|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Supreme Judicial Court of Massachusetts,
Argued
Decided
[376
John F. Donovan, Asst. Dist. Atty., for the Commonwealth.
Before [376
[376
The
defendant Gary Franklin was tried before a Superior Court jury on indictments
charging assault with a dangerous weapon, assault and battery with a dangerous
weapon, and unlawfully carrying a revolver on his person. The defendant Robert Phifer
was tried before the same jury on indictments charging identical assault and
assault and battery offenses, possession of ammunition without a firearms
identification card, and unlawfully carrying a shotgun on his person. Before trial, both defendants made timely
motions to dismiss their indictments as being selective and racially motivated,
and to suppress certain evidence on the ground that it was obtained during
illegal searches and seizures. After a
three‑day hearing, the trial judge denied both motions.
The
defendants appealed, pursuant to G.L. c. 278, ss 33A‑33G, arguing four assignments of error: (1)
the denial of their motions to dismiss, (2) the denial of their motions to
suppress, (3) the judge's limitation of the defendants'[376 Mass. 888] attempt to cross‑examine government
witnesses to show bias, and (4) the admission of certain evidence during
trial. (FN2) This court, on its own motion, ordered direct
appellate review. We find error only in
the judge's rulings on the motions to dismiss, which placed on the defendants
too great a burden of proof and too narrowly limited the dates and nature of
crimes to be considered. (FN3) Accordingly, the motions to dismiss must
be remanded for a new hearing.
[376 Mass. 889] We summarize the pertinent facts as follows. The incidents out of which these indictments
arose occurred at the Maverick Street housing project in East Boston. That housing project and its surrounding area
had been, for almost two years prior to trial, the scene of repeated violent
confrontations motivated by racial intolerance and hatred. On August 27, 1975, at approximately 10 P.M.,
a group of several unidentified white persons stopped a tactical patrol force
cruiser which was assigned to the Maverick Street housing project. The persons told Officers Ricci and Fagone that a boy had been shot (FN4) by a black man
wearing a green shirt and gold‑rimmed glasses and that the man had run
into the housing project building at 66 Grady Court. As the officers proceeded to that address,
Officer Ricci heard what sounded to him like a shotgun blast. (FN5)
By the time the officers reached 66 Grady Court, a large crowd of white
persons had gathered in the courtyard in front.
Officer Ricci noted that the crowd was yelling and screaming and
described the scene as a frightening one with great potential for violence.
On
entering the first floor hallway of the apartment building, the police observed
the door of apartment 115, the defendant Phifer's
apartment, to be approximately five or six inches ajar. Without obtaining or requesting permission,
Officer Ricci entered the apartment, observed and seized a shotgun case which
was lying on the floor, then walked down a corridor into the bedroom and
observed and seized a pistol case which was lying on top [376 Mass. 890] of a
dresser. Mrs. Phifer
and her two children were in the apartment at the time. However, it appears that no conversation took
place. When Officer Ricci returned to
the building hallway, he saw a man coming down the stairs holding what appeared
to be the butt of a shotgun. However,
before Officer Ricci could see his face, the man turned and ran back up the
stairs.
Almost
simultaneously, Officer Ricci and the several other police officers who had
since arrived heard three shots come from above. They ran up the stairs to the third floor,
where Officer Cerundolo saw a black man wearing a
green shirt run into apartment 124. One
of the officers knocked on the door of that apartment. It was opened by someone inside. The defendant Franklin, who fit the description
of the alleged assailant, as originally reported to the police by the group of
white persons, was sitting in a chair and was placed under arrest
immediately. Officer Ricci then walked
into a bedroom, observed a mattress with a bulge in it, reached underneath and
seized a shotgun. He then pushed open
the door of another room, from which the defendant Phifer
emerged. Phifer
was dressed in the same manner as the man Officer Ricci had seen run up the
steps moments before. However, Officer
Ricci did not place him under arrest.
Instead, he told another officer to hold Phifer
while he searched the room. When Officer
Ricci came out of the room, Phifer was no longer in
the apartment.
On
arriving at the police station, Officer Ricci described the man he had seen on
the steps and later in apartment 124 to Captain Bradley and another policeman
at the station. They recognized the man
described as the defendant Phifer and, without
seeking or obtaining any warrants, accompanied Officer Ricci back to apartment
115 at 66 Grady Court. Once there, they
knocked on the door, which was opened by Mrs. Phifer. Phifer was placed
under arrest and advised of his rights.
Captain Bradley then asked Mrs. Phifer if the
police could look around the apartment.
He testified, and the judge found
[376 Mass. 891] as matter of
fact, that she consented. One hundred
and twenty‑three rounds of .22 caliber ammunition were found in
and seized from the inside of a clothes dryer in the kitchen. A .22 caliber revolver was later found
underneath Phifer's automobile, which was parked in a
lot adjacent to 66 Grady Court.
1. The Motions to Dismiss.
Franklin
and Phifer, who are both black, filed motions to
dismiss on the grounds that the prosecution of only black persons on serious
criminal charges arising out of continuous and violent racial confrontations at
the Maverick Street housing project violated their rights to equal protection
of the laws. The defendant filed six
affidavits in support of their motions and placed in evidence the testimony of
six defense witnesses. The Commonwealth
called no witnesses and offered no evidence in rebuttal. (FN6)
The
evidence presented in support of the motions to dismiss tended to show the
following. The period between April,
1975, and September, 1976, was one of extreme racial tension in East Boston. Both East Boston as a whole and the housing
project in particular were overwhelmingly white. In April of 1975, gangs of white youths began
roaming the housing project, stoning the homes of black residents, breaking
their windows, firebombing their apartments and assaulting the blacks
themselves. When asked to make arrests,
the police refused and, in some cases, did so mockingly. When the black residents sought to have
complaints issued in [376 Mass. 892] the East Boston District Court on
their own, the clerk first held hearings and then refused, although he
routinely issued complaints against black persons without hearings when such
complaints were sought by whites.
Fearful of the white gangs and afraid that the police would not protect
them, some of the black residents invited friends to their homes hoping that
their presence might provide some measure of protection. These people also became the targets of white
violence and the objects of police persecution rather than protection. (FN7)
Phifer and his family, who lived in the housing project,
and Franklin, the Phifers' nephew, directly suffered
the effects of this situation. On August
25, 1975, Mrs. Phifer heard a group of white youths,
whom she had just seen breaking the windows of another black resident's
apartment, shout, "Phifer, you're next." On August 27, 1975, Phifer
and Franklin went to the Boston office of the NAACP to ask for assistance. Edward Redd, the
executive secretary, telephoned the office of the Boston police commissioner
and was assured that the commissioner was aware of the situation and that
police protection would be provided.
Despite this assurance, a shower of rocks, bricks and bottles was thrown
against the Phifers' apartment on the night of August
27, 1975, and nine of their windows were broken.
The
defendants supplemented the testimonial evidence given by introducing records
of the findings and orders issued in the few judicial proceedings that blacks
did manage to institute during this period.
On August 31, 1975, a judge of the Housing Court of the City of Boston
issued an injunction requiring the Boston police to provide twenty‑four
hour a day protection for residents of [376
Mass. 893] the East Boston housing
project. The order issued on a finding
that the police had neither discharged their responsibility to maintain law and
order nor taken reasonable measures to protect
black residents from white violence.
(FN8) The violence and unequal
treatment persisted nevertheless. In May
of 1976, black housing project residents found it necessary to obtain a Housing
Court order authorizing the issuance of complaints against eight white
individuals who had stoned their homes.
(FN9) As a result of these
complaints, two of the youths who testified against the defendants at the
instant trial (FN10) were ordered to vacate the housing project because of
their continued attacks against black residents. At about the same time, black housing project
families brought a Federal civil rights action against several of the same
white youths and others. In that action,
the judge found that the youths "acting in concert, engaged in the
throwing of rocks and other missiles at and into premises occupied by some of
the plaintiffs and vilified several of the plaintiffs with racial slurs and
insults. At least on one occasion
certain of the defendants threatened to drive black tenants out of East Boston
and on another occasion several unidentified persons attired in the infamous
costume of the KKK were observed . . . ." (FN11)
The
defendants allege three errors with respect to the judge's denial of their
motions to dismiss. First, that the
judge imposed on them an incorrect burden of proof. Second, that he incorrectly limited the
incidents that he would consider relevant to those occurring on August 25
through 27 of 1975 and involving the use of firearms. Third, that he abused his discretion in
refusing to believe [376 Mass. 894] uncontradicted
testimony given by two defense witnesses.
We agree with the defendants' first two contentions.
Burden of Proof.
[1] [2]
[3] [4] [5] It is well established that the Fourteenth Amendment to the United
States Constitution does not countenance arbitrary or unequal application of
impartial laws. Commonwealth v. King,
373 Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
(FNA) 372 N.E.2d 196 (1977). Yick Wo v. Hopkins,118 U.S. 356, 373‑374, 6 S.Ct. 1064, 30 L.Ed. 220
(1886). If government can effect a
discrimination against any class of people through selective implementation of
its laws, then "the insertion of provisions to guard the rights of every
class and person in . . . (our National
Constitution) was a vain and futile act."
Yick Wo v. Hopkins,
supra at 362, 6 S.Ct. at 1068. It is equally well established, however, that
prosecutors and other law enforcement officers enjoy considerable discretion in
exercising some selectivity for purposes consistent with the public interest
(e. g., forgoing prosecution in the interest of gaining a cooperative
witness). Commonwealth v. King, supra at
‑‑‑, (FNB) 372 N.E.2d 196. Oyler v. Boles, 368
U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446
(1962). Because we presume that criminal
prosecutions are undertaken in good faith, without intent to discriminate, the
defendant bears the initial burden of demonstrating selective enforcement. See MANNING V. MUNICIPAL COURT OF THE ROXBURY
DIST., 372 MASS. ‑‑‑,
361 N.E.2D 1274 (1977)(FNC). In order to meet this burden, the defendant
must present evidence which raises at least a reasonable inference of
impermissible discrimination.
Commonwealth v. King, supra at ‑‑‑
‑ ‑‑‑, (FND) 372 N.E.2d
196. United States v. Scott, 521 F.2d
1188 (9th Cir. 1975). United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974). United States v. Berrigan,
482 F.2d 171 (3d Cir. 1973). The
defendant must show that a broader class of persons than those prosecuted has violated
the law, Ah Sin v. Wittman, 198 U.S. 500, 25 S.Ct. 756, 49 L.Ed. 1142 (1905),
that failure to prosecute was either consistent or deliberate, Oyler v. Boles,supra; Edelman v.
California, 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387 (1953), and that the decision not to prosecute
was based on an impermissible classification such as race, religion, or
sex. Commonwealth[376 Mass. 895] v. King,supra. Commonwealth v. Beneficial Fin. Co.,
360 Mass. 188, 365, 275 N.E.2d 33 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683 and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689 (1972).
[6] [7]
The judge in the case before us stated the defendants' burden of proof to be
"far heavier than making a prima facie case . . . something in between the fair preponderance
of the evidence and proof beyond a reasonable doubt." In doing so, he erred. We stated as dictum in King and now we hold
that once a defendant has raised a reasonable inference of selective
prosecution, the Commonwealth must rebut that inference or suffer dismissal of
the underlying complaint. At that point,
and where it appears that the government is in ready possession of the facts,
it is not unreasonable to require the government to come forward with evidence
and to make its records and evidence available.
See United States v. Crowthers, 456 F.2d 1074,
1078 (4th Cir. 1972).
Time and Type of Crime Limitations.
Although
the judge heard evidence spanning a year and a half and involving numerous
types of criminal offenses, he ruled that he would consider evidence only of
crimes involving firearms committed on the three days preceding the defendants'
arrests. While we recognize that a trial
judge has broad discretion as to the admissibility of evidence concerning
collateral matters, see Commonwealth v. Franklin, 366 Mass. 284, 289, 318
N.E.2d 469 (1974), and cases cited, it is our opinion that, in this case, where
the proffered evidence related directly to the constitutional issue, the judge
limited the evidence too narrowly.
(FN12)
[8] [9]
[10] A claim of selective prosecution is predicated on a showing that others
who are situated similarly to the defendant remained unprosecuted
for similar conduct. [376 Mass. 896] Commonwealth v. King,
supra. Yick Wo v. Hopkins, supra.
United States v. Scott, supra.
United States v. Berrios, supra. We are fully aware that most selective
prosecution cases involve discriminatory enforcement of a single statute or
common law prohibition. However, we do
not consider that fact as justification for the narrowness of the judge's
ruling. We note at the outset that the
defendants were charged with assaults and assaults and batteries with dangerous
weapons. These are crimes identical to
those which allegedly were committed by whites.
That fact alone should have lent at least partial relevance to much of
the disregarded evidence. However, we
are willing to go further and hold that evidence of all types of violent crimes
involving dangerous weapons, regardless of the nature of the weapons used, was
relevant on all of the defendants' indictments.
We grant that there are common sense distinctions between using firearms
and using rocks and firebombs. However,
we perceive both legal and common sense similarities as well. When executed with the requisite venom, all
are crimes of violence involving the possibility of death or serious bodily
injury.
We
conclude that the time limitations imposed were similarly too narrow. We are aware of no court that has so severely
restricted the evidence that it would consider on a claim of selective
prosecution. In fact, courts
traditionally have done quite the opposite.
See United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (evidence covered
1967‑1970); United States v. Crowthers, supra,
(six‑month period examined); United States v. Robinson, 311 F.Supp. 1063 (W.D.Mo.1969) (evidence of illegal government
wiretapping covered period from 1940 to 1966).
In the circumstances shown here, we do not think that the defendants
should have been limited in proof to incidents of failure to arrest occurring
on the same day or within a few days of their own arrests. The defendants demonstrated a two‑year
period of racial confrontation in the Maverick Street housing project, during
which many incidents[376 Mass. 897]
of violence occurred. They also
alleged that the police, prosecutors and court officials assigned to work in
that area insulated whites from being punished for their participation in those
incidents. Claims of selective
prosecution implicate the conduct of all State officers charged with enforcing
the criminal laws. Accordingly, we hold
that all of the evidence which the defendants introduced, beginning with events
occurring in April of 1975, and continuing right through to the day of the
defendants' hearings, was relevant on their motions to dismiss. (FN13)
Uncontradicted Testimony.
In
attempting to comply with the judge's time and type of crime limitations, the
defendants produced evidence of two separate incidents. One of those incidents is not relevant to
this appeal. (FN14) The other involved a white man who allegedly
brandished a rifle at a group of black residents and their white friends in a
housing project courtyard on the evening of August 26, 1975. Two witnesses testified that the man was
cursing and shouting racial epithets and that he appeared to be either crazy or
drunk. The police arrived in answer to a
call some ten or fifteen minutes into the incident. However, they made no attempt to take the
man's rifle away. Instead, they told the
crowd to go home. When one of the
witnesses protested and asked the police to take the gun away, they did. However, they returned it a few minutes later
and escorted the man home without arresting him. The Commonwealth offered no evidence to
contradict the witnesses' testimony. The
judge nonetheless refused to believe it, finding it inherently incredible in
light of the existing tense situation and its potential for violence.
[11] [12]
The defendants argue that the egregiousness of the alleged police conduct
involved should not insulate it [376
Mass. 898] from judicial
review. They maintain that the judge's
ruling, "if sustained, would leave . . .
(the defendants) in the unenviable position of having been so badly
wronged that they are denied any remedy . . . ." Although there is some force to these
arguments, we are unable to find any error.
The credibility of witnesses' testimony is within the province of the trier of fact. Davis
v. Boston Elevated Ry., 235 Mass. 482, 502, 126 N.E.
841 (1920). The rule is the same even
though the proof offered is in support of a constitutional claim, and even
though the evidence is uncontradicted. Although it can be argued that a logical inference
to be drawn from the lack of rebuttal is that the witnesses' testimony was
true, we are unable to label that as the only logical inference. Witness credibility is a factor, and in the
circumstances it is for the trial judge's assessment.
2. The Motions to Suppress.
There are
three separate searches involved in this case.
The defendants argue that the judge erred in refusing to suppress
evidence obtained in each of them. We do
not agree and shall discuss the constitutional propriety of each search
separately.
The First Search of Apartment 115.
The judge
upheld Officer Ricci's seizure of the shotgun and pistol cases on the ground
that they were in plain view. The
defendants do not dispute this. Rather,
they argue that Officer Ricci lacked justification for initially entering the
apartment.
[13] [14] It
is true that the plain view doctrine requires that there be prior justification
for the police intrusion in the course of which incriminatory evidence is
inadvertently discovered. Commonwealth
v. Walker, 370 Mass. 548, ‑‑‑, (FNE)
350 N.E.2d 678 cert. denied, 429 U.S. 943, 97 S.Ct.
363, 50 L.Ed.2d 314 (1976). Commonwealth
v. Forde, 367 Mass. 798, 808, 329 N.E.2d 717 (1975)
(Hennessey, J., concurring). It is also
true that when a search is conducted without a warrant, the burden is on the
Commonwealth to show that the search falls within the class of permissible
exceptions. Commonwealth v. Saia, 372 Mass. ‑‑‑, ‑‑‑,
(FNF) 360 N.E.2d 329 (1977). Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974). [376 Mass. 899] However, we think that the facts of this search place it within
the class of exceptions. We conclude
that there were both probable cause and exigent circumstances justifying the
initial entry.
[15] [16]
Although the people with whom Officer Ricci spoke were not shown to be reliable
informants, we do not consider that fact dispositive. In Aguilar v. Texas, 378 U.S. 108, 112‑116,
84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United
States Supreme Court held that, where there is sufficient corroboration of
initially unreliable information, the corroboration and initial information
could combine to provide the requisite probable cause. See Commonwealth v. Stevens, 362 Mass. 24,
283 N.E.2d 673 (1972). We conclude that
the information provided by the group, the information provided by others along
the way, and the shotgun blast heard by Officer Ricci combined to do just
that. The defendants argue that, even if
the police were justified in entering the outer door of the apartment building,
they were not justified in singling out apartment 115 for search. However, we conclude that, given the speed
with which events were occurring, and the potentially dangerous nature of those
events, the open door of apartment 115 sufficiently distinguished that
apartment to make it at least of initial interest to the police. When Officer Ricci observed the shotgun case
immediately on opening the door, he had the right to search further to find the
person who might be armed with the contents of that case.
[17] We
discern the requisite exigency justifying this warrantless
search in the fact that the police were essentially in hot pursuit. See Warden, Md. Penitentiary v. Hayden, 387
U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Moreover, the alleged crime was one of
violence, the alleged suspect was one who was armed, and not only was there a
substantial likelihood that the suspect would escape if not apprehended, but
there was no indication that the violence itself had come to a halt. See Commonwealth v. Walker, supra. In such circumstances, it would be
impracticable for the police to obtain a warrant, and we would speak in
disregard of the safety [376 Mass.
900] of the police and others if we
were to conclude that a warrant was necessary.
Search of Apartment 124.
The judge
denied the defendant Phifer's motion to suppress the
shotgun seized in apartment 124 on the ground of lack of standing. The judge found that Phifer
had no proprietary interest in that apartment, that he was not present during
the search (FN15) and that, even if he were present, his status was that of a
trespasser. We cannot agree with the
judge's latter two rulings.
[18] [19]
Although Phifer testified that he was never in the
apartment, the prosecution presented ample evidence to the contrary. (FN16)
We think that to allow the prosecution the benefit of its witnesses' testimony for purposes of
establishing probable cause and then to ignore that testimony when it might aid
the defendant in establishing standing would be inconsistent with this court's
general effort to insure fairness at every stage of a defendant's trial. We note that similar concerns prompted the
United States Supreme Court to confer on defendants automatic standing in
possession cases. See Jones v. United
States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697
(1960). The judge's alternative ruling
that Phifer's status in apartment 124 was trespassory at best is entirely unsupported by the
record. In fact, there was evidence that
the apartment was occupied by a friend of the Phifers
and that the friend was in the apartment at the time the police entered. Because we conclude that Phifer
was entitled to bring this motion to suppress, we turn to the merits of the
search and seizure.
[376 Mass. 901] [20] [21] This court has held that a warrantless
search must be tied strictly to and justified by the circumstances that
rendered its initiation permissible.
Commonwealth v. Silva, 366 Mass. 402, 318 N.E.2d 895 (1974). The defendant Phifer
maintains that the only justification for searching apartment 124 after
Franklin's arrest was to look for the other man who was seen earlier descending
the stairs. THE DEFENDANT PHIFER CITES SELECTMEN OF FRAMINGHAM V. MUNICIPAL COURT OF
THE CITY OF BOSTON, 373 MASS. ‑‑‑, 369 N.E.2D 1145 (1977)(FNG)
in support of this contention. However,
we think that the facts of that case render it inapposite to the one before us
today. A man was found shot outside his
home. He stated that he had been shot by
an unknown assailant who was also outside.
The doors and windows of his home were completely secured. However, after the man was taken to the
hospital, the police broke into the home and searched it. We stated in our opinion in that case that
"(t)here was no emergency, no hot pursuit of a fleeing felon, no imminent
removal or destruction of evidence . . . .
The hypothesis that the assailant might have taken refuge in the house
may be more than 'a flight of imaginative fancy.' . . .
But it falls far short of establishing urgent need to search dresser
drawers in a second floor bedroom."
Id. at ‑‑‑, (FNH) 369 N.E.2d
at 1147, quoting from Commonwealth v. Hawkes, 362
Mass. 786, 789, 291 N.E.2d 411 (1973).
The same cannot be said of the situation currently before us. In fact, we view the facts of the instant
situation as placing it squarely within the rule in Warden, Md. Penitentiary v.
Hayden, supra.
In Hayden,
the police were informed that an armed robbery had taken place. They were further informed that the suspect
had entered a certain house less than five minutes before the police arrived
there. The Supreme Court held that the
police acted reasonably in entering the house and conducting a search for the
suspect and any weapons which he might use against them. In his majority opinion, Mr. Justice Brennan
stated: "The Fourth Amendment does not require police officers to [376 Mass. 902] delay in the course of an investigation if to do so would gravely
endanger their lives or the lives of others.
Speed here was essential, and only a thorough search of the house for
persons And weapons could have insured that Hayden was the only man present and
that the police had control of all weapons which could be used against them or
to effect an escape" (emphasis supplied).
387 U.S. at 298‑299, 87 S.Ct. at
1646. The only distinction that we
perceive between the case before us and Hayden is that the latter involved
searching the inside of a basement washing machine while the former involves
investigating an obvious and somewhat ominous bulge in a mattress. In our view, that distinction renders it even
more clear that the police conduct in this case was reasonable.
Second Search of Apartment 115.
We state
at the outset that this second search of the Phifers'
apartment cannot be sustained under either Warden, Md. Penitentiary v. Hayden,
supra, as a hot pursuit, or under Chimel v.
California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d
685 (1969), as a search incident to arrest.
Rather, its legality turns on the validity of Mrs. Phifer's
consent.
[22] The
defendants argue that Phifer's arrest was illegal,
because the police failed to obtain a warrant.
The defendants further argue that Mrs. Phifer's
consent to the search was the direct and immediate consequence of the
unauthorized arrest and should be invalidated as the " 'fruit' of official
illegality." Wong Sun v. United
States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d
441 (1963). We do not agree that Phifer's arrest was illegal. Once again our ruling hinges on a finding of
both probable cause and exigency.
Officer
Ricci testified that he saw Phifer both on the stairs
and in apartment 124. Thus, he was at
least hypothetically able to give a description to the two officers at the
police station. Those officers testified
that they knew the defendant Phifer and where he
lived and that they were able to identify him as the man whom Officer Ricci had
described. The judge believed the
officers' testimony. Given that, we hold
on the facts that there existed probable[376
Mass. 903] cause.
We find the requisite exigency in the fact that both Phifer
and the handgun remained at large. The
defendants maintain that there was no longer any danger of violence at the
housing project, because the crowd had been dispersed and police officers were
stationed in the area. However, we are
unwilling to fashion arrest, search and seizure laws on so tenuous an
assertion. The defendants had already
presented ample evidence during their pretrial hearing of the consistently
volatile situation existing at the housing project and of the police failure to
control it. We can only conclude that
the defendants urge lack of exigency solely because Phifer
is black and was therefore unlikely to start another eruption. However, if we tied the hands of the police
in this case, we would be tying their hands in all similar cases. Although Phifer may
have had no intention of using his weapon, another defendant in similar
circumstances in another case may have other designs. We cannot base our search and seizure rulings
on so speculative and intangible a factor as personality.
Because we
hold that Phifer's arrest without a warrant was
legal, we have no reason to tamper with the judge's ruling. Although Mrs. Phifer
denied having offered her consent, Captain Bradley testified that she did so
freely and voluntarily and without any coercion. See Commonwealth v. Walker, supra ; Schneckloth v. Bustamonte, 412
U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973). The judge obviously, as was his
privilege, believed Captain Bradley's testimony.
3. Limitation of Defendants' Cross‑Examination.
The
Commonwealth's case against each of the defendants depended principally on the
testimony of several young white witnesses.
There was evidence to show that these witnesses had been involved in
numerous attacks against blacks living in the Maverick Street housing
project. It was thus part of defense
counsel's strategy to show, through cross‑examination, that the
witnesses' testimony was fabricated and motivated by racial hostility and
prejudice.
[376 Mass. 904] [23] [24] This court has consistently held that cross‑examination
for the purpose of demonstrating bias is a matter of right. See Commonwealth v. Ahearn, 370 Mass. 283, (FNI) 346 N.E.2d 907 (1976); Commonwealth v. Carroll, 360
Mass. 580, 276 N.E.2d 705 (1971). Its
denial or significant diminution calls into question the very integrity of the
fact‑finding process. Berger v.
California, 393 U.S. 314, 315, 89 S.Ct. 540, 21
L.Ed.2d 508 (1969). However, although
the right of cross‑examination in this area is one to be jealously
guarded, it is susceptible of some limitation.
The most common instance of acceptable limitation occurs when the
evidence sought to be introduced would merely be cumulative of that which is
already before the jury.
The
defendants argue that they were precluded from cross‑examining the
prosecution's witnesses about hostility toward blacks living in the housing
project, about attempts to cause blacks to move out of the housing project, and
about connections with an organization known as the Junior KKK. The defendants contend that the judge ruled
that testimony of racial hostility was relevant only to the extent that it
supported the defendants' claim of self‑defense. Close examination of the entire record
reveals these assertions to be based on rulings taken out of context.
Although
there were instances in which questions designed to elicit racial bias were
excluded, there were many more in which they were allowed. Michael Everett and William Marangiello specifically admitted to having thrown rocks
and other projectiles at the apartments of black residents of the Maverick
Street housing project. Both witnesses
were allowed to respond to questions concerning whether they had any objections
to black families living in the housing project, and, not surprisingly, they
responded that they had none. Timothy Bibbo was asked on more than one occasion whether he had
thrown rocks or other missiles at the windows of blacks living in the housing
project. He stated that he had not. Both he and Marangiello
were also asked whether they were members of the Junior KKK
and whether they had observed any members of that organization roaming around
the housing project. They answered no to
the above inquiries. [376 Mass. 905] Moreover, defense counsel introduced in evidence prior criminal
convictions of all three witnesses involving assault and battery, the malicious
destruction of property, and the malicious threatening of a person (who
happened to have the same surname as one of the defense witnesses).
[25] In
such circumstances, we cannot agree that the defendants were effectively
precluded from showing that the testimony of government witnesses was the
product of racial animus. Nor do we
think that the defendants were prevented from presenting to the jury their
theory that the witnesses brought charges against the defendants as part of
their concerted effort to drive blacks out of the housing project. In fact, after reviewing the record, we find
it inconceivable that the prejudices and possible motives of these prosecution
witnesses could have gone unnoticed by the jury. Even the assistant district attorney referred
to the witnesses as "project punks" and "thugs" when giving
his closing statement.
It is thus
our opinion that, even assuming the unexpected, i.
e., that the witnesses would have answered the excluded questions in such a way
as to support the defendants' contentions, any additional evidence of racial
bias would have been cumulative of that which was already quite apparent. Given that, it was within the judge's
discretion to limit the defendants' cross‑examination.
4. Introduction of Certain Evidence During Trial.
The
defendants finally aver that the judge erred in admitting in evidence the prior
bad conduct of a defense witness. The
evidence consisted of testimony that Mrs. Phifer held
a switchblade knife in her hand during an incident that occurred on the evening
preceding the defendants' arrests and of the introduction of the switchblade
knife itself.
[26] The
defendants contend that specific acts of prior misconduct, not material to the
case in which a witness testifies, cannot be shown through the testimony of
impeaching witnesses. We do not dispute
the defendants' contention. However, the
testimony in question did not arise in the circumstances that the defendants
describe. It arose [376 Mass. 906] during
defense counsel's attempt to discredit a government witness by showing that,
rather than dispersing the angry white crowd that had gathered during the
incident in question, the police officer unwarrantedly picked on Mrs. Phifer instead.
(FN17) Although we concede that
the witness's answer was somewhat unresponsive, we are of the opinion that
defense counsel did open the subject up.
Even if the judge had excluded the answer as unresponsive to cross‑examination,
the substance of that answer would have been an appropriate subject for inquiry
during the prosecutor's redirect examination.
Accordingly, we conclude that the judge acted appropriately in allowing
the answer to stand when given.
[27] [28]
On redirect examination, the judge allowed the switchblade to be marked as an
exhibit. He viewed it as explanatory of
the testimony elicited on cross‑examination. This court has held that the scope of
redirect examination rests within the sound discretion of the trial judge, see Cabeceiras v. Gauthier, 362 Mass. 887, 291 N.E.2d 397
(1972), and we do not think that the judge exceeded the bounds of his
discretion in this instance. Introduction
of the knife was corroborative evidence that the government witness was telling
the truth on cross‑examination.
Moreover, given that Mrs. Phifer's possession
of the knife had already been established, we cannot say that the prejudicial
effect of introducing the knife itself outweighed its corroborative value.
The cases
are remanded for further proceedings in accordance with this opinion. We expect the judge presiding over the
defendants' new hearing to consider relevant evidence and place reasonable limitations
on the nature [376 Mass. 907] and dates of the episodes that the
defendants may introduce. When and if
the judge hears credible evidence which raises a reasonable inference of
impermissible discrimination, he must require the Commonwealth to come forward
with evidence to rebut that inference or suffer dismissal of the underlying
indictments. (FN18) If, after the new hearing on the defendants'
motions to dismiss, those motions are properly denied, the judgments of
conviction stand affirmed.
So
ordered.
FN1.
Commonwealth vs. Robert Phifer.
FN2. Neither in these appeals, nor in any
motion for new trial addressed to the judge, did the defendants raise the issue
whether the instructions to the jury should have permitted them to consider
self‑defense or defense of others as to the charges of illegal gun
carrying. Although the defendants
seasonably raised self‑defense as to the assault and the assault and
battery charges, they did not take the same measure as to gun carrying, either
by requests for instructions, or objections or exceptions to the charge to the
jury.
Thus, since
these issues are not before us, we express no opinions here as to the questions
whether the evidence warranted inferences that there was such a direct and
immediate threat of death or serious injury to either or both of the defendants
or others as to justify the momentary carrying of firearms; whether it was the
Legislature's intent that it shall be a criminal offense, under G.L. c. 269, s 10(A ), for an unlicensed person to carry a
firearm, where such "carrying" is caused by a necessity to defend the
carrier or others against an immediate threat of serious injury or death; and
whether it would be valid under the United States Constitution (e. g.,
Amendments 8 and 14) or related provisions of the Massachusetts Constitution to
hold c. 269, s 10(A ), applicable to conduct thus directly motivated by self‑defense
or defense of others. See Commonwealth
v. Jackson, 369 Mass. 904, ‑‑‑, 344 N.E.2d 166 (1976) (Mass.Adv.Sh. (1976)
735, 749) and Commonwealth v. McQuoid, 369 Mass. 925,
‑‑‑, 344 N.E.2d 179 (1976) (Mass.Adv.Sh. (1976) 763, 766) upholding the Facial
constitutionality of the statute. See
also Commonwealth v. Seay, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
383 N.E.2d 828, 831‑833 (1978) (Mass.Adv.Sh. (1978) 2994, 2997‑3002), for a
discussion of gun carrying by a defendant in his dwelling as contrasted to the
same conduct outside the dwelling.
FN3.
We use the term "error" here necessarily but reluctantly, since the
judge was presented with a constitutional concept (discriminatory enforcement)
as to which there were no Massachusetts precedents for his guidance. Commonwealth v. King, 373 Mass. ‑‑‑,
‑‑‑, 372 N.E.2d 196 (1977) (Mass.Adv.Sh. (1977) 2636), which deals with the issue, was
decided by this court after the trial of the instant cases. The judge was faced with wide offers of
collateral proof, if a matter of constitutional import can ever be called
collateral, and he had to set some limits to that proof. The judge's deep concern for the correctness
of his rulings, in light of the mandatory sentences involved, is shown by his
statements in the record, particularly the following: "That whole
situation, it seems to me, is utterly repugnant to our ideas of a free society
under the law. If there were a way in
which I could place these cases on file or suspend them, I would do so."
FN4.
The boy who allegedly was shot was government witness Michael Everett.
FN5.
Timothy Bibbo, another government witness, testified
that he felt a tingle on his leg as the shotgun blast occurred. Presumably, some of the pellets from the
defendant Phifer's shotgun struck him. However, the doctor reading Bibbo's medical report testified that Bibbo
suffered no lesions, wounds, or injuries as a result of the alleged blast.
FN6.
The court called Officer Ricci briefly to testify with respect to an incident
related by the defendant Phifer and his wife. The incident involved William Marangiello, one of the government witnesses, and allegedly
occurred on August 27, 1975. The Phifers testified that Marangiello
was holding a handgun while standing with a group of other white youths in
front of 66 Grady Court. They further
testified that Officer Ricci saw the handgun but made no attempt to take it
away from Marangiello. Instead, he told Marangiello
to put it away and that the police would take care of the situation. Officer Ricci denied that the incident ever
occurred, and the judge believed his denial.
FN7.
All of this evidence concerning 1975 and 1976 was presented by the
defense. The trial judge made no
findings as to what he found to be the actual circumstances, since he ruled
that most of this evidence was too remote to be considered.
FN8.
The proceeding is described in Police Comm'r of
Boston v. Lewis, 371 Mass. 332, 357 N.E.2d 305 (1976) (Mass.Adv.Sh. (1976) 2590).
FN9.
Boston Hous.
Auth. v. Marangiello, Housing Court No. 04957
(filed August 25, 1976).
FN10.
William Marangiello and Michael Everett.
FN11.
Swan v. Marangiello, No. 76‑2312‑M (D.Mass. July 1, 1976).
FNa. Mass.Adv.Sh. (1977)
2636, 2652‑2653.
FNb. Mass.Adv.Sh. (1977)
at 2652.
FNc. Mass.Adv.Sh. (1977)
679.
FNd. Mass.Adv.Sh. (1977)
at 2655‑2656.
FN12.
This is not to say that broad discretion does not remain with the judge even in
dealing with the constitutional concept.
Reasonable limits as to the time and nature of episodes must be set and
should be determined by considerations of relevancy.
FN13.
The evidence indicated that the pattern of relevant events began in April of
1975. However, it is possible that
evidence at a new hearing could show relevance of episodes which occurred prior
to that date.
FN14.
See n.4, Supra.
FNe. Mass.Adv.Sh. (1976)
1657, 1666.
FNf. Mass.Adv.Sh. (1977)
349, 353.
FN15.
The United States Supreme Court has held that the rightful presence of a
defendant at the place of search and seizure is a sufficient source of standing
in itself. See Jones v. United States,
362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697
(1960). The Court recently affirmed this
position in Brown v. United States, 411 U.S. 223, 227 n.2, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).
FN16.
This contradiction in testimony might well have been avoided had Phifer been advised that his testimony during the pretrial
hearing could not be used as evidence against him at trial. See Simmons v. United States, 390 U.S. 377,
88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). No request that Phifer
be so advised was made by counsel.
FNg. Mass.Adv.Sh. (1977)
2541.
FNh. Mass.Adv.Sh. (1977)
at 2544.
FNi. Mass.Adv.Sh. (1976)
1256.
FN17.
The following exchange took place on cross‑examination: Counsel for the
defendant : "And it was at that time that you went over to Mr. Phifer?" The
witness : "I didn't go over to Mr. Phifer,
sir. I went to Mrs. Phifer." Counsel for the defendant : "Why didn't
you disperse this crew?" The
witness : "We were attempting to sir." Counsel for the defendant : "Well, then,
did you go to Mrs. Phifer or did you try to disperse
the crew?" The witness : "My
attention was drawn to a knife in Mrs. Phifer's
hand." Mr. Baler :
"Objection." The judge :
"I'm going to allow it in. You were
pursuing the situation and opened it up."
FN18.
The judge's rulings either denying or allowing the motions to dismiss will be
subject to any further appellate rights which may arise during the course of
the defendants' new hearing. See G.L. c. 278, s 28E.