Com. v. Watson

• Decision Date: 13 April 1979
• Citation: 388 N.E.2d 680,377 Mass. 814
• Parties: COMMONWEALTH v. Joseph WATSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 680

388 N.E.2d 680

377 Mass. 814

COMMONWEALTH v. Joseph WATSON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 12, 1978.

Decided April 13, 1979.

Clyde D. Bergstresser, Boston, for defendant.

Frances M. Burns, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

The defendant Joseph Watson was convicted of the murder in the first degree of Marshall Joseph Ely (Ely). After entering his appeal in this court, he filed a motion for a new trial pursuant to G.L. c. 278, § 29, resting in part on the alleged recantation by one of the Commonwealth's main witnesses of the testimony she had given at the defendant's trial. The motion was remitted to the Superior Court for hearing and determination. G.L. c. 278, § 33E.

After an evidentiary hearing, the motion for a new trial was denied. The defendant's appeal from this denial was allowed to be filed by a single justice of this court, and has been consolidated with the pending appeal from the conviction. The defendant now argues four assignments of error: (1) the trial judge's charge regarding identification testimony, (2) the exclusion of a tape recording and transcript of the defendant's statement to the police, (3) the limitation of the scope of cross-examination of certain prosecution witnesses, and (4) the denial of the motion for a new trial. He also requests relief under G.L. c. 278, § 33E. ¹ We conclude that there was no error and that the defendant is entitled to no relief under G.L. c. 278, § 33E, and we therefore affirm the judgment.

Four eyewitnesses described the events culminating in the fatal shooting of Ely on November 20, 1975. Their accounts, despite minor variations, are consistent. Three of them, Richard W. Birch, Jeffrey Fleisher and Dennis Beebe, were college students at the time of the murder, and had gone to the Lenox Street housing project in Roxbury to conduct a survey as part of their studies. At approximately 3 P.M., they were interviewing Manson Upchurch, a neighborhood resident, in a courtyard of the project near 25 Trotter Court. All four men were standing close to Upchurch's car, which was parked beside a wading pool in Trotter Court, when Ely, who knew Upchurch, walked over and sat down on the hood of the car. Ely joined intermittently in the conversation. A short time later, another man approached, faced Ely and said words to the effect of, "Look, I guess you know you're dead," or, "In a minute you're going to be dead," or, "The next thing you know, you're dead." Taking out a large revolver, the man shot Ely in the forehead.

The three students ran away when the first shot was fired, but two of them, Birch and Fleisher, heard a second shot. Upchurch, who heard three shots and observed the gunman stick the revolver in his belt and walk across the empty pool toward Lenox Street, then ran to call the police.

The identification of the gunman made by each of these four eyewitnesses is relevant to one of the defendant's claims of error; we therefore describe the circumstances surrounding it in some detail. Upchurch told police on the day of the murder that because of where he was standing he had not seen the man who fired the shots. Although summonsed to appear at the probable cause hearing on December 22, he did not testify. When summonsed before the grand jury on January 19, 1976, he testified, under oath, that he had not seen the gunman approach and was "around the corner" when he heard the shots. On a second appearance before the grand jury, on February 4, 1976, after being told that the penalty for perjury in a capital case could be a life sentence, Upchurch testified that he had been lying, that he had observed the shooting, and he identified the defendant, whom he did not know, as the gunman. At trial, he again identified the defendant as the man who had shot Ely.

When Birch first saw the defendant at a court appearance in the Municipal Court for the Roxbury District on or about December 15, 1975, he could not identify him as the gunman. At the time of the probable cause hearing on December 22, 1975, Birch and Beebe were out of town. Fleisher, who was present, did not identify the defendant as the man who had shot Ely. ²

The following May, Birch, Beebe, and Fleisher were each separately shown an array of photographs of men cashing checks at a bank on the morning of the homicide, and the defendant's picture was among them. On that occasion, Birch for the first time identified the defendant as the man who did the shooting; Beebe and Fleisher stated that the hat and sunglasses the defendant wore in the photograph were similar to those the gunman had worn, but they did not identify the defendant himself. The judge suppressed any in-court or out-of-court identifications by these three witnesses, based on his finding that, "The salient memory, it seems to me, of all these witnesses, are not the individual but this hat and these glasses and perhaps the leather coat." ³ At trial, therefore, Birch, Beebe, and Fleisher testified that the assailant was a black male, in his twenties or thirties, at least six feet tall, wearing a leather jacket, a hat, and sunglasses, but they did not identify the defendant as the gunman. All three agreed they had noticed no accent in the assailant's speech. Upchurch also described the gunman as wearing a leather jacket, eyeglasses, and a hat. ⁴

The defendant's former girl friend, Charlotte Crawford, and her sixteen-year old daughter Laverne Crawford testified for the Commonwealth. Charlotte testified that she had lived with the defendant for "four years off and on," and had had two children by him, but had stopped living with him five to seven months before the murder. She stated that at the time of the shooting she had known Ely about six months. At approximately 11 A.M. on November 20, 1975, according to Charlotte's testimony, Ely came to her apartment. While he was there, she received a telephone call from Watson, who said he had just seen Ely at a store and "I started to kick his ass." She hung up, and Ely left. She also testified about two other telephone calls from Watson: one on the day after the shooting of Ely, in which Watson said: "he was sorry to hear that Marshall (Ely) was dead" and the other on the day of Watson's arrest one and one-half weeks later, in which he told her he had seen Ely with a gun. ⁵ On cross-examination she testified that she and Watson were not on friendly terms the previous November and December and that the defendant had never met or seen Ely prior to November 20.

Laverne Crawford testified that the defendant had lived with her and her mother for about five years, but that he had moved out about two months before the shooting. She said she had known Ely for about two months prior to his death and that he was friendly with her mother, that on November 19, the night before the shooting of Ely, she had gone to visit the defendant at his apartment at 54 Rutland Square with her half-sister, Watson's daughter, and the defendant had shown her two guns and told her "that he was going to kill Marshall the next day." She said he frequently showed her the guns when she visited, which she did about twice a week, and that the defendant had been threatening to kill Ely for about one year.

Laverne stated that at about 3 P.M. on November 20 she was walking through the empty wading pool in Trotter Court on her way home from school when she saw the defendant "walking fast" toward Lenox Street. He was about four feet away from her, wearing a long black below the knee length leather coat, sunglasses and no hat; they did not speak. She then went over to look at Ely's body which was lying on the hood of the car and then went home to tell her mother.

The next night, Friday, November 21, Laverne and a girl friend of hers went to see the defendant at his apartment. Laverne asked him for some money for a class trip to New York. The defendant gave her the money and a bus ticket and told her he had been in New York on Thursday. During cross-examination the defense established that in her statement to the police on the night of the shooting, and at the probable cause hearing in December, Laverne had referred to seeing one gun at the defendant's apartment, not two, and that in the District Court she had testified that the defendant was wearing eyeglasses, not sunglasses. She also stated she had seen two or three young white college students standing beside Trotter Court later that afternoon. ⁶ On redirect examination Laverne identified a .32 caliber handgun as the one which Watson had shown her at his apartment. This gun had been discovered, pursuant to a search warrant, under a couch in the common living room on the first floor of the rooming house at 54 Rutland Square where the defendant rented an apartment on the third floor. A police department ballistician later testified that this gun was definitely not the murder weapon.

The medical examiner testified that the victim had received three gunshot wounds, a head wound being the cause of death. One bullet passed through the body, but the other two bullets were recovered from Ely's body at the autopsy. The police ballistician who examined them testified that they were .38 caliber, and therefore could not have been fired by the .32 caliber gun in evidence.

Police Sergeant Detective Francis A. O'Meara described his questioning of the defendant at about 5 or 5:30 P.M. on December 2, 1975, the day of his arrest. A tape recording had been made of the approximately ten-minute interview, but over defense counsel's objections, the judge excluded both the tape and a typed transcript of the tape from evidence. (See further discussion of this subject in part 2 of this opinion.) Instead, Sergeant O'Meara testified to one small portion of the interrogation, concerning the defendant's whereabouts on the afternoon of the homicide. The defendant...