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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. Hicks, 377
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
[377
Charles F. Dalton, Jr.,
Harvey Brower, Lawrence, for Perley
J. Witham.
Patrick J. Riley, Asst. Dist. Atty.,
Before [377
BRAUCHER, Justice.
[1]
Convicted of murder in the first degree, robbery, and confining or putting in
fear for the purpose of stealing, the three defendants appeal pursuant to G.L. c. 278, ss 33A‑33G. In twenty‑four days of trial they claimed
254 exceptions, and they assigned 217 errors but argued only ten. We treat the assignments of error not argued
as waived. S.J.C.
Rule
The crimes
were committed
We
summarize the evidence. The victim,
Norman Welch, a florist, died between 7 and
The two
principal Commonwealth witnesses were Jean Eaton and Bert Abrahams. Eaton testified that Hicks, Marshall and
another man came to her house about 6:30 or 7 P.M., and that Hicks asked her to
telephone the victim to get him out of his house.
She declined. Abrahams testified
that the three defendants came to his house at 7:20 P.M., and that Hicks
invited him to join them in robbing the victim.
He declined. At 9:45 P.M. Hicks
and Witham returned to Abrahams's
home; Hicks said they got $15,000, and Witham asked
Abrahams to call the police because "the man is tied up and he is hurt
pretty bad." The next morning
Marshall told Abrahams that the victim came out of his house and that they
tried to knock him out, pulled him inside, and tied him up. Hicks later told Eaton he never went inside.
There was
evidence that Hicks and Marshall had heard that the victim kept money in his
house, and old silver certificates were found there after the murder. Hicks later deposited or exchanged similar
certificates; Witham had a large amount of old bills
and told a witness the money came from a robbery in Massachusetts; Marshall
engaged in large cash transactions soon after the murder. In a search of Marshall's house trailer in
November, 1973, police found a piece of paper with the victim's handwriting on
it.
[377 Mass. 4] The defendants testified in their own behalf and called witnesses
to corroborate their alibis. Hicks
testified he had gone with Abrahams and another man to rob the victim but
backed out when he realized they could not get the victim out of his
house. Hicks and Witham
said they got the money from Abrahams; Marshall testified to money borrowed by him
in August, 1972, and January, 1973, track winnings, and the sale of cars.
We
indicate which defendants argue each of the ten issues.
1. Motions
to sever (Marshall, Witham). Both before and at trial Marshall and Witham moved for separate trials, relying principally on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). They point to three out‑of‑court
statements attributed to Hicks, and claim that those statements incriminated
them: (1) Hicks's request to Eaton to call the victim
to get him out of his house; (2) Hicks's statement to
Eaton that he had never gone "inside the place"; (3) Hicks's statement to Abrahams that "they got about
fifteen thousand dollars." At first
the judge instructed the jury to limit their consideration of these statements
to the case against Hicks. Later he
instructed the jury that, if they found the defendants to have been engaged in
a common criminal enterprise, statements of one defendant during the time and
in furtherance of the common enterprise could be considered against all, but
that the common enterprise, if any, terminated when they left the victim's
premises. The first of Hicks's statements to Eaton was admissible against all
defendants on this basis. Commonwealth
v. French, 357 Mass. 356, 380, 259 N.E.2d 195 (1970), judgments vacated as to
death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2848, 33 L.Ed.2d 754 (1972), and cases cited.
[2] [3]
The Bruton case held that it was a denial of the
defendant's constitutional right of confrontation to admit a codefendant's
confession inculpating him, when the codefendant did not take the stand and
expose himself to cross‑examination, despite clear instructions to the
jury to consider the inculpatory evidence only
against the [377 Mass. 5] codefendant. We have left open the possibility that the inculpatory connection need not reside in the terms of the
statement itself, but may be supplied by the content of the statement taken in
connection with other evidence in the case.
Commonwealth v. LeBlanc, 364 Mass. 1, 7‑10, 299 N.E.2d 719
(1973). But when the codefendant takes
the stand and is subject to cross‑examination, a denial of the
constitutional right of confrontation expressed in the Bruton
case is not involved. Commonwealth v. Nolin, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNB), 364 N.E.2d 1224 (1977), and cases cited. In the present cases all three defendants
testified and were available for cross‑examination. The second of Hicks's
statements to Eaton and his statement to Abrahams were properly admitted
against him, and instructions that those statements were not evidence against the other defendants sufficiently protected
their rights.
[4] [5] 2.
Motion to suppress (Hicks, Marshall).
Marshall assigns as error the denial of his motion to suppress the piece
of paper, bearing the victim's handwriting, seized in his trailer in New
Hampshire. Hicks concedes that he has no
standing to challenge the search, but argues that, if the evidence is suppressed
on Marshall's motion, it is inadmissible against him, since it was admitted
only on a theory of common enterprise.
Marshall's contentions are that the search and seizure violated N.H.Rev.Stat.Ann. s 595‑A.5 (1976) in three respects:
(1) the inventory of items seized was not made in his presence, although he was
available; (2) he was not given a receipt for the items seized; and (3) the
return on the warrant lacked the signature of the justice of the peace before
whom the return was made.
There was
no error. Violation of the statute is
not a ground for exclusion of evidence under New Hampshire law. State v. Gilson, 116 N.H.
230, 234, 356 A.2d 689 (1976). State v. Saide, 114 N.H. 735, 737‑738,
329 A.2d 148 (1974). See Cady v. Dombrowski, 413 U.S. 433, 449, 93 S.Ct.
2523, 37 L.Ed.2d 706 (1973). After an
extensive voir dire hearing, the judge found that
Marshall was shown a copy of the inventory and did not assert that it was
incomplete[377 Mass. 6]
or otherwise inaccurate, and that the return was sworn to before the
justice of the peace, although he inadvertently failed to sign it.
3.
Examination of prospective jurors (Marshall, Witham). The judge asked each prospective juror
whether he had heard of the case or knew anything about it. The eleventh juror called referred to
"the scuttlebutt upstairs," and on further inquiry said that the
scuttlebutt was that the case was being heard for the second time and was a
murder case. The judge denied the
defendants' motion to discharge the venire, and continued to ask the same
series of question of some 220 prospective jurors, following up with additional
questions where appropriate. Ten said
they had heard about the case "upstairs," "downstairs,"
"from people talking," or "around the grapevine." Three of the ten had heard there was a
mistrial. Eight of the ten were excused;
two were chosen and sworn before the defendants had exhausted their peremptory
challenges.
[6] [7]
There was no error. Exposure of
prospective jurors to discussion or comment about a case is not a ground for
dismissal of the venire. Commonwealth v.
Horton, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ (FNC), 380 N.E.2d 678
(1978), and cases cited. Commonwealth v.
Silva, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FND), 359 N.E.2d 942 (1977). When the situation was disclosed, it would
have been proper for the judge to call in the remaining venire and admonish
them not to discuss the cases and to inquire further of each potential juror as
to conversations heard in the jury room.
But no abuse of discretion was shown.
Cf. Commonwealth v. Stanley, 363 Mass. 102, 105, 292 N.E.2d 694 (1973)
(information as to prior trial in the District Court). Indeed, although the cases were tried in
1974, the judge complied with the statutory injunction of G.L.
c. 234, s 28, as amended by St.1975, c. 335, to "examine jurors fully with
respect to possible bias or prejudice."
Commonwealth v. Dickerson, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNE), 364 N.E.2d 1052 (1977).
[8] 4.
Denial of voir dire (Witham). During the trial Witham
moved for a voir dire on his identification by the [377 Mass. 7] witness Webber. The judge
noted that such a voir dire had been held at the
first trial, and that there was no representation that there was new
evidence. He denied the motion as
untimely under Rule 61 of the Superior Court (1974), but allowed the transcript
of the previous voir dire and the findings made at
the first trial to be made an exhibit.
There was no error. See
Commonwealth v. Lewis, 346 Mass. 373, 382, 191 N.E.2d 753 (1963), cert. denied,
376 U.S. 933 (1964).
[9] 5.
Distinctive photograph (Witham). On direct examination the witness Webber
identified Witham as one of the two men she had seen
on the victim's street the evening of the crime. Cross‑examination on behalf of the
defendant Witham brought out testimony that the
police had shown her five photographs and she had selected one. On redirect examination, over the defendant Witham's exception, the Commonwealth was permitted to put
in evidence the five photographs, including the photograph of Witham the witness had selected. Witham now argues
that his photograph was the only one of the five showing the dark hair and dark
complexion the witness had described to the police. After the voir dire
at the first trial, the judge found that these photographs "were of people
of about the same size and general description.
There was no impermissible indication or hint as to which one was Witham." Those
findings were supported by the evidence, and we do not disturb them. Commonwealth v. Murphy, 362 Mass. 542, 548,
289 N.E.2d 571 (1972). Cf. Commonwealth
v. Kostka, 370 Mass. 516, 523‑524, 350 N.E.2d
444 (1976) (effect of wearing glasses).
6.
Restriction of cross‑examination (Hicks, Witham). The witness Eaton testified on cross‑examination
that the other principal witness for the Commonwealth, Abrahams, was the uncle
of her former husband, that she had dated Abrahams after her husband and she
broke up, and that Abrahams had spent the night at her house more than once
seven or eight years before the trial.
The judge excluded questions inquiring into the circumstances of her
divorce, whether she had "relations" with [377 Mass. 8] Abrahams,
whether Abrahams had ever given her "grass," and whether she had ever
modeled for photographs. Hicks and Witham now argue that they were prevented from exposing the
character of the continuing relationship between the two witnesses, and that
such exposure was of paramount importance because Eaton provided the only
corroboration of Abrahams's testimony.
[10] [11]
Reasonable cross‑examination of a witness to show bias or prejudice has
long been matter of right. Commonwealth
v. Russ, 232 Mass. 58, 79, 122 N.E. 176 (1919).
Commonwealth v. Graziano, 368 Mass. 325, 330,
331 N.E.2d 808 (1975). But the right is
not necessarily infringed by curbing inquiry where the matters sought to be
elicited have been sufficiently aired.
Commonwealth v. Walker, 370 Mass. 548, 572, 350 N.E.2d 678, cert.
denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314
(1976). In the present cases that
consideration was reinforced by the remoteness in time of the events in
question. There was no error.
7.
Instructions on circumstantial evidence (Hicks, Marshall, Witham). In his charge the judge discussed direct and
circumstantial evidence and said that if, after drawing inferences and
conclusions that struck them as logical and reasonable beyond their reasonable
doubt, they still had a reasonable doubt of the guilt of a defendant, their
verdict should be not guilty of that crime.
He later instructed them that the burden was on the Commonwealth to
satisfy them beyond their reasonable doubt that the defendant or defendants
committed the essential elements of the crime.
He then said, "The Commonwealth is not obliged to prove beyond your
reasonable doubt the truth as to every single issue that comes up in a trial,
because inevitably in a trial of this kind there are many collateral issues
that arise going perhaps to the credibility of witnesses, disputes as to where
a given witness may have been at a time, and That sort of thing "
(emphasis supplied). He then elaborated
on the meaning of reasonable doubt. The
defendants contend that the quoted sentence, particularly the emphasized
portion, [377 Mass. 9] diluted the standard of persuasion
with respect to circumstantial evidence.
As to such evidence, they say, "the several circumstances upon
which the conclusion depends must be fully established by proof . . . as if each one were itself the main fact in
issue," quoting Commonwealth v. Webster, 5 Cush.
295, 317‑318 (1850).
[12] [13]
The quoted portion of the charge is accurate as far as it goes. We do not think the judge was required to
give the Webster charge on circumstantial evidence. That charge also included a statement that failure
of proof of a particular fact, not essential to the conclusion, "does not
destroy the chain of evidence; it only fails to give it that particular
corroboration, which the fact, if proved, might afford." Id. at 313.
See Commonwealth v. Medeiros, 354 Mass. 193, 197, 236 N.E.2d 642 (1968),
cert. denied sub nom. Bernier v. Massachusetts,
393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699
(1969). Such detailed analysis, even
though accurate, might have confused the jury, since the evidence was not
entirely circumstantial. The charge is
to be tested as a whole. Commonwealth v.
Bohmer, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNF),
372 N.E.2d 1381 (1978). Commonwealth v.
Ramey, 368 Mass. 109, 113‑114, 330 N.E.2d 193 (1975). There is no reasonable likelihood that the
charge taken as a whole could have led the jury to ignore the reasonable doubt
test. Commonwealth v. Leaster, 362 Mass. 407, 416‑417, 287 N.E.2d 122
(1972).
[14] 8.
Instructions on hypothetical cases (Marshall, Witham). In defining participation in crime, the judge
used as an example a lynching in which a hundred people participated but only
three could be identified. He told the
jury that on incontrovertible evidence against the three, they must be
convicted even though the other ninety‑seven go free. Later, in discussing a common plan to commit
larceny, he used the case of a robbery in which two men went inside a house
while a third stayed outside as a lookout.
Marshall and Witham contend that these
hypothetical cases propounded the Commonwealth's theory of the case, to their
prejudice.
Throughout
the charge, the judge took pains to avoid alluding to the evidence. He told the jury that they were [377 Mass. 10] to find the facts, disregarding any factual statement he might
make. Taken as a whole, the charge did
not unfairly emphasize the Commonwealth's view of the facts. Commonwealth v. Therrien,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ (FNG), 355 N.E.2d 913 (1976).
[15] 9.
Felony murder (Hicks). Hicks attacks the
constitutionality of the felony‑murder rule. We recently considered and rejected the same
arguments. Commonwealth v. Watkins, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNH), 379 N.E.2d 1040 (1978). We now reject them again.
10.
Section 33E. In accordance with our duty
under G.L. c. 278, s33E, we have reviewed the entire
record, including the transcripts and exhibits, and we find no reason to change
the ultimate outcome.
Judgments
affirmed.
FN1. Joseph
Marshall, Jr., and Perley J. Witham.
FNa. Mass.Adv.Sh. (1978) 2548, 2556.
FNb. Mass.Adv.Sh. (1977) 1503, 1508.
FNc. Mass.Adv.Sh. (1978) 2548, 2560‑2566.
FNd. Mass.Adv.Sh. (1977) 194, 197.
FNe. Mass.Adv.Sh. (1977) 1344, 1355.
FNf. Mass.Adv.Sh. (1978) 316, 329‑330.
FNg. Mass.Adv.Sh. (1976) 2423, 2426‑2427.
FNh. Mass.Adv.Sh. (1978) 1646, 1664‑1668.