COMMONWEALTH vs. MICHAEL P. TURNER.

HENNESSEY, C.J. The defendant, Michael P. Turner, was convicted of murder in the first degree, assault with intent to rob, unlawfully carrying a weapon, and using a motor vehicle without authority. Each of the convictions arose out of the armed robbery of a Cumberland Farms convenience store on March 25, 1974, during which a customer, Walter Wilson, was fatally shot. The defendant appealed his convictions to this court, and we affirmed. Commonwealth v. Turner, 371 Mass. 803 (1977) (Turner I).

Turner then filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts, contending that his confrontation rights under the Sixth Amendment to the United States Constitution were violated when the trial judge refused to strike the direct testimony of two accomplices to whom the Commonwealth had granted immunity, and who had invoked their privilege against self-in-crimination during cross-examination about prior armed robberies of the same store. The District Court judge granted the writ, Turner v. Fair, 476 F. Supp. 874 (D. Mass. 1979), on the ground that "[t]he limitation on cross examination," occasioned by the witnesses' successful invocation of the Fifth Amendment, unconstitutionally prevented the defendant from "pursuing a line of questioning that might have cast doubt on the version of the events given by the two critical prosecution witnesses during their direct testimony." Id. at 882. The United States Court of Appeals for the First Circuit reversed. Turner v. Fair, 617 F.2d 7 (1st Cir. 1980). The Court of Appeals expressed no views on the merits of the defendant's petition, but instead noted that "[t]he theory petitioner now advances . . . was never presented either to the trial court or to the [Supreme Judicial Court]." Id. at 11. Accordingly, because "constitutional claims sought to be vindicated in a federal habeas corpus proceeding must be presented first to the state court," id., the Court of Appeals remanded the petition to the District Court with instructions that it be dismissed.

On June 10, 1981, the defendant filed a motion for a new trial, setting forth the same arguments he had presented to the United States District Court. This motion was denied, on the

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ground that "[n]o reason [was] offered . . . why the points now presented were not raised before the trial court or the Supreme Judicial Court. Such issues could have been raised at trial and on appeal." The defendant then filed a petition for leave to appeal which was allowed by a single justice of this court. See G. L. c. 278, Section 33E. After consideration of the contentions made by the parties, and of the points set forth in the opinion of the United States District Court, we affirm the order denying the motion for a new trial.

The evidence brought forth at trial is detailed in our first review of these convictions. Turner I, supra at 805-806. The events relevant to this motion for a new trial are summarized as follows. In return for a limited grant of immunity, John F. Wallace and his stepbrother, James T. Evans, fully described their own roles, and that of the defendant, in the Cumberland Farms robbery during which a customer was killed. In essence, Wallace and Evans testified that early in the evening of March 25, 1974, they drove to a Cumberland Farms store in Dedham in a stolen Dodge automobile, accompanied by Michael and Bruce Turner. [Note 1] Wallace and Evans remained in the automobile while the Turners went into the store. "Shortly thereafter [the Turners] ran back to the Dodge and ordered Wallace and Evans to drive away. Bruce Turner said, `We blew it. I had to shoot him.'" [Note 2] Id. at 806.

The defense contended that the Turners had not been present at the robbery, that Wallace and Evans were responsible for the crimes, and that they had framed the Turners in return for immunity from prosecution. [Note 3] On cross-examination of both Wallace and Evans, trial counsel attempted, for impeachment

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purposes, to elicit information about prior robberies of the same Cumberland Farms store for which Wallace and Evans had already admitted responsibility. [Note 4] The judge allowed the witnesses to invoke their privilege against self-incrimination when questioned about these earlier offenses. The defendant moved to strike the direct testimony of Wallace on the ground of alleged noncompliance with the State immunity statute, G. L. c. 233, Section 20G, which requires that the immunized witness be given a copy of his immunized testimony. This motion was denied. The defendant never moved to strike the testimony of Evans.

In Turner I, the defendant contended that the limitations on cross-examination violated his Sixth Amendment right to impeach the prosecution witnesses. We disagreed, on the ground that "by statute evidence of prior misconduct may not be used to impeach a witness's credibility unless that conduct has been the basis of a criminal conviction. G. L. c. 233, Section 21." Turner I, supra at 809-810. We also concluded that "even if the introduction of such evidence were not prohibited by statute, it would not be relevant. . . . Character evidence may not be used to show criminal propensity." Id. at 810.

As recognized by the Court of Appeals, Turner v. Fair, supra at 11, the defendant does not, and could not, contend that we erred in our conclusion as to the admissibility of impeachment testimony on cross-examination. In this motion for a new trial he advances "an entirely new theory of relevancy," id., to the effect that trial counsel had intended not only to impeach the credibility of the prosecution witnesses, but also to cast a doubt on their version of what happened at the store, and to bolster the defense theory that Wallace and Evans were responsible for the March 25 robbery. [Note 5]

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We reaffirm "our `unbroken practice' not to allow use of a motion for new trial to compel a judge to review questions of law which could have been raised at the trial." Commonwealth v. Garcia, 379 Mass. 422, 439 n.10 (1980). Commonwealth v. Grace, 376 Mass. 499, 500 (1978). Commonwealth v. Hill, 375 Mass. 50, 53 (1978). The defendant did not raise this issue either at his trial, or before this court on his initial appeal. The defendant did raise a Sixth Amendment challenge, but it was premised on the theory that the questions to which the witnesses pleaded the Fifth Amendment were aimed at collateral matters, not at the matters raised in direct testimony. [Note 6] In short, the substance of the Sixth Amendment claim has undergone a complete metamorphosis, and thus runs afoul of our rule that a defendant is not permitted, as a matter of right, to raise an issue before the trial court on one ground, and then to present through a motion for a new trial that issue on an entirely different ground. See Commonwealth v. Flynn, 362 Mass. 455, 472 (1972).

Since this reconstituted version of the defendant's Sixth Amendment claim was never presented at trial, the question raised by the defendant's motion for a new trial is whether allowing Wallace and Evans to plead the Fifth Amendment on cross-examination, while refusing to strike their direct testimony, "created a substantial likelihood of a miscarriage of justice." Commonwealth v. Pisa, 384 Mass. 362, 363 (1981). Commonwealth v. Harrington, 379 Mass. 446, 449 (1980). In applying this standard we note that exercise of the power "to permit a motion for a new trial to be used as the vehicle by which to recoup or resurrect opportunities for appellate review previously lost by waiver or otherwise, on issues which

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could have been but which were not seasonably raised . . . should be reserved for deserving situations." Id.

The Sixth Amendment guarantees the right of an accused to cross-examine the witnesses against him. See, e.g., Davis v. Alaska, 415 U.S. 308, 315-317 (1974); Greene v. McElroy, 360 U.S. 474, 496-497 (1959). However, it has been recognized that, in certain circumstances, the testimony of a prosecution witness may be used against a defendant, even though that witness invokes the Fifth Amendment on cross-examination. United States v. Cardillo, 316 F.2d 606, 611 (2d Cir.), cert. denied, 375 U.S. 822 (1963). Whether the Sixth Amendment has been violated in such a situation depends upon "an analysis of the purpose of the inquiry [on cross-examination] and the role which the answer, if given, might have played in the defense." Id. at 612. A defendant's confrontation rights have not been violated "unless the limitation on the cross-examination could reasonably be expected to have a substantial effect on the jury's decision." United States v. Farnsworth, 729 F.2d 1158, 1162 (8th Cir. 1984). Hughes v. Raines, 641 F.2d 790, 792 (9th Cir. 1981). As we elaborated in Commonwealth v. Funches, 379 Mass. 283, 293 (1979), the critical inquiry is "how prejudicial the denial of cross-examination has been. If the witness's testimony would merely have been collateral or cumulative, the direct testimony need not be struck." Because the witnesses' testimony at issue here, with respect to the commission of prior crimes, would have been both collateral and cumulative, we conclude that allowing Wallace and Evans to plead the Fifth Amendment on cross-examination while refusing to strike their direct testimony did not create a substantial likelihood of a miscarriage of justice.

First of all, we reject the defendant's attempt to repackage the cross-examination, initially undertaken for the collateral purpose of impeachment, [Note 7] as an inquiry into "matters directly

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related to the crime," United States v. Newman, 490 F.2d 139, 145 (3d Cir. 1974), or "matters about which the witness testified on direct examination." United States v. Cardillo, supra at 611. Neither Wallace nor Evans was asked on direct examination about their complicity in prior robberies of the same Cumberland Farms store. Nor would testimony about these prior robberies "have established untruthfulness with respect to specific events of the crime charged." Id. at 613.

Secondly, we are convinced that the testimony sought about prior robberies would have been "cumulative." See Commonwealth v. Funches, supra at 293. As we recently noted in Commonwealth v. McDermott, ante 451, 455 (1984), "[w]hen matters sought to be elicited have been brought to the attention of the jury through other questioning or means, the right of cross-examination is not infringed." See Commonwealth v. Walker, 370 Mass. 548, 572, cert. denied, 429 U.S. 943 (1976).

The defendant had ample opportunity to display to the jury the involvement of Wallace and Evans in prior robberies of the Dedham Cumberland Farms store. Most significantly, the jury heard the testimony of State police Lieutenant John Regan, to the effect that both Wallace and Evans had acknowledged responsibility for at least one previous robbery of the same store; that there was an outstanding charge against Wallace for one of these robberies; and that Wallace had admitted committing at least three additional armed robberies in other locations. The defendant also received the beneficial effect of having Wallace and Evans, when questioned about prior robberies at the Cumberland Farms store, repeatedly invoke the Fifth Amendment in front of the jury. [Note 8] See United States v. Calvente,

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722 F.2d 1019, 1025 (2d Cir. 1983) (government witness's invocation of Fifth Amendment "could only have been helpful to the defense"); United States v. Seifert, 648 F.2d 557, 561 (9th Cir. 1980) (same). Defense counsel further emphasized the role of Wallace and Evans in prior robberies of the same store during closing argument. In short, the jury were more than adequately exposed to testimony which suggested that Wallace and Evans had already robbed the same Cumberland Farms store at least once, and that they were entirely capable of committing the crime at issue here. Further testimony on the same point would only have been cumulative. [Note 9]

Order denying motion for new trial affirmed.