Com. v. Toney

• Decision Date: 18 March 1982
• Citation: 433 N.E.2d 425,385 Mass. 575
• Parties: COMMONWEALTH v. Greer TONEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 425

433 N.E.2d 425

385 Mass. 575

COMMONWEALTH v. Greer TONEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 8, 1981.

Decided March 18, 1982.

Nancy Gertner, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty. (John N. Tramontozzi, Legal Asst. to Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

On March 7, 1979, the defendant was convicted by a jury of murder in the second degree on an indictment comprehending murder in the first degree. The defendant moved for a new trial on the ground that the verdict was against the weight of the evidence. After the motion was denied, the defendant filed her claim of appeal from both the verdict and the denial of the motion. New counsel was appointed, and on April 22, 1980, the defendant filed a second motion for a new trial on the ground of newly discovered evidence. Mass.R.Crim.P. 30, 378 Mass. 900 (1979). The trial judge denied the motion on the basis of argument and affidavits and without an evidentiary hearing. An appeal from this order was filed. All appeals have been consolidated for review by this court. The appeal from the denial of the first new trial motion has not been argued, and we do not address it except in connection with our review of the record pursuant to G.L. c. 278, § 33E. Because the offense occurred before July 1, 1979, special review is available under G.L. c. 278, § 33E. Commonwealth v. Davis, 380 Mass. 1, --- - ---, Mass.Adv.Sh. (1980) 555, 566-570, 401 N.E.2d 811. We affirm the judgment of conviction as well as the denials of the motions for a new trial.

We summarize the facts. At approximately 10:15 P.M. on August 13, 1978, Robin Mines, Dianne Tinsley, and the victim, Denise Curry, were on Whitfield Street in Dorchester when a car passed them driven by a female accompanied by two male passengers. Some epithets were exchanged between the victim and one of the passengers, whereupon the car stopped and the occupants emerged. The female approached the victim, and after some words were exchanged, began hitting her repeatedly, while the two males prevented Robin Mines and Dianne Tinsley from interfering. At some point, one of the men pulled the assailant off the victim and said, "Toney, let her go, let her go." As the assailant relinquished her hold, Mines observed something "long" and "bloody" in the hand of the assailant. The two men and the assailant went back to the car and drove off. The victim staggered a few steps and collapsed; she died shortly thereafter of a stab wound to the heart. A medical examiner testified that the wound could have been caused by a knife or a pair of scissors.

Shortly after the incident, Mines described the attacker to the police as a black woman, five feet, ten inches tall, weighing 165 pounds, and wearing an "Afro" type hair style. Tinsley also described the attacker as tall and wearing an Afro. Mines told the police that she recognized the assailant as one of the Toney sisters, and directed them to the home of Dorcas Toney, a sister of the defendant. The next day, Mines and Tinsley went with the police to see Dorcas Toney. After Dorcas was observed by Mines and Tinsley, they told the police she was not the assailant. Shortly thereafter one of the police officers mentioned the defendant's name, whereupon Mines told them that that was the one who had committed the crime. No in-person or photographic identification procedure involving the defendant was conducted prior to trial.

The defense at trial was that of mistaken identity. There are approximately ten Toney sisters, ¹ and the defendant introduced evidence suggesting that one of her sisters was the proper suspect, and not the defendant. There was unrebutted evidence that the car involved belonged to the defendant. It was shown at trial that the defendant was five feet, six inches tall, weighed 135 pounds, and usually, if not always, wore her hair tied back. Doris, on the other hand, was described as five feet, nine inches tall, between 165 and 170 pounds, and wearing an Afro, a description corresponding closely to the one that Mines and Tinsley had given to the police on the night of the murder. Despite these discrepancies, Mines testified positively that the defendant was the assailant, stating that she knew the defendant from having attended a Toney family party, and having frequented the same skating rink as the defendant. Dianne Tinsley could not provide a positive identification, other than by saying that, as compared with the assailant, the defendant was "the right size."

As an alibi, the defense introduced evidence to show that on the evening of the incident, members of the Toney family had visited two sisters incarcerated at the Massachusetts Correctional Institution at Framingham. Several members of the family testified that, although the defendant drove her car to the prison, she returned with her father in his car directly to her sister Maryse Beane's house where she stayed until 2 A.M. The evidence indicated that Doris had left the prison beforehand in the defendant's car, accompanied by the defendant's fiancEe, brother-in-law, and several other family members. This was corroborated by the testimony of the correctional officer who was checking in visitors that evening. The officer testified that the defendant had put a pair of scissors and other belongings into a locker, but that another family member, whom the defendant argues was Doris, emptied the locker and left the prison before the defendant did. The officer remembered the defendant's being angry over the fact that someone else had emptied her locker. There was evidence that the defendant had put her car keys into her locker when she arrived at the prison. Finally, the correctional officer stated that the defendant wore her hair rolled up in a bun that evening. On rebuttal the prosecution introduced in evidence visitation records of the prison which did not list a Doris Toney as having been there that evening. There was also evidence, however, that these records were not always accurate.

The defendant raises five claims of error. These relate to (1) the motion for a new trial on the basis of newly discovered evidence; (2) the defendant's motion for a directed verdict at the close of the Commonwealth's case; (3) the admission at trial of evidence of flight by the defendant, and the instructions to the jury relating to this evidence; (4) the admission at trial of Mines's in-court identification of the defendant; and (5) the defendant's request for an order granting Doris Toney use immunity. For the reasons set forth below we conclude that there has been no error, and that relief under § 33E is not appropriate.

1. Motion for a New Trial on the Ground of Newly Discovered Evidence.

The defendant offered the affidavits of seven witnesses in support of her motion for a new trial. She claims that the judge erred in denying the motion without an evidentiary hearing.

Rule 30(b) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 900 (1979), provides that a new trial may be granted "if it appears that justice may not have been done." The motion may be decided on the basis of affidavits and without an evidentiary hearing "if no substantial issue is raised by the motion or affidavits." Mass.R.Crim.P. 30(c)(3), 378 Mass. 900 (1979). "The decision on a motion for a new trial, as well as the decision whether to decide the motion on the basis of affidavits or to hear oral testimony, is left largely to the sound discretion of the judge. Commonwealth v. Cook, (380 Mass. 314, ---, Mass.Adv.Sh. (1980) 885, 891, 403 N.E.2d 363). Commonwealth v. Heffernan, 350 Mass. 48, 53-54, (213 N.E.2d 399) cert. denied, 384 U.S. 960 (86 S.Ct. 1586, 16 L.Ed.2d 673) (1966)." Commonwealth v. Stewart, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 801, 805, 418 N.E.2d 1219. We examine the affidavits to determine the seriousness of the issues asserted and the adequacy of the defendant's showing on those issues. Id. --- Mass. at --- - ---, Mass.Adv.Sh. at 805-806, 418 N.E.2d 1219. There was no error in the judge's denial of the motion without an evidentiary hearing.

Affidavits of Ralph Jackson and Jeffrey Beane. Both Ralph Jackson and Jeffrey Beane stated in their affidavits that they were passengers in the car driven by the assailant and that they witnessed the fight that resulted in Denise Curry's death. Ralph Jackson is the defendant's fiancEe, and Jeffrey Beane is the defendant's brother-in-law. They both stated that the defendant was not present when the incident occurred. However, they did not volunteer any information concerning the identity of the assailant. The judge was not required to believe their statements. Commonwealth v. Cassesso, 360 Mass. 570, 575, 276 N.E.2d 698 (1971), judgment vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2848, 33 L.Ed.2d 754 (1972). In light of the close relationship between the affiants and the defendant, and their refusal to identify the person who they say was the actual assailant, we think the judge was justified in concluding that their testimony would not be credible and that therefore no substantial issue was raised by these affidavits. We do not decide whether the testimony of Jackson and Beane was unavailable at the time of the trial, or whether it could not have been procured with due diligence. ²

Affidavits of Cynthia Bruton and Irving E. Laval. Cynthia Bruton shared an apartment with Robin Mines. Her affidavit stated that before the defendant's trial Robin Mines told her that she (Mines) "knew it wasn't Greer (the defendant), but if Greer was going to be funny and take the weight for someone else, Robin would say it was Greer, (because) somebody was going to pay for Denise's death." Laval, a boy friend of Mines, stated in his affidavit that "Robin told me that Denise Curry had been stabbed by ...