Commonwealth v. White

311 N.E.2d 81, 2 Mass. App. Ct. 258, 1974 Mass. App. LEXIS 632
CourtMassachusetts Appeals Court
DecidedMay 16, 1974
StatusPublished
Cited by6 cases

This text of 311 N.E.2d 81 (Commonwealth v. White) 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. White, 311 N.E.2d 81, 2 Mass. App. Ct. 258, 1974 Mass. App. LEXIS 632 (Mass. Ct. App. 1974).

Opinion

Keville, J.

In a jury trial made subject to G. L. c. 278, §§ 33A-33G, as amended, the defendants were convicted on separate indictments charging each of them with mayhem, assault and battery by means of a dangerous weapon and armed assault with intent to commit murder. They assign as error the trial judge’s denial of their motions to inspect the minutes of the grand jury, his allowing the prosecutor to put leading questions to two of the Commonwealth’s witnesses, his denial of their motions for mistrial based on the questioning of three witnesses and his overruling of defense objections to the Commonwealth’s closing argument.

There was evidence from which the jury could have found that at approximately 3:00 a.m. on September 23, 1972, Richard Paaso, the victim, with two acquaintances, Donald Maley and Dana Leahy, accompanied by a German shepherd dog belonging to a friend of Paaso, drove to a bar adjacent to the Charles River Motel on Soldier’s Field Road in Rrighton. Leaving their car, which also belonged to Paaso’s friend, in the parking lot nearby, they entered the bar and there saw the defendant John O’Master. Paaso indicated that he wished to talk to [260]*260O’Master. The latter led him to a table where he sat between O’Master and the defendant David White. Leahy and Maley remained a few yards away; and the dog wandered among the tables of the bar. Paaso had known White for about ten years. During this period he had also become acquainted with O’Master. Paaso told the defendants that he had come to thank them for helping his friend Leahy. O’Master asked him why he was interested and if any of his money was involved. Paaso replied: “No.” Whereupon O’Master said to him, “Are you some type of tough guy?” and, “We are the power around here.” Then, without warning, O’Master reached over and “grabbed” Paaso’s ear. Paaso reached up and felt blood rushing down his face. He stood up and both defendants closed in on him. He felt “quick thrusts” in his stomach coming from White’s direction. He panicked, overturned a chair, ran from the lounge and hid in a ditch. As he was running, he noticed that O’Master struck the dog. He remained in the ditch for several minutes, and then sought assistance from Boston police.in a patrol wagon which had stopped nearby. The police drove him to a hospital. He had sustained serious injuries including cuts on his stomach, chest, face and neck. His left ear was nearly severed.

Later on September 23, the mutilated body of the dog was found in the parking lot by a motel maintenance man, Bucelwicz, who, at the suggestion and with the assistance of the defendant White, removed the body of the dog to a nearby field. There it was later discovered by the dog’s owner whose car was also found in the parking lot.

1. In their joint brief the defendants argue that it was error for the judge to deny their motion to inspect the minutes of the grand jury.2 At the close of the direct examination of Paaso, the defendants moved to obtain the grand jury minutes alleging that Paaso had previously [261]*261told a story inconsistent with his testimony at trial, viz., that he had been attacked by an unknown assailant while walking the dog. After reading the minutes, the judge informed counsel that he found Paaso’s testimony before the grand jury to be “completely consistent” with his testimony at trial. There was no error in the denial of the motion. The effect of the recent ruling of the Supreme Judicial Court in Commonwealth v. Stewart, 365 Mass. 99, 102-108 (1974), conferring a right of access to grand jury testimony of Commonwealth witnesses relating to the subject matter of their testimony at trial without a showing of a “particularized need,” is prospective only. Commonwealth v. Lamattina, ante, 203, 210 n. 3 (1974).

We therefore consider the defendants’ argument in light of the law prior to the Stewart case. Prior thereto, a defendant was not entitled to examine grand jury minutes as matter of right. Commonwealth v. Giaco-mazza, 311 Mass. 456, 462 (1942). A motion to permit inspection of such minutes was addressed to the discretion of the judge. Commonwealth v. Balliro, 349 Mass. 505, 518 (1965). It was deemed appropriate for the judge to review the minutes to determine whether an inconsistency existed between the witness’ testimony at trial and that given before the grand jury. Commonwealth v. Doherty, 353 Mass. 197, 209-210 (1967), cert. den. 390 U. S. 982 (1968), overruled on other grounds in Connor v. Commonwealth, 363 Mass. 572, 574 (1973). The presence of inconsistency would constitute a “particularized need” for the minutes (Commonwealth v. Carita, 356 Mass. 132, 141-142 [1969]; Commonwealth v. De Christoforo, 360 Mass. 531, 534-536 [1971]; Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 709-710 [1974]), warranting their examination by defense counsel. Commonwealth v. Ladetto, 349 Mass. 237, 244-245 (1965). Commonwealth v. Abbott Engr. Inc., 351 Mass. 568, 578-579 (1967).

[262]*262Where, as here, the judge found no inconsistency between Paaso’s testimony before the grand jury and his testimony at trial, no “particularized need” for access to the minutes was shown. Commonwealth v. Kiernan, 348 Mass. 29, 36 (1964), cert. den. sub nom. Gordon v. Massachusetts, 380 U. S. 913 (1965). Commonwealth v. Dominico, supra. In addition, counsel for the defendants thoroughly explored in extensive cross-examination of Paaso and other witnesses Paaso’s initial statement, which he admitted having made, that he had been attacked by an unknown assailant. The jury’s attention was emphatically directed to the credibility of Paaso on this point. Coupled with the judge’s ruling that Paaso’s testimony at trial was “completely consistent” with that given before the grand jury, no injustice resulted to the defendants from the denial of the motion.

2. The defendants next contend that the prosecutor’s examination of the witness Dana Leahy was improper and that the judge erred in denying their motions for mistrial based on the alleged improper questioning of this witness.3 At a bench conference before Leahy took the stand, the prosecutor informed the judge that he expected that Leahy would lie during his testimony. During the early portion of Leahy’s testimony, when he denied participating in certain activities with Paaso on the evening in question, the prosecutor put to him a series of leading questions over the objections of the defendants.

Although the judge did not formally declare Leahy to be a hostile witness until well along in the prosecutor’s examination, it was in his discretion to allow leading questions up to that point and thereafter. Commonwealth v. Coshnear, 289 Mass. 516, 527 (1935). Commonwealth v. Jones, 319 Mass. 228, 229-230 (1946). Commonwealth v. LaFrance, 361 Mass. 53, 57 (1972). In Commonwealth v. Flynn, 362 Mass. 455, 467 (1972), the court reiterated the language of Giuffre v. Cara-[263]*263pezza, 298 Mass. 458, 460 (1937), viz., “ [W]e are aware of no decision in this Commonwealth in which exceptions have been sustained because of the allowance of leading questions.”

We find no merit in the further argument of the defendants that the examination by the prosecutor violated the provisions of G. L. c.

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Bluebook (online)
311 N.E.2d 81, 2 Mass. App. Ct. 258, 1974 Mass. App. LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-white-massappct-1974.