Com. v. Weichel

• Decision Date: 01 August 1988
• Citation: 403 Mass. 103,526 N.E.2d 760
• Parties: COMMONWEALTH v. David WEICHEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 760

526 N.E.2d 760

403 Mass. 103

COMMONWEALTH v. David WEICHEL.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued March 8, 1988.

Decided Aug. 1, 1988.

Jonathan Shapiro, Boston, for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for Com.

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

O'CONNOR, Justice.

On October 4, 1977, after a jury trial, the defendant was convicted of assault and battery on correctional officer David Budgell, and was acquitted of assault and battery on correctional officer Raymond Green. The charges resulted from an incident that had occurred in the segregated unit known as Block 10 at the Massachusetts Correctional Institution at Walpole (M.C.I. Walpole). The defendant was immediately sentenced to M.C.I. Walpole for a term of not less than one year nor more than three years to be served from and after completion of a life sentence for murder in the second degree. The defendant had begun to serve the life sentence on January 21, 1976. He filed a timely notice of appeal and a motion for the appointment of new counsel on October 13, 1977. The case remained dormant until November, 1986, when new counsel was appointed and a transcript was ordered and filed. It appears, and for the purpose of this decision we assume, that the regrettable delay in perfecting the appeal is chargeable entirely to the courts and is in no way attributable to the defendant or the prosecution. We transferred the appeal to this court on our own motion, and we now affirm the conviction.

At the trial, the Commonwealth presented its case through M.C.I. Walpole associate deputy superintendent Albert Carr, and correctional officers Green, Budgell, and Jeffrey Beaulier. The only defense witness was George Nassar, an M.C.I. Walpole prisoner. Based on the Commonwealth's evidence, the jury could have found the following facts. On January 2, 1977, the defendant was confined to Block 10. At the time of the incident, he was in a locked corridor outside several segregation cells including his own. Prison regulations allowed a single prisoner to exercise in the locked corridor outside his cell as long as all other cells opening onto the corridor were locked and no other prisoners were in or had access to the corridor.

According to the Commonwealth's evidence, at approximately 10:00 A.M. the defendant called for an officer from the guardhouse. Officers Green, Budgell, and Beaulier responded. Green and Budgell went into the corridor while Beaulier remained outside the corridor to observe. The defendant, holding a cardboard box, was standing in front of the door to another prisoner's cell. The defendant asked Budgell to unlock that cell so that he could hand the prisoner the box. Budgell refused to open the cell while the defendant was in the corridor. The defendant then said "give me the fucking keys" and hit Budgell in the face with his fist. The defendant shoved Green against the wall, hit him twice, and hit Budgell twice more in the face.

The jury could have found on the basis of the Commonwealth's evidence that, when the defendant attacked Budgell and Green, Beaulier alerted other officers and entered the corridor. When he approached the defendant, the defendant retreated to the rear of the corridor with his hands raised. The defendant was returned to his cell.

The witness Nassar, called by the defendant, testified that, when Green and Budgell entered the corridor, he saw them run toward the defendant and he heard sounds of a scuffle. Also, just before the incident began, Nassar heard another inmate say, "Watch out, this is a setup."

On appeal, the defendant argues that the trial judge made two reversible errors: (1) he improperly restricted the defendant's cross-examination of Green, which was designed to demonstrate Green's bias against the defendant; and (2) he improperly excluded testimony concerning the tension between the prisoners and the officers in Block 10, and concerning what other prisoners had told the defendant before the incident concerning officers' assaults on prisoners in the block. The defendant argues that the evidence was relevant to his theory of self-defense. We discuss the two claims in order.

During his cross-examination of Green, defense counsel elicited testimony that, before January 2, 1977, there had been "confrontations" between Green and the defendant. Counsel then asked Green whether he had taken the defendant's watch on September 1, 1976. The prosecutor objected, and the judge sustained the objection. A defendant, of course, is entitled to a reasonable cross-examination of witnesses against him, but, consistent with that principle, the scope of cross-examination rests in the sound discretion of the trial judge. The burden of showing an abuse of that discretion, an abuse that must be shown on the trial record, rests on the party claiming it, in this case the defendant. Commonwealth v. Underwood, 358 Mass. 506, 513, 265 N.E.2d 577 (1970).

No abuse of discretion has been shown. That Green took the defendant's watch might tend to show that the defendant held a grudge against Green, but it had minimal, if any, tendency to show the reverse, that is, that Green held a grudge against the defendant, and that, as a witness, he was biased against him, particularly with thirteen months having elapsed since the watch incident. Surely, with respect to bias, the proffered evidence would have added nothing significant to the evidence already admitted concerning the confrontations between Green and the defendant. On the other hand, the evidence, had it been admitted, might well have led the jury to discount Green's testimony, not on the ground of bias, but on the ground that the taking of the watch was a prior bad act that demonstrated Green's lack of character and consequent unreliability as a witness. Impeachment of a witness in that manner is improper. Commonwealth v. Clifford, 374 Mass. 293, 305, 372 N.E.2d 1267 (1978). Thus, because the proffered evidence had little, if any, legitimate value, and invited misuse by the jury, the judge clearly did not abuse his discretion in excluding it.

We turn to the defendant's assertion that the judge erred in excluding evidence concerning the tension between the officers and the prisoners in Block 10, and concerning other prisoners' having informed the defendant of assaults on prisoners by officers. After the Commonwealth rested, the judge informed counsel that, after consulting with M.C.I. Walpole correctional officers, he had decided that prisoner witnesses would be handcuffed while testifying. A discussion followed with respect to what testimony defense counsel expected the prisoner witnesses to give, and what relevance defense counsel thought that testimony would have. The discussion was as follows: THE JUDGE: "What do you anticipate they will testify to?" DEFENSE COUNSEL: "I anticipate that their testimony will be that between the time period of December 3, 1976, when Mr. Weichel came into Block 10, and January 2, when this assault occurred, that they made certain statements to Mr. Weichel, all of which bear upon a state of mind at the time the assault took place." THE JUDGE: "Specifically what statements?" DEFENSE COUNSEL: "Statements in the form of their descriptions to him of the other incidents that had taken place in the block and what he could expect as conduct from the correctional officers and what kind of position he would be placed in depending upon whether or not he did certain things, all of which I am going to ask to be admitted based on the fact that it establishes his state of mind at the time of the assault." THE JUDGE: "In other words, do you anticipate that they are going to testify that they told him to be careful of himself...