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Commonwealth v. Howard, 8 Mass.App.Ct.
318 (1979)
Appeals Court of Massachusetts, Hampshire.
Argued
Decided
[8 Mass.App.Ct.
319] Thomas B. Lesser,
Stephen R. Kaplan, Asst. Dist. Atty., for the
Commonwealth.
Before [8
Mass.App.Ct. 318]
KEVILLE, BROWN and DREBEN, JJ.
[8 Mass.App.Ct. 319]
DREBEN, Justice.
The
defendant was convicted by a jury of armed robbery and of putting in fear for
the purpose of stealing, both offenses arising out of a robbery of a gas
station in
1. The
errors which require reversal concern evidence introduced during the trial
which showed that although the defendant was not informed of the time of the
robbery, he knew exactly when it had occurred.
This evidence was damaging to the defendant and, indeed, in his closing
argument, the prosecutor referred to the defendant's statement showing his
knowledge of the time of the robbery as "of pivotal importance in this
case."
[1] The
problem with the evidence is that it involved both a prosecutorial error of
judgment and inadmissible hearsay. Prior
to trial, the defendant filed a motion for production of his statements, (FN1)
which was allowed. Three days [8 Mass.App.Ct.
320] before trial the Commonwealth
produced a number of statements, but did not include the statement referred to
as "of pivotal importance" in the prosecutor's closing argument. The defense first learned of it when a State
trooper, David Kenney, testified during the Commonwealth's case in chief. Kenney testified that on the night of the
defendant's arrest he had overheard the defendant say to his alleged partner
(FN2) in the robbery, "They can't get us for robbing that station, at that
time we were next door. We watched
Monday Night Football and before that we'd watched Logan's Run on
television." The defendant
immediately objected, asked for a dismissal based on prosecutorial misconduct,
then for a mistrial, and, finally, moved to strike the statement. After the prosecutor told the court that he
had first learned of the statement approximately twenty to thirty minutes
before Kenney took the stand, the judge ruled the statement admissible and
denied all of the defendant's motions.
[2] The
prosecutor was at fault in not informing defense counsel of the statement prior
to putting Kenney on the stand. He
failed to comply with his duty of disclosure which continued "during"
as well as "before trial."
Commonwealth v. Gilbert, ‑‑‑ Mass. ‑‑‑,
‑‑‑, (FNA) 388 N.E.2d 1190 (1979).
The
defendant argues that the judge's ruling demands reversal. However, we need not determine whether
reversal on this ground alone is required.
Here, the prosecutorial error was compounded by the introduction of
inadmissible hearsay, which, when combined with the defendant's statement as to
his whereabouts at the time of the robbery, was clearly prejudicial.
[8
Mass.App.Ct. 321]
[3] The hearsay evidence was introduced by the Commonwealth on redirect
examination of Trooper Kenney. Earlier,
following Kenney's testimony as to the defendant's statement concerning his
whereabouts, the defense had sought, on cross‑examination of this
witness, to elicit testimony that although Kenney had not told the defendant
the time of the robbery, he could have learned about the time from other
sources. The defense established that
three other State troopers had been with the defendant for between ten and
thirty minutes prior to Kenney's arrival and that Kenney did not know whether
any of these officers had told the defendant the time of the robbery. Defense counsel continued his questioning,
and the trooper testified that he later became aware of what had transpired. Defense counsel asked no question as to what
Trooper Kenney had subsequently learned.
The relevant colloquy between defense counsel and Trooper Kenney is set
forth in the margin. (FN3)
[8 Mass.App.Ct.
322] On redirect examination, over
the defendant's objection and exception, the prosecutor was allowed to ask
Trooper Kenney a series of questions relating to the conversations he had had
with the other State troopers after they had left the defendant's
apartment. More particularly, the
prosecutor asked Trooper Kenney:
"Q.
And what did you ask them?
A. I asked
each officer who was present if they had mentioned any time to Mr. Howard or
Mr. Patrickson (FN4) concerning when the robbery
occurred, or anything that would indicate to Mr. Howard or Patrickson
what time period we were interested in.
They replied, 'No.' "
[4] The
answers given to Trooper Kenney by the other troopers, who did not testify at
trial, could not be offered to prove the fact that they had not told the
defendant the time of the robbery.
"The broad rule on hearsay evidence interdicts the admission of a
statement made out of court which is offered to prove the truth of what it
asserted." Commonwealth v. DelValle, 351 Mass. 489, 491, 221 N.E.2d 922, 923 (1966),
S. C. 353 Mass. 684 (1968). The
Commonwealth argues, however, citing Commonwealth v. Cataldo,
326 Mass. 373, 377, 94 N.E.2d 761 (1950), and 1 Wigmore,
Evidence s 15 (3rd ed. 1940), that the defendant opened up the question of
Trooper Kenney's "state of awareness" and, therefore, that the
hearsay evidence was admissible "to prevent the jury from being imposed on
with a partial truth." We
disagree. Unlike the situation in Cataldo, (FN5) the defendant here did not himself introduce
any hearsay evidence; he did not ask Trooper Kenney to recount the
conversations he had had with the other officers. Thus, the impermissible type of evidence was
not first introduced by the defendant.
Moreover, the evidence was not needed to rehabilitate the witness or
prevent the jury from being misled. See
Commonwealth v. Hosey, 5 Mass.App.
‑‑‑, ‑‑‑, (FNB)
359 N.E.2d 1316 [8 Mass.App.Ct. 323]
(1977). The only purpose for which it
could
have been offered was to
prove an irrelevant collateral matter which had no bearing on the defendant's
guilt, namely Trooper Kenney's "state of awareness" after he left the
defendant's apartment. See Commonwealth
v. Pleasant, 366 Mass. 100, 103, 315 N.E.2d 874 (1974). See also Mowry v.
Smith, 9 Allen 67, 68‑69 (1864).
However, the prosecutor did not use the evidence for this limited
purpose. On the contrary, he used the
evidence entirely for the impermissible purpose of showing the truth of the
statements. (FN6) Permitting this testimony under the narrow
state of awareness exception to the hearsay rule "would in effect permit
the introduction of such declarations to prove their truth" and would
"allow the exception to swallow the rule." Commonwealth v. DelValle,
351 Mass. at 493, 221 N.E.2d at 924. The
evidence should have been excluded.
[5] Nor do
we accept the Commonwealth's argument that the defendant suffered no prejudice
by the introduction of the hearsay. The
prosecutor's closing argument belies the Commonwealth's claim. See note 6.
It is evident that the error was not harmless. (For discussions concerning the standard of
harmless error, see Commonwealth v. Turner, 371 Mass. 803, 813, 359 N.E.2d 626
(1977); Commonwealth v. Morrison, 1 Mass.App. 632,
635, 305 N.E.2d 518 (1973); and Commonwealth v. Hanger, ‑‑‑
Mass. ‑‑‑, ‑‑‑ & n.8, (FNC) 386 N.E.2d 262 (1979).
[6] 2. We
next turn to questions of identification which may recur on retrial. The defendant argues that the differences
between the pictures of him and the other pictures in each of the two sets
shown to the victim of the [8 Mass.App.Ct. 324]
robbery were inherently impermissibly suggestive. (FN7)
However, the second set of pictures, which contains the most significant
differences, is very similar to the array discussed in Commonwealth v. Clark, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
(FND) 393 N.E.2d 296 (1979), and we consider the
defendant's claim foreclosed as to both sets by that decision. See also Commonwealth v. Mobley, 369 Mass.
892, 894‑895, 344 N.E.2d 181 (1976).
[7] The
defendant also alleges error in that the judge refused to sanitize the
photographs in the first set, as requested by the defendant, by separating the
double view pictures. The defendant
claims that he wanted to introduce these pictures in evidence and that the
judge's failure to order the photographs cut in half and put on separate
exhibit sheets was error. This is not a
situation where the prosecution is introducing the pictures and should "
sanitize" double type pictures so as to avoid the suggestion that the
defendant has a prior police record. See
Commonwealth v. Nassar, 351 Mass. 37, 42‑43, 45‑46,
218 N.E.2d 72 (1966), S. C. 354 Mass. 249, 258, 259, 261‑262, 237 N.E.2d
39 (1968), cert. denied, 393 U.S. 1039, 89 S.Ct. 662,
21 L.Ed.2d 586 (1969); Commonwealth v. Gerald, 356 Mass. 386, 388, 252 N.E.2d
344 (1969); Commonwealth v. Rodriguez, ‑‑‑ Mass. ‑‑‑,
‑‑‑, (FNE) 391 N.E.2d 889 (1979);
United States v. Fosher, 568 F.2d 207, 214 (1st Cir.
1978). Here, the defendant wanted to
introduce the photos to the jury so they could decide whether the pictures were
so suggestive as to
cast doubt on the victim's subsequent identification of the defendant. It was for the judge to determine whether
photographs presented to the jury in a form different from the array presented
to the victim would have reflected the situation fairly and would have been of
assistance to the jury. He might well
have thought that a separation of the pictures, which would require placing two
tan tapes (FN8) on [8 Mass.App.Ct. 325]
the defendant's pictures, would not have truly represented the pictures shown
to the victim. It was within his
discretion to refuse to separate the photographs. See Charles L. Hazelton & Son, Inc. v.
Teel, 349 Mass. 617, 622, 211 N.E.2d 352 (1965).
Judgments
reversed.
Verdicts
set aside.
FN1. The
motion asked the court to "order the Commonwealth to permit the defendant
to inspect and copy all statements, either written or transcribed, and reduce
to writing any oral statements made by the defendant and provide the defendant
with a copy of such writing, which statements . . . (a)re intended to be offered into evidence at
the trial of the indictment(s)" or "(a)re intended by the
Commonwealth to constitute evidence as to guilt or innocence of the defendant .
. . ." The statements supplied
pursuant to the order included oral statements made by the defendant.
FN2. The other alleged participant in the
robbery, one Clifford Patrickson, was tried
separately and was acquitted.
FNa. Mass.Adv.Sh. (1979) 1132, 1139.
FN3. "Q. And you don't know, then, do
you, and you can't say for certain, certainly, that Mr. Howard was not asked, 'Where
were you at 8:00 o'clock on Monday, November 7?
A. No, I
don't know that.
(A
few questions later)
Q.
Then you were not aware of what may or may not have been said to Mr. Howard
concerning the Hadley gas station robbery during those periods of time?
A.
At that time I wasn't aware, no.
Q.
You are aware now?
A.
Somewhat, yes.
Q.
But not totally?
A.
Correct.
Q.
So then you don't know for certain whether or not someone asked one of the
other troopers or the other State Police Officers asked Mr. Howard where he was
at 8:00 o'clock, or at about 8:00 o'clock on Monday, November 7th?
Objection
(by the prosecutor).
A.
Yes, I do know."
Kenney's
answer was simultaneous with the objection.
After a side bar conference his answer was allowed to stand. No further question relating to this point
was asked by defense counsel.
FN4.
See note 1, Supra.
FN5.
In that case "(b)oth attorneys apparently asked
the same question and received the same answer." Id. at 377, 94 N.E.2d at 763.
FNb. Mass.App.Ct.Adv.Sh.
(1977) 216, 221.
FN6.
Just before appealing to the jury for a fair verdict, the prosecutor said,
"I would again like to reiterate . . .
that I think it's awfully significant that Mr. Howard was overheard
saying what he did say to Mr. Patrickson. You've heard it. But I'll say it again. Trooper Kenney didn't tell him what time it
took place; Trooper Kenney talked to his fellow troopers afterward and said,
'Look, this is important, . . . did any
of you tell Howard . . . what time . .
. this took place? ' None
of them did. But yet 20 minutes later,
not having been told that it happened at night, he was overheard to say, 'They
can't pin it on us because we were in that apartment.' ''
FNc. Mass.Adv.Sh. (1979)
647, 657 & n.8.
FN7.
The first set contains double photos (mugshots) of
persons other than the defendant masked with white tape while the defendant's mugshot is masked with tan tape. The second array contains fourteen mugshots and two polaroid
pictures, one of the defendant and one of Patrickson.
FNd. Mass.Adv.Sh. (1979)
1646, 1654‑1657.
FNe. Mass.Adv.Sh. (1979)
1527, 1543.
FN8.
See note 7.