Com. v. Redmond

• Citation: 258 N.E.2d 287,357 Mass. 333
• Parties: COMMONWEALTH v. William H. REDMOND, Jr.
• Decision Date: 01 May 1970
• Court: United States State Supreme Judicial Court of Massachusetts

Page 287

258 N.E.2d 287

357 Mass. 333

COMMONWEALTH v. William H. REDMOND, Jr.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 1, 1969.

Decided May 1, 1970.

Reuben Goodman, Boston, for defendant.

Alan Chapman, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and QUIRICO, JJ.

QUIRICO, Justice.

The defendant was convicted of the crime of armed robbery committed on October 7, 1967. The case was tried under the provisions of G.L. c. 278, §§ 33A--33H, and it is here on the defendant's appeal. He alleges error by the trial court in (1) admitting evidence of acts of the defendant about a crime for which he was not charged or tried, (2) admitting testimony of an identification made by a victim of the robbery to the police in the absence of the defendant, and (3) charging the jury on the defence of alibi. Other errors previously alleged by the defendant were not covered by his brief and were not argued. We treat them as waived.

About 10:30 P.M. on October 7, 1967, two men, one carrying a shotgun, entered the Warren Spa, a 'small supermarket' at 533 Washington Street in the Brighton district of Boston. The man with the shotgun pointed it at Henry Noble, the only clerk on duty, announced, '(t)his is a stick-up,' and ordered the other man with him to '(g)et the dough.' The other man thereupon went behind the counter where he took money from two cash registers, some watches from a display case, and a wallet from Noble's pocket. Warren Smith, the proprietor of the store, was in the rear room during the robbery, and he called the police as soon as the robbers left. When the police arrived Noble gave them a description of the unarmed man. The police took Noble to police headquarters that evening and showed him about 125 photographs from which he picked one as looking like the unarmed man.

Noble testified at the trial. Before he was allowed to identify the defendant as the unarmed man, the jury were excused and the court held a voir dire at the request of the defendant. At that hearing there was evidence that shortly after the defendant was arrested on November 23, 1967, he had requested counsel, with whom he had communicated while being held at the Brighton police station. The police knew this, thereafter the police called Noble and asked him to come to the station. He went to the station and while he was seated in a room he saw the defendant walking through the room with a police officer. The defendant's attorney was not present when that happened. At the close of the voir dire hearing the court ruled that Noble's confrontation of the defendant at the police station in these circumstances in the absence of counsel violated the defendant's rights. He ordered all evidence about that confrontation suppressed. However, because of testimony about Noble's opportunity to observe the robbers and his identification of the defendant's photograph the day after the robbery, the court decided that the incident at the police station on November 23, 1967, would have no effect on Noble's testimony in court, and that he would permit him to identify the defendant before the jury.

The evidence presented to the jury by the prosecution was sufficient, if believed, to permit the jury to find the defendant guilty of the robbery which occurred about 10:30 P.M. It included testimony by Noble identifying the defendant as the unarmed man who went behind the counter and took money and other articles. It also included testimony by another witness that after 11 P.M. on the night of the robbery the defendant told him that 'he had pulled off the supermarket in Brighton, Washington Street,' that he had used a shotgun, and that it would be in the paper and on the radio the next day. The day after the robbery the defendant learned that the police were looking for him, and he left the Commonwealth. He did not return until November 23, 1967, the day he was arrested.

The defence to the charge was an alibi. The defendant and a number of witnesses called by him testified that on the evening of the robbery he was at the home of his sister, Mrs. Mary Cugini, in the Allston district of Boston, and that he did not leave there until a few minutes before 11 P.M. The defendant denied being in the Warren Spa that evening. He also gave other testimony which will be stated in the discussion of alleged errors.

1. One of the defendant's alibi witnesses was Benjamin Bergstein. On the date of the robbery he lived in the third floor apartment of the same building in which the defendant's sister, Mrs. Cugini, lived. He testified that he visited the Cugini apartment several times on the evening of the robbery; and that the last visit was between 10:30 P.M. and 11 P.M., but perhaps closer to 11 P.M. On the last visit Mrs. Cugini introduced her brother to him. That was the first time he had met the defendant.

On November 23, 1967, the police found the defendant hiding in a closet of the Bergstein apartment, and they arrested him. Bergstein was away at that time, but he had left his key with Mrs. Cugini and she had given it to the defendant. Bergstein testified that the second time he saw the defendant was 'at a trial * * * in the * * * District Court' sometime after November 23, 1967. No further questions were put to him about that trial. The defendant, testifying as the last defence witness, said that when he was arrested in Bergstein's apartment the police seized something they found there, and that as a result of that seizure 'certain court proceedings were brought against * * * Bergstein.' The defendant was then asked: 'And did you testify in behalf of * * * Bergstein'? His answer was, 'I just told the judge that the stuff that was in his apartment was mine.' There was no motion to strike the answer. The prosecutor then asked, 'What stuff are you referring to'? The defendant objected and the court said: 'This may be admitted as bearing on the credibility of not only this witness but of * * * Bergstein.' The defendant excepted. The defendant then answered, 'When I went to the apartment I had marihuana with me.'

The defendant contends that it was error to admit this testimony 'because it impeached the credibility of the witness Bergstein and the defendant by inquiring into matters irrelevant to the issue and derogatory to the witness and the defendant and because there was no conviction as required by G.L. c. 233, § 21.'

This is not a case where the Commonwealth was trying to impeach either Bergstein or the defendant by proof of their commission or conviction of a crime by reason of the presence of marihuana in the Bergstein apartment. Therefore, G.L. c. 233, § 21, does not apply.

The Commonwealth had the burden of proving that the defendant was at the Warren Spa at the time of the robbery charged against him. Bergstein and the defendant both testified that at the time of the robbery the defendant was at his sister's apartment. If the jury believed that testimony they could not convict the defendant. The Commonwealth had the right to impeach that testimony in any manner permitted by law. Commonwealth v. Russ, 232 Mass. 58, 79, 122 N.E. 176; Commonwealth v. Sansone, 252 Mass. 71, 74, 147 N.E. 574.

When Bergstein left the stand the jury could find that his relationship to the defendant was limited to having seen him twice, first at the home of the defendant's sister, and a second time at a trial in a District Court. That would permit no inference that Bergstein had any particular interest or purpose in testifying in support of the defendant's alibi in the present case. In fact the District Court trial to which Bergstein referred was a trial in which he was a defendant on a charge resulting from the finding of some marihuana in his apartment at the time of the defendant's arrest. The defendant appeared at Bergstein's trial and testified that the marihuana belonged to him, thus helping Bergstein. The Commonwealth had the right to place this additional information before the jury for their consideration in deciding on the credibility and weight of the testimony given by Bergstein and the defendant. It was material on the question whether Bergstein had a feeling for or interest in the defendant. Day v. Stickney, 14 Allen 255, 257--258. The Commonwealth was not limited to proving this relationship through the testimony of Bergstein. It could do so by any competent means, including the testimony of the defendant who elected to testify.

The Commonwealth had the right to have the entire relationship between Bergstein and the defendant brought to the attention of the jury, and the fact that the evidence thereon may have indicated that the defendant committed another crime did not make it inadmissible. Commonwealth v. Madeiros, 255 Mass. 304, 314, 151 N.E. 297; Commonwealth v. Mercier, 257 Mass. 353, 368, 153 N.E. 834; Commonwealth v. Geagan, 339 Mass. 487, 512, 159 N.E.2d 870; Commonwealth v. White, 353 Mass. 409, 420, 232 N.E.2d 335. Likewise, such evidence being relevant and otherwise material, it is not inadmissible simply because it may have indicated that the witness Bergstein committed or was charged with a crime. Commonwealth v. West, 312 Mass. 438, 441, 45 N.E.2d 260.

The defendant relies heavily on the decision in Braun v. Bell, 247 Mass. 437, 441, 142 N.E. 93, as supporting his position on this alleged error. There the defendant in a motor tort action called one of his employees as a witness. The plaintiff tried to impeach the witness by evidence that at some time after the accident in litigation he had been charged with some offence for taking an automobile from the defendant's garage, and that the defendant had been one of the witnesses in his behalf at this trial. The court said: 'The witness could not be discredited by asking him if he was charged with the commission of a crime and acquitted. * * * The plaintiff contends that this evidence was admissible to show that the witness was biased...