Com. v. Palmarin

• Decision Date: 11 July 1979
• Citation: 378 Mass. 474,392 N.E.2d 534
• Parties: COMMONWEALTH v. George PALMARIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 534

392 N.E.2d 534

378 Mass. 474

COMMONWEALTH v. George PALMARIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1979.

Decided July 11, 1979.

Beth H. Saltzman, Boston, for defendant.

James S. Hamrock, Jr., Sp. Asst. Dist. Atty. (Alice Hanlon, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant was convicted by a Superior Court jury of unlawfully distributing heroin. He appealed his conviction, pursuant to G.L. c. 278, §§ 33A-33G, arguing error in (1) the prosecutor's cross-examination of five of the defense witnesses, and (2) portions of the judge's charge to the jury. The Appeals Court affirmed, Commonwealth v. Palmarin, --- Mass.App. --- ^A, 385 N.E.2d 271 (1979), and we granted the defendant's application for further appellate review. We conclude that there was error in the prosecutor's cross-examination of the defense witnesses and, accordingly, grant the defendant a new trial. We also take the opportunity, in part 2, Infra, of this opinion, to comment on certain aspects of the judge's charge.

The facts stated briefly are as follows. Detectives Vincent Logan and Willis Saunders, Jr., testified that, on the evening of February 21, 1976, they were conducting a drug traffic surveillance operation in the South End section of Boston. At about 8 P.M., they observed a man, whom they knew to be the defendant, handing a tinfoil packet to another individual in exchange for some money. The detectives pursued the recipient, arrested him, and seized the packet, which later was found to contain heroin. They then alerted other members of the surveillance team, by radio, to pick up the defendant. One of the officers so alerted chased the defendant until he disappeared down a nearby alley. Detective Logan arrested the defendant, pursuant to a warrant, two days after the incident occurred.

The defendant did not take the stand at trial. However, he did call seven witnesses to testify in his behalf. The first was the attorney who represented him at his probable cause hearing. That attorney testified to allegedly prior inconsistent statements made at that hearing by Detectives Logan and Saunders. The remaining six witnesses, the defendant's wife and five of his relatives, testified that the defendant was with them on the night in question, celebrating a family birthday. On cross-examination, the assistant district attorney asked five of these witnesses whether they had testified at any prior court proceeding concerning the case, and each responded in the negative. ¹ During his closing argument to the jury, the prosecutor commented on the witnesses' failure to testify earlier, and suggested that their stories were recently contrived.

1. The defendant contends that the prosecutor's questions on cross-examination and comments during argument violated G.L. c. 278, § 23, ² and denied him a fair trial. The Commonwealth counters that § 23 should not be construed so as to prevent the impeachment of a witness at a Superior Court trial by showing that the witness failed to testify earlier in the defendant's behalf. The Appeals Court found it unnecessary to decide whether the challenged conduct fell within the scope of § 23, noting that, prior to the cross-examinations now in issue, the attorney who represented the defendant at the probable cause hearing responded in the negative to defense counsel's question whether anyone other than Detectives Logan and Saunders had testified at the hearing. Commonwealth v. Palmarin, supra at --- - --- ^B, 385 N.E.2d 271.

We need not decide whether the mandate embodied in § 23 ceases to operate when the defendant himself places the forbidden factual material in evidence, because our view of the substantive import of the former attorney's testimony is different from that of the Appeals Court. At trial, that attorney was called to testify to prior inconsistent statements made by two of the Commonwealth's three witnesses. The defendant maintains that the question was designed simply to reveal to the jury that the third Commonwealth witness did not testify at the earlier hearing and to explain why his testimony at trial remained unassailed. We think that, taken in context, the question and answer accomplished that limited goal and did not tend to establish that the defendant's alibi witnesses had also failed to testify at the preliminary hearing.

Moreover, although the defendant objected to the challenged line of inquiry on cross-examination only two of the five times it was pursued, and failed entirely to object to the comments made in the prosecutor's argument to the jury, we think that the cumulative effect of the prosecutor's actions at trial is an appropriate subject for our consideration. The judge indicated early on that he thought the prosecutor's method of impeachment was proper, and defense counsel would not have been unwarranted in concluding that repeated objections would provoke a similar response. More importantly, however, the information elicited cast serious doubt on the alibi witnesses' testimony doubt that would not have arisen had the questions been excluded as the statute requires. Thus there exists a substantial risk that the defendant has suffered a miscarriage of justice and, in such circumstances, we will entertain a claim of notwithstanding the defendant's failure to comply fully with the applicable procedural rules. Commonwealth v. Freeman, 352 Mass. 556, 227 N.E.2d 3 (1967).

There are many proper methods of impeachment. See W. B. Leach and P. J. Liacos, Massachusetts Evidence 112 (4th ed. 1967); McCormick, Evidence §§ 33-48 (2d ed. 1972). However, the method employed by the prosecutor in this case is not one. In effect, the Commonwealth urges that evidence otherwise relevant is not rendered inadmissible simply because the jury might use it for an impermissible purpose. Although the rule thus stated is generally correct, see Leonard v. Boston Elevated Ry., 234 Mass. 480, 483, 125 N.E. 593 (1920); Whipple v. Rich, 180 Mass. 477, 479, 63 N.E. 5 (1902), it is inapplicable to the instant case. In light of the legislative policy expressed in the statute, as well as the constitutional implications surrounding the entire issue, it is clear that the judge's...