Com. v. Puleio

• Decision Date: 25 February 1985
• Parties: COMMONWEALTH v. Joseph A. PULEIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1078

474 N.E.2d 1078

394 Mass. 101

COMMONWEALTH v. Joseph A. PULEIO.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Sept. 10, 1984.

Decided Feb. 25, 1985.

Bernard Grossberg, Boston, for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for Commonwealth.

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

O'CONNOR, Justice.

After a jury trial, the defendant was convicted of murder in the first degree and was sentenced to life imprisonment. The defendant alleges five errors. He argues that the trial judge (1) impermissibly restricted his efforts to impeach a key Commonwealth witness; (2) admitted in evidence inadmissible hearsay; (3) erroneously failed to define for the jury the word "malice" during his charge; (4) incorrectly instructed the jury on transferred intent; and (5) should have instructed the jury on voluntary manslaughter. Finally, the defendant requests that this court use its power under G.L. c. 278, § 33E, to order a new trial or to direct the entry of a verdict of a lesser degree of guilt. We affirm the judgment.

We summarize the Commonwealth's evidence. On the evening of June 25, 1980, the defendant and his brother, Richard Puleio, arrived at the Pinederosa Bar in Amesbury and found Bonnie Eaton, Richard Puleio's girl friend, socializing with Wayne Subatch and two of Subatch's friends. The defendant spent about thirty to forty-five minutes at the bar and, in that time, had two altercations, during one of which he threatened to "blow [that person's] ... head right off." Subatch, his friends, and Eaton left the bar, followed closely by the defendant and his brother. An argument ensued, with the defendant and his brother on one side and Subatch on the other. The defendant pulled out a gun, aimed it at Subatch's head, and fired one shot. Subatch ducked. Sharon Ann Snow was standing behind Subatch, and the defendant's bullet struck her in the chest and killed her. The defendant fled from the scene, and the next night a Virginia State trooper arrested him as he was traveling south on Interstate Highway 95. The defendant had shaved his beard and had repainted his motorcycle, and the motorcycle bore a registration plate not assigned to him by the Registry of Motor Vehicles.

The defendant and his witnesses testified, among other things, that Subatch--not the defendant--fired the fatal shot.

1. Impeachment of Wayne Subatch. After a conference between the judge and both counsel in which the prosecutor declined to agree to the defendant's introduction of evidence of Subatch's criminal convictions through a probation department form known as a "blue sheet," the judge, with the agreement of counsel, conducted a voir dire examination of Subatch. The purpose of the examination was to determine whether Subatch had been convicted as shown by the blue sheet, and, if so, whether he had been represented by counsel when he had been convicted. Subatch testified that he was the person who had been convicted of several of the offenses listed on the blue sheet. Furthermore, he testified that he had been represented by counsel in connection with some but not all of those convictions. The defendant requested that the judge inquire whether Subatch had waived counsel on the occasions when he was unrepresented, but the judge refused to so inquire.

On the day following that voir dire, during defense counsel's cross-examination of Subatch before the jury, defense counsel requested that the judge suspend the proceedings so that counsel's assistant might obtain certified copies of Subatch's convictions. Counsel had not subpoenaed court personnel with the appropriate records, nor had he procured certified copies of those records. The prosecutor objected that defense counsel had known for several months that the Commonwealth would call Subatch as a witness, and that counsel had had sufficient information to have obtained certified copies of the records prior to trial. The judge refused to suspend the trial, but he expressed his understanding that the prosecutor had agreed the day before that, without offering official records or certified copies, defense counsel could prove those convictions shown on the blue sheet with respect to which Subatch had admitted having representation. Defense counsel proved those convictions but no others.

The defendant argues that by excluding evidence of Subatch's convictions while unrepresented the judge violated the defendant's right to confront the adverse witness and his right to due process of law, rights guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution, by art. 12 of the Declaration of Rights of the Massachusetts Constitution, and by G.L. c. 263, § 5. He argues that the law of the Commonwealth clearly permits him to impeach Subatch with counsel-waived convictions. Furthermore, he argues that because Subatch is a witness--not a defendant--he can impeach Subatch with any convictions, even those obtained when Subatch had no counsel and did not waive counsel. The defendant did not present the latter argument below. In any event, we need not consider whether a nonparty witness at a criminal trial may be impeached by convictions obtained when that witness had no counsel, regardless of whether the witness had waived counsel. In order to impeach a witness by a criminal conviction, the conviction must be proved by a court record or a certified copy. Commonwealth v. Atkins, 386 Mass. 593, 600, 436 N.E.2d 1203 (1982). Commonwealth v. Clifford, 374 Mass. 293, 305, 372 N.E.2d 1267 (1978). Commonwealth v. Walsh, 196 Mass. 369, 369-370, 82 N.E. 19 (1907). See G.L. c. 233, § 21. The defendant did not do that, and the judge was not obliged to suspend the trial to allow the defendant to do then what he could have done earlier.

2. Admission of hearsay evidence. Jacqueline LaMothe, the bartender, testified that while in the bar she heard a shot and then a scream, and that then someone ran into the bar and told her to telephone for an ambulance. She testified that after making the telephone call she went outside and "asked who had shot the gun once, and nobody answered me." Over the defendant's objection, LaMothe testified that Bonnie Eaton then "yelled out" a response to her inquiry. The defendant again objected, and counsel approached the bench. Defense counsel stated that he based his objection on the rule against hearsay. The prosecutor indicated that she relied on the "spontaneous utterance" exception to that rule. See Commonwealth v. Hampton, 351 Mass. 447, 221 N.E.2d 766 (1966). The judge allowed the prosecutor to ask LaMothe, "What did Bonnie Eaton say?" LaMothe responded, "Joe Puleio."

"With respect to spontaneous utterances the guiding principles have been stated--and in our view correctly--by Prof. Wigmore: 'The utterance must have been before there has been time to contrive and misrepresent .... It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated.... [T]here can be no definite and fixed limit of time. Each case must depend upon its own circumstances.' Wigmore on Evidence (3d ed.) [1940] § 1750.... The trial judge in determining whether an utterance meets the tests of admissibility ought to be given broad discretion.... [A]nd only in clear cases ... of an improper exercise of discretion should his ruling be revised." Rocco v. Boston-Leader, Inc., 340 Mass. 195, 196-197, 163 N.E.2d 157 (1960). Those principles apply to criminal, as well as civil, cases. See Commonwealth v. Hampton, supra, 351 Mass. at 449, 221 N.E.2d 766.

The defendant argues that LaMothe's testimony that no one initially answered her inquiry about who had fired the gun indicated "that a substantial period of time had elapsed" between LaMothe's question and Eaton's utterance. However, the record does not demonstrate how much time elapsed between the inquiry and the response. We cannot say that the utterance lacked the spontaneity required to meet the test of admissibility. In allowing LaMothe's testimony, the judge did not abuse his discretion.

The defendant also argues that the judge should have excluded the hearsay statement because the Commonwealth presented no evidence that Eaton had observed the shooting. LaMothe testified that just minutes before the shooting Eaton left the bar with Subatch and the two other men. That testimony sufficiently placed Eaton at the scene of the shooting.

3. Definition of "malice." In his instructions, the judge defined for the jury murder in the first degree, murder in the second degree, and involuntary manslaughter: "[I]f a defendant has an unexcused intent to injure somebody, not necessarily to kill, but to injure somebody, under such circumstances known to the defendant that common experience shows to present a plain and strong likelihood that death will follow the defendant's contemplated act, and death does result, then that person, that defendant would be guilty of murder in the second degree. That is to say, if there is an intent to injure, under circumstances when in human experience there is a plain and strong likelihood that that injury will result in death, and death does result, then that is murder in the second degree. If instead of merely intending to injure the person, the defendant intended to kill the person, and death does result, that is the next highest step, that is, murder in the first degree. The difference between murder in the first degree and murder in the second degree is that, with respect to murder in the first degree, there is an intent to kill, whereas with respect to murder in the second degree there is an intent only to injure.

"Now, to deal with the step down from murder in the second degree, namely, involuntarily manslaughter. If there is no intent to injure but the...