Com. v. Simpson

• Decision Date: 09 April 1976
• Citation: 345 N.E.2d 899,370 Mass. 119
• Parties: COMMONWEALTH v. William Harry SIMPSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 899

345 N.E.2d 899

370 Mass. 119

COMMONWEALTH

v. William Harry SIMPSON.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 2, 1976.

Decided April 9, 1976.

Edward P. Healy, Worcester (Dennis J. Brennan, Worcester, with him), for defendant.

John M. O'Connor, Asst. Dist. Atty., Fitchburg, for the Commonwealth.

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

WILKINS, Justice.

The defendant appeals, pursuant to G.L. c. 278, § 33A--33G, from convictions of murder in the first degree, armed robbery, and breaking and entering in the daytime. He also appeals from the denial of motions for a new trial. There was no error.

The jury could have found that around sunrise on the morning of March 17, 1974, the defendant and one Wardell Washington broke into an apartment at 51 Wellington Street in Worcester with the intent to rob the occupant, one Thomas Morris. Morris died from knife wounds inflicted by Washington while the defendant was also striking him repeatedly with a baseball bat and a hammer. They took approximately $28 from Morris. They then returned to Washington's apartment in the same building, changed their clothes, purchased and took heroin, made up a story to tell the police, and notified the police, planning to divert attention from themselves.

1. The defendant argues that the judge had no authority to grant immunity from prosecution for certain crimes to two women who testified against him and that, therefore, their testimony should not have been admitted. The procedures set forth in G.L. c. 233, § 20F, concerning the grant of immunity to witnesses, were not followed, but we need not decide here whether G.L. c. 233, § 20F, establishes the exclusive procedure by which a Superior Court judge may grant immunity to a witness on request of a district attorney ¹ or what may be the consequences to a witness who relies on a purported but unauthorized grant of immunity.

The defendant has no standing to argue that the testimony of the two purportedly immunized witnesses was the product of improper grants of immunity. The privilege against self-incrimination was a personal privilege of these witnesses, not assertable by the defendant. Commonwealth v. Shaw, 4 Cush. 594, 595 (1849). See Goldstein v. United States, 316 U.S. 114, 121, 62 S.Ct. 1000, 86 L.Ed. 1312 (1942), and cases cited in n. 11; United States v. Mayes, 512 F.2d 637, 649 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975); United States v. Foster, 478 F.2d 1001, 1003--1004 (7th Cir. 1973). He would have had no right to object if a witness had been compelled to testify after the privilege had been validly asserted. United States v. Dowdy, 486 F.2d 1042, 1043 (5th Cir. 1973), cert. denied, 415 U.S. 992, 94 S.Ct. 1592, 39 L.Ed.2d 888 (1974); Bowman v. United States, 350 F.2d 913, 916 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212 (1966). See K. B. Hughes, Evidence § 145, at 137--138 (1961). Similarly, he had no right to object even if the testimony were elicited by a purported but unauthorized grant of immunity. United States v. Braasch, 505 F.2d 139, 146 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955, 972--973 (1974); United States v. Lewis, 456 F.2d 404, 408--410 (3d Cir. 1972); Lopez v. Burke, 413 F.2d 992, 994 (7th Cir. 1969). But see Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791, 798--800 (1969).

2. Testimony concerning what Washington said and did in the defendant's presence before and just after the commission of the crimes was admitted properly. Two women, who shared Washington's apartment with Washington and the defendant, testified concerning conversations between Washington and the defendant in they planned the robbert and concerning conversations between Washington and the defendant after the robbery and murder had been committed. ² This testimony was admissible under that exception to the hearsay rule which permits the statements of one person engaged in a common enterprise, made during the course of and in pursuance of the enterprise, to be admissible against all persons engaged in that common undertaking. Commonwealth v. Flynn, 362 Mass. 455, 477, 287 N.E.2d 420 (1972); Commonwealth v. Dussault, --- Mass.App. ---, 311 N.E.2d 662 (1974); ^a Commonwealth v. Dominic, --- Mass.App. ---, 306 N.E.2d 835 (1974) ^b

Although before admitting the evidence the judge did not make an express finding that a common enterprise existed (and the defendant made no objection to his failure to do so), such a finding is plainly implied because of the circumstances of the conversations. See Commonwealth v. MacKenzie, 211 Mass. 578, 580, 98 N.E. 598 (1912). The joint enterprise had not ended when Washington and the defendant returned to the apartment after committing the crimes. Krulewitch v. United States, 336 U.S. 440, 442--444, 69 S.Ct. 716, 93 L.Ed. 790 (1949). They then devised and undertook to implement a plan to divert attention from themselves as the ones who committed the crimes. They reported to the police that they had seen two men fleeing from the victim's apartment. The defendant did not object to the judge's instructions to the jury concerning the use of Washington's testimony against the defendant, nor did he request any further instructions on that topic.

Although the parties have argued the admissibility of testimony concerning Washington's statements and acts under the joint conspirator exception to the hearsay rule, and the judge, by his instructions to the jury at one point, seems to have accepted the applicability of that hearsay exception, Washington's statements were admissible against the defendant in any event as admissions by silence. See Refrigeration Discount Corp. v. Catino, 330 Mass. 230, 237--238, 112 N.E.2d 790 (1953); Warner v. Fuller, 245 Mass. 520, 528, 139 N.E. 811 (1923); Commonwealth v. Funai, 146 Mass. 570, 571, 16 N.E. 458 (1888); Commonwealth v. Call, 21 Pick. 515, 521--522 (1839); 4 J. Wigmore, Evidence §§ 1071--1072 (Chadbourn Rev.1972). The defendant was engaged knowingly and voluntarily in a conversation with another, and what was said and done by each in the other's presence, bearing on a material issue in the case, was admissible. Boston & Worcester R.R. v. Dana, 1 Gray 83, 104 (1854); Commonwealth v. Kenney, 12 Met. 235, 237 (1847); 7 J. Wigmore, Evidence § 2115 (3d ed. 1940).

3. The defendant claims that the delay in providing copies of the criminal records of the two women who testified for the prosecution hindered his attempt to impeach them with proof of prior convictions. Although his motion for production of criminal records of the Commonwealth's witnesses had been allowed five days earlier, the probation records of these witnesses were not furnished to the defendant until the day they testified. As to one of these witnesses, that circumstance is understandable because she did not become available to the prosecution until she was arrested the night before she testified. Our analysis of the defendant's argument has been hindered by the absence of the witnesses' probation records in the record before us. The defendant should have requested that they be marked as exhibits for identification.

The judge offered the defendant a voir dire, if he requested it, so that he might interrogate each witness concerning her record of criminal convictions. The judge also permitted the defendant to cross-examine these witnesses as to their prior convictions without any record of the convictions in hand.

There can be no error as to the first witness. The defendant made no attempt to impeach her by the fact of prior convictions. He did not request a voir dire. We have no reason to know of any such convictions.

The second witness was impeached by three convictions in the Central District Court of Worcester of being a disorderly person. The judge ruled that two convictions in courts in Boston could not be used because the witness could not recall enough of the circumstances to establish that they were properly admissible for impeachment purposes. The voir dire conducted with this second witness indicated that she may have been convicted in Boston on separate occasions of possession of heroin and of prostitution.

Assuming that there were records of convictions of these crimes which were admissible for the purposes of impeaching this witness, there was no prejudicial error. This witness (as well as the first one) admitted to heroin addiction and to prostitution. The jury were also advised that, after a hearing, the judge had granted her immunity from prosecution for murder, robbery, breaking and entering, being an accessory to these crimes, and unauthorized use of drugs and prostitution. Proof of the suggested convictions in Boston would have added nothing to what appeared at the trial.

The defendant did not ask for a continuance in order to check the records in Boston. Even now the defendant does not argue that investigation has shown that either of the Boston convictions was admissible to impeach the second witness.

4. The defendant challenges the denial of his motions to suppress statements he made to the police. ³ During the morning following the commission of the crimes, the defendant and others went to a local police station voluntarily. There the defendant signed a written statement in which he reiterated the fabricated story that he and Washington had found the victim's body. He stated that they had become suspicious when they saw two menrun from an alley beside the apartment building where the victim lived and gave a general description of the two men. Later benzidine tests were given to the defendant and others. No Miranda warnings were given before ...