Commonwealth v. Angiulo

Angiulo. Commonwealth Angiulo. vs. Commonwealth Gennaro June 11, Essex. 1993. 1993. January Lynch, O’Connor, Greaney. & JJ. Present: Liacos. C.J.. Wilkins. Nolan. Abrams. Practice, Criminal, case, Accessory Principal. Capital Homicide. defendant, Venue, jurors, jury proceedings, Jury and Grand Presence of Evidence, Interrogation jurors. jury proceedings, Wiretap, of Grand Jury. enterprise. Enterprise. Joint Grand Electronic Surveillance. Joint Law, Jury Jury. and Jurors. Constitutional accessory before to the crime of mur- A defendant convicted as an the fact degree to re- “capital” appellate der in the first is a defendant entitled by this court under G. L. c. 33E. view § [507-510] in- grand before a was sufficient to warrant a defendant’s Evidence accessory degree. to in the as an before the fact murder first dictment [510-511] room, attorney grand jury to of an United States in a Presence assistant attorney evi- presentation aid to in the of

render an assistant district dence, (c) permissible under of Rules of was rule 5 the Massachusetts Procedure, showing presence no Criminal where there was grand truth-seeking jury proceeding of compromised the function remained an authorized officer and where control of case with Commonwealth, attorney. here an assistant district [511-513] agent to read grand jury proceeding, permissible In a it for a Federal recordings during grand jury transcript tape made from surveillance, having to the instead of listen Federal electronic recordings, showing con- any that information actual absence significant cerning recordings would been quality have jurors’ deliberations. [513-514] trial, pro- large percentage

At a the circumstance that criminal not, itself, raise spective jurors reasons did were excused for various qualified jurors war- impartiality of the so as to any question as to the change rant a of venue. [514-516] statute, wiretap G. L. c. discovery provision The of the Massachusetts copies of all is entitled O under which a criminal defendant 99 surveillance, during applicable to in- recordings is not made electronic by order a Federal agents authorized terceptions made Federal court. [516-518] properly tape- at a criminal trial admitted in certain evidence statements, recorded exception hearsay under the rule for state- by joint joint

ments made in a criminal venturer furtherance of a enter- where, circumstances, prise, judge in the properly could conclude acting that the was declarant to conceal the crime that formed the basis joint of the enterprise. [518-520] prosecution punishable by imprisonment a a crime by

In for death or for life, returned,” jurors the “list of the who been which have the de- fendant, counsel, or defense is entitled under G. L. in- c. addresses, jurors’ prospective judge’s cludes the names and and fail- statute, ure to follow the mandate of the at the of a trial charged accessory degree, before the fact to murder in first required J., of the reversal defendant’s conviction. [520-526] Nolan, J., joined, dissenting. with whom Lynch, that, This court a rule process principles announced based on Federal due henceforth, anonymous jury empaneled no be is to in a criminal case determines, judge evidence, unless the adequate first on that anonymity is necessary findings has writing; and set forth his in the court also that, jurors stated if become anonymity, aware of their must take precautions jurors’ reasonable to minimize the effect of the ano- nymity J., on perception their of the defendant. with [526-529] Nolan, J., joined, whom dissenting. Lynch, It error for a to exclude the defendant and his counsel from an

examination of occurring conducted as the result of an incident during J., a J., criminal trial. with whom Lynch, [530-531] Nolan, joined, dissenting. found and in the returned Court De- Superior Indictment on partment December 1986. Peter F. J.,

Pretrial motions were heard Brady, and Ronan, case was tried before John T. J. Judicial on its Supreme Court own initiative trans-

ferred the case from the Court. Appeals

Anthony (.Robert M. Cardinale L. him) with Sheketoff the defendant.

Elin H. Graydon, Assistant District Attorney, for the Commonwealth. CJ. From

Liacos, January through Fed- May, eral Bureau of Investigation (FBI) conducted court-author- ized surveillance at 98 Prince Street and 51 North Margin Utilizing

Street the North End section of Boston.1 audio video agents and Federal monitored and recorded equipment, arrivals and from the above-described departures persons monitored and con- agents Federal also recorded premises. versations took inside the place premises.

Based on large the fruits electronic surveil- part lance, a grand jury Federal returned two-count indictment Angiulo Gennaro with charging (defendant)2 “conspiring activities, them, engage racketeering among conspiring murder before being and accessor the fact [y] [an] Patrizzi,” murder of substantive Angelo violations Act Organizations Racketeer Influenced and Corrupt (c) (d)(1988). The substan- (RICO), U.S.C. § alla, inter the defendant con- alleged, tive violations to and that defendant was Angelo murder Patrizzi spired an before the fact to Patrizzi’s murder. accessory to a in the District

The case was tried United States jury for Court the District Massachusetts. The convicted jury The Federal sentenced defendant to the defendant. $120,000. him and fined forty-five years prison - trial, in Essex sitting After the Federal a grand jury charges the defendant on County conspiracy indicted murder, before being and of the fact to accessory dismiss murder of Patrizzi.3 The defendant moved to Angelo Federal arguing prosecution the indictment the prior See Common- prosecution. barred the Commonwealth’s in the (1978). 374 487 A judge wealth Cepulonis, authorizing issued from 1The the electronic surveillance orders For a Court District of Massachusetts. States District United Angi surveillance, States United see description court-authorized denied, ulo, (1990). (1st Cir.), 897 F.2d cert. U.S. the same grand jury also Samuel Granito on 2The Federal indicted charges. persons to the person or unknown provided 3The “that a indictment with intent Jury Angelo beat Patrizzi assault and Grand did [the victim] beating Angelo Pa did murder murder such assault and him and counsel, incite, aid, trizzi; hire Angiulo procure, did and that Gennaro ... do and Jury person persons command or unknown Grand commit the murder.” 415 Mass. 502 Court denied the

Superior defendant’s motion to dismiss. The defendant sought relief interlocutory to G. L. pursuant c. (1990 ed.). A single justice this court reserved § the case to the reported full bench. We affirmed the mo- judge’s tion decision in part, allowing the Commonwealth to prosecute the defendant on the charge that he was an acces- before sory the fact to murder in the degree; first and we reversed in part, dismissing conspiracy count on double jeopardy grounds. Commonwealth, Angiulo

Accordingly, defendant was tried as an accessory before the fact to murder in the first degree. See G. L. c. (1990 ed.). The December, trial took place 1987. The returned a verdict of The guilty. sentenced the defendant to a term of life imprisonment. Asserting a errors, number of the defendant appealed. was appeal entered in the Appeals Court. We took the case on our own motion. For the below, reasons set forth we reverse the de- fendant’s conviction.

First, we summarize the relevant evidence. In Joseph Porter, Angelo half-brother, Patrizzi’s was shot to death. Porter’s body found in a stolen automobile in Revere. Patrizzi believed individuals, that two Frederick Simone and Frizi, Cono were responsible, for the murder. Patrizzi re- solved to kill Simone and Frizi to avenge his half-brother’s death. News of intention, however, Patrizzi’s reached Simone and Simone’s associates.4 Simone and his associates planned a strike; preemptive Patrizzi would be killed before he killed Simone or Frizi.

For some period of time 26, 1981, toup January Patrizzi had been incarcerated for criminal offenses unrelated to the present case. On January Patrizzi was transferred to a house. half-way While a house, resident of the half-way Pa- trizzi was “employed” at Surf trial, Auto Body Revere. At the director of the house half-way testified that Patrizzi’s 4For a discussion of the relationship between see United parties, States Angiulo, supra at 1176-1177. He re- smoothly. into did not society proceed

transition back Patrizzi was visibly when February, called a day other manner that disturbed the carried on in a upset director summoned In response, residents and the staff. he to calm Patrizzi. to a where meeting attempted Patrizzi director’s Patrizzi queries, responded, In response director, got killed brother .... I’ve “They my told by 3, 1981, listed Patrizzi as On March the director them.” get status.” on being “escape conversation, 11, 1981, the FBI a intercepted

On March defendant, Street, among 98 Prince which occurred at Granito, that The conversation reveals and Simone. Samuel intentions as well as the knew about Patrizzi’s the defendant and Simone told the defendant to kill Patrizzi. Granito plot kill Patrizzi on unsuccessfully attempted that had they told the defendant and Simone also two occasions. Granito and a clothing, given money, gold, had been that Patrizzi of his so would know they “no-show” at Surf Auto job Body de- Nonetheless, The Patrizzi had disappeared. whereabouts. to kill Pa- the plan fendant his displeasure expressed as to how demanded an explanation trizzi had gone awry Later, need defendant affirmed the he had eluded them. Patrizzi. to kill conversation, 12, 1981, the FBI intercepted

On March Street, defend- Prince between the which also occurred at 98 associate, the conver- During Ilario Zannino. ant and another sation, his conversation told Zannino about the defendant The defendant asked Zannino Granito and Simone. with defendant, having “problem.” assist with the Patrizzi hiding informed that Patrizzi been previously Boston, would Zannino that he told South Boston section it. when he received number him Patrizzi’s give telephone make sure concern: he wanted to some expressed Zannino knew “what to Zannino said he right he “hit” the man. number. telephone after he Patrizzi’s acquired do” 3, 1981, conversation of FBI intercepted On April associates, and Johnny Lamattina Ralph and two Zannino North Margin took at 51 The conversation place Cincotti. Patrizzi, Street. to Zannino told Lamattina and Referring Cincotti that Patrizzi had been and his “clipped” body put a trunk. Zannino cautioned the men to about this silent keep development. 11, 1981,

On June found Patrizzi’s Lynn police body trunk of an automobile. who Lynn police The officer dis- covered the testified body “hog-tied.” that Patrizzi had been Patrizzi’s legs were bent from his knees to buttocks. A up his was tied around his ankles. It extended his back rope up knotted was around his neck. The “fairly” was taut. rope The officer testified that Patrizzi’s was found inside a body Four or five of sleeping bag. strands were tied around rope the sleeping bag.

The medical examiner on conducted June autopsy 1981. He identified Patrizzi’s medical and corpse through dental records and the cause of as reported death asphyxia due to strangulation Patrizzi by ligature. had been dead at least two to weeks prior autopsy. medical examiner not could determine the or exact date time of death because degree of decomposition body. The defendant raises numerous issues on We con- appeal. sider those issues only that are dispositive which re- may cur at a new trial and provide additional facts as necessary.

1. Jurisdiction review. After scope sentencing, the judge advised the defendant his right to appeal citing G. L. c. (1990 ed.). The appeal origi- defendant’s § brief, nally entered Court. In his filed in Appeals the Appeals prior court, Court transfer the case to this the defendant argued that he entitled is review appellate to G. c. pursuant (1990 ed.). L. 33E The defendant § claims that 33E applies, notwithstanding conviction as § an accessory before the fact murder in degree, the first case,5 because he is a defendant in a “capital” term is used in argues 33E. The defendant 33E because applies § 5An degree individual convicted of murder in the first referred to as a “capital” although capital punishment penalty currently is not a Gen., recognized Attorney law in the Commonwealth. Dickerson 415 Mass. 502 Angiulo.

Commonwealth sub- underlying and tried on the have been indicted he could 274, c. see G. L. degree, murder in the first stantive felony, he is to the same ed.), subject punish- and because (1990 3 § in the first convicted of murder as one who has been ment 274, We (1990 ed.).6 see G. L. c. as a degree principal, § agree. 33E, 278, ju- vests exclusive appellate Laws c.

General § court. The of review scope in cases in this risdiction capital a de- than that available to 33E is broader by mandated § Cullen, 395 case. fendant in a noncapital 225, is de- “capital” If the defendant a 33E, to a then he is entitled as the term is used fendant § that to which broader than considerably standard of review entitled. he would otherwise be defendant, whether the convicted We to consider proceed first degree, fact to murder in the as an before the accessory 278, in G. L. c. as that term is used is a “capital” Section 33E defines a cap- We with the statute. begin 33E. § defendant was tried on an case as “a case in which the ital and was convicted degree ‘murder in the first indictment for case, the Gen- Given such a degree.” of murder in the first de- review the ‘whole case’ to Court has directed us “to eral weight the law or the ‘against whether the verdict is termine ” Gen., Attorney evidence.’ Dickerson v. finding, a the statute G. L. c. 33E. On such quoting § “ entry new trial or . . . direct the us to ‘order a empowers of of if the interests degree guilt,’ of a verdict of a lesser stated, we have Id. at 741-742. As so justice require.” convictions first murder degree review of thorough “uniquely 11525, accessory before sentencing Indictment the clerk said: 6At “[0]n degree, jury having returned a verdict in the first the fact of murder punished by confinement for a term guilty, you Court orders that be (1990 ed.), part: “No provides life . .” General Laws c. . . § serving life sentence for eligible parole . . while he is person be . shall convicted as degree .” As the defendant here was murder in the first . . . degree, punish in the first accessory before the fact to murder is the same as that for accessory before the fact ment for conviction as an stated, is, offense, unequivocally sentence underlying the defendant’s parole. possibility of imprisonment life without is warranted of the crime and infamy severity its Id. at consequences.” 744. One convicted of murder first to life degree subject imprisonment without the possi- bility G. L. c. parole. (1990 ed.).

We hold that the statute cannot be interpreted reasonably to exclude from its a defendant sweep indicted and convicted as an before the accessory fact to murder in the degree. first 274, 3, General Laws c. in provides, “Who- pertinent part, § counsels, ever hires or otherwise to be com- procures felony mitted be indicted may and convicted as an accessory before the fact ... be may indicted and convicted of the sub- stantive . . . .” If felony the Commonwealth prosecuted the defendant for murder in the have, first degree, as it could resulted, a conviction the defendant would be a capital defendant within the of meaning 33E. The issue as to the § of 33E applicability in this case arises because solely § Commonwealth opted to prosecute the defendant as an ac- cessory before the fact and not for the substantive offense.

If we were to decide that 33E applies only those de- § fendants convicted of murder in the degree first as principals, then the Commonwealth’s decision to prosecute the defend- ant as an accessory rather than for the substantive crime would adversely affect the defendant’s appellate rights. It is that unlikely General Court intended such a construc- tion. Cf. Commonwealth v. Connolly, 394 Mass.

(1985) (court resolves doubts as to statute’s meaning favor of criminal defendant). Moreover, the purposes underlying the need for plenary review under 33E are no less present § in a case where the defendant is charged as an accessory before the fact to murder in the first degree. See G. L. c. 2 (an accessory before the fact “shall § be punished the manner provided of punishment the principal felon”). Finally, we find further support Grady Trea- surer Worcester, County 352 Mass. of (1967), where we held that one convicted as an accessory before the fact to murder had committed a crime for capital purposes awarding attorney’s fees to the defendant’s court-appointed counsel. reasons, defendant is a cap- conclude that the we

For these 33E. of G. L. c. meaning within the ital defendant § of the require- in view appeal we consider Accordingly, 33E. set forth in ments three ar- The defendant presses jury proceedings.

2. Grand the indictment and the concerning validity guments ar- We consider each of the grand jury proceedings. conduct in turn. gument trial, On two occasions prior evidence. Sufficiency

a. the ground dismiss the indictment on moved to the defendant evidence to find did not receive sufficient the grand jury McCarthy, cause. See Commonwealth probable occasion, who was judge, the motion On each The defendant claims the motion. judge, the trial denied not in es- argues, The defendant the motion erred. sence, grand of evidence introduced that the quantum Thus, de- cause. was insufficient to support probable jury defective, indictment was “fatally fendant argues in- in reliance upon taken and all subsequent proceedings Commonwealth, 363 Mass. dictment were void.” Connor 572, disagree. We (1973). 163, we héld McCarthy, supra

In Commonwealth criminality evidence of receives no grand jury that where a accused, dismissed. indictment must be on the part grand jury least the very we stated that “at holding In so identity to establish the hear sufficient evidence must (Cita- arrest him. . . .” cause to accused . . . and probable serves to pro- threshold omitted.) evidentiary Id. This tions unfounded criminal “against prosecutions.” innocent tect the E. Hampden, Lataille v. District Court of at 163 v. McCarthy, supra See (1974). “is stated, cause probable indictment on only n.6. Otherwise to the innocent one of the securities regarded as justly public prosecutions.” malicious and against hasty, oppressive Robbins, Gray Jones v. grand jury proceed- minutes of the have reviewed the

We heard sufficient evi- grand jury that the ings. We conclude cause. See Common- finding probable warrant a dence to O’Dell, wealth 392 450-453 (1984); Commonwealth v. McCarthy, at 163. The grand jury had a which recorded transcript tapes the defendant’s con- versation with his associates in which there was an abun- dance of evidence of cause probable to believe that he anwas before the accessory fact to murder. There was no error. b. The DiNisco, Federal Mr. prosecutor. Ernest S. an as sistant United States had attorney, worked on the Federal government’s against case the defendant. DiNisco was famil iar with both the and audio which videotapes tapes were the cornerstone of the Federal case. See United States v. Angi ulo, 897 F.2d (1st Cir.), denied, cert. 498 U.S. 845 (1990). As the Commonwealth’s case rested on some of the same recordings, the Commonwealth enlisted DiNisco’s assistance to facilitate presentation of its case to the grand jury. trial,

At some point prior DiNisco was appointed sworn as a special assistant district The date of attorney. DiNisco’s appointment is not clear from the record. The as- sistant district attorney informed the judge that DiNisco had been sworn prior presentation of the evidence to the grand jury. evidence, in Documentary the form of a notice of ap- pointment, indicates that DiNisco’s appointment was effec- 17, 1987, tive April a date after the grand had ad- journed. The notice of appointment limited the scope DiNisco’s responsibility to the prosecution of Gennaro Angi- ulo, Zannino, Ilario Simone, Frederick and Samuel Granito.

The grand convened jury on December 1986. The assis- tant district attorney first: spoke “Good morning, members of the Grand For the Jury. record . . . I’m an Assistant Dis- trict Attorney hére in Essex And County. me in aiding the presentation of this investigation is Assistant Special District DiNisco, Ernest Attorney who is also a special attorney with the Justice Department.” The grand heard jury testimony from two witnesses. The assistant district attorney questioned the first witness. DiNisco the questioned second witness. Based on the testimony, grand jury indicted the defendant. 415 Mass. 502 v.

Commonwealth that DiNisco’s was unau- argues presence The defendant therefore, and, void his convic- his indictment is thorized disagree. must be overturned. We tion Pezzano, 72-73 In Commonwealth “the of an unauthorized (1982), per- we stated that presence . . . a will void an indictment. grand jury son before Th[e] conception pro- is based the fundamental ‘upon principle must be in secret.’ . . . This grand before the ceedings jury and deliberations of hearings rule of on the secrecy imposed considerations. significant derives from two grand from un- notoriety a decision to ‘save individuals The first is them and an indictment against less cause is found probable ... is to shield and disclosed. . . . The second is returned having from outside influences grand any jury proceedings or investigatory accusatory to ‘distort their potential omitted.) . See Commonwealth (Citations functions. . .’” 1, 5-8 (1991). 410 Mass. Conefrey, Rules of Criminal Proce- (c) Rule 5 of the Massachusetts dure, for the (1979), “Attorneys provides: to the pres- Commonwealth who are convenient necessary examination, evidence, witness under entation of the witness, other who are persons for the and such attorney the evidence necessary presentation or convenient is in session” may grand jury (emphasis be while the present supplied). concerning exists in the record

Conflicting evidence assistant of Mr. DiNisco’s timing special appointment Thus, his appointment we shall assume that district attorney. of the grand jury proceedings. was not effective at the time Parker, 342 (1988). See rule 5 Nonetheless, under permitted DiNisco’s presence or convenient” to the (c) “necessary presentation as a person to direct the defendant has failed Additionally, of evidence. conclusion that tending support us to evidence function truth-seeking DiNisco’s presence compromised of the minutes of Our review grand jury proceedings. no such evidence. has revealed grand jury proceeding 415 Mass. not have that DiNisco should argues also

The defendant was, he because grand jury presentation in the participated The times, States attorney. an assistant United at all relevant served to taint that DiNisco’s presence defendant claims his allegiance because DiNisco owed grand jury proceedings — The government. Federal sovereign” to a “different a criminal to press that the argues responsibility of this Com- in the hands of officers belongs indictment only See art. 5 of agents people. monwealth who are of Rights. Declaration Massachusetts assumes erroneously defendant’s argument The DiNisco, of the Common not an agent people and wealth, of the evidence in defend the presentation controlled from the minutes of to the It is clear grand jury. ant’s case assist and to aid that DiNisco’s role was to the proceedings the evi of his with familiarity the chief because prosecutor DiNisco directed At no can it be said that fairly dence. point See Common grand or controlled the jury presentation. Co., 205-206 Fin. wealth Beneficial Massachusetts, Farrell v. (1971), cert. denied sub nom. Massachusetts, and sub nom. Fin. Co. U.S. Beneficial So as control of the case remained long 407 U.S. 914 branch, executive here with a authorized member of the duly showing district and absent a attorney, assistant DiNisco’s resulting par or manifest from injustice prejudice This result ticipation, participation permissible. if was in fact simultaneously would be no different DiNisco and as as as assistant United States serving attorney special sistant district attorney. did not hear the grand jurors

c. The tape recordings. during the FBI its surveillance. recording tape produced Rather, the voices on the an FBI who had identified agent, read recordings portions prepared transcript, that the agent The FBI testified grand jury. transcript the words spoken transcript fairly accurately represented that inaudible on the The FBI also testified recordings. agent so in the designated were recordings portions transcript. Angiulo.

Commonwealth v. The defendant asserts that the judge erred in denying motion to dismiss the indictment due to the Commonwealth’s failure to inform grand jurors of the “degraded” quality of the tape recordings them for play the grand jurors. The defendant asserts that this failure served to impair of the integrity grand jury See proceedings. Commonwealth O’Dell, supra. We disagree. In Commonwealth v. Mayfield, 398 Mass. (1986), we instances, stated: “In certain the failure to dis- close known information may impair grand jury proceed- ings. For example, presentation a defendant’s inculpatory statements recorded in a distorted police report, the inten- tional failure to disclose the defendant’s com- exculpatory ments interspersed that report, grand impaired jury pro- ceedings required dismissal of the indictment O’Dell, Commonwealth v. 392 Mass. (1984).” 448-449 We went on to “To say: sustain a claim that the integrity the grand jury proceeding has been not impaired, only must the evidence have been given with the knowledge that it was false or but the deceptive, false or evidence deceptive must have been probably significant in the view of the grand jury and must have been presented with the intention of obtaining an indictment.” Mayfield, supra 621. See id. at 637 J., (Liacos, dissenting).

Such is not the case here. Assuming, arguendo, that the Commonwealth withheld intentionally the disputed informa- tion,7 the defendant has not shown that this information would have been significant in the view of the grand jury. The absence of additional information concerning the quality of the recordings did not tend to distort the incriminating nature of the evidence the grand had before them. jury Com- pare O’Dell, at 449. The integrity of the grand jury proceedings was not impaired.

3. Change trial, venue. On three occasions prior defendant moved for a change venue. On the de- appeal, point disputable. 7This agent The FBI portions testified that of the recorded conversation completely intelligible.” were “not ren- the denial of these motions fendant us to hold that urges to an right impartial jury dered his constitutional nugatory of the argues prejudice trial. The defendant such a high percentage should be because presumed due to their “knowl- members of the venire were disqualified high of the defendant.8 As such edge” percentage de- venire demonstrated a prejudice, members disqualifying fendant of the claims of argues, impartiality reliability be drawn into There jurors should empaneled question. was no error in the on this rulings point. “a in the noting change

We begin by place ‘great trial . . . should be ordered with caution and af- only ” ter first a solid foundation of fact has been established.’ Bonomi, 327, v. 333 (1957), Commonwealth 335 Mass. Court, 162, Crocker v. 208 Mass. quoting Superior (1911). “The existence of not alone pretrial publicity'does indicate that an cannot be Com- impartial jury empanelled.” Jackson, monwealth (1983), citing Florida, Dobbert v. (1977). U.S. 302-303 ques- tion, framed, is there properly “whether are indications ‘any in the of the totality circumstances [the defendant’s] ” trial was not fair.’ fundamentally Jack- son, Florida, quoting U.S. Murphy

The defendant argument advances an in which he urges us to presume prejudice the venire because cent forty-two per of the venire was excused. We decline the defendant’s invita- tion to attribute the prejudice of some to the otherwise im- partial jurors. Review of the reveals no rational transcript that, basis for such a conclusion. We note while forty-seven were persons due to their of the de- disqualified “knowledge” fendant, the source knowledge of the was not common.

For one was excused because he example, prospective juror was related by marriage. jurors were excused be- Prospective argument “[f]arty-two per 8The defendant bases on the “fact” that [forty-seven cent inquired out of who were 112] knowledge trial disqualified court had to be because of their about defendant.” cause a member had attended school with the defend- family child or A juror ant’s knew him. was excused prospective because she knew a officer and who was a person police consider, her doubted on an testi- ability equal footing, offered rebut that of a officer. One mony police prospective juror was excused because he felt that the victim what he got deserved, while another was excused because he could not have convicted the defendant. Some jurors had prospective learned of the defendant not from recent but from publicity friends, and were parents thereby predisposed. Given the varied reasons for the we cannot partiality say itself, that the raw number of causes us disqualifications, It is clear question impartiality qualified jurors. from the of the circumstances that the defendant’s totality right to a fair trial was not due to the compromised judge’s failure to grant defendant’s motion for a change venue. The defendant has fallen far short of his bur- meeting of showing den that he was “generally substantially such that “it was to em- prejudged” practically impossible Bonomi, panel impartial jury.” Commonwealth at 333.

4. The Massachusetts statute. The defendant ar- wiretap gues that the erred in failing to the fruits suppress9 the Federal surveillance because he was not served with a of all the to trial complete copy recordings thirty days prior 272, pursuant (1990 ed.) to G. L. c. 99 O 1 (discovery § Section 99 O 1 provision). provides pertinent part: “[I]n criminal any trial where the commonwealth intends to offer in evidence of the contents of any portions any interception or evidence derived any therefrom the defendant shall be served with a of each document and item complete copy which make each renewal war- up application, application, rant, order, renewal and return to which the infor- pursuant mation was obtained.” If the defendant is not served with the “discovery,” 9While the defendant treats the a matter we issue as give ground discovery required by note that failure to 99 O 1 is a § Thus, involving suppression under O & P. we the matter as one treat § suppression of evidence. 415 Mass. 502 items, the communica- document and intercepted

specified are rendered ille- derived therefrom tion and evidence any 272, G. L. c. 99 P 1. and are inadmissible. obtained gally § that thirty days prior The defendant does not dispute the Commonwealth trial he received of all the copies tapes Rather, evidence him. the defend- against intended to use as recordings that he is entitled to receive all the argues ant made the Federal surveillance as a condition during prece- the re- dent to the admission in evidence of any portion O 1 to the cordings. argues The defendant applies § surveillance conducted the Federal by government.

While we reserved our on a similar issue in Com- opinion Picardi, (1988), we now con- monwealth sider whether the statute is discovery provision wiretap made the Federal by government, applicable interceptions authorized order of a Federal court. We are persuaded 99 O 1 does not to such evidence. We interpret apply § 99 O 1 to to evidence obtained apply only pursuant § warrant, renewal and return application, application, provi- sions of G. L. c. 99 F-M. Our conclusion follows from § the statute which defendant shall be served provides, “[T]he with a of each document and item which complete copy warrant, make each re- renewal up application, application, order, newal and return” G. L. c. supplied). (emphasis 99 O 1. §

As the General defined Court each of the emphasized F-M, terms in c. we assign definition of each § Thus, terms to 99 O l.10 emphasized entitled to documents and items which each comprise appli- cation, warrant, filed, issued, renewal and return application, to G. L. c. F-M. As the requested pursuant 99§ example, provides: Application. attorney gen 10For 99 F 1 “1. The § eral, any attorney general specially designated by attorney assistant general, any attorney, any attorney specially district assistant district designated by may attorney apply parte the district ex to a of com petent jurisdiction intercept for a warrant wire or communica oral competent jurisdiction “any justice tions.” A of defined as 272, superior court of the B commonwealth.” G. L. c. 9. 415 Mass. 502 submitted, in the case was application present the warrant issued, granted, renewal and return made pursuant law, Federal it follows that the necessarily discovery provi- sions of the do statute not See District apply.11 Attorney for Plymouth 218, Dist. v. Coffey, 386 Mass. 224-225 (1982). As the recordings were obtained under Fed- lawfully law, eral we know of no basis under the statute which would entitle the defendant the automatic right to discover of copies all the recordings made the Federal during surveillance in circumstances where he had received of all record- discovery which were ings to be offered in evidence. we Accordingly, find no error. 3,

5. The admissibility Zannino’s statements April trial, 1981. During the Commonwealth evi- presented dence, in the form of a of a tape recording, conversation Ila- 3, rio Zannino had with two associates on 1981. The April conversation, essence of the drawn from the transcript grand jury proceedings is in the The de- presented margin.12 fendant objected Zannino’s statements as hearsay. judge admitted Zannino’s statements as statements made by a joint venturer in joint furtherance of a enterprise. There was no error. Colon-Cruz, 533,

In Commonwealth v. 408 Mass. (1990), White, quoting Commonwealth 370 Mass. (1976), 708-709 we stated the well-settled rule that “out-of- 11However, rights discovery the defendant’s under Mass. R. Crim. P. (1979), applicable. remain We note also that there is no acting indication that Federal authorities were in collusion with or as agents obtaining of State recording. law enforcement authorities in See Attorney Plymouth Coffey, District Dist. J., See also id. (Liacos, concurring). Johnny

12Ilario you Zannino: “Shh.- Now shh. I told didn’t I.” John Cincotti: “Yeah.” Ilario Zannino: [Angelo “About Joe Porter’s brother Patrizzi]?” John Cincotti: “No.” Ilario Ralph Zannino: they clipped “Well him . . . .” “Oh, Lamattina: it.” that’s Ilario Zannino: say “Don’t a fuckin word now.” John Cincotti: him?” they “Did find 415 Mass. 502 Angiulo.

Commonwealth court statements by joint criminal venturers are admissible against the others if the statements are made ‘both during pendency effort and in cooperative furtherance of ” its goal.’ This does not after exception apply the criminal ended, has enterprise Drew, see Commonwealth v.

65, 71 (1986), but does where apply joint venturers are acting to conceal the crime that formed the basis of the en- terprise. White, See Commonwealth v. at 709-710 & supra n.8.

The defendant contends joint that the venture had ended at the time Zannino made the statements in issue. On this basis, the defendant argues that Zannino’s statements are unreliable See hearsay. Commonwealth v. Bongarzone, 340 (1983) derives from (reliability continuation of joint enterprise).

Efforts on the part joint venturer to conceal the occur- rence of the enterprise’s unlawful or to effect purpose an es- cape warrant the inference joint that the venture continued through the time the statements were made. Commonwealth White, at supra 709-710. Absent a circumstance such as where the declarant had been incarcerated at the time the made, statement was as was case Commonwealth v. the. Drew, or where the declarant has been appre- hended before the made, statement had been as was the case “No, Ilario they Zannino: didn’t find They put him. him in his trunk. . . . They lugged Nine of them. him from Topcoat. fuckin guys. Nine fuckin ... He went top in for a coat. And nine of them did it. Sonny Sonny Boy. did. You know all the fuckin trouble makers. And he’s in his trunk. . . . super Boss had told me on Jerry [T]he the QT. [Angiulo] says, gotta you T tell something . . .’. ‘They clipped Joe ‘Larry Porter’s brother. . . .’ listen,to [Zannino], me now.’ ‘Listen what?’ He ” says, ‘got him in his fuckin trunk.’

Ralph Lamattina: “It’s been days.” ten Ilario got Zannino: they They got “But him. Freddy him. [Si- was scared to death. The kid mone] [Patrizzi] clipped would have him in two fuckin minutes.” Ralph Lamattina: “He clip Freddy. wanted to The kid wanted to ahh.” Dahlstrom, (1962), in that the venture had terminated at the joint we cannot say the statements were made. The of the de- relationship time conversations through fendant and the declarant as revealed 12, 1981, on March and the circumstances intercepted made, at issue were us little diffi- give which the statements that the was within his discretion in concluding culty of the exis- ruling that there was adequate probability “[a]n Common- venture . . . .” continuing] tence of ... common [a wealth Bongarzone, supra at 340. Zannino made the statements argues

The defendant that argu- of the incident. The defendant’s brag to boast or only brag- that Zannino’s discourse was more than nothing ment had previously is untenable. The defendant and Zannino ging them. causing discussed the that Patrizzi was “problem” stated he knew “what to do” on of informa- receipt Zannino Patrizzi’s whereabouts. At an unknown revealing point tion killed. The defendant will not be heard in time Patrizzi was to limit the flow of to that Zannino was not say attempting dis- information a situation he had concerning previously and which remained undiscovered at the time he cussed have made the statements in issue. Zannino’s statements may desire but in this instance the boast masked a been boastful kill- and the killing identity to conceal fact the de- As this end served to benefit both Zannino and ers. fendant, degree this of interests “tends some overlap reliable. Id. are minimally assure” that Zannino’s statements there was no error. Accordingly, interrelated Anonymous jury. 6. We come now to the two that which us to conclude require errors committed at trial order a new trial. These we must reverse the conviction and and, as will be involve the use of an anonymous jury, errors of an examina- were the conduct compounded by explained, jury during of some members of the tion the trial absence of the de- prosecutor, the course of the trial counsel, relevant facts pertain- and the defendant. The fense are these. jury of an ing anonymous the empanelment venire, Prior summoning Commonwealth moved of an The Commonwealth empanelment anonymous jury. argued anonymous necessary precau- measure “to insure from tionary jurors are free in- timidation, threats, to influence or corrupt attempts Commonwealth, however, purchase their votes.” did not seek to Without written the mo- sequester jury. opinion, tion judge granted the motion over the defendant’s objection.13 outset,

At the the judge the Commonwealth’s sug- adopted gestion that not be told their to avoid anonymity that would possibility they any draw adverse inference Thus, against gave the defendant. he no to instruction the no jurors to draw inference adverse to the defendant from the fact unknown (then jurors) of their anonymity. did, however, The judge all jurors authorize to prospective a complete questionnaire their back- six-page pertaining to ground.14 Both used the to these parties responses questions to frame their voir dire and to exercise inquiry peremptory challenges. During voir dire the judge each questioned pro- spective juror and the permitted both Commonwealth and defense counsel further opportunity questioning. objection immediately granted 13Counsel renewed his judge after the the motion, certain, just again Commonwealth’s stated: “I want to make record, motion, on the in lieu and in view Court’s ask the of the I Court to sequester jurors taking away right reconsider and to the instead of the of a the to know name and address for all the I’ve here reasons judge replied: my tofore stated.” entirely The is not “That out mind. But, just it, get so a record there’s it’s denied at the until I a moment feeling going presented talking to what issues are to be once I start with selection, jurors.” objected again these anonymity during jury Counsel to pointing exercising practice prevented fully-in out that this him from challenges respect juror formed with to a whose son worked for a district attorney’s juror police office and a whose husband was a officer. The defendant, therefore, preserved right appeal the allowance of the jurors’ Commonwealth’s motion to withhold the names and See addresses. Nolan, 3-4, J.R. Appellate Procedure 5§ scenario, juror proposed by alphanu 14Under the each was identified name, address, designation. juror’s meric place employment Each were concealed. trial, the a During course of the court officer reported had that several that the defend- judge jurors the complained was them the or “evil Some of giving “whammy” eye.”15 ant said intimidated jurors felt defendant and they he down about writing believed that was information them. to this the judge ju- In occurrence interviewed each response discussing in chambers after matter with counsel. The ror of the interviews was to learn of the con- reported purpose juror assess of the Each was jurors. duct and the impartiality counsel interviewed Neither defense nor the individually. was the interviews. The court ste- present during prosecutor each during interview and present transcript nographer was made available to counsel immedi- of the proceedings after interviews. ately interviews, discussed

During judge course told the he often jurors incident and that sees alleged the defend- during the circumstances. After conclud- given remained impartial the counsel that mat- judge the interviews the to ing reported “no ter was of consequence.” happened, your juror incident as follows: “What 15One described the

Honor, was, jury, looking up okay, at the what I was seen defendant] [the — down, writing making anything I don’t if he was looking back like know talking making writing anything and to he was like he was or not. But jury. if he again at the I don’t know was look up He would look himself. — doing every individually and looking at one of us ing looked like he was down, thing, up up and down.” that same and juror, you it going a “I'm to tell because example, the told 16For only . . Superior place your . juror. In the Court the up with another came to take a possible office. And it is number appears is in the clerk’s name go it in Salem at the clerk’s office and and down and match from here they’re easy thing and not juror’s not an to do name. But it’s retrieve a that, I because if were a public. you simply tell going to be made So I want, that.” juror, perhaps would to know I anonymity. jurors of judge did not three their The inform 523 The argues granting defendant that the erred the Commonwealth’s motion to an The anonymous empanel jury. First, defendant’s has three the argument aspects. defendant argues anonymous that tainted the empaneling jury pre- innocence, of his due sumption infringing on thereby process Second, right to a fair argues trial. the defendant that the to complained-of procedure right his exercise his impaired challenges, on his to an peremptory thereby infringing right Third, jury. the the of an impartial argues that use c. anonymous jury (1990 ed.),17 violated G. L. § which “A indicted for a crime provides: prisoner punishable disagree 17We with the dissent’s that appellate claim the defendant’s properly present statutory challenge jurors’ brief did not his anonymity. to argues Post argument straightforward: at 532-533. The defendant’s was he that, terms, (1990 by plain ed.), his brief its c. G. L. entitled § jurors. him prospective longer to a list of brief no “A should be than is necessary persuade panel position to convince and the and a taken request relief attorney prejudice being ... An not should his case prolix. points He should make his and conclude. Conciseness creates a Nolan, favorable and appellate judges.” Appel context mood for the J.R. Procedure, brief, late 24. The defendant’s which raised nu § error, merous generally claims of concise and terse. The entire section jurors’ on anonymity spanned approximately heading pages. two of argue section indicated that defendant would both constitutional statutory facts, describing and body violations. After relevant legal arguments. section devoted two and paragraphs about one-half argued jurors’ paragraph One anonymity constitutionally prohibited that innocence, when it presumption creates an unreasonable on the burden and addressing cited to a seminal paragraph, case this issue. In another peremptory challenges defendant’s brief addressed the issue — presented uncomplicated argument which the defendant — reproduced potential jurors in an “requires addendum that the list of be Finally, concluding made paragraph available the defendant.” stated statutory “process employed here our violated scheme and rights state and federal fair defendant’s constitutional to a trial the presumption of innocence.” context, In this it is clear that the defendant made more than a mere passing statutory argument. reference Cf. Karen Constr. Co. v. Li- zotte, spite compressed style n.7 In brief, appellate his properly presented the defendant . . . “contentions therefor, authorities, and the reasons with and citations the statutes amended, parts (a) (4), of record on.” the relied Mass. R. A. P. 16 367 (1975). duty Mass. 921 It is the our to address defendant’s claim notwith- standing respond it. the Commonwealth’s failure to See Merrimack Nonaka, (1993) Mut. (principle Fire Ins. Co. v. 414 191 of law Mass. 415 502 524 Commonwealth life, with him or death or demand imprisonment upon by clerk, the of who his counsel shall have a list the upon jurors defendant, have returned. . .”18 We that the agree been . the first charged as an before fact to murder in the accessory with life degree and without punishable imprisonment class of is a member of the to whom possibility parole, no subject statute is addressed. The Commonwealth has cited other cases in the nation where the defendant stood capital we have unable jury, trial in front of and been anonymous the use to locate The Federal courts that have any. approved of an have noted “in anonymous jury expressly capital cases, the law the disclosure of the names and ad requires . of . . before trial. See 18 U.S.C. jurors dresses prospective (3d 3432.” States v. 850 F.2d Scarfo, United § denied, In Common Cir.), (1988). cert. 488 U.S. 910 wealth, rule is in G. L. c. 66. this embodied § We in jurors” conclude that the words “list of § names addresses for several jurors’ include prospective First, such construction accords with the plain reasons. Next, of reveals of these words. meaning history § names be to de- jurors’ given that its drafters intended — its Like Federal capital counterpart fendants cases. — (1988) English 66 is derived from the U.S.C. § § in cer- a list of defendants practice providing Allen, 379 Mass. tain cases. capital turn, codified 575 & n.4 In this (1980). English practice receive in a statute that these defendants expressly requiring on trial for “a list the witnesses that shall be produced indictment, and jury, mentioning the . . . proving names, the said witnesses abode place profession, States, 144 added). v. United and jurors” (emphasis Logan dispositive of argued litigant opponent’s brief but not addressed case). provides, statute which States Code contains similar 18The United offense charged capital with or other pertinent part: person “A treason stating . . . list veniremen . . shall . furnished with a . .' . be . .” place of each . . 18 U.S.C. of abode venireman 415 Mass. 502 525 Angiulo. Anne, 21, U.S. 305 statute of 7 c. (1892), quoting 11. §

Moreover, under established con principles statutory struction, that not Legislature we does intend presume “to and enact a barren ineffective provision.” Insurance Rat Ins., Bd. v. 189 ing (1969). Commissioner of See Holyoke, O’Shea v. To con clude that the information at trial given was sufficient comply to with the mandate of would render 66§ this statute a virtual because the common law rule nullity which is an inherent law part chal governing jury lenges. “Concomitant to the use of both chal peremptory lenges challenges and for be cause must to right implied use reasonable means to gather information which will aid the parties intelligent in the exercise of challenges toward the mandated a fair and constitutionally goal of impartial jury.” Allen, Commonwealth 577. See United States v. Barnes, denied, 604 F.2d Cir. (2d 1979), cert. Alabama, U.S. 907 (1980), citing Swain 380 U.S. 202 (1965) (“A entitled, law, criminal defendant is under to sure, fair jury. To be there be impartial must sufficient information elicited on voir dire a defendant to in permit cause, not telligently exercise only challenges for but also his peremptory challenges, right to which been has spe cifically acknowledged Supreme .”). Court . .

There no doubt appears that the drafters of 66 intended § give charged defendants with crimes punishable by death life, counsel, imprisonment or their the additional right to obtain the names addresses of those would who sit in their judgment. The facts of the case illus- present readily trate rationale for this trial rule: counsel has complained he unable determine whether he had had previ- ous with juror encounters the son of a who prospective office, worked for the district and with the hus- attorney’s band of a juror who worked as a officer. prospective police While withholding reasons this in- compelling might justify contexts, formation in other mandates clearly § extreme nature meted out in such cases punishment the names and addresses disclosure of warrants the jurors.19 . . . and mandatory 66 “is Federal counterpart,

Like its error.” plain defendant its benefits to allow failure [is] 346, 1971). Crowell, (5th 348 Cir. v. 442 F.2d States United statute existing words of the (“the at 304 supra See Logan, misunderstood”).20 be are too to plain the mandate of 66 failure to follow judge’s Although § conviction, we none- defendant’s the reversal of the requires claims primarily defendant’s constitutional theless discuss the the circumstances to outline we deem it appropriate because of an the empanelment trial allow judge may in which a guidance trial give judges The need to anonymous jury. life involving imprisonment to crimes not regard the future in trial Thus, also the we address this discussion. warrants issue in accor- anonymous jury to handle the failure judge’s law. Federal constitutional mandates of dance with the States Consti to the United Amendment The Fourteenth law, notion, Roman back to reaching embodies the tution on trial.” a defendant innocence surrounds that a “shield of 1363, 1359, denied Thomas, cert. 757 F.2d v. United States cit States, (1985), 819 474 U.S. sub nom. Fisher United 432, States, (1895). 453-454 156 U.S. v. United ing Coffin the district attor judge, trial counsel and colloquy with the trial 19In a given only be jurors’ names and addresses possibility that ney discussed the with the man complied would have attorneys. practice This parties’ — exercise defense counsel have allowed 66 it would date — while addresses knowledge jurors’ names and challenges of the with the safety. jurors’ protecting the the defend argument that reversal of disagree dissent’s with the 20We not make a defendant did because the not warranted ant’s conviction is the fact dissent overlooks jurors. Post 533-534. The for a list of demand jurors’ to withhold the motion judge granted the Commonwealth’s that the — — improper for the names, highly making and indeed thereby it futile law clerk. The from the prospective request a list order to demand in litigants make a futile require traditionally does not Corp., 376 Madison Pupecki v. James rights. Cf. preserve their bring suit is corporation itself (1978) (shareholder’s demand would be unless such demand suit derivative prerequisite to shareholder’s futile). This so-called of innocence” is basic “a “presumption compo- of a justice.” nent fair trial under our of criminal Es- system Williams, Estelle, 503 telle U.S. In Court of United States held that a State Supreme may — — with the not consistent of innocence cre- presumption ate trial jurors’ conditions affect the perception defendant unless there is a government substantial interest in doing so. Id. at 505. of an empanelment due anonymous jury triggers pro

cess because this scrutiny jurors’ to taint the practice likely defendant, opinion burdening the thereby presumption Thomas, of innocence. at 1364. See United States v. Vario, denied, (2d 1991), F.2d Cir. cert. 112 S. Tutino, 882 (1992); Ct. United F.2d States denied, (2d 1989), Cir. cert. 493 U.S. 1081 (1990); United States Scarfo, v. 850 F.2d 1023-1025 (3d Cir. 1988). The due clause the of process precludes empanelment at anonymous a trial jury criminal unless is anonymity to the necessary jurors from harm or protect influ improper Thomas, ence. See Henceforth, at supra 1365. we shall re that quire anonymous no is to be in the jury empaneled of courts the Commonwealth unless the judge trial has first determined on adequate evidence that anonymity truly necessary has made written the findings on question. Further, the due clause that reasonable process requires pre cautions be taken to jurors’ minimize the effect of the ano on nymity their perception the defendant. Id. See Scarfo, at 1025.21 supra 21The dealing juror dissent misconstrues the Federal decisions with ano that, nymity. These do proposition every decisions not stand the for indi case, government’s

vidual must the court balance “the interest in safe guarding jurors preserving integrity judicial process with the avoiding defendant’s of the presumption interest erosion of innocence.” Rather, Post at 535. the Federal courts have used a known in method — balancing,” whereby as law “definitional a seminal decision such as Thomas, United States (2d Cir.), 757 F.2d 1359 cert. denied sub nom. — States, Fisher United (1985) 474 U.S. articulates substantive competing rule which itself strikes desired balance between the inter Nimmer, at Right Speak ests stake. See to to from Times Time: First Theory Applied Privacy, Misapplied Amendment to Libel and to 56 Cal. methods of courts have various upheld

Federal appellate minds. jurors’ on the anonymity the effect minimizing reasons that security chose to conceal the Some trial judges trial names. One jurors’ the court to withhold prompted instance, that would remain jurors they told the judge, interfering from with the media so as to anonymous prevent Thomas, n.l. Other judges at 1365 their privacy. anonymity their jurors it best to reveal to thought from the pos- them and their families designed protect was These how- judges, influence. of harm sibility improper ever, impress upon instructions calculated added extensive with inference should be drawn respect that no jurors See, at e.g., Scarfo, supra of the defendant. the culpability given were curative instructions 1026-1028. No comparable time. any in this case if become aware principles, due process Under — — case in the present anonymity happened their the due pro- measures to protect take affirmative judge must mention ano- did not accused. The cess rights jurors complained until certain nymity time, con- evil At that eye.” them the “giving In the course the jurors.22 conferences with ducted individual Aleinikoff, in the Law (1968). Constitutional See also L. Rev. applied may rule be This Age Balancing, Yale L.J. balancing. Id. without additional subsequent cases describes, dissent the which the Drawing competing interests on the rule of constitutional forth the substantive clearly have set Federal courts finding First, judge must make a the trial governing juror anonymity: law Next, case). trial the (which present in the necessity was not made of pre the burden on the to minimize precautions judge must take reasonable (which, the text anonymity by jurors’ occasioned sumption of innocence Thomas, describes, do). supra at See judge failed to the opinion this see, e.g., balancing, without additional applying this rule For cases 1365. denied, 1991), Vario, (2d cert. 239 Cir. F.2d 943 United States Tutino, (2d F.2d 1132 (1992); States v. United 502 U.S. denied, 1989), 493 U.S. Cir. cert. finding the defendant actu that judge never made a the 22We note that with them. making eye contact jurors by the ally attempted to intimidate conferences, judge explained the the individual colloquy preceded that In a observing the defend prevented in the courtroom television set that a any “in not notice the that he did indicated Defense counsel ant. conferences, of these some of jurors the indicated that they knew that their names had been hear- already withheld. On information, the ing judge this did not into the source inquire of the jurors’ knowledge. the did at- Specifically, judge not to ascertain whether the had heard of ano- tempt jurors their through the numerous sur- nymity newspaper reports that case, rounded the trial.23 If that were the the were jurors to have been actual likely aware the reason for their ano- would, then, nymity. They have inferred that the at- judge hide his belief that the defendant a tempted posed threat to their (inaccurate) when he made the that safety statement facts, is standard On these it anonymity procedure. is evident that judge did not handle issue of jurors’ anonym- ity with the care required reasonable due process clause.24 way making any

untoward kind of views around the courtroom to the or anyone suggested else.” Counsel also that his associate be state asked to for the any record whether he had observed such incident. however, judge, rejected The judge this offer. stated that he would that, order the removal of and “any the television set tell the defendant judge askew explained looks I’ll have his head.” The that he would assuage jurors’ by telling fears them that most defendants down write trial, during notes their jurors’ but that such could judges give carefully 24These facts also underscore the for trial need designed jurors’ anonymity at instructions relative both the start of trial 415 Mass. 502 530 Last, we the also erred when he barred hold that the the voir defendant and his counsel from dire that followed incident, the thereby compounding prejudice the “whammy” the issue.25 by mishandling anonymous jury caused the of “When a conducts an about a inquiry consequential matter, such there is alleged jurors, serious misconduct of of deriving right a from the constitutional con requirement, frontation, the defendant and his counsel be present.” Bobilin, 410, v. 25 Mass. Ct. 415 Commonwealth App. Robichaud, 300, Mass. (1988), citing Commonwealth v. 358 Connor, 838, Commonwealth v. 392 Mass. (1970); 301-303 Doucette, 22 Mass. Commonwealth n.1 v. (1984); App. 659, S.C., (1987).26 (1986), Ct. 663-664 the minor administrative for judge may While trial perform defendant, see Common outside the presence malities 395, 399 wealth MacDonald (No. 1), v. n.3 a voir dire the not bar the defendant from (1975), judge may be discussed. jurors’ which during impartiality may Robichaud, case, voir dire at 303.27 In the supra present See, e.g., Scarfo, supra part at 1026-1028. and as a of their instructions. Scarfo, cases which Moreover, be noted that in both Thomas and it should heavily, relies capital involve offense and on which dissent did not a jury in this case were not sequestered at the outset of trial. were differences, judge’s failure to make a light In of these sequestered. — — in Thomas finding which was made both in necessity Scarfo glossed not a factor be over. proceeding which the the defendant to attend 25The failure to allow per error se. consequential is not reversible judge inquires into a matter Martino, (1992), n.14 Commonwealth v. Mass. See we disagree obfuscate with the dissent’s contention cases cited. We from the voir exclusion of issue whether the erroneous by reversible itself error. proceedings present in the case constitutes dire compounded clearly merely error Post at 540-541. We hold that such by lack care process violations caused of the due prejudicial effect incidents described anonymous issue and trial which the with were above handled. by 12 of the Declara secured art. Massachusetts principles 26These are Robichaud, Rights. Commonwealth tion set forth in disagree argument principles that the with the dissent’s 27We Robichaud, been eroded have Michigan Supreme Court. Robichaud re pronouncements certain Medcoff, People Mich. decision that court lied as much on the 502 531 Angiulo. to the could remain designed jurors ascertain whether just after the trial incidents that had occurred. impartial Thus, the argument Commonwealth’s notwithstanding the have might defendant’s been presence “counterproduc- tive,” the to right he had attend proceeding.28 stated, reversed,

For ver- judgment the reasons the is the aside, dict is and the case remanded for set is retrial.

So ordered. J., In (dissenting, J. with whom re- Lynch, joins). Nolan, versing the of being defendant’s conviction an accessory (1955), general on as the common law rule that the defendant “has a right being to present jurors be when are as to qualifica- examined their Robichaud, 302, Annot., 762, supra citing tions.” at 26 A.L.R.2d (1952). support Robichaud This theoretical for the court’s re- decision Annot., 430, (1984). generally mains sound. See 33 A.L.R.4th 434-435 Moreover, notwithstanding overruling by the Michigan the Su- Medcoff Court, post preme see forth Robichaud have principles at the set in Martino, supra integral remained part an of Massachusetts law. See at 284-287, cases and cited. Martino, 284-286, just year ago, In at decided over we cited one Robichaud proposition the right that the defendant the had to attend a proceeding which questioned juror the trial a about a “serious problem” during (This she proceeding which felt had arisen trial. disclosed grandfather’s juror’s that the reported murder not conviction was her form, juror questionnaire we held that erroneous exclusion of the primarily defendant did not warrant reversal because the defendant had agreed judge.) to the course of present action taken the trial In the case well, Robichaud rule gave right as pro- to a defendant attend ceeding relating problems in which serious to be were to dis- long-standing cussed. We shall adhere our jurispru- court’s tradition of independence dential principles expounded and we reaffirm the Robichaud and its progeny. attempt 28The parallel present Commonwealth’s to draw a between the Senati, Commonwealth case and App. (1975), Ct. Senati, misplaced. right present In the defendant forfeited his to be at his by repeatedly refusing trial obey judge’s that he order return shouting dock and refrain from police accusations that officers had lied. present display unrelenting defendant in the case did not such deter mination comply not to with a en courtroom decorum. Should circumstances, gage in inappropriate conduct in such is not with power may out See Illinois necessary. to take such remedial action be Allen, 397 U.S. writes, degree, murder in the first the court before fact to come now two errors com- ante at “We interrelated we which us to conclude that must require mitted trial and order a new trial.” The court iden- reverse conviction as the use of an ex anonymous jury tifies errors the trial of “some” members of by examination parte at 520. The court then discusses two jury.1 aspects the Ante “error,” the the jury burden on anonymous presump- statutory challenge. tion of innocence and the court for statutory challenge, reserves of its fire the conclud- most with the statute was ing judge’s comply that the failure to the error. I with court’s conclusion on each issue disagree dissent. 277, in it G. L. 66. The court is error when says 1. c. § the use an argues anonymous that defendant that of “[t]he 277, Ante at The defend- violated G. L. c. 66.” 523. § raises and makes a refer- argument only passing ant no such argu- statute his brief. The “so-called” subject ence is in full follows: “Our scheme statutory ment as reproduced of potential the trial of life felonies the list requires for 277, c. the defendant. G. L. be made available to jurors incorrect, Not the as I shall discuss 66.” statement only § below, raise an but far below what is to required ap- it falls this argument court. pellate (1990 G. L. c. 33E our directive under from Apart § case to those our in this is limited ed.), jurisdiction appellate R. in his A. the defendant brief. arguments by raised amended, argu- “An (1975). 367 Mass. (a) (4), P. more a mere passing on an . . . shall than ment issue require Nolan, See (1991). Procedure 158 reference.” J.R. Appellate Lizotte, (1985) 148 n.7 396 Mass. Karen Constr. Co. of “insufficient J.) treatment issue is (Liacos, (one sentence Tobin Commissioner quoting argument”), appellant of Banks, pronounce- Given these ments, mere reference to passing a only and the presence jurors. interviewed all of reveals that

1The record brief, 66 in the conclude defendant’s I that the defendant § waived the he had one waive. argument, assuming interesting

It is to note did not cite the statute or to this respond “phantom” argument its brief. A necessary. not The defendant did not response Thus, raise the the court reverses argument. a conviction of being accessory before the fact murder in first de- gree on the basis of an neither argument briefed, raised, nor nor in this court. argued For the I shall argument, assume that the de- purposes fendant issue below raised it in his brief. preserved The court is wrong conclude that defendant was enti- jurors. statute, tled to the list I with the begin which pro- vides: “A indicted for crime prisoner with death punishable life, or demand him his imprisonment upon counsel clerk, upon shall have a list have been who returned . . . .” G. L. c. 66. The statute expressly provides that the defendant or his counsel must first demand the list from the clerk before he is entitled to receive it. Neither the nor defendant his counsel ever the list demanded from the clerk.2 the defendant waived his Accordingly, rights to it. statute,

The court on an relies Federal codified analogous at 18 which (1988), U.S.C. “A provides: person § charged with treason other offense ... be capital shall with a the indictment and a of the ve- copy list furnished niremen . . . stating of abode of each venireman place . . .” L. c. (emphasis supplied). analogizes court G. declares, to the Federal statute and “Like its Federal § 66 ‘is . . . and allow counterpart failure to de- mandatory § 2During argument before the on the Commonwealth’s motion to empanel anonymous jury, argued against empanel counsel defense jury ment anonymous jurors’ of an and in favor release of the names counsel, however, defense pressed addresses. The never demand on by during required clerk as statute. The defendant’s reference motion argument statutory to the need names and addresses falls short requirement. phrase, demand To use the court’s ante at “such con Further, meaning struction the plain accords with of these I did words.” single subject not find a statute in reference the record. ” (citation omitted). error’ Ante its plain

fendant benefits [is] mandatory, Federal statute is plainly 526. While the at “shall,” be said of word the same cannot evidenced the list to the obligation A judge’s provide 66. de- on the defendant’s is conditioned expressly under 66§ defendant, a demand from the list. Absent a mand for the the list. The State statutory obligated provide is not demand, list; demand, no no error.3 No no scheme is clear: Further, demand the list and assert failure to the defendant’s error and relief is not warranted is not rights his statutory 33E. under § court’s discussion innocence.4 While the

2. Presumption of dictum, issue with I take of innocence on the presumption judge employed procedures The court opines it. defendant’s violated the jury an anonymous in empaneling concludes, end, the court of law. To this to due right process im- of an anonymous the empanelment shall I say, innocence. I burdened the presumption permissibly disagree. interests

First, fails to address the competing the court in its interests to balance the competing and then fails stake this, the In analysis. spite due process reasoned scantily management on the trial court directives to the court issues loss to under- I am at a in the future. juries of anonymous clause re- the due process what say how the court can stand conducting without first of this case on the facts based quires reasoning forth its setting test balancing the requisite fail proposition support two Federal cases pause 3I to cite always revers statute is not “mandatory” Federal comply with the ure to States, 136, 1933); (D.C. Cir. error, F.2d 137 see Brown v. United 63 ible denied, States, 546, Cir.), 277 (D.C. cert. 548 Eagles v. United 25 F.2d U.S. 609 anonymous jury, ab an empaneling whether not discuss 4The court does 277, 66), impermissibly burdens challenge (G. c. L. statutory sent challenges. Any adverse peremptory right to exercise defendant’s addresses, names, places withholding of the stemming from the impact by scope of informa offset prospective of the employment dire extensive voir questionnaire juror provided in the each tion questioning. and conclusions. Even more is the troubling willing court’s ness to elevate which “guidelines” other courts have articu lated for the use to the rule of anonymous juries law. See Tutino, 1125, United States v. 883 F.2d Cir. (2d , denied, cert. 1989) 493 U.S. 910 (1990), citing United Thomas, 1359, States v. 757 F.2d (2d Cir.), cert. de States, nied sub nom. Fisher United 474 U.S. 819 (1985). The Federal on the due pronouncements process implica- — tions of empaneling are clear “al- anonymous jury though of innocence is of presumption significant impor- tance, and is protected by the due clause . . . there process is no se rule that it not be per may burdened.” United States v. Thomas, 1359, 757 F.2d (2d 1985). Cir. Accordingly, the Federal courts have balanced government’s interest in safeguarding jurors and preserving integrity judi- cial with the defendant’s process interest in erosion avoiding of innocence presumption when called on to a analyze due claim from the process arising of an empanelment anony- Gotti, mous Id. at 1365. jury. See United States v. 111 F. 224, 227 Supp. (E.D.N.Y. 1991) (balance of judi- integrity cial process against preserving presumption innocence); Melendez, 134, United States 743 F. 137 (E.D.N.Y. Supp. 1990) (balancing interests); United States v. Ed competing mond, 1144, 730 F. Supp. (D.D.C. 1990) (court must balance interests of justice against criminal defend system Tutino, ants’ interests), citing United States v. at supra 1132-1133, and United States v. 850 F.2d Scarfo, denied, (3d 1022-1023 cert. Cir.), (1988); 488 U.S. 910 Coonan, United States v. (S.D.N.Y. 664 F. Supp. 1987) (balance government’s interest in safeguarding jurors with defendants’ interest in erosion of avoiding presumption sure, of innocence). To be burdening the practice presump tion of innocence calls for “close judicial United scrutiny.” Thomas, Williams, States v. Estelle v. citing 425 U.S. 504 (1976). end,

To this the court’s for what it opinion noteworthy does not The court say. ignore gov- chooses substantial ernment interest the Commonwealth’s underlying request — the jurors of an anonymous jury protecting

empanelment violence, threatened, actual or and their families from and from the taint of external influ- jurors shielding potential ence, of the judicial process. thereby preserving integrity of an anony

In of its motion for the empanelment support the Commonwealth cited a number Federal mous jury, members of crime in which involving organized cases reputed ju on the use of anonymous the courts looked with approval Thomas, Com See, States v. The e.g., supra. ries. United with or that the defendant was connected argued monwealth was as the defendants “dangerous” crime and ganized further pointed Federal cases cited. The Commonwealth tam and an incident of judicial system to threats to the defendant’s Federal during had occurred pering .5 argument concluded its quoting trial The Commonwealth Thomas, faced at 1362: the defendant United States him “little to lose by tampering which leave charges serious allowed the trial.” As the obstructing with witnesses or is safe to assume that motion without written it opinion, formed the basis of combination of these factors that it was a his decision. facts, which the jury tampering satisfied that three

I am trial, the defend- the defendant’s Federal during occurred crime,6 severity pen- organized ant’s link with motion, after the commence we learn that 5From the Commonwealth’s trial, a government information that list obtained ment of the Federal being of the defendant. circulated associates empaneled organized crime associates in being circulated to Apparently, the list was jurors could be bribed. Fol any whether one of the an effort to determine Investigation, the individ lowing investigation by the Federal Bureau of obstructing alleged the list was convicted who was to have circulated ual justice. trial, deliberating juror was Federal During jury deliberations in the Angi States United See attempt influence her vote. approached in an denied, ulo, (1st Cir.), cert. 498 U.S. 897 F.2d obstructing justice. convicted for responsible individual was later organized link to the defendant’s have considered 6The could de chronicled the light proceedings which prior Federal crime lawless, activity. See violent organized, participation fendant’s however, note, it is supra at 1176-1178. I Angiulo, United States given the aforementioned juror intimidation the reasonable likelihood 415 Mass. 502 537 Angiulo.

Commonwealth v. defendant, facing the taken alty together, justified the view, judge’s decision to an empanel In anonymous jury. my “ his judge properly given responded ‘heavy responsibil- ity’ ... preserve Common- impartiality jury,” Allen, 564, wealth v. 379 (1980), Mass. 574-575 quoting Dickerson, Commonwealth v. 372 (1977), and the significant government interests at stake.

The court makes much of the fact that the did judge not make written findings in of his support decision to empanel an anonymous jury. Ante at 527 & n.21. The court’s reliance on this issue stalking is a horse. In the celebrated case of Barnes, United 133-134, States v. 604 F.2d (2d Cir. denied, 1979), cert. (1980), U.S. 907 the trial judge de cided sua sponte an empanel anonymous See United jury. Melendez, States v. Nonetheless, 136. the Barnes court upheld the judge’s decision to an empanel anonymous jury.

The United States Court of for the Third Appeals Circuit rejected a expressly defendant’s challenge to a judge’s deci sion to an empanel anonymous based on the fail judge’s ure to issue written findings his decision supporting to em an panel anonymous jury. United States v. Eufrasio, 935 F.2d (3d Cir.), cert. denied sub nom. Idone v. States, United 502 U.S. 925 (1991). In so holding, court noted that United States v. Eufrasio Scarfo, also supra, failed to issue written findings when granting government’s motion for an anonymous Id. jury. at 574. On court, appeal, court, like the Scarfo Eufrasio upheld the use of the anonymous jury the absence despite written findings supporting decision. judge’s While a judge is advised to reduce to writing or her reasoning sup porting a decision to empanel anonymous a failure jury, to do so is not reversible error.

activities, and not “the incantation of the words ‘organized ‘the mob’ or ” crime’ that militates anonymous jury. favor of an United States Vario, (2d 1991), denied, 943 F.2d Cir. cert. 502 U.S. 1036 burden of innocence.

I turn now to the on presumption The court The court’s field of vision is narrowed to this point. be due if principles, declares that process “[u]nder — in the come aware of their anonymity happened pres — ent case must take affirmative measures to pro the accused.” Ante at 528. The rights tect the due process court assumes that the of innocence is wrongly presumption “that anti-defendant bias is the burdened and necessarily or even the most reaction” to only possible, likely, suspect States v. jurors when know of their United anonymity. at 1026. While the court offers no evidence to Scarfo, supra conclusion, demon its there is evidence support empirical an does not work to strating anonymous jury that empaneling detriment, v. 754 F. Perry, a defendant’s see United States dis (D.D.C. 1990), 202-203 wherein the court Supp. in which have de anonymous juries acquitted cusses cases Indeed, “Predicting ju fendants. as the court wrote: Scarfo is ror to responses anonymity practice pure ] A juror who fears a defendant’s retaliation speculation.[7 be to return a verdict such might guilty more apt despite If, however, fears rather than because of them. ... anonym ideal of it serves the ity dispels apprehension, dispassionate 8 United States v. at 1026. judgment.” Scarfo, supra footnote, following example 7In a court offered the to illus Scarfo unsigned point: jurors trate the in a received letters “Seven criminal trial guinea get guilty. which ‘Find these sons of bitches Don’t let them read: now, jail away something they long ago. them all with did a time Send to Borelli, (2d Cir. States v. United those Mafia bums.’ 336 F.2d denied, 1964), (1965). jurors . . . Several of the inter cert. 379 U.S. 960 convictions, meaning discourage attempts preted the notes as clever to wrote. Id.” origi precisely opposite (Emphasis words the to the author (3d Scarfo, United States nal.) cert. 850 F.2d 1026 n.1 Cir.), denied, 488 U.S. 910 sure, right process inexorably to due is linked to 8To be the defendant’s that, right jury. judges, we are aware impartial to a fair trial “As cases, are often uncomfortable with even routine criminal veniremen disclosure of their names and addresses to a defendant.” United States Scarfo, family supra at 1023. “If a juror may feels that he and his be friends, subjected violence or death at the hands of a defendant or his judgment impartial requires?” how can his be free and as>the Constitution however, The inquiry, does not here. For one stop must consider all facts that bear on the issue of the magnitude of the burden innocence, on the of either presumption positively or negatively, to determine the net effect. This leads to the next point error which I assign court.

The court suggests, ante at judge that the the pres- ent case took no precautions minimize the burden on the presumption innocence. This of the court’s aspect opinion The misleading. judge protected due process rights First, the accused. most of the learned jurors of their ano- from nymity the judge. After informing jurors of their anonymity, probed of each impartiality juror. case, In each and every juror responded that he or she could Further, remain impartial given the circumstances. judge gave a detailed instruction on the of inno- presumption cence while charging the jury.9

The court makes much of the fact that the failed ascertain how some had learned of their ano- Ante nymity. 529. The court misses the point. crucial Barnes, United States (2d 1979), 604 F.2d 140-141 Cir. cert. de nied, (1980). 446 U.S. 907 9Excerpts judge’s from jury charge presumption on the of innocence are as follows: “The presumption of innocence is a descriptive phrase very for a vital personal right. right have, It’s a right that I you right have and a that a that right, has. ... And any [the like upon you it then throws defendant] corresponding duty. right that he has and that he claims day this and your duty right which is as his you is to have wholly, decide this case entirely exclusively and ... on the you evidence that have been offered here. Decide strength this case on the pro- weakness of the evidence your duced for consideration and ... on no other consideration whatsoever. right. That’s his him; “The fact police that the shadowed may fact that he have been arrested, taken; that picture may have been may the fact that he have of; inquired indicted; been the fact that he’s charged the fact that he was — in place, some other some other crime you related to this and have — heard enclosure; that the fact that he is here inside this bar the fact bar; that he alone, is at the those are all facts. All of them considered all of them together, considered they you drawing do not warrant in an infer- ence adverse to right this man .... you For he has a duty have the decide this produced case on what has been in you here this courtroom for your and for consideration.” 502 — a fact jurors of the continuing

issue is the impartiality studied and addressed. that the properly the Common- balancing weighing test and Applying in- both the and the safeguarding jurors wealth’s interest defendant’s interest against tegrity judicial process innocence, I that conclude preserving presumption of the Commonwealth. This the scale favor tips heavily with numerous of the United comports opinions conclusion which not the harsh real- ignored States Court have Supreme cir- of criminal trials and have the use in certain upheld ities otherwise might impermissibly cumstances of practices Allen, of innocence. See Illinois v. burden the presumption bound and (1970) (defendant appearing U.S. in certain extreme cir- before the gagged jury permissible 560, 569 cumstances); (1986) Holbrook v. 475 U.S. Flynn, did in courtroom not of uniformed State (presence troopers need). “The law as to given burden of innocence presumption cannot, or should selection is not so that it unbending not, trials be accommodated to the realities of modern day Barnes, omitted). . . .” United States v. (footnote aware that the 142-143. are “Recognizing quite before them did not arrive there defendant appearing tried, could never choice or we have never happenstance, eliminate from trial reminder that every hope, procedures resources a de- against the State has chosen to marshal its fendant to him for criminal conduct.” Hol- allegedly punish Flynn, brook v. U.S. the ex alleged involving

3. Juror interviews. As to the error writes, hold the court jurors, examination parte “[W]e he barred the defendant and his that the erred when followed the inci- ‘whammy’ counsel from the voir dire that dent, caused the mis- thereby compounding prejudice at 530. This is issue.” Ante handling anonymous jury was, ex incident It is not clear whether the parte obfuscation. itself, inci- reversal or an warranting merely in and of error from resulting empanel- that the prejudice dent compounded was error and ex- I assume that it ing anonymous jury. misreads our The court accordingly. views press my concludes that inci- precedent wrongly “whammy” necessitating dent was the defend- consequence, thereby ant’s presence.

In United States v. (1985), 470 U.S. 522 Gagnon, United States Court considered a case Supreme remarkably similar to the case. involved four present Gagnon codefend- ants. the afternoon “During recess on the first of trial day the District was Judge discussing matters of law in open counsel, court with the [defendants], their and the respective Assistant United States Attorney, outside the presence The bailiff entered the jury. courtroom and informed the judge one of the . . . had concern expressed be- cause he had noticed Gagnon sketching portraits [defendant] of the jury. Gagnon’s admitted attorney had Gagnon been sketching members jury during the trial.” Id. at 523. trial then stated that he wanted to see juror in his chambers to assess the juror’s impartiality light the events. Gagnon’s attorney the voir present during defendants, dire. Neither the nor counsel for the other de- fendants, were the voir present during dire. The dis- cussed the incident with the juror and concluded the meeting after from the eliciting juror his willingness to continue as an impartial juror. After the returned jury guilty verdicts on the counts charged, each of the four codefendants claimed that the judge violated their constitutional right to an impartial excluding them from the voir dire. The Supreme Court, decision, in a curiam per rejected the defendants’ argument. wrote,

The Court “The encounter between the judge, the juror, and Gagnon’s was a short lawyer interlude in a com- trial; plex the conference was not the sort of event which every defendant had a right to personally attend .... [The could have done had nothing been at the they defendants] conference, nor would gained have attend- they anything by ing. Indeed, . . . the presence of and the Gagnon other [de- counsel, fendants], their four and the prosecutor could have been counterproductive. juror] had quietly expressed [The some concern about the of Gagnon’s purposes sketching, 415 Mass. 502 Angiulo.

Commonwealth v. the situation to the Judge sought ju- the District explain ror. The Fifth Amendment does not that all require parties when the into such a minor occur- judge inquires be present at 527. rence.” Id. (Emphasis supplied.) Since the Court’s to the defendants ruling applied equally dire, whose counsel were not voir present Gagnon for the that the inci- authority argument “whammy” forceful dent in the case is not a matter of Re- present consequence. however, this court does not cite nor make Gagnon markably, it from the The distinguish case. simi- any attempt present incident larities between the and the events “whammy” are be The court striking ignored. too offers no Gagnon for its conclusion that the incident is a support “whammy” matter of in view of the Court’s con- consequence Supreme clusion that the incident was a “minor occurrence.” Gagnon

Rather than this court bases its deci- addressing Gagnon, sion on the Massachusetts Declaration of To this Rights. end, Robichaud, the court relies on Mass. 300 On this the court comes out from point shadows, errs, blinded of its own light decisions. matter, distinguishable

As a threshold Robichaud is from Robichaud, case. In the defendant filed a motion present closing for a mistrial after the close of evidence and before A on arguments. hearing judge’s the motion was held defendant, Robichaud, was not at the lobby. present hearing. objected allowing Defense counsel to the court’s hearing to without defendant. proceed motion, wit- In the defendant two support produced had of the jurors nesses who testified that heard three they his case at a local restaurant and heard them ex- discussing all of the defendants on trial were their that press opinion testified, admitting they Two of the three guilty. had discussed the case but had denying they expressed the jurors such an The trial concluded that opinion. stood, and denied the motion. The defendant impartial convicted, erred that the trial claiming and appealed by conducting the in his hearing absence. This court agreed, and reversed the judgment.

Four distinctions between Robichaud and the case present warrant a different result from that which we reached in -First, Robichaud. Robichaud concerned the defendant’s ex- clusion from a on hearing a motion for a mistrial. The issue in the case present involves an ex dire jurors voir parte from claims stemming of alleged misconduct the defend- by Second, ant. Robichaud involved two related questions, continuing of the and the impartiality jurors merits of the defendant’s motion for a mistrial. The case present involves the issue of the only Third, impartiality jurors. charges involved in Robichaud centered on a of al- question leged misconduct by three jurors. The issue in the present case arose due to alleged misconduct of the defendant. Fourth, Robichaud, the judge conducted a and hearing heard the testimony four individuals to determine the ve- racity complaint. case, In the present did not conduct the interviews to determine whether the defendant was giving the jurors but, rather, “whammy,” to insure jurors could be impartial, thereby safeguarding defendant’s right to trial impartial jury.

These distinctions warrant a different outcome from that which this court reached in Robichaud. The defendant does not have right to be at present stages all of the proceedings. See Commonwealth v. MacDonald (No. 1), 398-400 & n.3 (1975). The guiding is that due principle pro- cess requires the defendant be allowed to be “to present the extent that a fair and just hearing would be thwarted by his absence.” Snyder Massachusetts, v. 291 U.S.

(1934). Smith, See K.B. Criminal Practice and Procedure 1591 (2d ed. 1983).

On the test, basis of this the defendant’s presence during the interviews “was not required ensure fundamental fair- ness or a ‘reasonably substantial . . . to defend opportunity ” against the charge.’ United States v. Gagnon, 470 U.S. 522, 527 (1985), quoting Snyder Massachusetts, v. at supra 115. The defendant’s presence at the interviews would have

Commonwealth would not have openly been counterproductive. incident had the alleged discussed freely injus- “the Considering justice or his counsel been present. record,” whole ... in the light tice of exclusion [the] Massachusetts, steered a Snyder and defense coun- course in the defendant excluding prudent then, interviews, the inter- after completing sel from the views, of those interviews available to making the transcript Bobilin, 25 Mass. Ct. See App. them. Robichaud, on the Robichaud court While the court relies case, v. Med Michigan on a exclusively People relied almost Robichaud, 344 Mich. 108 coff, The Robichaud court noted that at 302-303. Medcoff The found to be on Id. directly point.” was “the case only length opinion, Robichaud court from quoted Medcoff it in of the so- agreed reasoning, adopted support with its The Su Michigan called rule. Id. at 302-303. Robichaud v. Medcoff, supra, People Court overruled preme People denied sub nom. Cargile 400 Mich. cert. Morgan, new, and announced a less (1977), 434 U.S. 967 Michigan, could the defendant in this case restrictive rule under which Thus, decision is based on not this court’s possibly prevail. been Robichaud, which has Medcoff, which is based on overruled. argument does not raise one

4. Conclusion. The defendant his conviction. The court’s reversing on that warrants appeal not to extrapolation, tests the limits of interpolation, decision have spo- and the rule of law. logic, justice, mention As the court concludes ken and the verdict deserves to stand. otherwise, I dissent. Audi alteram partem. notes trial and writing defendants given could his interest the pro- ant’s actions be explained most that their also told ceedings. operating were concealed as a matter of standard identities in the Court.16 The concluded each Superior procedure determining being after interviewed juror interview

Notes

notes not contain names anonymity because procedure. objected is the standard The defendant telling anonymity of their and moved for a mistrial. The defend- suggested ant judge any also that delay prosecutor action until the jurors’ could review a anonymity prosecutor case on which the con- said “Well, potentially tained helpful judge replied, curative instructions. The going judge he’s you not to tell too denied much." The then the defend- mistrial, ant’s pres- motion for a denied request the defendant’s that he be during conferences, ent he provide the individual and stated that would a transcript proceedings any these so that errors could be corrected. that, juror 23We jury empanelment, prospective note in the course of panel disclosed she and her that other members of had discussed an article appeared that judge the Salem News. counsel informed the that Trial appeared this page reported article on the front newspaper anonymous jury empaneled ju would be prevent order to threats rors and requested their families. Counsel determine panel anonymity, whether the knew but the members of their denied request. this

Case Details

Case Name: Commonwealth v. Angiulo

Court Name: Massachusetts Supreme Judicial Court

Date Published: Jun 11, 1993

Citation: 615 N.E.2d 155

Court Abbreviation: Mass.