Com. v. Smith, 87-1337

• Citation: 532 N.E.2d 57,26 Mass.App.Ct. 673
• Decision Date: 01 February 1989
• Docket Number: No. 87-1337,87-1337
• Parties: COMMONWEALTH v. David E. SMITH.
• Court: Appeals Court of Massachusetts

Page 57

532 N.E.2d 57

26 Mass.App.Ct. 673

COMMONWEALTH v. David E. SMITH.

No. 87-1337.

Appeals Court of Massachusetts Suffolk.

Argued Oct. 14, 1988.

Decided Dec. 23, 1988.

Further Appellate Review Denied Feb. 1, 1989.

Steven W. Parnes, Committee for Public Counsel Services, for defendant.

Nijole Makaitis Slezas, Asst. Dist. Atty., for the Com.

Before DREBEN, KAPLAN and KASS, JJ.

KASS, Justice.

On his appeal from convictions of armed robbery and assault with intent to rob, the defendant asserts that the trial judge erred: (1) in permitting the prosecutor to question a defense witness, for the purpose of establishing bias against the government, about criminal charges pending against the witness; and, (2) in excluding a prior inconsistent statement by a victim witness about the name of the man who had robbed her. We affirm.

These, in outline, are the facts the jury could have found. At about 4 A.M. on February 22, 1986, Harriet Hartfield, with Lydia Wharton and Darryl Rowell as passengers, pulled into a small parking lot on Geneva Avenue in Dorchester to drop Rowell off near his cousin's home. As Rowell got out of the car, five men, all brandishing firearms, descended upon Rowell and the two women and relieved them of money and valuables. During the ten or fifteen minutes in which the crime took place, the robbers brutalized and terrorized their victims. Two victims were forced, at gunpoint, to lie in a puddle, one upon the other. Earlier, one of the assailants had kicked Rowell for failing to keep his eyes sufficiently averted from the attackers' faces. The women were dragged from the car. Hartfield was told, "You look at me, I'll blow your fucking brains [out]." Nevertheless all the victims testified that they had a good look at the defendant and remembered that he wore a blue sheepskin jacket with a matching hat.

Towards the end of the robbery, at least one of the attackers called out to the man in the sheepskin jacket, "Hey, Dave," "D, c'mere," "c'mon D-man," or "c'mon Dave-man." By this time police had begun to approach the scene. Not long before Hartfield, Wharton, and Rowell were mugged, three men had been beaten and robbed at the same location by five armed men. One of that second group of victims, Javier Vazquez, reported the earlier incident to the police.

Hartfield, Wharton, Rowell, and Vazquez each picked the defendant Smith's picture from a photographic array and identified him in court as the robber who wore a blue sheepskin jacket and hat with flaps. They also marked him as the man addressed variously as "D," "D-man," "Dave," and "Dave-man." Hartfield, Rowell, and Wharton also identified (one of them positively and two of them tentatively) as one of the five robbers a James Gunn who, as will appear, could not have been on the scene.

1. Evidence that a defense witness was subject to pending charges. Gunn was called as a witness by the defense to testify that he was confined in Charles Street jail between February 17, 1986, and March 5, 1986. Consequently, he was dramatically ineligible to participate in the criminal activity which took place off Geneva Avenue in the early hours of February 22. If three witnesses were wrong about James Gunn, the defense hoped to persuade the jury that all the witnesses may have been equally mistaken about Smith. Cross-examination, aided by photographs, quickly established that James Gunn had a look-alike brother, Sean. The latter could have been among the gang active on February 22.

Over objection, the prosecutor then put the following question: "Now Mr. Gunn, do you have pending criminal charges against you in Suffolk Superior Court?" Gunn answered, "Yes." The purpose of the question (there had been a voir dire) was to suggest that the witness was likely to be harboring a grudge against the government and, therefore, ought not to be credited. Deferring, for a moment, the general subject of whether the pendency of charges against defense witnesses is a proper subject of inquiry, the question in this particular case was surely an ignoble one. The Commonwealth was aware (it had, demonstrably, examined James Gunn's criminal record and, earlier in the trial, the prosecutor had acknowledged that James Gunn was in custody on February 21, 1986) that Gunn was, in fact, incarcerated and had a look-alike brother. Up to that point, Gunn had testified about nothing else. There was no justification for the Commonwealth to attack the credibility of a witness simply for the sake of mussing him up when it had already verified the truth of the only two facts to which the witness had testified.

We turn to the more general issue of the correctness of asking defense witnesses about arrests or pending charges to show bias against the government. Arrest, indictment, or the pendency of charges in some other form, is not, as such, a basis for impeaching a witness. Commonwealth v. Bishop, 296 Mass. 459, 461-462, 6 N.E.2d 369 (1937). Commonwealth v. Haywood, 377 Mass. 755, 759-761, 388 N.E.2d 648 (1979). The very existence of a statute, G.L. c. 233, § 21, which authorizes the use of a conviction to affect the credibility of a witness, prompts the conclusion that something less than a conviction cannot be used for general impeachment purposes.

Yet evidence of the pendency of criminal charges has been received to suggest that a prosecution witness is seeking favor with the government, i.e., that a deal has been struck between the witness and the prosecution which provokes a testimonial bias in favor of the government. Commonwealth v. Haywood, 377 Mass. at 760-761, 388 N.E.2d 648. Commonwealth v. Hogan, 379 Mass. 190, 191-192, 396 N.E.2d 978 (1979). Commonwealth v. Henson, 394 Mass. 584, 586-587, 476 N.E.2d 947 (1985). Commonwealth v. Barnes, 399 Mass. 385 392, 504 N.E.2d 624 (1987). Commonwealth v. Lewis, 12 Mass.App.Ct. 562, 572, 427 N.E.2d 934 (1981).

As to defense witnesses, it is a far less persuasive proposition that if they are somehow in the toils of the law, they will, for that reason alone, be disposed to testify falsely against the government and in favor of the defendant. It is more likely that evidence of pending charges simply discredits, i.e., smears, the witness. The question, as such, has not been commented upon in the Massachusetts cases.

Courts in other jurisdictions which have declined to permit the use of prior arrests or pending charges against defense witnesses have reasoned that the prejudicial and inflammatory nature of the evidence outweighs its probative value. See United States v. Maynard, 476 F.2d 1170, 1174-1175 (D.C.Cir.1973); State v. Johnson, 106 Ariz. 539, 541, 479 P.2d 424, 426 (1971); Moore v. Commonwealth, 634 S.W.2d 426, 436 (Ky.1982); State v. Taylor, 498 S.W.2d 614, 616-619 (Mo.Ct.App.1973); Commonwealth v. Reese, 475 Pa. 120, 121-122, 379 A.2d 1312 (Pa.1977). The connection between an arrest or complaint and a generalized bias against all law enforcement authority is too frail. Two courts have proceeded on the ground that their State statutes (as does G.L. c. 233, § 21, in Massachusetts), by permitting the use of prior convictions to impeach witnesses, implicitly reject the use of arrest and complaint. See Parker v. State, 280 Ala. 685, 689-690, 198 So.2d 261 (1967); Fulton v. State, 335 So.2d 280, 283 (Fla.1976).

In those cases in which courts have countenanced examination about prior arrests or pending charges to suggest bias on the part of the witness, there has generally been a link between the witness's entanglement with law enforcement and the main case on trial. The bias sought to be established is a particular one, rather than a general one. So, for example, in United States v. Dardi, 330 F.2d 316, 336 (2d Cir.1964), a witness named Brann had testified for the government. The defense trotted out a man named McCollom, who testified that Brann's reputation for veracity in Geneva, Switzerland, was " 'just as poor as it could possibly be.' On cross-examination, the prosecution asked McCollom whether or not there was a warrant of arrest outstanding against him in Switzerland for embezzlement of $50,000." That question fairly probed the likelihood that McCollom harbored a bias against Brann because Brann had blown the whistle which led to the embezzlement charge. In United States v. Musgrave, 483 F.2d 327, 338 (5th Cir.1973), the prosecution was permitted to inquire of a defense witness about an accusation which had its source in the same criminal conspiracy to defraud a savings institution. See Waters v. State, 360 So.2d 358, 365-366 (Ala.Crim.App.1978) (defense witness arrested together with defendant); State v. Moynahan, 164 Conn. 560, 600-602, 325 A.2d 199 (1973) (arrest of defense witness grew out of the same investigation, the same type of criminal behavior, and the report of the same informer which underlay the trial of the defendant); State v. Sweeney, 443 So.2d 522, 529-530 (La.1983) (same officers arrested defense witness and defendant). Inquiry about prior arrests was allowed when defense counsel's own examination let the issue out of the bag. People v. Stratton, 64 Mich.App....