Com. v. Ramey

• Decision Date: 10 June 1975
• Citation: 368 Mass. 109,330 N.E.2d 193
• Parties: COMMONWEALTH v. Eugene RAMEY, Jr. (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 193

330 N.E.2d 193

368 Mass. 109

COMMONWEALTH

v. Eugene RAMEY, Jr. (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1975.

Decided June 10, 1975.

David M. Skeels, Brookline, for defendant.

Sandra L. Hamlin, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

QUIRICO, Justice.

The defendants, Eugene Ramey, Jr. and James Coleman, were tried and found guilty by a jury, and then sentenced by a judge of the Superior Court on indictments charging each with assaulting Jacob Rutman on March 22, 1972, with intent to rob him. They appealed to the Appeals Court under G.L. c. 278, §§ 33A--33G, and we then ordered the cases transferred to this court on our motion. See G.L. c. 211A, § 10(A), inserted by St.1972, c. 740, § 1.

The defendants filed identical assignments of error, each listing the same eight alleged errors, but they have argued only two of them in their joint brief. The alleged errors not argued are deemed waived. The issues argued and thus presented to this court for decision are: (a) an alleged improper argument by the prosecutor concerning the absence of certain evidence relating to a defendant's alibi, and (b) the judge's alleged erroneous instruction to the jury on the subject of alibi.

The Commonwealth presented evidence which, if believed, was sufficient to permit the jury to find that about 1 P.M. on March 22, 1972, on Walk Hill Street in the Mattapan section of Boston, the two defendants assaulted Jacob Rutman with the intent to rob him, as charged in the indictments against them.

Although neither defendant testified at his trial, the defendant Coleman presented evidence of an alibi. The evidence included testimony indicating that for some time before and after March 22, 1972, Coleman was employed by a cleaning contractor in a terminal building at the Logan International Airport, that on March 22, 1972, he was at work in the building from 6:56 A.M. to 3 P.M., and that his supervisor in that employment saw him at work in that building at various times on that day, including once about 1 P.M. On the days when he worked there he punched a time card at the beginning and end of the work day. The supervisor then transferred the information from the time cards to a 'Time Tally' sheet. In April, 1972, Coleman told his supervisor that he had been arrested for something, and as a result of that conversation and a further conversation between the supervisor and Coleman's lawyer, the supervisor furnished the lawyer with a photocopy of the 'Time Tally' sheet for March 22, 1972. That copy was admitted in evidence at the trial. It included entries of the hours Coleman had worked on that date. Coleman knew of the use of the daily time punch cards, and the cards were in existence when the supervisor prepared the copy of the 'Time Tally' sheet for Coleman's lawyer in April, 1972, but she prepared no copy of the cards. Coleman's employer stopped all its business operations at the airport on June 1, 1972, and at that time its business records were in part thrown away and in part moved to the home of its regional manager in Topsfield.

During the trial which began on November 7, 1973, Coleman called his former supervisor and another supervisor for the same employer as witnesses. The latter testified that at the request of Coleman's counsel, made before the trial, he had searched at the airport for the March 22, 1972, time punch card for Coleman but could not find it. He believed the card and other records of the employer had been discarded and no longer existed. The testimony concerning the information contained on the time punch cards, and the manner in which the cards were used and maintained was conflicting in respect to some details brought out in cross-examination of Coleman's witnesses.

During the course of his argument to the jury the prosecutor referred to these conflicts and characterized the manner in which the time cards were kept as 'a slipshod operation.' He then said: 'You know, in the law we have a rule of evidence that the best evidence should be presented to the Court and the jury. And in this case what would have been the best evidence? The pay cards.' The defendants objected with counsel for Ramey stating 'because the evidence is that they are not available.' The objections were overruled and counsel for Ramey saved an exception. ² There was no error in this regard.

It is true that there was evidence that the time card was not available at the time of the trial, but that alone is not conclusive on the issue. In the first place, the jury were not compelled to believe that evidence. However, and more important, the existence or availability of the card at the moment of trial was not the sole issue. In April, 1972, when Coleman's counsel obtained a photocopy of a 'Time Tally' sheet the daily time cards in question were in existence and he did nothing to obtain them or copies of them. The time cards were the records of original entry. The information originally entered on the time cards was later transferred to the 'Time Tally' sheets. A witness for Coleman testified that his time card for March 22, 1972, showed that he worked at the airport terminal, far from the scene where Rutman was assaulted, from 6:56 A.M. to 3 P.M. on that day. The assault on Rutman occurred about 1 P.M. of that same day. In April, 1972, Coleman was arrested for the alleged assault on Rutman on March 22, 1972. He realized the importance of his employment records on the issue whether he was at work or at the scene of the crime on March 22, 1972; yet, when he discussed the matter of the records with his employer, he obtained only the photocopy of the 'Time Tally' sheet and not the time cards. He had the right to present evidence of the unavailability of the time cards at the time of the trial, and he did so. The Commonwealth had the right to comment on the absence of the time cards, the primary record of Coleman's hours of work on the day in question. It was fair to ask the jury, in effect, to consider why Coleman did not obtain the time cards or copies of them in April, 1972, when he obtained the 'Time Tally' sheet. Grady v. Collins Transp. Co., Inc., 341 Mass. 502, 506, 170 N.E.2d 725 (1960); Commonwealth v. Smith, 342 Mass. 180, 186--187, 172 N.E.2d 597 (1961).

The judge's instructions to the jury on the subject of alibi cover almost four pages of the typewritten transcript. The defendants have extracted a passage of four sentences ³ from this total instruction and argue the judge committed error in what he said in those sentences because (a) they violate G.L. c. 231, § 81, which provides: 'The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law'; and (b) they violate the defendants' constitutional rights to have factual questions decided by a jury and to have them decided solely on the basis of the evidence before the jury.

A very short, but total answer to the first ground is that...