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11/09/77 COMMONWEALTH v. THOMAS CARR

November 9, 1977

COMMONWEALTH
v.
THOMAS CARR



Suffolk. Indictment found and returned in the Superior Court on October 16, 1975. The case was tried before Brogna, J., and, on a motion for a new trial, a question of law was reported by him to the Appeals Court. The Supreme Judicial Court ordered direct review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Wilkins, JJ.

SYLLABUS BY THE COURT

Evidence, Declaration against interest. Due Process of Law, Declaration against interest. Practice, Criminal, Report.

The opinion of the court was delivered by: Kaplan

Discussion of the common-law distinction between the admissibility of extra-judicial statements against a declarant's pecuniary or proprietary interest and the inadmissibility of statements against his penal interest. [620-622]

This court declared that rule 804 (b) (3) of the Federal Rules of Evidence, permitting an extra-judicial statement against a declarant's penal interest to be admitted in evidence provided corroborating circumstances clearly indicate its trustworthiness, should be followed in substance pending further action by the court. [622-625]

A decision on the admissibility of extra-judicial statements made against a declarant's penal interest under the guidelines established by rule 804 (b) (3) of the Federal Rules of Evidence satisfies due process requirements. [625]

This case reached the Appeals Court on report of the trial Judge, and we transferred it here under G. L. c. 211A, § 10 (A). The defendant Thomas Carr was tried to a jury on an indictment charging him with distributing a class B controlled substance, cocaine, in violation of G. L. c. 94C, §§ 31-32, and he was found guilty of that offense. In the course of the trial, the defense offered three witnesses who were prepared to testify that one Nelson Wood, indicted for the same crime but not joined as a defendant, had made extra-judicial statements tending to incriminate himself and exonerate the defendant. The Judge excluded this testimony as inadmissible hearsay, applying the doctrine in the Commonwealth that a declaration "against penal interest" did not figure as an exception to the rule barring hearsay. He did not accept the defendant's argument that Chambers v. Mississippi, 410 U.S. 284 (1973), required admission of the testimony as a matter of due process of law. On the defendant's post-verdict motion for a new trial, the Judge reported the question raised by his ruling, stating that if the exclusion was error, he would grant the motion for a new trial as matter of law, otherwise he would let the verdict stand.

We conclude, in line with the weight of modern authority in this country, that the doctrine mentioned should be reformulated. The trial Judge is to decide the new-trial motion in that light. There is no material due process question.

1. We describe the content of the Judge's brief report of the evidence at trial to which is appended a transcript of the voir dire testimony of Wood and the defendant's offers of proof.

Special Agent Sullivan, testifying as the principal witness for the Commonwealth, stated that he met Ralph Chute by prearrangement on the night of December 23, 1974, and proceeded with Chute to Broadway, Somerville, where they met Mendousa and Tommaro. The group drove to 71 Parkton Road, Jamaica Plain, Boston, and parked in front of the building. Sullivan remained on the sidewalk while the other three entered. In a few minutes, the three emerged, accompanied by men introduced to Sullivan as "Frank" and "Otto." Mendousa told Sullivan that the pair were the source of an unlimited supply of high quality cocaine. Frank said he was the "main man" but the transaction would be handled by Otto. Sullivan then paid $450 for a packet of cocaine handed to him by Otto. Having made arrangements for future dealings, Sullivan left, as did Chute, Mendousa, and Tommaro. Sullivan concluded his testimony by identifying the defendant as Otto. This was the only testimony identifying the defendant as the seller.

Nelson Wood, identified as "Frank" by the police, was arrested for a narcotics law violation based on the same transaction. Later the defendant was arrested. At the time of the defendant's trial, the indictment against Wood was still outstanding but he had not been tried.

The defendant's defense was that he had not taken part in the sale to Sullivan. Several witnesses testified that while the sale was going on the defendant remained in his apartment at 71 Parkton Road for all but a few seconds and that he had not been on the street. Witnesses testified that the defendant had a full beard at the time. Sullivan testified that Otto was clean shaven. Special Agent Kenney, who observed the transaction through binoculars, testified that the person who made the sale was clean shaven; he was unable to identify the defendant positively as the seller.

Wood was called by the defense as a witness but on voir dire claimed and was allowed his privilege against self-incrimination in refusing to answer any questions of substance regarding his relation with the defendant or his ...


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