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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. Williams, 399
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Edward T. Patten,
Severlin B. Singleton, III,
Natalea Skvir, Asst. Dist. Atty., for Commonwealth.
Before HENNESSEY, C.J., and WILKINS, LIACOS,
ABRAMS and O'CONNOR, JJ.
O'CONNOR, Justice.
The defendants were indicted on charges arising from the
armed robbery and stabbing of a clerk at a package liquor store in
Williams asserts two claims of error: (1) that the trial judge erroneously failed
to instruct the jury that the Commonwealth had the burden of proving that his
act was the proximate cause of Roberts's death, and (2) that the judge
improperly denied his motion for a new trial grounded on newly discovered
evidence bearing on the causation issue.
Mays contends that the judge committed reversible error by (1) denying
his motion for [399 Mass. 62] severance of his trial from that of
Williams; (2) denying his motion to
suppress an out-of-court identification, and admitting the same witness's
in-court identification; (3) admitting in evidence the victim's
statements; and (4) denying his motion
for a required finding of not guilty.
The theory of the Commonwealth's case was that the
defendants as joint venturers committed a robbery at a package store, that in
the course of the robbery the clerk was stabbed, and that as a result of the
stabbing the clerk died two weeks later.
We reserve recitation of the evidence and findings of the judge for
discussion in connection with the specific issues to which they relate.
[1][2] We begin with Williams's two claims of error. First, he asserts that, in his jury
instructions, the judge failed to inform the jury that the burden was on the
Commonwealth to prove that the defendant proximately caused the victim's
death. There was no error. The armed robbery and stabbing occurred on
Williams's second claim is that the judge erred in
denying his motion for a new trial grounded on newly discovered evidence
relevant to causation. The motion for a
new trial was filed two years after the trial, which had proceeded from January
6 through January 12, 1982, and it alleged newly discovered evidence that the
victim had died as the result of medical malpractice rather than from stab
wounds. In support of his motion,
Williams submitted a copy of a complaint, docket sheets, and the report of a
medical malpractice tribunal, favorable to the plaintiff, in a civil
malpractice action brought by the victim's widow on September 29, 1981, against
the doctors who had treated the victim.
Williams also submitted an affidavit from his trial counsel stating that
he was unaware of the malpractice action at the time of Williams's trial.
The trial judge denied the motion, and Williams moved for
further hearing and reconsideration,
proffering letters of three doctors to the effect that the medical care
received by the victim in the hospital failed to meet acceptable medical
standards. These letters, based on the
victim's hospital records, had been submitted in support of the malpractice
action. Williams also submitted part of
an interrogatory answer of one of the defendant doctors in that case. The judge declined to alter his [399
Mass. 64] ruling, stating that he had "difficulty in concluding
that the evidence [was] indeed 'newly discovered.' " The judge attached significance to the fact
that the malpractice action was entered in September, 1981, and the tribunal
finding was made in January, 1982. He
reasoned that, "[i]f the victim's widow was able to gather enough evidence
to make an offer of proof to the tribunal [before] January, 1982, the defendant
also had ample opportunity to examine the hospital records and raise the issue
of causation."
[3][4] When a motion for a new trial is grounded on newly
discovered evidence, the evidence must have been unknown and unavailable at the
time of trial despite the diligence of the moving party. Commonwealth v. Grace, 397
[5] Given that conclusion, we need not address the
Commonwealth's other arguments concerning Williams's new trial motion. We observe, however, that these arguments are
not without substance, for even if the evidence proffered by Williams was newly
discovered, he would not be entitled to a new trial by virtue of that fact
alone; he also would have to establish
that at another trial the new evidence probably would be a real factor with a
jury in reaching a decision.
Commonwealth v. Grace, supra, 397
[6][7] The defendant Mays asserts four errors, the first
of which is that the judge improperly denied his pretrial motion, followed by
requests during trial, that his trial be severed from that of Williams. Rule 9(d)(2) of the Massachusetts Rules of
Criminal Procedure, 378 Mass. 859 (1979), provides: "A motion of the defendant for relief
from prejudicial joinder shall be in writing and made before trial and shall be
supported by an affidavit setting forth the grounds upon which any alleged
prejudice rests, except that a motion for severance may be made before or at
the close of all the evidence if based upon a ground not previously
known." Mays did not comply with
the rule. He did not support his
pretrial motion with an affidavit.
Furthermore, no contention is made that during the course of the trial
he asserted a ground for severance that had been unknown previously. For these reasons alone, the judge did not
err by denying severance. In addition,
even if Mays had complied with rule 9(d)(2), severance was not required. The trial of Mays and Williams together did
not create the unfairness to either one that moved us to conclude in
Commonwealth v. Moran, 387 Mass. 644, 651-661, 442 N.E.2d 399 (1982), that
severance was required. In this case,
Mays's and Williams's defenses were not "mutually antagonistic and
irreconcilable" as they were in
Moran.
Mays's second claim of error is that his Fourteenth Amendment
due process rights were violated as a result of the denial of his motion to
suppress evidence that a witness, John Laderoute, had identified him out of
court as one of the robbers. Also, based
on the contention that that identification resulted from an impermissibly
suggestive one-on-one confrontation, the defendant argues that the judge erred
by permitting Laderoute to identify him at trial. After a hearing on the motion to suppress,
the judge found that on March 4, 1981, at about 5 P.M., Laderoute and his
mother walked across a parking lot which was adjacent to the package store
where the robbery occurred and was located at the corner of Gorham and Corbett
Streets. As they passed the door to the
store, Laderoute saw a tall, black man come out from the door, look around on
Corbett Street, "go and look up and down Gorham Street," and then go
back into the store. Laderoute at first
thought this man was a friend of his and looked at him for about eight
seconds. Laderoute and his mother
continued walking, and then Laderoute saw the same man and a short, stocky,
black man come out of the store. The
short man's head and face were covered with a nylon stocking which distorted
his features. Laderoute looked at both
of the men. He observed that the tall
man, subsequently identified as Mays by the police, had large, brown rimmed,
tinted eyeglasses, was about six feet two inches tall, was wearing a white
stocking cap, and had facial hair. He
saw that the shorter man was carrying what appeared to be a butcher knife with
blood on it and was wearing a brown and orange jacket.
The judge found that Laderoute continued to watch the two
men as they approached and passed him jogging down Corbett Street. Laderoute saw the faces of both men for at
least ten seconds, and saw both of them together for at least twenty
seconds. Laderoute then went into the
package store and made some observations, discussed below, until the police
arrived. Laderoute told the police what
he had seen. The officers left the
package store and drove through the neighborhood until [399 Mass. 67]
they saw and apprehended two men fitting Laderoute's description of the men he
had seen. The two men arrested were Mays
and Williams.
One of the officers returned to the package store and said
to Laderoute in substance, "I think we got the guys. Can you identify them?" Laderoute replied in substance, "I
could identify them if I saw them."
The officer then drove Laderoute to the place of the arrest. Mays and Williams were handcuffed and were in
the presence of at least four uniformed police officers and two police
automobiles. As the cruiser in which
Laderoute was seated came near the scene, Laderoute saw the two men and
exclaimed without prompting, "That's them.
Get me the hell out of here."
The officer stopped the cruiser and said, "Are you sure? Take a good look." Laderoute complied and said, "That's
definitely the same men. Get me
out of here." Laderoute was sure
of his identification of the two men. No
more than five minutes had elapsed from the time Laderoute first observed the
two men and the time he confronted them after their arrest.
[8] The judge concluded that the showup identification
was not impermissibly suggestive. We
agree. The defendant vigorously argues
the suggestiveness of the extrajudicial identification. Surely, it cannot be denied that the showup
was highly suggestive. That is
characteristic of showups. But, in the
circumstances of this case, it was not impermissibly so. "We have repeatedly held that due
process rights are not violated when police arrange a one-on-one confrontation
between the victim and a suspect promptly after a criminal event occurs." Commonwealth v. Harris, 395
Mays's next claim of error focuses on the admission in
evidence at the trial of certain statements made by the victim. There was evidence at trial that
substantially paralleled the judge's findings in connection with the
defendant's motion to suppress identification evidence. We have recited those findings above,
including the fact that, after Laderoute saw Mays and Williams jog down Corbett
Street, Laderoute went into the package store.
There was evidence at trial that in the store Laderoute found the victim
covered with blood and mumbling into a telephone. Laderoute took the telephone, and the victim
said, "Why did they cut me? I gave
them all the money. Why did they stab
me?" After quickly checking
outside to see whether the police had arrived, Laderoute went back into the
store and asked the victim what had happened.
The victim responded that two black men had entered the store and
brought a six-pack of beer up to the front, at which point one of them jumped
over the counter and asked him for money.
He stated that he gave them the money and hit the alarm, but then
someone started punching him and stabbing him with a knife. Laderoute testified that at first he could
not understand what the victim was saying, but that the victim then calmed down
and his speech became clearer.
[9] The judge conducted a voir dire to determine the
admissibility of Laderoute's testimony concerning the victim's statements. He found that no more than two minutes had
elapsed from the time Laderoute observed the defendants leaving the store to
the time of the challenged statements, and that no [399 Mass. 69]
more than three minutes had elapsed between the stabbing and the
statements. He also found that the
victim was injured and in shock. He
concluded that the statements were admissible as spontaneous utterances.
Mays contends that, in light of evidence that the victim
was in control of his faculties when he made the statements, that he was
able to telephone the police, that he had calmed down and had stopped mumbling,
and that he made his statements in response to Laderoute's inquiries, the judge
abused his discretion in admitting the statements. We do not agree. "With respect to spontaneous utterances
the guiding principles have been stated--and in our view correctly--by Prof.
Wigmore: 'The utterance must have been
before there has been time to contrive and misrepresent.... It is to be observed that the statements need
not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there
has not been time for the exciting influence to lose its sway and to be
dissipated.... [T]here can be no
definite and fixed limit of time. Each
case must depend upon its own circumstances.'
Wigmore on Evidence (3d ed.)
[1940] § 1750.... The trial judge
in determining whether an utterance meets the tests of admissibility ought to
be given broad discretion.... [A]nd only
in clear cases ... of an improper exercise of discretion should his ruling be
revised." Commonwealth v.
Puleio, 394 Mass. 101, 104-105, 474 N.E.2d 1078 (1985), quoting Rocco v.
Boston-Leader, Inc., 340 Mass. 195, 196-197, 163 N.E.2d 157 (1960).
[10] Lastly, we briefly address Mays's contention that he
was entitled to a required finding of not guilty of armed robbery while
masked. The contention is entirely without
merit. The case against Mays was tried
on a joint enterprise theory, which holds that "one who aids, commands,
counsels, or encourages commission of a crime while sharing with the principal
the [399 Mass. 70] mental state required for the crime is guilty
as a principal.... The jury may infer
the requisite mental state from the defendant's knowledge of the circumstances
and subsequent participation in the offense." (Citations omitted.) Commonwealth v. Soares, 377
With respect to Williams's conviction of murder in the
first degree, consistent with our obligation under G.L. c. 278, § 33E (1984
ed.), we have considered the entire record, and we are satisfied that the
interests of justice would not be served by our granting the defendant Williams
relief.
Judgments affirmed.
(FN1.) Of the two companion cases,
one is against Robert Williams Jr., and one is against Joseph L. Mays.
(FN2.) We note that in Commonwealth v.
Lewis, 381 Mass. 411, 409 N.E.2d 771 (1980), cert. denied sub nom.
Phillips v. Massachusetts, 450 U.S. 929, 101 S.Ct. 1386, 67 L.Ed.2d 360
(1981), we declined to follow the former common law rule that a crime could not
be prosecuted as homicide if the victim died more than a year and a day after
the criminal act.