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05/17/78 COMMONWEALTH v. KEVIN HICKS

May 17, 1978

COMMONWEALTH
v.
KEVIN HICKS



Suffolk. Indictments found and returned in the Superior Court on July 14, 1976. The cases were tried before Ford, J.

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

SYLLABUS BY THE COURT

Practice, Criminal, Recalling witness, Charge to jury. Evidence, Exculpatory, Relevancy and materiality. Witness, Recalling.

The opinion of the court was delivered by: Hennessey

At a criminal trial, the Judge did not err in refusing to allow defense counsel to recall a witness, whom he had previously cross-examined, for the purpose of impeaching the witness by a prior inconsistent statement where the defense counsel had deliberately refrained from impeaching the witness on cross-examination. [275-277]

A defendant at a criminal trial was not erroneously deprived of the opportunity to offer an innocent explanation for his possession of seemingly incriminating evidence by the Judge's exclusion of two general questions put by defense counsel where no offer of proof was made and where the exclusion did not bar a more precise inquiry tending to show a non-criminal intent. [277-278]

The Judge at a criminal trial did not abuse his discretion in allowing the prosecutor to question the defendant as to whether he was in the company of a certain individual, described at the ensuing bench conference as "the other defendant," on the night the crime was committed. [278]

The Judge at a criminal trial did not err in his instructions to the jury with respect to the difference between murder in the first and murder in the second degree. [279-280]

These are appeals pursuant to G. L. c. 278, §§ 33A-33G, from the defendant's convictions on indictments charging him with murder in the first degree, armed robbery, and unlawfully carrying a firearm. We affirm the convictions.

A short time before midnight on September 28, 1975, security guard Philip Landick drove Shannon Harrell, the assistant manager of a McDonald's restaurant to a bank on Temple Place in Boston to make a night deposit for McDonald's. Before Harrell had alighted from the security guard's marked car, two men approached the car on the driver's side. Shots were exchanged between one of the men and Landick. The other man opened the car door on the passenger's side, took a bag of money from the front seat, and fled. Harrell also fled, back to McDonald's. Arriving at the scene moments later, police found the security guard dead of a gunshot wound and the defendant lying near the car bleeding. About six inches to one foot from the defendant's outstretched hand was a pistol. Partially underneath the defendant was a shoulder bag, and, nearby, police found various items later used in evidence to link the defendant to the shooting.

The Commonwealth presented a circumstantial case, primarily through the testimony of three eyewitnesses, none of whom could positively identify the defendant as the gunman who had shot Landick. The Commonwealth also presented police testimony and various exhibits tending to corroborate details observed by the eyewitnesses and link the defendant to the shooting. The defendant maintained that he had been merely a bystander. No issue is raised on appeal as to the sufficiency of the evidence supporting the verdict, and we are satisfied that the defendant's motion for directed verdicts was properly denied. We therefore proceed directly to a consideration of the four assigned errors, detailing the evidence in the case only in so far as it becomes relevant to the arguments advanced by the defendant.

1. The defendant first maintains that the Judge erred in refusing to allow the defendant to recall the witness Mark Conley (Conley), whom defense counsel had cross-examined previously. Counsel had deliberately refrained from impeaching Conley at that time, although it appears that Conley may have made a prior inconsistent statement concerning his opportunity to observe the incident in question.

Conley was called as a witness for the prosecution. He testified that on the night of the shooting he was driving through downtown Boston and had stopped his car at a traffic light on Washington Street at the intersection of Temple Place. He heard two noises that sounded like firecrackers exploding, followed within a few seconds by a large bang. Looking down Temple Place, Conley saw one man fall backward near the driver's side of a car and another man run to the passenger side of the car, reach in, and run away. Conley indicated that he could not identify the defendant as someone he had seen on Temple Place, but that he had not noticed anyone on the street other than the two men he had mentioned. Defense counsel cross-examined Conley, inquiring into Conley's opportunity to observe, but decided not to impeach Conley, because, as he later explained on the record, Conley had not identified the defendant.

After the Commonwealth had rested, the defendant transmitted a note to the trial Judge objecting to his lawyer's decision not to use the inconsistent statement. In deference to the defendant's wishes, defense counsel moved to recall Conley. The prosecution raised no objection, except to the delay that was expected to ensue, since Conley could not be reached that day. The Judge denied the motion, and the defendant, who has new counsel for ...


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