Com. v. Silva

Citation401 Mass. 318,516 N.E.2d 161
PartiesCOMMONWEALTH v. Robert SILVA.
Decision Date17 December 1987
CourtUnited States State Supreme Judicial Court of Massachusetts

Robert A. George, Dedham, for defendant.

Robert N. Tochka, Asst. Dist. Atty. (Philip T. Beauchesne, Asst. Dist. Atty., with him), for Com.

Before WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

Convicted of perjury, the defendant, Robert Silva, a former Revere police officer, appeals, alleging that (1) the trial judge improperly admitted evidence of the defendant's participation in a larceny as part of the corroborative evidence for the allegation of perjury; (2) the evidence was insufficient to support a finding of guilt beyond a reasonable doubt; (3) the trial judge improperly admitted a tape recording of the alleged larceny; (4) improper crossexamination of the defendant was allowed on his failure to introduce certain evidence; (5) the only direct evidence of perjury was inadmissible hearsay; (6) the prosecutor's summation was improper; and (7) improper instructions were given on the elements of perjury. We transferred the case to this court on our own motion. We affirm the defendant's conviction.

We summarize the evidence. On February 1, 1985, at 3:08 A.M., a break-in took place at the Consumer Value Store (CVS) in Revere's Northgate Shopping Mall. The break-in tripped a silent alarm operated by Sonitrol Security Systems, Inc. Sonitrol immediately alerted the Revere police. The noise of the break-in also activated a Sonitrol recording device which recorded all sounds in the store for approximately the next twenty minutes. At 3:12 A.M., the defendant and his partner, Carl Moschella, were dispatched in their cruiser to investigate. Officer Austin Boyington and his partner, Daniel Sweeney, were sent as back-up. Seconds before the two cruisers arrived at about 3:15 A.M. with their overhead lights flashing, Carl Westphal, an employee of the Radio Shack in the shopping center, saw a black automobile drive away from the CVS store. A minute later a third cruiser arrived carrying officers Anderson and DiStasio. The defendant and at least one other officer went inside the CVS store. While they were inside, Westphal approached the scene and spoke with one of the officers. A few minutes later, Westphal left.

Another witness, Scott Cohen, stated that he drove to the Northgate Mall sometime between 3 and 3:30 A.M. to use the automatic teller machines of the Baybank and the First National Bank. He stated that after completing a business transaction at the Baybank he drove to the First National Bank. 1 On route he saw two or three police cruisers parked in front of the CVS store. As he came within six feet of one of the cruisers his headlights shone on an officer who turned and looked in the direction of Cohen's car. According to Cohen, the officer was leaning over the cruiser's trunk holding a large box-like object. Cohen later identified this police officer as the defendant. Two other officers, whom Cohen later identified as Boyington and Anderson, were standing alongside the cruiser. Based on his observations, Cohen did not know there was any wrongdoing at the store.

Sometime between 3:35 and 3:40 A.M., the store manager and the pharmacist arrived at the scene. They inspected the store with the police. In the entrance they found a large green plastic barrel which did not belong to the store. 2 Merchandise was missing of an estimated value of $2,421.46. 3

At approximately 7:30 A.M., the officers who worked the night shift, including the defendant, returned to the station house. Officer Joseph Mirasolo, a friend of the defendant, 4 was at the station. Mirasolo said that at that time the defendant approached him and said that at the CVS call Anderson and DiStasio "were acting like a bunch of scavengers, pack-rats, and that they were loading the stuff into the cruiser by using a plastic bucket." According to Mirasolo, the defendant said he wanted no part of the call and that he had not put his name on the report. Mirasolo then went and looked at the report, saw that it contained the defendant's name, and told the defendant that his (the defendant's) name was in the report.

Later that morning, the defendant again spoke with Mirasolo. This time he confided that he was confused and did not know what to do. Upset at what he had heard from the defendant, Mirasolo anonymously telephoned the State police later that same day claiming to have witnessed a larceny by police of the CVS store. 5 The following day Mirasolo also called the CVS store claiming to be a special investigator for the Revere police department and inquired about the break-in. On February 4, 1985, Mirasolo again telephoned the State police. This time he identified himself, and he repeated to Lieutenant Robert Bidder the defendant's statement about Anderson and DiStasio.

In the meantime, on the afternoon of February 1, Ron Eisenhart, a security specialist for the CVS corporation, telephoned the major crime unit of the Massachusetts State police. Eisenhart also spoke with Bidder. Eisenhart told Bidder about the tape recording which had been activated at the CVS store when the break-in occurred. 6 Eisenhart suspected Revere police officers took part in the theft.

On May 15, 1985, during the grand jury investigation into the theft of the CVS store, the defendant denied having spoken to Mirasolo about Anderson and DiStasio at 7:30 A.M. on February 1. This denial formed the basis for the defendant's perjury conviction.

I. Corroborative evidence. The defendant contends that it was unduly prejudicial to permit the jurors to hear Cohen's identification of the defendant as the officer at the scene holding a large box-like object over the cruiser's trunk. The defendant asserts that the Commonwealth's evidence should have been limited to Mirasolo's testimony as to the defendant's alleged statement to Mirasolo, the defendant's denial of that statement to the grand jury, the inventory to establish the larceny, and any evidence tending to implicate Anderson and DiStasio in the larceny. We do not agree.

Cohen's testimony was relevant to establish the defendant's knowledge of the facts contained in the alleged statement to Mirasolo. In addition, if the defendant took part in the larceny and knew he had been seen, he would have a motive to accuse Anderson and DiStasio in order to exculpate himself. The evidence was relevant to prove motive and to present to the jurors as full a picture as possible of the events surrounding the making of the statements. Commonwealth v. Bradshaw, 385 Mass. 244, 270, 431 N.E.2d 880 (1982). "[E]vidence which is otherwise relevant to the crime being tried is not rendered inadmissible merely because such evidence would tend to prove the commission of other crimes." Commonwealth v. Hoffer, 375 Mass. 369, 372, 377 N.E.2d 685 (1978). However, "there is ground for excluding such evidence if the prejudice likely to be generated by it outweighs its probative value--a matter on which the opinion of the trial judge will be accepted on review except for palpable error." Commonwealth v. Young, 382 Mass. 448, 463, 416 N.E.2d 944 (1981). We think the judge was well within his discretion in admitting the evidence of the larceny which tended to prove a motive for the defendant to commit perjury. See, e.g., People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973); Hogan v. State, 530 P.2d 1026, 1034 (Okla.Crim.1975); State v. Piersall, 25 Or.App. 791, 550 P.2d 1253 (1976); Yarbrough v. State, 617 S.W.2d 221 (Tex.Crim.App.1981). See also State v. LaBarre, 114 Ariz. 440, 561 P.2d 764 (Ariz.App.1977). There is no "palpable error" in the admission of Cohen's observations.

Since the early 1800s we have said that "one may not be convicted of perjury except on the directly opposing testimony of either two witnesses or one witness and, in addition 'independent evidence [of] strong corroborating circumstances....' " Commonwealth v. Parker, 2 Cush. 212, 223-224 (1848). This so-called "quantitative rule" has been criticized strongly in recent years as inflexible and mechanical. Commonwealth v. Hawley, 380 Mass. 70, 81-82, 401 N.E.2d 827 (1980). Commonwealth v. Coleman, 20 Mass.App.Ct. 541, 553-557, 481 N.E.2d 523 (1985), Id. 397 Mass. 1001, 489 N.E.2d 994 (1986). Although we apply the customary quantitative rule in the present case and conclude that the Commonwealth met its burden under that standard, we today modify the quantitative rule, in accordance with the Appeals Court's well-constructed analysis in Coleman, to apply to cases tried after the date of this opinion.

Hereafter, the Commonwealth may secure a conviction of perjury where it is able to offer evidence of perjury and corroboration of that evidence sufficient to establish the defendant's guilt beyond a reasonable doubt. See Commonwealth v. Coleman, 20 Mass.App.Ct. at 556-557, 481 N.E.2d 523, and sources cited. In modifying the quantitative rule to eliminate the requirement that the Commonwealth introduce direct testimony in every perjury prosecution, we follow a number of other States which recently have determined that convictions for perjury may be based on evidence other than direct testimony. E.g., State v. Sanchez, 204 Conn. 472, 528 A.2d 373 (1987), and cases cited therein. People v. Rosner, 67 N.Y.2d 290, 502 N.Y.S.2d 678, 493 N.E.2d 902 (1986). McGuire v. State, 707 S.W.2d 223 (Tex.App.1986). Where other kinds of evidence are "substituted for the testimony of a live witness, however, that evidence must be of a highly reliable order and the necessity for corroboration is not eliminated." State v. Sanchez, supra 204 Conn. at 480, 528 A.2d 373. We adopt the statement of the Appeals Court that such evidence "must be of a direct or clear and compelling character," Commonwealth v. Coleman, 20 Mass.App.Ct. at 558, 481 N.E.2d 523, "objectively inconsistent with the innocence of the defendant." Id. at 557, and n. 21, ...

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