Com. v. Watson

• Citation: 388 Mass. 536,447 N.E.2d 1182
• Parties: COMMONWEALTH v. James J. WATSON (and a companion case 1 ).
• Decision Date: 23 March 1983
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1182

447 N.E.2d 1182

388 Mass. 536

COMMONWEALTH v. James J. WATSON (and a companion case ¹).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 3, 1982.

Decided March 23, 1983.

Thomas G. Shapiro, Boston, for Frederick Clay.

Walter T. Healy, Boston, for James J. Watson.

M. Catherine Huddleson, Asst. Dist. Atty. (John N. Tramontozzi, Legal Asst. to the Dist. Atty., with her), for the Commonwealth.

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

WILKINS, Justice.

The defendants were convicted of the murder in the first degree of Jeffrey S. Boyajian. They appeal from their convictions, raising a common challenge to the admission of testimony from a witness who had been hypnotized and raising individual challenges on certain other issues. We conclude that Clay, who was a juvenile at the time of the crime, was properly transferred from the juvenile system for trial pursuant to the adult system. Neither defendant was substantially prejudiced, in the circumstances, by the admission of testimony from a witness who had been hypnotized. We find no justification pursuant to our duty under G.L. c. 278, § 33E, to alter the verdict as to Clay and affirm his conviction. Although we conclude that there was sufficient evidence to warrant Watson's conviction on the theory of deliberately premeditated murder with malice aforethought, the judge's charge on felony-murder did not place before the jury the crucial question whether Watson had knowledge of Clay's possession of a weapon so as to warrant Watson's conviction of murder in the first degree based on the theory of felony-murder. Therefore, because the jury may have found Watson guilty solely on the theory of felony-murder and because the omission of a charge concerning Watson's knowledge of Clay's possession of a gun presents a substantial likelihood of a miscarriage of justice (G.L. c. 278, § 33E), we order a new trial as to Watson.

We summarize the evidence against the defendants tending to show their guilt, leaving certain further details for presentation in the course of our discussion of particular issues. On November 16, 1979, about 4 A.M., Richard Dwyer was seated in a parked taxicab on Washington Street in downtown Boston. He saw three young men, two tall and one short, cross the street toward him and enter ITOA taxicab No. 649 which was parked immediately in front of his taxicab. The taxicab drove off. Later that day, after learning of the death of the driver of ITOA taxicab No. 649, Dwyer called the police, went to a police station, and made a positive identification of a picture of Watson and an eighty percent certain identification of a picture of Clay. Dwyer was then subjected to hypnotism and thereafter made a positive identification of Clay's picture as that of the short man. He continued to be positive of his identification of Watson's picture. Eleven days later, Dwyer was hypnotized again, and his opinion did not change. He never positively identified the third man. At trial, the fact of Dwyer's pretrial identification of photographs of Watson and Clay was admitted in evidence, including the change in his confidence in his identification of Clay after hypnosis. Dwyer identified the defendants in the court room as well.

About 4:20 A.M. on the same morning, Neal Sweatt, a resident of an apartment on Brookway Terrace in the Archdale Housing Project, in the Roslindale section of Boston, went to a parlor window, after his mother had called, "Look, they're pulling a cab driver ... out of the cab." Sweatt testified that he recognized Watson, whom he had seen previously but whose name he did not know, and Clay, whose first name he knew. They and the third man pulled Boyajian from the taxicab. Sweatt heard Boyajian say, "Take what you want, but let me live." The three men beat Boyajian. While Watson held Boyajian, Clay went through his pockets. Boyajian threw an object which Clay retrieved. Watson released Boyajian and disappeared from sight momentarily. Then Sweatt saw Clay point an arm in Boyajian's direction. He heard at least three shots, after which the three men ran away together. Parts of Sweatt's testimony, but not the identifications, were corroborated by his mother and by a friend of Sweatt, each of whom was looking out a window in the parlor. There was evidence that Boyajian was shot five times in the head.

1. Clay, who was sixteen at the time of the murder, challenges the decision of a judge sitting in the Juvenile Session of the West Roxbury District Court, acting pursuant to G.L. c. 119, § 61, to dismiss the juvenile complaint and to order a criminal complaint to issue. After Clay's indictment, a judge of the Superior Court considered and denied Clay's motion to dismiss, which challenged the propriety of the transfer order.

We have reviewed the Juvenile Session Judge's findings and conclude that they were warranted by the evidence. There was, to be sure, evidence that Clay was amenable to rehabilitation as a juvenile. The judge found the views of certain experts unpersuasive. Certainly he was not bound by their views. See Two Juveniles v. Commonwealth, 381 Mass. 736, --- - ---, 412 N.E.2d 344 (1980). He found on clear and convincing evidence that (1) Clay presented a significant danger to the public and (2) Clay was not amenable to rehabilitation as a juvenile. He considered the five factors stated (a ) through (e ) in G.L. c. 119, § 61. He made subsidiary findings indicating the bases for his conclusions. See A Juvenile v. Commonwealth, 370 Mass. 272, 282, 347 N.E.2d 677 (1976).

There was no error in the admission of particular items of evidence at the transfer hearing. In his discretion, the judge was warranted in admitting the opinion of the acting regional director of Region 6 of the Department of Youth Services (DYS) that Clay was not a fit subject for the DYS. It is important that the witness had twenty-seven years' experience in the system. See Commonwealth v. A Juvenile, 365 Mass. 421, 430, 313 N.E.2d 120 (1974). Further, it was within the judge's discretion to admit Clay's entire DYS file and to permit an assistant school principal to testify to the circumstances under which Clay had been suspended from school, three times, in 1978 and 1979. Under G.L. c. 119, § 61, the judge is to consider the child's "court and juvenile delinquency record, if any," and his "school and social history." The test is "fundamental fairness" (see McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 1985, 29 L.Ed.2d 647 [1971] [plurality opinion] ), and not the application of rules of evidence concerning the admission of hearsay. See Breed v. Jones, 421 U.S. 519, 537-538, 95 S.Ct. 1779, 1789-1790, 44 L.Ed.2d 346 (1975); Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). Although the content of such information as DYS records and the reasons for school discipline must be analyzed with care to determine its trustworthiness, a blanket prohibition on the admission of such information is not required. Clay does not point to any specific item in the DYS file or in the testimony of the assistant school principal whose admission was fundamentally unfair because of its lack of trustworthiness or its substantially prejudicial quality. We conclude that there was no error in the transfer of Clay for prosecution as an adult.

2. The defendants argue that they were prejudiced by the admission of testimony from Richard Dwyer, the taxicab driver, who had been hypnotized on two occasions after the crime. Prior to his hypnotic sessions, Dwyer had positively identified a photograph of Watson as one of the three men he had seen enter the taxicab shortly before its driver was shot. He was "about eight out of ten sure" that a photograph of Clay he saw before hypnosis was that of another one of the three men. After hypnosis, he was positive about both identifications.

In our opinion in Commonwealth v. Kater, 388 Mass. 519, 447 N.E.2d 1190, released today, we considered extensively the question of the admissibility of testimony from a witness who has been hypnotized. We concluded that testimony is admissible from a witness as to his or her present memory of events remembered prior to hypnotism and that hypnotically aided testimony (that is, testimony that was not available prior to hypnosis) is inadmissible. We recognized that hypnotism itself and the manner in which an hypnotic session was conducted would be appropriate subjects of inquiry when testimony is proffered from a previously hypnotized witness concerning events as remembered prior to hypnosis.

In this case, the only demonstrated effect of hypnosis was Dwyer's increased certainty of his identification of Clay's photograph. It is just such an increased level of confidence that some experts say hypnosis often produces. The process of hypnotizing Dwyer produced no new evidence against either defendant. We are, therefore, not dealing with what we have called hypnotically aided testimony. We are, however, dealing with the fact that hypnosis apparently enhanced Dwyer's confidence in his identification of Clay.

The jury heard extensive testimony concerning the hypnotic sessions, including a tape recording of each session. ² They heard from Dr. Martin Reiser, who testified for the Commonwealth as an expert on hypnosis, and from Dr. Martin Orne, the defendant's expert. The jury were given a full opportunity to assess the possible effects of hypnosis on Dwyer's testimony. The judge instructed the jury to consider the influence of hypnosis on Dwyer's testimony. Although the procedures for the conducting of hypnotic sessions that we have suggested as reasonable were not followed in all respects in conducting the hypnotic sessions, possible weaknesses in the procedures used were fully aired before the jury. ³

As to the defendant Watson, we have no difficulty in concluding that he was not prejudiced by the admission of...