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06/01/78 COMMONWEALTH v. HARRY H. HANGER

June 1, 1978

COMMONWEALTH
v.
HARRY H. HANGER, JR.



Suffolk. Indictments found and returned in the Superior Court on May 16, 1977. The cases were tried before Mazzone, J.

Hale, C.j., Grant, & Armstrong, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Disclosure of defense witnesses, Discovery, Continuance.

The opinion of the court was delivered by: Grant

At a criminal trial, any error in the Judge's allowance of the prosecutor's motion for discovery with respect to the defendant's alibi without adherence to the criteria set forth in Commonwealth v. Edgerly, 372 Mass. 337 (1977), was harmless beyond a reasonable doubt. [408-417]

At a criminal trial, the Judge did not abuse his discretion in denying the defendant's motion for a continuance in order to secure the presence of a witness who had been subpoenaed by the defendant where the Judge could have properly concluded that the witness's testimony would be of only marginal significance. [417-419]

The defendant has appealed from his convictions by a jury on indictments charging him with kidnapping, assault with intent to rape, assault with force and violence and with intent to rob, and assault and battery by means of a dangerous weapon (a shod foot). *fn1 He has assigned as error (1) the trial Judge's allowance of the Commonwealth's motion for discovery which was not presented until after the trial had commenced and (2) the Judge's refusal to grant the defendant's request for a continuance in order to secure the presence of a witness who had been subpoenaed by the defendant to testify in his behalf.

1. As argued, there are three prongs to the first assignment of error, and we think it will be helpful to a consideration of the various legal issues if we first summarize in some detail the proceedings which had already taken place prior to the Commonwealth's presentation of its motion for discovery.

The offences in question are all alleged to have been committed on April 27, 1977. *fn2 The indictments were all returned on May 16. On June 13 the defendant filed an omnibus set of discovery motions which was disposed of by a formal stipulation of counsel, ultimately filed in court on the opening day of the trial, to the effect that the prosecution had agreed to the disclosure (with inspection and copying where feasible) of all the following: all written or recorded confessions or admissions made by the defendant, together with the substance of all oral statements which had been made by the defendant but which had not been reduced to writing; a description of any conduct of the defendant which the prosecution intended to introduce as evidence of an implied admission on his part; all items taken from the possession of the defendant at the time of his arrest, together with all items taken from the van which the defendant had been operating at the time of his apprehension by the police; all evidence exculpatory of the defendant; the names and addresses of all persons the prosecution intended to call as witnesses, together with the names and addresses of all persons having knowledge of the case or who had been interviewed in connection therewith but whom the prosecution did not intend to call as witnesses; all written statements made by persons whom the prosecution intended to call as witnesses, together with the substance of their oral statements which had not been reduced to writing; the details of the victim's pretrial photographic identification of the defendant; all photographs taken in connection with the case; all real and physical evidence the prosecution intended to introduce in evidence; all medical, psychological and scientific reports and analyses made or performed with respect to the case; all reports and records of the Boston police department relative to the case; all information known to the prosecution of promises, rewards or inducements of any kind made or offered to any person whom the prosecution intended to call as a witness; and the criminal and probation records of all persons whom the prosecution intended to call as witnesses. *fn3

The record does not disclose the details of the information actually disclosed to the defendant by the prosecution, but we do know from the pretrial and trial transcripts that counsel for the defendant had in his possession throughout the course of the trial at least the following: six photographs of the van in which the assault offences were supposed to have been committed; a copy of a written report of his initial investigation which had been prepared and filed by the arresting and investigating police officer (one Carr) on the day of the offences; a copy of a more detailed written statement which the same officer had prepared and submitted to an assistant district attorney on the day following the offences; a transcript of the tape recording of the interview the same officer and the same assistant district attorney had had with the victim in a hospital on May 4, at which time the victim had made a photographic identification of the defendant as her abductor and assailant; and a written synopsis of the anticipated testimony of another police officer who had apparently not filed any written report. *fn4 We think it reasonable to infer from the defendant's express waiver of his motion for a bill of particulars (except in a respect not here material) and from his failure to object to the substance of any evidence offered by the prosecution during the course of its case in chief (except in one minor respect which was promptly overruled by the Judge and which is not now complained of) that prior to trial the prosecution had made full and complete discovery of everything which had been requested by the defendant up to that point.

The trial commenced on the afternoon of July 18. On the morning of the second day of the trial the prosecutor interrupted his direct examination of his first witness (the victim of all the offences) to present the Commonwealth's motion for discovery. That motion set out the Commonwealth's contention that all the offences had been committed at a given location in Boston between 12:05 and 12:15 P.M. on the date alleged in the indictments, summarized the types of discovery which the prosecution had already made, and recited that "he Commonwealth agrees to disclose the names and addresses of any and all prospective rebuttal witnesses within a reasonable time after receipt of discovery from the defense, and stands ready to provide the defense with any changes or additions to information already provided." The prayers of the motion were that the defendant be ordered to disclose "1. hether or not the defendant intends to interpose or rely on a defense of alibi . . . 2. f so, the specific place or places at which the defendant claims to have been at the time of the alleged offense . . . 3. he names and addresses of any and all prospective defense witnesses." Following a bench conference, most of which was not taken stenographically, the Judge allowed the motion as phrased, *fn5 and without imposing any express order for reciprocal discovery on the part of the prosecution. The defendant excepted to the allowance of the motion. The record does not indicate what disclosures counsel for the defendant made to the prosecutor, or when those disclosures were made. We do know that the prosecutor did not object to any witness called by the defendant or to the substance of any testimony offered in his behalf on the ground of failure to comply with what the Judge had ordered.

The following facts were not in dispute at the trial. All the offences alleged in the indictments had been committed by one man who had dragged the victim into a van in the vicinity of the Salvation Army Boys Club on Washington Street in Boston and then driven the van a short distance to a point near the corner of Plympton and Washington streets and in the vicinity of the Cathedral housing project, where the man in question had stopped the van and then assaulted and beaten the victim severely before throwing her out of the van and driving off. The van had a camper top, was equipped with a wheel chair in the rear of its interior, and was designed for the transportation of elderly and handicapped persons. It was common ground that all the offences had been committed in the time span between 12:05 and 12:27 P.M. It was also common ground that on the day in question the defendant had been employed as the driver of a radio-equipped van which met the above description and which was owned and operated by a company engaged in providing transportation for the elderly and the handicapped. The principal dispute at trial was as to whether the defendant had been the driver of the van observed by the victim, as she testified, or whether the assailant had been someone else in a different van, as the defendant contended. *fn6

It will be helpful at this point, before discussing any of the evidence offered by the defendant, to outline the reasons now advanced by him in support of his contention that the Judge erred in allowing the Commonwealth's motion for discovery. *fn7 In Commonwealth v. Edgerly, 372 Mass. 337 (1977), the Supreme Judicial Court had occasion to reconsider its earlier decision in Gilday v. Commonwealth, 360 Mass. 170, 173 (1971), that a defendant could not be constitutionally compelled to disclose the identities of his alibi witnesses in advance of trial. That reconsideration was conducted in light of the decisions of the Supreme Court of the United States in Williams v. Florida, 399 U.S. 78 (1970), and Wardius v. Oregon, 412 U.S. 470 (1973), and in light of Rule 14 of the Massachusetts Proposed Rules of Criminal Procedure for District and Superior Courts (1976). The court responded to the questions reported to it in the Edgerly case without adopting a specific rule concerning the compelled discovery of a defendant's alibi but stated its expectations with respect to the outline and general content of a rule which it might adopt on that subject at some future time. The court indicated its expectations that any such rule would require, among other things, (a) that any motion by the Commonwealth directed to the discovery of a defendant's alibi "should be filed reasonably in advance of trial," (b) that any discovery of the defendant's witnesses be limited to "the names and addresses of the witnesses (other than himself) on whom [the defendant] intends to rely to establish his alibi," and (c) that any order for discovery "must direct the Commonwealth to serve on the defendant or his attorney, within a specified reasonable time after the defendant's notice is served on it, a written notice stating the names and addresses of . . . witnesses to be relied on [by the Commonwealth] to rebut testimony of any of the defendant's alibi witnesses." 372 Mass. at 344-345. The defendant complains that none of those criteria was adhered to in the present case. The Edgerly case was decided more than three months prior to the trial of the present case, and there is no question as to the occurrence of the deviations complained of. The question for decision by us is whether, on a review of the entire record, we can conclude that those deviations were harmless beyond a reasonable doubt. See Commonwealth v. Baker, 368 Mass. 58, 77 (1975), and cases cited.

a. The record does not disclose, and even now the Commonwealth does not suggest, the reason why the prosecutor delayed presenting the motion in question until after the trial had commenced. A determination of the question whether the defendant was harmed by that delay requires a consideration of all the alibi evidence ...


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