State v. Myers

• Decision Date: 28 January 1976
• Docket Number: No. 75-181-C,75-181-C
• Citation: 115 R.I. 583,350 A.2d 611
• Parties: STATE v. Herbert E. MYERS, Jr. A.
• Court: Rhode Island Supreme Court

Page 611

350 A.2d 611

115 R.I. 583

STATE v. Herbert E. MYERS, Jr.

No. 75-181-C.A.

Supreme Court of Rhode Island.

Jan. 28, 1976.

[115 R.I. 593] Julius C. Michaelson, Atty. Gen., William Granfield Brody, Special Asst. Atty. Gen., for plaintiff.

Bevilacqua & Cicilline, John F. Cicilline, Providence, for defendant.

OPINION

JOSLIN, Justice.

This case is here on the appeal of Herbert E. Myers, Jr., who was found guilty of first degree murder by a Superior Court jury and was sentenced to life imprisonment. He assigns several errors, the principal being the trial justice's refusal to permit unlimited inquiry into the juvenile records of two witnesses without whose testimony his conviction would have been most unlikely, if not impossible.

The facts relevant to the allegedly erroneous exclusion of the juvenile records may be briefly stated. Brian E. Mastrofine and Donald J. Kelley, both juveniles, were at defendant's home in Providence on August 25, 1974, when his sister complained of mistreatment by her husband, the decedent. Thereupon, defendant, accompanied by Mastrofine and Kelley, drove in an automobile to the decedent's residence. Upon arrival, defendant and Kelley called the decedent's name. After several minutes the decedent appeared carrying a crowbar, whereupon defendant allegedly pulled a gun from his belt and shot at him. At that point, according to the state's testimony, decedent, followed by defendant, fled into an adjoining alleyway and disappeared from sight. Several shots were heard, then defendant reappeared, gun in hand, and said: 'Let's get out of here.' The decedent's body was later found in the alleyway. The defendant denied shooting the decedent and insisted that the fatal shots had been fired by Kelley.

The defendant argues that he should have been permitted to use Mastrofine's and Kelley's Family Court adjudications in order to impeach their credibility and he asserts that only in that way was it possible to provide the jury with a satisfactory basis for evaluating the conflicting versions of the killing. The trial justice acceded in part to defendant's request, allowing the use of evidence directly related to the incident out of which the murder charge against defendant grew or to any charge that had been brought against either Mastrofine or Kelley subsequent to the date of the homicide. His refusal to permit disclosure of any other adjudications is advanced by defendant as his principal ground for reversal.

At the root of the trial justice's exclusionary ruling is G.L.1956 (1969 Reenactment) § 14-1-40 which provides that:

'No adjudication upon the status of any child in the jurisdiction of the court shall operate to impose any of the civil disabilities ordinarily resulting from a conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction, nor shall any child be charged with or convicted of a crime in any court, except as provided in this chapter. The disposition of a child or any evidence given in the (Family) court shall not be admissible as evidence against the child in any case or proceeding in any other court, nor shall such disposition or evidence operate to disqualify a child in any future civil service application, examination or appointment.'

Language of similar import in statutes of other jurisdictions has customarily been construed as evidencing a clear and unmistakable legislative intent to provide for the confidentiality of juvenile records and to prohibit their use irrespective of whether the person whose credibility is being attacked is the defendant himself or a prosecution or defense witness. Woodley v. State, 227 Ind. 407, 408-09, 86 N.E.2d 529, 529-30 (1949) (defendant as witness); State v. Kelly, 169 La. 753, 755-58, 126 So. 49, 50-51 (1930) (prosecution witness); Commonwealth v. Katchmer, 453 Pa. 461, 463-66, 309 A.2d 591, 593-94 (1973) (defense witness). Moreover, that prohibition is generally held to apply to criminal trials in courts of general jurisdiction, particularly if the controlling statute, like that in this state, specifically so provides. State v. Williams, 473 S.W.2d 388, 389-90 (Mo.1971); State v. De Paola, 5 N.J. 1, 17-18, 73 A.2d 564, 573 (1950). ¹

All of these cases, however, antedate Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and it is undoubtedly for that reason that the main thrust of defendant's argument is directed not at how our statute should be construed, but to whether in light of Davis the limitation imposed upon the scope of his cross-examination of Mastrofine and Kelley deprived him of the right of confrontation guaranteed by the sixth amendment of the Federal Constitution and by art. I, sec. 10 of our own Constitution.

Thus, defendant contends that in the Davis case the Court, in substance, held that the sixth amendment's guarantee of confrontation connotes something more than the right to face witnesses; that its essential purpose is to secure the opportunity of cross-examination, that is, an opportunity for an examination not only to test perceptions and to probe for reliability, but also to discredit witnesses; and that when so conceptualized the right of confrontation supersedes the state's interest in preserving the anonymity of a juvenile offender.

But the state here counters-and Mr. Justice Stewart states in his concurring opinion at 321, 94 S.Ct. at 1112-13, 39 L.Ed.2d at 356-tnat the cross-examination in the Davis case was designed solely to establish the possibility of the witness' bias and prejudice, and that the Court neither held nor suggested that '* * * the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.'

Whether Mr. Justice Stewart's concern was that the majority opinion should not be read as permitting the use of a juvenile record as a general impeachment of a witness' character as a truthful person, or whether instead it was merely to underscore his judgment that their holding is limited to allowing impeachment by demonstrating a witness' bias, prejudice, or ulterior motive is unclear. His opinion thus provides little aid in resolving the parties' disagreement about the parameters of the majority opinion, a dispute mirroring that among those courts which have considered the question. Compare State v. Deffenbaugh, 217 Kan. 469, 471, 536 P.2d 1030, 1033-34 (1975) (apparently construing Davis to apply to general impeachment of a witness' credibility), with Commonwealth v. Ferrara, -- Mass. --, --, 330 N.E.2d 837, 840-43, and State v. Brown, 132 N.J.Super. 584, 585-87, 334 A.2d 392, 393-94 (1975) (both interpreting Davis to pertain only to impeachment by showing bias or prejudice).

We can, of course, enter the lists and by exploring Davis' nuances attempt to forecast how the Court will ultimately decide whether the confrontation clause requires that an accused be allowed to impeach an adverse witness by using prior juvenile adjudications reflecting adversely on his credibility, that is to say adjudications which, had they been for offenses committed by an adult, would be punishable by death or imprisonment in excess of 1 year, or involve dishonesty or false statements regardless of the punishment. See Fed.R.Evid. 609(a). But that exercise would at best be speculative, and might result, as it has in the past, in our adopting a view at variance with that ultimately selected by the Supreme Court. See State v. Soroka, 112 R.I. 392, 398-401, 311 A.2d 45, 48-50 (1973) (search incident to an arrest for a minor disdemeanor); In re Holley, 107 R.I. 615, 618-21, 268 A.2d 723, 725-27 (1970) (right to counsel at a pre-indictment lineup). An alternate and seemingly preferable course calls for us to decide the case on our view of the extent of the right of confrontation guaranteed by our State Constitution which tracks the language of the comparable guarantee in the Federal Constitution. ²

Under this approach it appears to us that the Davis rationale reaches beyond its immediate factual confines. That rationale stresses the traditional role of cross-examination as the principal vehicle for testing the 'believability of a witness and the truth of his testimony' and for providing a defendant in a criminal case with an opportunity to discredit a witness by introducing evidence of his prior criminal record. Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at 1110, 39 L.Ed.2d at 353.

To refuse this defendant that opportunity might result in denying him the only available means of challenging-and the jury a way of evaluating-the truthfulness of two witnesses whose testimony played a crucial role in his conviction. We recognize that the Legislature out of its solicitude for the future well-being of our youth and in order to protect minors from the stigma which attaches to a...