N.E.2d 346 (1992). There was, however, some circumstantial evidence to that effect presented at trial. "A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.... The inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Longo, 402 Mass. at 487, 524 N.E.2d 67, quoting from Commonwealth v. Casale, 381 Mass. 167, 173, 408 N.E.2d 841 (1980). Before examining the circumstantial evidence, we must determine how much corroboration was required as a prerequisite to admission of the grand jury testimony.

In Commonwealth v. Daye, 393 Mass. at 74-75, 469 N.E.2d 483, as one of the prerequisites for admitting an inconsistent statement made before the grand jury relating to identification, the court required corroboration of the statement by other identification evidence, but left open what other corroboration would be required where the issue was not identification. In this case, the prior inconsistent statement before the grand jury related to the defendant's state of mind, particularly with respect to his knowledge. That seems to us no less central to the defendant's conviction than was the issue of identification in Commonwealth v. Daye, 393 Mass. at 65, 74, 469 N.E.2d 483. Absent proof of the defendant's culpable state of mind, he could not be implicated in a shooting by another person. See Commonwealth v. Burrell, 389 Mass. 804, 807, 452 N.E.2d 504 (1983).

Although in its brief discussion of the corroboration requirement the court in Commonwealth v. Daye, 393 Mass. at 74-75, 469 N.E.2d 483, cited for comparison purposes Commonwealth v. Forde, 392 Mass. 453, 457-458, 466 N.E.2d 510 (1984) (concerning the corroboration requirement for confessions); Commonwealth v. Porter, 384 Mass. 647, 653, 429 N.E.2d 14 (1981) (holding that a conviction may not be based solely on evidence of consciousness of guilt); and G.L. c. 233, § 20I (requiring corroboration for testimony from immunized witnesses), those references do not offer clearcut guidance in the present situation. The corroboration requirement for confessions and immunized testimony is relatively minimal. See Commonwealth v. Forde, 392 Mass. at 458, 466 N.E.2d 510 ("The corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary"); Commonwealth v. DeBrosky, 363 Mass. 718, 730, 297 N.E.2d 496 (1973) (§ 20I requires that "there be some evidence in support of the testimony of an immunized witness on at least one element of proof essential to convict the defendant"). However, grand jury testimony, given without the availability of contemporaneous cross-examination, and especially if retracted later at trial, is generally less reliable than evidence derived from a confession. Perhaps the corroboration requirement for inconsistent grand jury testimony should be comparable to that for evidence of consciousness of guilt, which is of questionable reliability as an indication of guilt of a particular offense. Although references in our cases to the scope of that requirement are usually very general, see Commonwealth v. Montecalvo, 367 Mass. 46, 52, 323 N.E.2d 888 (1975); Commonwealth v. Best, 381 Mass. 472, 483, 411 N.E.2d 442 (1980); Commonwealth v. Porter, 384 Mass. 647, 653, 429 N.E.2d 14 (1981), it is clear that evidence of consciousness of guilt may not be used to supply a missing element of the offense charged. See Commonwealth v. Salemme, 395 Mass. 594, 602, 481 N.E.2d 471 (1985); Commonwealth v. Mandile, 403 Mass. at 102, 525 N.E.2d 1322.

A helpful test, sometimes relied upon elsewhere, for determining whether grand jury testimony is adequately corroborated has been set forth in United States v. Orrico, 599 F.2d 113, 119 (6th Cir.1979)...