Com. v. Wampler

• Decision Date: 26 November 1975
• Citation: 337 N.E.2d 892,369 Mass. 121
• Parties: COMMONWEALTH v. Jimmie L. WAMPLER, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 892

337 N.E.2d 892

369 Mass. 121

COMMONWEALTH

v. Jimmie L. WAMPLER, Jr.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 6, 1975.

Decided Nov. 26, 1975.

James M. Pool, Boston, for defendant.

Earl M. Seligman, Asst. Dist. Atty., for the Commonwealth.

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

BRAUCHER, Justice.

The defendant appeals from a conviction of murder in the first degree. He assigns two errors in the admission of evidence: a declaration of his brother made the day before the crime, and testimony of a police officer as to the defendant's sobriety four hours after the crime. We affirm the conviction.

We summarize the evidence on behalf of the Commonwealth. On Thursday, April 13, 1972, the defendant's brother, sixteen years old, was treated at a hospital for a broken nose resulting from a fight in school earlier that morning. About 9:00 P.M. the next day, Friday, the defendant and several others were drinking beer and listening to records in a girl's apartment. The brother entered the apartment and said he knew where Cook, the boy who had broken his nose, was. The defendant, his brother and two other young men left and went to a show at the high school. The defendant and one of the others took knives from a kitchen drawer with them. Soon afterwards the four young men were chasing Cook down streets near the high school. Cook entered the front seat of a taxicab on the right side. The defendant broke a vent window on the left side, opened he door and climbed across the driver with a knife in his hand. He unlocked the right front door, and two others dragged Cook out of the taxicab. Cook, sixteen years old, was stabbed and died as a result. Later the defendant returned to the apartment and said, 'I think we--I killed him.' Still later he said, 'I even got blood on my hands from that pig.'

No evidence was offered on behalf of the defendant.

1. The brother's declaration. Over the defendant's objection, the judge admitted in evidence testimony of a nurse at the hospital that on the day before the crime the defendant's brother, in the presence of his sister, said that he would kill the boy who had broken his nose. The judge ruled that the jury could infer that there was a conspiracy; later he instructed them that they should not consider the satement as evidence against the defendant unless they found that there was a combination, confederation or conspiracy between the parties.

The exception to the hearsay rule for statements of coconspirators is limited to statements made 'during the pendency of the cooperative effort and in furtherance of its goal.' Commonwealth v. Pleasant, --- Mass. ---, --- - --- ^a, 315 N.E.2d 874, 877 [369 Mass. 123] (1974). Those requirements are not met here. There was no showing that a common enterprise was in effect the day before the crime, or that the brother was attempting to enlist the aid of the nurse or sister in such an enterprise. There was no basis for holding the defendant to vicarious responsibility for the brother's statement.

But the declaration in the present case was not hearsay in the sense of a statement offered in evidence to prove the truth of a fact remembered or believed; it was rather a declaration of intention, offered to prove the declarant's state of mind, then and later. Such a statement is not excluded by the hearsay rule; either it is not hearsay, or it is within an exception to the hearsay rule. See Commonwealth v. DelValle, 351 Mass. 489, 491--492, 221 N.E.2d 922 (1966), and cass cited: Fed.R. Evidence 801(a), (c), 803(3); McCormick, Evidence § 294 (2d ed. 1972). In the Pleasant case, the declaration was made about a month before any common enterprise, and we did not consider its admissibility otherwise than as a vicarious admission. 'The date when a conspiracy is alleged to have begun is not, in effect, a wall behind which the court and jury may never look for the purpose of discovering facts that have a bearing upon the fact of the conspiracy itself.' Commonwealth v. Beal, 314 Mass. 210, 227, 50 N.E.2d 14, 23 (1943). The brother's statement the day before could help the jury to understand his statements in the apartment just before the crime: 'I know where he is,' and, 'Let's go get him.' Those statements were made in the defendant's presence, and the defendant responded by putting a knife in his trousers and leaving with three others. Then, if not before, the defendant joined a common enterprise, and he adopted his brother's intention. Cf. Commonwealth v. Lamattina, --- Mass.App. ---, --- - --- ^b, 310 N.E.2d 136 (1974). This principle is not limited to prosecutions for conspiracy. Cf. Commonwealth v. Pleasant, --- Mass. ---, --- - --- ^c, 315 N.E.2d 874 (1974); Commonwealth v. Chapman, 345 Mass. 251, 255, 186 N.E.2d 818 (1962).

Thus we think the brother's declaration was not too remote and was...