Commonwealth v. Holmes

707 N.E.2d 1094, 46 Mass. App. Ct. 550, 1999 Mass. App. LEXIS 346
CourtMassachusetts Appeals Court
DecidedMarch 30, 1999
DocketNo. 97-P-1395
StatusPublished
Cited by3 cases

This text of 707 N.E.2d 1094 (Commonwealth v. Holmes) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Holmes, 707 N.E.2d 1094, 46 Mass. App. Ct. 550, 1999 Mass. App. LEXIS 346 (Mass. Ct. App. 1999).

Opinion

Dreben, J.

Following a June, 1989, melee between Cambridge and Belmont youths that led to the death of Andreas Dresp of [551]*551Belmont, the defendant was convicted of second degree murder. His conviction was upheld on appeal, 32 Mass. App. Ct. 906 (1992). Critical to the Commonwealth’s case was the testimony of three witnesses, Austin Price, Toryn Chambers, and Andrew Calkins. In a motion for a new trial filed in 1997, the defendant challenged the evidence elicited from the three: Price’s on the ground that the judge and prosecutor mishandled a cooperation agreement in violation of the teaching of Commonwealth v. Ciampa, 406 Mass. 257 (1989); Chambers’s on the basis that the prosecution failed to disclose a cooperation agreement between the Commonwealth and Chambers; and Calkins’s for the reason that the prosecutor not only failed to disclose that Calkins had recanted, but also threatened Calkins with perjury charges if he corrected his testimony. The defendant’s motion also claimed error in the failure of the judge to give sua sponte a jury instruction on voluntary manslaughter on the theory of sudden combat. We affirm the denial of the motion for a new trial.1

1. Price’s cooperation agreement. Price testified that after the fracas, the defendant told him he had stabbed someone; that when he heard the youth had died, the defendant stated he was going to look for a knife he had dropped; and that subsequently the defendant asked Price to keep the matter quiet. On cross-examination, counsel for the defendant elicited testimony that before Price testified to the grand jury, he had entered into an agreement with the Commonwealth that he would not be prosecuted for any of the crimes arising out of Dresp’s death. Price admitted that shortly after the incident, when the police executed a search warrant at Price’s house, they found blood on Price’s hand and in his bathtub. At that time, he had not told the police of the defendant’s admissions nor of his own admission that he had stabbed someone.

On cross-examination of Price, defense counsel asked several questions concerning Price’s agreement:

Q: “And your deal, sir, that deal was to testify truthfully, right?”
A: “Yes.”
[552]*552Q: “And it’s fair to say that it’s your understanding that the person who determines whether it’s truthful, is the person you entered the deal with, right?”
A: “Yes.”
Q: “And that’s [the prosecutor]?”
A: “Yes.”
Q: “So if he’s happy with your testimony, you’re not going to get prosecuted, right?”
A: “Correct.”
Q: “And you haven’t been prosecuted, have you?”
A: “No, I haven’t.”
Q: “No complaints or indictments have been issued against you?”
A: “None.”

On redirect examination, the prosecutor offered the agreement in evidence, and it was admitted over the defendant’s objection that it was cumulative and self-serving. The agreement was a letter dated June 21, 1989, addressed to Price from the prosecutor and assented to by Price. It provided as follows:

“This letter will confirm our agreement regarding the investigation into the stabbing death of Andreas Dresp, who died on June 11, 1989.
“You have represented to me that you did not participate in any way in said stabbing, but that you have information regarding the crime. You have agreed to testify truthfully before the grand jury, at any pre-trial proceeding, and at any trial that may result. In return, the Commonwealth hereby agrees that you will not be prosecuted for your actions on Saturday, and Sunday, June 10 and 11, 1989.
“This agreement shall be considered to have been breached by you in the event that you fail to testify truthfully at any such grand jury or pre-trial proceeding or trial, [553]*553or if the Commonwealth establishes that you participated in the stabbing of Andreas Dresp.”

Relying on Commonwealth v. Ciampa, supra, the defendant claims a new trial is required because (1) the language of the Price agreement constituted impermissible vouching by the Commonwealth for the witness’s reliability; (2) the prosecutor improperly used the agreement in closing argument; and (3) the judge failed to give proper cautionary instructions concerning Price’s reliability.

The standard for reviewing the manner in which the cooperation agreement was handled at trial, which was not raised on the defendant’s direct appeal, is whether the errors, if any, created a substantial risk of a miscarriage of justice. Commonwealth v. Curtis, 417 Mass. 619, 624-625 n.4, 626 (1994). See Commonwealth v. Hallet, 427 Mass. 552, 553 (1998). There is no such risk here.

We note first that Ciampa was decided after the defendant’s trial had concluded, and it appears, as the Commonwealth suggests, that the case applies only to future trials.2 See Commonwealth v. Martinez, 425 Mass. 382, 398 (1997). But cf. Commonwealth v. Daye, 411 Mass. 719, 739-740 (1992) (Ciampa analysis applied to pre-Ciampa trial). In any event, the cooperation agreement and its use by the prosecutor were consistent with the principles of our cases and, in the circumstances, a cautionary instruction by the judge was not necessary.

In Ciampa, supra, the court accepted the rule that, if appropriately handled, “testimony pursuant to a plea agreement, founded on a promise of truthful cooperation, and the plea agreement itself are admissible,” id. at 261, and do “not constitute improper prosecutorial vouching for a witness.” Id. at 260. There are certain requirements for such admissibility, and since some of the provisions of the agreement in that case were too prejudicial, the court held they should have been redacted. A majority of the court considered that a “statement that the agreement was ‘contingent upon the truthfulness of [the [554]*554witness’s] representation to the Commonwealth that he, personally, did not shoot the victim,’ ” could be read as an implicit assertion by the Commonwealth that the witness’s representation was true. Id. at 262.8 Accordingly, it “should have been redacted on request by a defendant.”3 4 Ibid.

The defendant argues that, since the Price cooperation agreement, like the agreement of the witness in Ciampa, was contingent on the truth of Price’s statements as to his own lack of involvement in the death of the victim, the Commonwealth, in effect, improperly vouched for or attested to the truth of Price’s representation. The language of the Price letter, however, makes clear that it is Price who made the representation. In return for Price’s agreement to testify truthfully, the Commonwealth agreed that he would not be prosecuted.

That the difference in language is important and that implicit vouching by the Commonwealth will not be readily found, is indicated by the agreement upheld in Commonwealth

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Cite This Page — Counsel Stack

Bluebook (online)
707 N.E.2d 1094, 46 Mass. App. Ct. 550, 1999 Mass. App. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-holmes-massappct-1999.