Com. v. Triplett

• Decision Date: 18 November 1986
• Citation: 500 N.E.2d 262,398 Mass. 561
• Parties: COMMONWEALTH v. Haven TRIPLETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 262

500 N.E.2d 262

398 Mass. 561

COMMONWEALTH v. Haven TRIPLETT.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Sept. 9, 1986.

Decided Nov. 18, 1986.

John M. Thompson, Springfield, for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for the Com.

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

ABRAMS, Justice.

On April 19, 1984, the defendant, Haven Triplett, shot and killed Gregory Finch in a house occupied by the defendant, the defendant's mother, and the victim, who was the fiance of the defendant's mother. After a trial by jury, the defendant was convicted of murder in the first degree. He appeals, claiming that the judge erred in admitting evidence of his prior misconduct. He also asks that we grant him a new trial because the Commonwealth impermissibly cross-examined him on the issue of the credibility of its main witness, his mother, and because his trial counsel conceded a critical issue, namely the defendant's lack of credibility, in the summation. The defendant asserts that a review of the record as a whole supports a conclusion that there is a substantial likelihood of a miscarriage of justice. See G.L. c. 278, § 33E (1984 ed.). We agree. We reverse and remand for a new trial. ¹

1. Evidence of the defendant's prior misconduct. During its case in chief, the Commonwealth offered evidence that the defendant allegedly assaulted his mother prior to the events at issue and that the defendant lost his job at a nursing home because he could not control his temper. Further, on cross-examination, the Commonwealth elicited the fact the defendant had received a less than honorable discharge from the Army. ²

"It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose" (citations omitted). Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). Evidence is relevant if it "relates to a subsidiary issue, such as the state of mind of the defendant, and is not offered to prove his guilt but rather to prove a relevant subsidiary fact." Commonwealth v. Trapp, 396 Mass. 202, 206, 485 N.E.2d 162 (1985). Other subsidiary issues which may be proved by evidence of prior bad acts include a "common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Helfant, supra. These exceptions, however, "are not without limitation." Trapp, supra. If such evidence is improperly admitted, it "diverts the attention of the jury from the [crime] immediately before it; and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him." Commonwealth v. Jackson, 132 Mass. 16, 20-21 (1882).

The evidence of the defendant's prior bad acts was not admissible on any theory of common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive. Rather, the evidence portrayed the defendant as a violent, aggressive, and dangerous individual. Indeed, the prosecutor so argued in his closing: "What are we really talking about in this case? What we are talking about is a human being that has a habit of acting inappropriately to certain situations, that's all, that's all this is in a nutshell." Referring explicitly to the alleged incident between the defendant and his mother and to the defendant's losing his job, the prosecutor concluded that: "Of course, this is just a case of a man who can't control his emotions.... He's a powder keg, he doesn't think. He acts out of violence. He's got a horrendous temper that he can't control, that's what this is all about. And that's murder in the first degree, ladies and gentlemen." In short, the Commonwealth used this evidence to prove that the defendant had a bad temper, and, therefore, was guilty of murder in the first degree.

The Commonwealth asserts that the evidence regarding both the alleged assault of the defendant's mother and the defendant's military discharge was introduced for purposes of disproving the defendant's testimony. This claim is without merit. The evidence of the alleged assault was offered through the defendant's mother prior to the defendant's testimony. As to the less than honorable discharge brought out during the Commonwealth's cross-examination of the defendant, the defendant said on direct examination that he had not finished his tour of duty. Because that statement is not disproved by evidence that the discharge was less than honorable, the Commonwealth cannot claim that it sought to impeach the defendant's credibility with this evidence. See Commonwealth v. Spare, 353 Mass. 263, 266-267, 230 N.E.2d 798 (1967); Commonwealth v. Parker, 12 Mass.App.Ct. 955, 956, 426 N.E.2d 1179 (1981).

There also was no basis for offering evidence that at another time the defendant lost his nursing home job as a result of his throwing a book at a supervisor. That evidence "lacks any rational link" to the events on the night of April 19, 1984. Commonwealth v. Trapp, supra, 396 Mass. at 207, 485 N.E.2d 162. Moreover, the prosecutor in his cross-examination of the defendant used the evidence as an analogy to the defendant's guilt of murder in the first degree. ³

The evidence of the defendant's prior bad acts does not fall within any of the exceptions to the general rule prohibiting admission of such evidence. The improper character evidence cannot be said to be nonprejudicial. We reverse and remand for a new trial.

2. Cross-examination of the defendant. The defendant next asserts that the Commonwealth's cross-examination requiring the defendant to comment on his mother's truthfulness violated his right to a fair trial. On appeal, the Commonwealth acknowledges that some of the questions were improper but argues that the effect of the questioning does not amount to prejudicial error. Because defense counsel did not object to these questions at trial, our review is pursuant to G.L. c. 278, § 33E. See Commonwealth v. Cole, 380 Mass. 30, 402 N.E.2d 55 (1980). We agree with the Commonwealth that the questions were improper and with the defendant that, as a result of the improper questioning, there is a substantial likelihood of a miscarriage of justice.

The defendant's mother, the Commonwealth's main witness, testified on direct examination that on April 19, 1984, a heated discussion took place between the defendant and Finch over responsibility for household expenses. The argument occurred in the bedroom shared by Finch and the defendant's mother.

The defendant's mother said that during the argument Finch pulled a knife out of his pocket. She also testified that Finch did not lunge at the defendant. The mother said that at that point the defendant turned and walked normally and relatively calmly out of the bedroom. According to the defendant's mother, she spent a few minutes talking with Finch, trying to calm him down, and then she left her bedroom to go and talk to the defendant. From the door of the defendant's room, she saw the defendant loading a gun. According to the mother, the defendant said he intended to kill Finch. The defendant then headed toward Finch's bedroom. The mother grabbed the defendant, trying to hold him back. The defendant knocked her off balance and ran toward Finch's bedroom. The defendant's mother followed him. According to her, she saw the defendant point the gun in the direction of the foot of the bed. From her vantage point, she could not see Finch. She heard one shot fire.

After the first shot, the defendant backed out of the room. The defendant's mother began scuffling with her son. She heard a "thud," and she turned and saw Finch lying face down on the floor. According to the mother, her son also turned around, pointed the gun downward, and shot the victim two more times. The defendant then said to his mother, "[Y]es, I killed him." The mother called the police. The defendant ran out of the house.

The defendant, testifying on his own behalf, said that during the argument, Finch lunged at him with a knife. At this point, the defendant ran to his bedroom, grabbed a gun, and ran toward Finch's bedroom. He asserted that he saw his mother in the hallway. She was cut and bleeding. As the defendant ran back toward Finch's bedroom, Finch again lunged at him. The defendant then fired a shot at Finch. Finch kept coming at him. The defendant fired several more shots. ⁴ He and his mother struggled outside the bedroom, and the gun accidently fired a last time and hit Finch, who was lying face down on the living room floor. Following the shooting, the defendant ran from the house, dropping the gun in a nearby schoolyard as he fled. He went to New Haven, Connecticut. Six weeks later he surrendered to the police.

In cross-examining the defendant, the Commonwealth repeatedly asked him about those parts of his mother's testimony that contradicted his own. The prosecutor asked whether the defendant had heard her testimony and whether he agreed or disagreed with it. We set out some examples of this line of questioning in the margin. ⁵

It is a fundamental principle that "a witness cannot be asked to assess the credibility of his testimony or that of other witnesses." Commonwealth v. Dickinson, 394 Mass. 702, 706, 477 N.E.2d 381 (1985). See Commonwealth v. Long, 17 Mass.App.Ct. 707, 708, 462 N.E.2d 330 (1984); Commonwealth v. Ward, 15 Mass.App.Ct. 400, 401, 446 N.E.2d 89 (1983); P.J. Liacos, Massachusetts Evidence 147 (5th ed. 1981). The fact finder, not the witness, must determine the weight and credibility of testimony. Commonwealth v. Dabrieo, 370 Mass. 728, 734, 352 N.E.2d 186 (1976).

In this case, the credibility of the mother and her son was the critical issue before the jury. The jurors had to determine whether to accept the version given by the mother or...