Commw. v. Beauchamp

• Decision Date: 10 January 2000
• Docket Number: P-1920
• Citation: 49 Mass. App. Ct. 591,732 N.E.2d 311
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH, vs. ROBERT C. BEAUCHAMP. No.: 98- Argued:
• Court: Appeals Court of Massachusetts

Page 311

732 N.E.2d 311 (Mass.App.Ct. 2000)

COMMONWEALTH, vs. ROBERT C. BEAUCHAMP.

No.: 98-P-1920.

Massachusetts Court of Appeals, Middlesex

Argued: January 10, 2000.

Decided: July 10, 2000.

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Russell C. Sobelman, Lynn, for the defendant.

David W. Cunis, Assistant District Attorney, for the Commonwealth.

Present: Laurence, Dreben, & Beck, JJ.

LAURENCE, J.

Oliver Wendell Holmes, Jr.'s, most famous maxim -- "The life of the law has not been logic: it has been experience"¹ -- cannot, of course, be taken literally. Law without logic -- in the most fundamental sense of objective, practical, and consistent analysis and reasoning -- will be law in a vacuum, formless and insubstantial.² Twice-convicted (of second degree murder) defendant Robert C. Beauchamp has presented us with an intricately woven yet diaphanous fabric of contentions -- primarily that the Commonwealth's use in his second trial of his testimony from his first trial violated his constitutional rights -- which is rent by the application of commonsense logic and established legal precedent and which, like a vacuum, lacks substance. A fairly lengthy recitation of the factual and procedural background of the defendant's present appeal from his most recent conviction is unfortunately necessary to appreciate the threadbare quality of his arguments.³

1. Background. On August 5, 1971, the defendant himself called the Arlington police to report that he had just shot Charles McGrath in the defendant's third floor apartment in Arlington. Upon their arrival, the police found the victim shot dead and lying on his back, with his keys a few inches from his right hand, on a second floor landing. The landing was situated at the bottom of a flight of stairs that led to a hallway, at the end of which was the defendant's apartment. The defendant was advised of his Miranda rights upon police entry into his apartment. He told investigating officers that the victim had been blackmailing him and that he had fired in self-defense when the victim attacked him with a large knife during an argument over further blackmail. Released on bail, the defendant fled to California but was soon rearrested and brought to trial on a first degree murder charge in early 1973.

The Commonwealth established at that first trial that the victim had been shot five times at close range. Medical evidence indicated that one shot had been fired from behind the victim, apparently as he had turned to escape the fusillade. Two of the bullets had a downward trajectory, as if the shooter had stood over the victim and fired into his chest. No fingerprints were found on the knife allegedly wielded by the victim. A neighbor testified that he had heard the shots, which were not fired in rapid succession but rather with pauses before the third and the fourth shots.

The defendant testified and admitted shooting the victim but claimed he had done so only to protect himself against the victim's violent knife attack after retreating as far as he could in his apartment. He testified that the origin of the deadly encounter had been the victim's theft of a national merit scholarship examination in 1966, a copy of which he had given to the defendant. By means of the stolen document, the defendant achieved a high score on the actual examination, obtained a scholarship, and was admitted to a prestigious university. The victim, however, scored poorly on the examination and ended up at a lesser institution. Embittered, the victim proceeded to blackmail the defendant for several years with threats of exposure regarding the stolen exam. The defendant had complied with the extortion until a few days before the fatal incident. On the night of the shooting, a heated fifteen-minute argument took place after the victim had come to the defendant's apartment to demand more money immediately. When the defendant refused to pay, the victim rushed at the defendant with a foot-long knife (which he held in a napkin) screaming that he was going to plunge it into the defendant as far as he could to kill him. Only after retreating until he was up against a wall, with the knife a few inches from his body, did the defendant, "scared out of [his] mind," fire several shots in rapid succession from a recently purchased .38 caliber revolver which he somehow was able to retrieve from his open briefcase as he backed away from the uplifted knife. The victim then stumbled out of the apartment.

On February 21, 1973, the jury convicted the defendant of murder in the second degree, for which he received the mandatory sentence of life imprisonment. G. L. c. 265, 2. The defendant did not appeal his conviction, and in early 1974 he escaped from prison. He was not apprehended until 1981 in California, where he was charged with committing a number of Federal crimes. After serving Federal sentences in California and Illinois, he was returned to Massachusetts on a Governor's warrant. He proceeded to file a series of motions for a new trial alleging various errors in his 1973 trial. One of those claims -- that the trial judge's instructions on self-defense could have been interpreted by the jury to shift the burden of proof on that issue to the defendant -- was discerned by the Supreme Judicial Court to be a ground on which the defendant's conviction should be set aside. Commonwealth v. Beauchamp, 424 Mass. 682 (1997).

The court observed that the law regarding the proper charge with respect to claims of self-defense had changed in the defendant's favor while he was in hiding from the authorities. Id. at 685, citing Mullaney v. Wilbur, 421 U.S. 684, 704 (1975), and Commonwealth v. Rodriguez, 370 Mass. 684, 687-689 (1976). Although the instructions at his trial had not explicitly stated who had the burden of proof on self-defense and were correct under the then state of the law, the court concluded that, read as a whole, they might have led a reasonable juror to believe that the Commonwealth was not required to prove the absence of self-defense beyond a reasonable doubt, as mandated by the cited cases. Because Rodriguez applied retroactively, even if the defendant had unsuccessfully appealed earlier, his conviction remained susceptible to attack on this ground on collateral review. 424 Mass. at 685-686. The court accordingly remanded the case for a new trial.

Prior to his new trial, on the charge of second degree murder only, the defendant filed a motion to exclude his 1973 testimony, which the Commonwealth had indicated in a motion in limine it intended to introduce in its case-in-chief. As the sole ground for his motion, the defendant reiterated a contention he had begun making in his flurry of new trial motions following his rendition to Massachusetts: namely, that his 1973 testimony had been inaccurate, indeed "perjured," at the behest of officials of the Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), State Department, and White House. The "perjury" had been contrived in order to conceal a complex "scam" by the defendant, the victim, and a third person, with Federal connivance, to defraud and embarrass the Soviet Embassy in Washington by selling it false copies of the so-called "Pentagon Papers." (See Gravel v. United States, 408 U.S. 606, 608 [1972]; United States v. Liddy, 542 F.2d 76, 78 [D.C. Cir. 1976].) The killing had actually occurred, he averred, as a result of the victim's angry belief that the defendant had cut the victim out of his rightful share of the money mulcted from the Soviets.

The defendant's motion to exclude requested, in the alternative should his former testimony be introduced, that he be allowed to subpoena and secure the attendance (with public funds) of a large number of out-of-State witnesses. These individuals were vital to his case, the defendant asserted, in order to "explain his inaccurate, former testimony at the first trial," to verify the "real reasons" behind the victim's death, and to rebut the Commonwealth's position that the defendant had recently fabricated his present version of the facts surrounding the killing.⁴ The defendant also claimed that these witnesses could testify to the "cover-up" associated with the killing, including the "promises and inducements made" to him regarding his testimony at the first trial as well as the clandestine government facilitation of his escape from prison.

Following an evidentiary hearing, the trial judge denied the defendant's motion in its entirety,⁵ and the defendant's retrial proceeded. In his opening, defense counsel presented an outline of the defendant's self-defense case that essentially tracked the defendant's 1973 testimony. Nevertheless, counsel attempted during trial to block the use of the prior testimony by arguing that it was hearsay and could be admitted as an exception only upon the Commonwealth's proof of the defendant's unavailability. See Commonwealth v. Childs, 413 Mass. 252, 260-261 (1992). That hearsay requirement could be satisfied, counsel contended, only if and when the defendant actually refused to testify, by invoking his privilege against self-incrimination when it came time for the defense to put in its case, if any. See Commonwealth v. Ortiz, 393 Mass. 523, 529-530 (1984).

The prosecutor successfully rebuffed this effort, first by citing G. L. c. 233, 20,⁶ to establish that the defendant was unavailable; but also by arguing that, in any event, the defendant's former testimony constituted an admission of a party opponent which is not governed by the hearsay rule and has no unavailability requirement. See Commonwealth v. Marley, 396 Mass. 433, 441 (1985); Liacos, Massachusetts Evidence 8.8.1 (7th ed. 1999). At no time before or during trial did the defendant or his counsel assert that the admission of the former testimony was irrelevant or would in any way violate his privilege against self-incrimination or his...