Commonwealth v. De Christoforo

277 N.E.2d 100, 360 Mass. 531, 1971 Mass. LEXIS 746

• Court: Massachusetts Supreme Judicial Court
• Decided: December 7, 1971
• Status: Published

Opinions

Reardon, J.

This is an appeal by the defendant under G. L. c. 278, §§ 33A-33G, from his conviction for first degree murder in the Superior Court. The jury, which unammously recommended that the death penalty not be imposed, also found the defendant guilty of illegal possession of firearms. The case comes to us on a transcript of the proceedings below, a summary of the record, and the defendant’s assignment of errors.

The following facts are undisputed. About 3:55 a.m on April 18, 1967, a car in which the defendant and three others were riding was stopped in Medford by two police officers. Shortly thereafter the officers discovered that the occupant of the right hand side of the front seat was dead, having been shot once in the right side of the head and three times in the left side of the chest. The officers also discovered an unfired derringer on the floor of the car behind the driver’s seat, and a .38 special caliber Smith & Wesson revolver, which had been fired once, on the rear right hand seat. A pathologist later estimated that the deceased, identified as Joseph Lanzi, died in the car sometime between 3 and 4 a.m. from the wounds described above. The head wound had been inflicted by the Smith & Wesson revolver and the chest wounds by a Harrington & Richardson revolver which was discovered sometime afterward buried in the vicinity of where the car stopped. Before the officers’ suspicions were aroused, however, both the defendant, who had been sitting behind the driver in the back seat, and the driver, one Carmen Gagliardi, had left the scene. The other occupant, Frank Oreto, was arrested by the officers after their discovery that the fourth man in the car was dead.

Indictments for murder in the first degree and illegal possession of firearms were returned against Gagliardi, Oreto, and the defendant. On October 26, 1967, Oreto, the only one in custody, pleaded guilty to second degree murder and the gun charges. The defendant, against whom an F. B. I. warrant for unlawful flight was lodged in April, 1967, was apprehended by the F. B. I. in November, 1968, at his grandmother's house, where he had been living continuously since the incident. Gagliardi and the defendant were brought to trial together but only the defendant’s case went to the jury. At the conclusion of all the evidence Gagliardi pleaded guilty to second degree murder and the firearms charges, and his pleas were accepted.

The Commonwealth, conceding that it was the other two occupants of the car who fired the actual shots, relied on circumstantial evidence to connect De Christoforo in a joint venture with them to kill Lanzi. Evidence w-as in-traduced through Officer Carr, one of the two policemen who stopped the car, that the defendant gave a false name when they asked his identity. He also allegedly told them that the man in the front seat, who the officers at first thought was asleep, was named “Johnny Simeone,” that he had been involved in a fight in Revere and that they were taking him to the hospital. The defendant’s immediate flight from the authorities and subsequent concealment was cited by the prosecution as evidence of guilt.

In addition to efforts to impeach the testimony of Officer Carr, counsel for De Christoforo called only character witnesses and the defendant’s grandmother. Although he stated in his opening address to the jury that he intended to prove that the defendant was in the car only because he was being given a ride home from “The Attic,” a bar in which he worked, he introduced no evidence to support this theory. He repeated in his closing argument that there were many reasons consistent with innocence to explain the defendant’s presence in the car, including his being given a ride home. Similarly, no evidence substantiated the suggestion in the opening that “certain pressures” other than consciousness of guilt explained the defendant's flight and concealment.

We treat with several issues raised by the defendant.

1. The defendant contends it was error to deny his motion to inspect the minutes of the testimony of Officer Carr before the grand jury. Two motions to inspect the grand jury minutes, one with respect to each indictment, were filed before trial and were denied at that time without prejudice to their renewal. During cross-examination of Officer Carr, the defendant renewed his motions with respect to Carr’s grand jury testimony and moved in the alternative that the judge make an in camera inspection of the minutes. The judge denied all the motions.

In a number of recent decisions we have held that a judge is not required to grant such motions unless the defendant establishes a “particularized need” to see the grand jury minutes involved. Commonwealth, v. Ladetto, 349 Mass. 237, 244-245. Commonwealth v. Doherty, 353 Mass. 197, . Commonwealth v. Carita, 356 Mass. 132, 141-142. Dennis v. United States, 384 U. S. 855, 870. The judge properly applied the rule laid down in these decisions in denying the defendant’s motions. Although the defendant contended that in two respects the testimony given by Carr at the trial was inconsistent with prior statements made by him, in neither instance was the alleged prior inconsistent statement claimed to have been made as part of testimony before the grand jury. In one instance the defendant pointed out an inconsistency between Carr’s testimony at the trial and his testimony at an earlier probable cause hearing in which Oreto was the defendant.¹ He made full use of this inconsistency in an attempt to impeach Carr’s testimony at the trial. In the other instance the defendant claimed an inconsistency between Carr’s police report, made shortly after the incident, and his testimony at the trial. As to the events involved in the testimony, Carr’s testimony on this point was supported by the unchallenged testimony of Officer Brady who was with Carr when the events occurred. We conclude that there was no inconsistency between Carr’s testimony and his report which he clarified at the trial. The defendant did not show that the grand jury minutes would cast further light as to either of the alleged inconsistencies (compare Commonwealth v. Gordon, 356 Mass. 598, 602-603) or that the grand jury testimony might be in any other way inconsistent with Carr’s testimony at trial. Commonwealth v. Otero, 356 Mass. 724. In these circumstances there was likewise no need shown for the trial judge to inspect the minutes in camera himself. Commonwealth v. Cook, 351 Mass. 231, 233. Commonwealth v. Doherty, 353 Mass. 197, 210.

The defendant urges that we review and reconsider our holdings in the recent cases cited above which require a showing of a “particularized need” before being permitted access to the grand jury testimony of a witness who becomes a witness at the trial of an indictment returned by the grand jury. We recognize the difficult burden which this rule places upon a defendant seeking to impeach such a witness on the basis of inconsistencies between his grand jury testimony and his trial testimony. It may be desirable that we give further consideration to this rule. However, it is not appropriate to do so on the limited record of the case before us.² Such a change, if any, might more appropriately be accomplished for prospective application by exercise of the rule making power of this court. In this particular case the defendant is not precluded from seeking relief by way of a motion for a new trial at the hearing on which he may, by proper action, compel the production of Officer Carr’s grand jury testimony for determination by the trial judge whether such testimony was in any way inconsistent with his testimony at the trial. Earl v. Commonwealth, 356 Mass. 181.

2. The defendant moved for a mistrial at the conclusion of the prosecutor’s closing argument because of certain remarks in that argument. He claims also that the judge’s instructions to the jury did not adequately cure the prejudicial effect of these remarks.

The defendant is quite justified in objecting to certain portions of the prosecutor’s closing argument. It was clearly improper for the prosecutor to state, "They [the defendant and his counsel] said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.” It was further improper for the prosecutor to state at another point his personal belief of the guilt of the accused. Am. Bar Assn. Canons of Professional Ethics, Canon 15. Commonwealth v. Mercier, 257 Mass. 353, 376-377. Commonwealth v. Cooper, 264 Mass. 368, 374. Greenberg v. United States, 280 F. 2d 472, 474-475 (1st Cir.). Harris v. United States, 402 F. 2d 656, 658-659 (D. C. Cir.).

The prosecutor’s argument as a whole, however, did not require a mistrial. The judge acted properly within his discretion in denying a mistrial and in relying on curative instructions to erase the error. Commonwealth v. Bellino, 320 Mass. 635, 644, and cases cited. The judge adequately guarded the defendant’s rights in each instance.

Counsel immediately objected to the first statement cited above. Although the transcript at this point is not clear,³ the judge was later at pains to point out that he recognized at the time that the argument was improper. The record suggests, as the judge said, that his statement to this effect was not heard over defence counsel’s expostulation. In addition, the judge explicitly stated later that he would have given immediate instruction to the jury to disregard the comment if defence counsel had asked for one. No such motion was made. In the absence of a. suitable request the defendant cannot now successfully argue that an immediate instruction to the jury was necessary to erase the prejudicial effect of the remark. We suggest, however, that in many instances it may be more effective for the judge to give immediate instructions.

After the closing arguments the judge declared his willingness to include in addition to his general charge on closing arguments of both counsel a specific reference to whatever remarks the defendant thought were unduly prejudicial. In adequate compliance with a written request for instructions about this first objectionable remark submitted by counsel for the defendant the judge specifically covered the subject in his charge. Although the language he used was less emphatic than that requested by the defendant, who took exception to it, it was sufficient to safeguard the defendant's rights. Commonwealth v. Devlin, 335 Mass. 555, 568-569. Commonwealth v. Gordon, 356 Mass. 598, 604.

Counsel for the defendant did not object at the time to the prosecutor's statement of his personal belief in the guilt of the accused. He did mention it, however, in his motion for a mistrial, and by implication at least requested a specific instruction on it. Nevertheless, his exceptions to the judge’s charge were too vague to make clear to the judge that there was objection to the judge's refusal to allude to that comment in particular in accordance wdth a written request to this effect.⁴ Compare Commonwealth v. Cabot, 241 Mass. 131, 151. In view, however, of our obligation in capital cases to examine the whole case (G. L. c. 278, § 33E), we have considered the effect of this comment in light of the entire proceedings (cf. Patriarca v. United States, 402 F. 2d 314, 322 [1st Cir.]) and particularly in the light of the judge’s general admonition that counsel in their closing arguments "very often become overzealous. Closing arguments are not evidence for your consideration.” We feel this instruction was adequate. As the judge pointed out, reminding the jury of an improper remark, no matter what the purpose, might tend to emphasize it.

The defence has contended here that the improper argument was aggravated in its effect because of the jury’s knowledge that the codefendant had pleaded guilty. This premise is not valid, because the codefendant’s guilty plea was in no way inconsistent with the defendant’s presentation of his defence to the jury. Although the defendant did not testify, his attorney represented in his opening and closing statements to the jury that the defendant was in the murder automobile but was there innocently and was in no way involved with the killing. The jury, upon learning of the guilty plea, then knew that at least one other occupant of the vehicle had admitted criminal responsibility for the murder. It is not logical to conclude that the jury would accept any implied argument of the prosecutor that, because one of the men whom the defendant blamed for the murder had pleaded guilty, the defendant was any less firm in his assertion that he himself was not guilty of any crime whatsoever.

The improper argument must also be viewed in relation to the weight of the evidence of the defendant’s guilt. The case against the defendant was an extremely strong one. It is not probable that the jury drew from the argument the subtle inferences now suggested by the defence. In any event, the remarks of the prosecutor were insignificant and harmless as viewed in the context of the great weight of evidence of guilt.

3. Assignments of error based on the judge’s failure to give requested instructions are without substance. Three requested instructions dealt with the inference of innocence which the jury must draw from evidence which is consistent with both guilt and innocence. Although they accurately stated relevant law, the judge was not required to instruct the jury in the terms urged by the defendant. He adequately covered the substance of the requested instructions. Commonwealth v. Mannos, 311 Mass. 94, 113. Commonwealth v. Aronson, 330 Mass. 453, 458. Commonwealth v. Monahan, 349 Mass. 139, 170-171. He instructed the jury fully and accurately on the presumption of innocence and the burden of proof which the Commonwealth must sustain. He specifically cautioned them not to base their decision on suspicion or conjecture and further instructed them on the proper treatment of circumstantial as opposed to direct evidence in assessing guilt.

A final requested instruction was fco the effect that “[f]light does not necessarily reflect feeling of guilt.” The judge property instructed that evidence of the defendant’s actions on the scene, his flight, and later concealment, could be taken “as an admission of guilt.” He cautioned them in addition, however, that “common fairness insists that before you draw an inference of guilt for the crime of killing, you should be satisfied that these acts or words were at least a part of the motive or cause of the consciousness of guilt which caused these acts or words to be spoken.” The defendant could not require more. “Having given the jury correct rules for their guidance . . . [the judge] is not required to go further and discuss possible findings of fact upon which a defendant might be acquitted.” Commonwealth v. Greenberg, 339 Mass. 557, 585. Commonwealth v. Payne, 307 Mass. 56, 58. In addition, the possibility that the defendant’s flight was prompted by fear rather than guilt had already been suggested in argument to the jury by defence counsel.

4. Four other alleged errors now argued were not raised in the assignment of errors. It is incumbent upon the defendants in capital cases, as in any other kind of case, to file adequate assignments of error according to the procedures provided in G. L. c. 278, §§ 33A-33G. Section 33E of that chapter does not affect the applicability of the other sections in capital cases but only empowers us to order a new trial “‘if satisfied’ that because of error of law or of fact the verdict is a miscarriage of justice, or where because of newly discovered evidence or for some other reason justice requires a new trial.” Commonwealth v. Bellino, 320 Mass. 635, 646. We deal briefly with three of these contentions. None of them demonstrates any injustice which would require corrective action 'by us under § 33E. (a) Four questions were put to a character witness for the defendant on cross-examination. Two questions were excluded. The two questions allowed are not conceded by the Commonwealth to have been improper. Any error, however, was harmless because the questions whether the witness’s opinion of the defendant would be detrimentally affected by certain assumed facts about him merely stated the prosecution’s theory of the defendant’s role in the murder, with which the jury were already familiar. In addition, the witness answered in the negative to both questions.

(b) The judge properly excluded clearly hearsay testimony by the defendant’s grandmother about what the defendant said to her when he arrived at her house several hours after the murder.

(c) There is no merit to the contention that the procedure provided in G. L. c. 265, § 2, for having the jury determine in a single verdict both guilt and punishment for first degree murder violates the Fifth and Fourteenth Amendments to the United States Constitution. The United States Supreme Court has recently resolved this issue in McGautha v. California, decided with Crampton v. Ohio, 402 U. S. 183, 208-220, in which the court sustained the constitutionality of a similar Ohio statute.

5. The defendant’s final argument stems from the denial of his motion for a new trial. The motion, as amended some six and one-half months after it was originally filed, was based on allegedly newly discovered evidence outlined in four affidavits. Three of these were to the effect that the defendant was in the car on the night of the murder because Gagliardi had offered him a ride home from “The Attic.” One of the three, by the defendant’s father, also contained an account of an incident which would suggest that the derringer found in the back of the car belonged to Lanzi. That affidavit asserted also that defence witnesses who were to be caned to testify to the substance of the affidavits were prevented from testifying at trial by a threatening telephone call made to the defendant’s father during the trial. The fourth affidavit, by counsel for the defendant on behalf of a Medford police officer, stated the substance of a conversation with the defendant’s father before the defendant was apprehended to the effect that the defendant was hiding only because he was frightened of Gagliardi.

If the evidence described in the affidavits had been offered at trial in admissible form and believed by the jury, this information might well have led to a different result. The opening statement for the defendant indicates that the defence did in fact intend to introduce such evidence. The evidence thus was hardly newly discovered, although the affidavits advance a reason why much of it was not offered at trial. The threatening telephone call, however, does not explain why neither the defendant’s father, who stated in his affidavit that he pleaded with the others to testify despite the call, nor the Medford police officer was called to testify. Nor is there any explanation for the delay of over six and one-half months before defence counsel presented this information to the court. Much of the information stated in the affidavits was hearsay and would not have been admissible in that form in any event.

The motion for a new trial on the ground of newly discovered evidence was addressed to the sound discretion of the trial judge. Commonwealth v. Dascalakis, 246 Mass. 12, 32-33. Commonwealth v. Sacco, 255 Mass. 369, 449. Commonwealth v. Devereaux, 257 Mass. 391, 394-395. Commonwealth v. Chin Kee, 283 Mass. 248, 257. Commonwealth v. Wallace, 304 Mass. 680. Commonwealth v. Sheppard, 313 Mass. 590, 611. Commonwealth v. Coggins, 324 Mass. 552, 555. Commonwealth v. Robertson, 357 Mass. 559, 562. His disposition of it "is not to be reversed unless a survey of the whole case shows that his decision, unless reversed, will result in manifest injustice.” "Even if the nature of the evidence is such as to justify a belief that if it had been introduced at the trial the result of the trial would have been different, the judge is not required to grant the motion.” Sharpe, petitioner, 322 Mass. 441, 444-445. Commonwealth v. Robertson, supra, at 562. The 1966 amendment (c. 301) of G. L. c. 278, § 29, to allow the granting of a new trial where it appears to the trial judge that “justice may not have been done” has not altered the nature of our review of his action. Commonwealth v. Stout, 356 Mass. 237, 242.

The weight and import of the affidavits submitted were likewise for the trial judge’s discretion. Commonwealth v. Heffernan, 350 Mass. 48, 53. He did not have to accept them as true even though they were undisputed. Commonwealth v. Sacco, 255 Mass. 369, 450. Commonwealth v. Millen, 290 Mass. 406, 410. Commonwealth v. Doyle, 323 Mass. 633, 637. Commonwealth v. Coggins, 324 Mass. 552, 557. In weighing the new evidence presented he was entitled to make use of his knowledge of what had taken place at the trial (Commonwealth v. Sacco, supra, at 451; Commonwealth v. Chin Kee, 283 Mass. 248, 257), and he was not required to give reasons for his action. Commonwealth v. Sacco, supra, at 450. Finally, there was no requirement that the judge hear oral testimony in support of the affidavits; he was free to choose the procedure by which he would consider the motion. Commonwealth v. Millen, supra, at 410. Commonwealth v. Coggins, supra, at 556-557. Commonwealth v. Heffernan, supra, at 54. In these circumstances the record does not disclose any abuse of discretion in the judge’s denial of the motion, which followed oral argument by both sides and the submission of the four affidavits in support of the motion.

6. Acting under G. L. c. 278, § 33E, as amended through St. 1962, c. 453, we have carefully reviewed the evidence. We have done this particularly with a view to testing the defendant’s contention unsupported by evidence and referred to principally in the defendant’s unsworn statement to the jury that he was in a motor vehicle in the process of being driven home when he was caught up in a situation of murder in which he personally was not involved. Our review indicates that it was open to the jury to return the verdict which they did, and that justice does not require the entry of a verdict of a lesser degree of guilt than that returned by the jury or that there be a new trial.

Judgments affirmed.

1 At the trial Carr stated that the defendant told him the false story about the dead man in the car, whereas at the probable cause hearing he attributed the story to Oreto.

2 The defendant, as the appealing party has the burden of presenting to this court a record on appeal which shows that he was prejudiced by an error committed by the trial court. Commonwealth v. Klangos, 326 Mass. 690, 691. The record before us contains no portion of the grand jury minutes or any other information concerning the testimony given by Carr before the grand jury. The minutes are not incorporated in the record in any way. There is nothing to indicate that the defendant availed himself of any of the several methods open to him of having the minutes produced in court for marking, identification and incorporation in the record in connection with his exceptions to the denial of his motions with respect to the minutes. We cannot speculate on what the minutes contain or on whether they contain anything which might have been helpful to the defendant. The defendant has not sustained the burden of furnishing us with a record showing that he was prejudiced by the judge’s action on his motions to inspect the grand jury minutes and his alternative motion that the judge inspect the minutes in camera.

3 The transcript shows that the judge was recorded as saying “No” in what we interpret as agreement with defence counsel's statement, “That is not fair argument.”

4 Counsel for the defendant excepted “to the Court’s failure to give the requested specific instructions to the jury concerning the statements of the District Attorney in his closing. And, in the alternative, I take an exception to the failure to specifically instruct the jury that the District Attorney’s statement, which statement has been discussed with the Court and which is made a part of the record [to the effect that defence counsel hoped the jury would find the defendant guilty of a little less than first degree murder], in the proposed Request for Instructions, [sic] Exception is to the refusal to. specifically instruct the jury that those statements made by the District. Attorney were improper and should be disregarded by them.”