Bristol. Indictment found and returned in the Superior Court on October 4, 1972. The case was tried before Tamburello, J.
Hale, C.j., Grant, & Brown, JJ.
Practice, Criminal, Directed verdict, Access to witnesses, Disclosure of evidence before grand jury. Self-Defense. Evidence, Contradiction of witness, Conflicting statements of witness, Relevancy and materiality, Of reputation.
The opinion of the court was delivered by: Grant
Evidence at a murder trial that the victim and the defendant engaged in a fight on a city sidewalk, that the defendant stabbed the victim four times with a knife after the victim slashed at him with a razor, and that the defendant immediately fled the scene was sufficient to warrant findings that the defendant had used more force in defending himself than was reasonably necessary in the circumstances and that the killing was intentional. [464-465]
At a murder trial admission in evidence, pursuant to G. L. c. 233, § 23, of a witness's out-of-court statement describing a fight between the defendant and the victim was reversible error, where inadmissible portions of the statement went to the critical issue of who had been the aggressor and where there was genuine doubt whether the jury comprehended the import of the Judge's limiting instructions given at later stages in the trial. [465-468]
The defendant was indicted for the murder of Robert E. Pichette in Fall River on September 11, 1972. He had admitted to the police that he had killed Pichette, but he had told the police, and he claimed and testified at trial, that he had acted in self-defense. The trial Judge directed a verdict for the defendant on so much of the indictment as alleged murder in the first degree and submitted the case to the jury on murder in the second degree and manslaughter. The jury convicted the defendant of manslaughter. The case was taken, and the defendant's appeal is here, under G. L. c. 278, §§ 33A-33G. *fn1
1. There was no error in the denial of the defendant's motion for a directed verdict presented at the close of the Commonwealth's case (see Commonwealth v. Kelley, 370 Mass. 147, 149-151 ) because the Commonwealth had by that time sustained its burden of introducing evidence sufficient to warrant a finding that the defendant had not acted in self-defense (Commonwealth v. Rodriguez, 370 Mass. 684, 688-689 ). There was properly admitted evidence from which it could have been found that the defendant and Pichette had been engaged in a conversation concerning the possible purchase of barbiturates from Pichette while the defendant was seated in the right front seat of a parked car and Pichette was standing on the adjacent sidewalk, that Pichette had kicked the defendant twice through the open (and only operable) door of the car, that the defendant had gotten out of the car and engaged in a fight with Pichette, that Pichette had slashed at the defendant with a razor, *fn2 that the defendant had sustained a slash on his left hand, that he had stabbed Pichette four times with a knife (see Commonwealth v. Reddick, 372 Mass. 460, 462 ), including once through the heart and lungs (the mortal wound) and once in the side of the left buttock, and that the defendant had immediately fled the scene (see Commonwealth v. Montecalvo, 367 Mass. 46, 52 ; Commonwealth v. Gilday, 367 Mass. 474, 496 ), leaving Pichette lying on the sidewalk in a dying condition. On that evidence it was open to the jury to find that the defendant had used more force in defending himself than was reasonably necessary in the circumstances and that the killing had been intentional. See Commonwealth v. Houston, 332 Mass. 687, 690 (1955); Commonwealth v. Kendrick, 351 Mass. 203, 209-211 (1966); Commonwealth v. Binnette, 351 Mass. 704 (1966). The fight took place on a city sidewalk, and there was also a question for the jury whether the defendant had a clear field to escape before delivering the mortal wound. See Commonwealth v. Kendrick, 351 Mass. at 212; Commonwealth v. Shaffer, 2 Mass. App. Ct. 658, 660-662 (1974), S.C. 367 Mass. 508, 511, 512 (1975); Commonwealth v. Gagne, 367 Mass. 519, 524-525 (1975).
2. Six days following the incident already described one Patricia Lajoie (then Jalbert) gave the Fall River police a signed statement, the body of which is set out in the margin. *fn3 The prosecutor called Lajoie as his second witness. She immediately testified to the effect that she had not seen the fight and had been elsewhere on the evening in question. When confronted with the statement, she admitted having given it and identified her signature thereon but testified that she had been under the influence of drugs when she had given the statement and that she had no present recollection of what she had told the police or of anything that might appear in the statement. See Commonwealth v. Chin Kee, 283 Mass. 248, 261 (1933); Commonwealth v. Festa, 369 Mass. 419, 425-426 (1976); Commonwealth v. Reddick, 372 Mass. at 462-463. The prosecutor made no effort to use the statement to refresh the witness's recollection (see Commonwealth v. Hartford, 346 Mass. 482, 486-487 ); instead, he requested a ruling to the effect that the witness was hostile (see Commonwealth v. White, 367 Mass. 280, 281-284 ; Commonwealth v. Reddick, 372 Mass. at 462-463). The Judge took no action on that request but inquired of the witness whether the statement was "different from" what she had said in court. Upon receiving an answer in the affirmative, the Judge advised counsel at the bench that he would admit the statement in evidence under the provisions of G. L. c. 233, § 23 *fn4 (see Commonwealth v. Festo, 251 Mass. 275, 278-279 ; Commonwealth v. Gettigan, 252 Mass. 450, 459 ; Commonwealth v. LaFrance, 361 Mass. 53, 57 ) and would instruct the jury during the course of his charge as to the limited purpose for which the statement might be considered by them. Counsel for the defendant specifically objected on the ground that nothing in the statement was inconsistent with the witness's testimony on the stand.
Following testimony by the police officer to whom the statement had been given and by the notary public who had taken the witness's oath to the truth of the statement and witnessed her signature thereon, the statement was admitted in evidence and marked as an exhibit, all subject to exceptions properly saved by the defendant. No limiting instruction was given at that time. The witness Lajoie, who then returned to the stand, was not questioned further as to the contents of the statement or as to the events of the night in question, although she was cross examined as to her mental condition at the time she had given the statement. At the Conclusion of her testimony the Judge advised the jury that he would instruct them in his charge that the "inconsistent" statement did not have the effect of independent evidence and had no probative force with respect to the truth of the "inconsistent" statement made out-of-court. The defendant testified extensively on both direct and cross examination that Pichette had been the aggressor throughout the fight and that he (the defendant) had acted solely in self-defense. Five days after the statement had been admitted, the Judge, in the course of his charge, instructed the jury that they could use the statement only for the purpose of determining the credibility of the testimony that the witness Lajoie had given on the stand and that "you are not to believe the contents of the out of court statement."
There are several difficulties. The first and most obvious is that the only aspect of the statement (note 3, (supra) ) which was in any way inconsistent with the witness's testimony on the stand (G. L. c. 233, § 23; note 4, (supra) ) was that which made her out as an eyewitness to the fight between the defendant and Pichette. The balance of the statement, which portrayed the defendant as the constant aggressor throughout an entirely one-sided fight, was in no way inconsistent with any of the witness's testimony and, in the circumstances, was not admissible under § 23. Except for the testimony of the defendant, the balance of the statement constituted the only thing the jury ever heard or saw which went directly to the heart of the critical question of who had been the aggressor and who had acted in self-defense during the course of the fight. Although the Judge correctly instructed the jury as to the only use they could properly make of the portion of the statement which was inconsistent with the witness's in-court testimony, there is room for genuine doubt whether the jury comprehended the import of the general instruction that they should not believe the contents of the statement. The portion of the statement which described the fight the witness testified she had not seen went to the core issue in the case and "there is an especially serious danger that jury . . . disregard[ed the] limiting instructions and allow the to influence their deliberations as substantive evidence . . . . In this light, and considering the condition of the rest of the proof in the case, we cannot say that the defendant might not have prevailed if the . . . had been excluded. Hence a new trial is called for." Walter v. Bonito, 367 Mass. 117, 124 (1975).
The case just cited was decided under a different aspect of § 23, but we are of the opinion that what was said and held there applies with equal force to the circumstances of the present case.
3. Other questions of lesser significance, including questions likely to arise upon a retrial, are considered in ...