*1 Commonwealth v. Canon. Anthony J. vs. Canon. 19, 1977.
Middlesex. June 1976. October C.J., Quirico, Kaplan, Wilkins, Hennessey, Braucher, Present: Liacos, Abrams, JJ. & Law, Speedy Public Interest. Constitutional Officer. Conflict of Evidence, un- of Confrontation available witnesses. witnesses. Previous Practice, Criminal, Witness, Unavailability. Charge Words, jury. “Compensation,” doubt.” “Reasonable city engineer opportunity requested Evidence a in a and received the realty participate promise render investment in return his engineering general the suc- to the other investors and that advice depended ability upon a a cess of the the investor’s to obtain venture city building apartments special permit from warranted finding engineer compensation from other had received particular matter services in relation investors “for in which the ... rendered [a] interest,” city ... direct substantial [had] J., 268A, (a). Liacos, with whom violation L. c. G. [496-498] Abrams, J., charge dissenting ground judge’s joined, on the that the (a). L. c. misconstrued the nature of G. delay approximately of indictments A twelve months from the date de- did constitute a denial of the to the commencement of trial speedy no to a there was fendant’s constitutional showing trial where period prejudice occasioned to the defendant delay prosecutor. attributable [498-499] against privilege his self- at a criminal trial invoked Where witness incrimination, civil trial in which recorded adequate opportunity for cross-exam- had an the criminal defendant J., LlACOS,J., Abrams, with whom ination joined, dissenting. admissible. [499-501] Superior Court found and returned Indictment April Sullivan, J. The case tried before John P. Appeals Court, the Su- sought After review was ordered direct preme Court, initiative, Judicial on its own review. Jr., Featherston, F. defendant.
Daniel for the Attor- MacLeod-Griffln, Bonnie Assistant District H. ney, for the Commonwealth. Mass.
Commonwealth v. Canon. By the was convicted violat- Court. *2 (a) .1 ing the conflict law, 268A, of interest G. L. c. § He contends: There no (1) was evidence that he rendered any services to the interested in individuals a real estate in venture which invested, he and their was not interest adverse to the city city interest of the where he was a engineer. His (2) speedy constitutional to a trial was (3) denied. The of a previous coindictee at a civil trial erroneously was in admitted The evidence. judge erroneously instructed the meaning on the reasonable doubt. We affirm conviction. April 8, 1974,
On the defendant was indicted for viola- (b), (b), tion of G. L. c. He (a), and 19. §§ was convicted under but (a) acquitted of other charges. three He was probation year, sentenced to for a probation and the was terminated on his motion Octo- ber, 1975. The case subject was made 278, to G. L. c. 33A-33H, and we appeal §§ transferred the to this court on our own motion.
The following facts are in dispute. For years several ending in August, 1968, the city engi- defendant neer of Marlborough. Curley was a broker, real estate and Lynch was an attorney. In January, 1968, agreed the three to contribute each to an $500 option investment land in city, with a view to obtaining special permit for apartments. The gave Curley check $500, permit was obtained, bought the land was $40,000 and resold for $100,000, and the defendant received $5,500 in the 1968, summer of return of his investment and of his part profit. share Curley Later he sued Lynch and for the of his share, they balance and defended ground on the agreement illegal under G. L. c. 268A. At the civil action 1974 the di- rected a verdict for the and defendants referred the case attorney. the district Further facts will stated in connection with claims of error. General Laws c. 268A was inserted St. c. 1. Subse
quent present amendments do not affect the case. Canon. di- verdict. motion for a
1. Directed defendant’s was made and denied at the close of rected verdict evidence, at the all and case, end of Commonwealth’s after verdict. again, judge, the invitation following light in a most favorable to evidence, viewed attorney Commonwealth, pertinent. Lynch was for the broker, land, owner and told owner that a local Curley, buying In the defendant was interested it. pooling professional their talents and Lynch discussed money, December, advised Curley Lynch the land could be connected sewerage, giving rough figure. cost Marlborough them had Lynch told *3 go through deal unless office and that would not Curley went defendant “was aboard.” Thereafter topograph- plot plan to examine a and a defendant’s office lines. survey respect ical with to the extension sewer Curley property told could serviced The defendant I’m on say be,” “if I it can but aboard by sewers “unless de- go.” January 9, On thing, this this doesn’t Lynch and declared that fendant met with and me any place is way going this without “there’s no it check left on then executed his and aboard.” He would con- table, agreed it was that and The general engineering project. advice to the tribute of the de- put writing was not because agreement city associa- engineer Lynch’s fendant’s as position city solicitor. practice mayor tion in law with the day, January next the owner of 10, Curley agreement price for a land executed a and sale purchase $40,000 contingent special on the $1,000 deposit, with a permit. in- engineer responsibilities city
The defendant’s as of utilities evaluating plans for the installation cluded housing develop- including and water service new sewer table drafting A project of the was seen plan ments. project study of the office, in his and he said had made he sewer and about and had reached certain conclusions need not be- him he superior his told water service. But Commonwealth v. Canon. to a assigned involved, project since had been
come consulting firm. private “No statute, provides: L. c. 17 (a), G. provided than as
municipal employee shall, otherwise
directly or
proper discharge
duties,
for the
of official
law
anyone
or
indirectly
request compensation
receive
from
in relation
city
municipal agency
other than the
or
or
town
town
any particular
city
matter
in which the same
It
is a
or has a direct and
interest.”
is
party
substantial
beyond
findings that
question that the evidence warranted
re-
“municipal employee,”
was a
that he
ceived an economic benefit
than the
persons
from
other
city,
special permit
it “in
that
received
relation to” the
apartment project,
granting
permit
for the
acting
“particular matter,”
was a
and that he
provided by
proper discharge
“as
law for the
of official
It
contended, however,
duties.”
is
the economic ben-
“compensation,”
268A, 1,
efit was not
defined in G. L. c.
“any money,
thing of value or economic benefit con-
by any
on or
for services
person
ferred
received
in return
It is
rendered or
be rendered
himself or another.”
further
city
“party”
contended that the
was not a
and did
permit.
not have “a direct and
interest” in
substantial
As to
the de-
“compensation,”
the contention
money
fendant
received
as a return on
investment
*4
rather
than “in return for
rendered
to be ren-
services
finding
But
think
dered.”
we
warranted
the
were
the
requested
compensation
that
defendant
received
realty
opportunity
the form of an
the
participate
to
investment,
compensation,
that
received that
in part,
promise
general engineer-
least
in return for
ing
enough
advice
rendered”
That was
to
“to be
him.
“compensation,”
it
if
ever
make
even
no services were
More-
produced
profit.
rendered or if the
no
investment
over,
actually
there was evidence
some services were
that
rendered,
The
produce profit.
and that
the investment did
contingent
granting
value
the investment was
15, 1968, and
special permit,
April
which occurred on
profit
of the
money
defendant
received
on account
Mass. 494
to
be said
may properly
think he
following summer. We
8, 1968. Cf.
April
after
compensation
“received”
have
363, 368-369
Dutney,
App.
Ct.
Commonwealth six-year limitation
within the
He was indicted
(1976) .
pass on
not
need
63. We
G. L. c.
period
thereafter.
for the
paid
that he was
contention
the Commonwealth’s
project.
blocking the
negative
of not
service
special
granting
in the
city’s
As
“interest”
not
“interest” need
it is clear that
we think
permit,
explicit
there is
c.
where
financial. Cf. G. L.
hypothesize
is hard to
It
to a “financial interest.”
reference
municipal action in which
involving
matter”
“particular
municipal
interest
that
it can be said with assurance
city’s interest
Certainly the
is indirect or insubstantial.
development
major apartment
sewerage for a
proper
in the
contended,
It is
inconsequential.
remote nor
was neither
that
not adverse
however,
city’s
interest was
testimony that
developers, since there was
of the
not con-
city.
need
“good deal” for the
We
project was a
the interest
any requirement
is
sider
there
paying the
person
city be
to that of the
adverse
met when
fully
is
any
requirement
such
For
compensation.
city
and the
municipal decision
applying
for a
payor
arbiter.
objective
impartial
is cast in the role
argue
though he does
suggests,
The
judge’s instructions
way,
any comprehensible
outlined what
inadequate.
judge
somehow
were
the de-
statutory language, and
says, using the
statute
Though the
charge.
exception
took no
fendant
helpful as
nor as
complete
been as
charge may not have
As the
been,
adequate.
think it
might
we
it
have
no choice but
counsel,
jury probably had
said to
guilty,
since
come back with a verdict
of the crime.
essential elements
admitted the
had
delay from 1968
Speedy trial.
pre-indictment
secrecy of
to be attributable
April,
seems
Lovasco,
U.S.
See United States
the venture.
*5
the indictments
months after
More than two
(1977) .
motions, accompanied
discovery
filed several
Commonwealth v. trial, appear speedy a motion for but his counsel did not hearing on motions. the date scheduled for a on those until Octo- objection, postponed Without was hearing willing- ber, expressed At that the prosecutor 1974. time November, ness try the case but the defendant’s Lynch motion to his of Curley sever trial from those or prosecutor try was one both allowed and wanted re- them The defendant made a before the defendant. speedy November, newed trial in rea- motion for but January, sons not disclosed it not until was heard Curley Lynch January Trial of had been scheduled for 20, and the defendant’s scheduled as first case case was out on February January 28, however, judge 3. On A April vacated that order. motion filed to dismiss want of speedy on April 8, was denied and trial began April 1975, year about after the indictments. any In the showing prejudice, absence of think no we denial of right speedy defendant’s constitutional trial is by this sequence Wingo, shown of events. Barker v. 407 U.S. Although 530-531 delay was sub- stantial, the defendant was incarcerated, not and there problem no of loss memory of witnesses or failure of during the period delay attributable prosecutor. That period a little months, explained over six and is in part by the problems arising from the of the allowance defendant’s motion to sever. testimony.
3. Recorded hearing At the out jury, privilege against invoked his self- incrimination, and the allowed a introduce motion to recorded at the It is claimed civil trial. now of this admission violated defend- evidence ant’s constitutional against to confront the witnesses him.
Although argue point, does we note that recorded admitted when witness is applied unavailable. wit- We have this rule to dead, nesses who missing, physically were unable to testify. Clark, Mass.
(1973), apply and cases it cited. We now to a case where *6 494 373 Mass.
500 Commonwealth Canon. v. against privilege claim of his plausible witness makes a
the
the
testifying by
from
self-incrimination,
is
excused
775,
Elmore,
(4th
423
778
States
F.2d
judge. United
v.
cert,
States
denied,
(1970).
The defendant contends that evidence criminal subsequent trial is not at a civil admissible disagree. parties since the not the same. We and issues are “reciprocity,” is requirement There no “privity,” against prior only party it is the whom the “mutuality”; prior suit presence in the is now offered whose ed. significant. McCormick, (2d is See Evidence § rev. 1972); Wigmore, (Chadbourn Evidence J. § had party feature whether 1974). significant is prior at the adequate opportunity an for cross-examination Wright, 322 trial. Cf. Travelers Ins. Co. v. P.2d Fire case ad- (Okla. 1958) prior in criminal (testimony Fed. McCormick, supra, 257; See action). mitted civil § (1) Evid. 804 (b) R. is re- prior
Actual cross-examination at now party against but the whom the is quired, opportunity exercise must have had an adequate offered if & cross-examine desired. See 4 J. Weinstein Berger, par. 804 defendant supra, (b) M. [02]. Curley present case called as witness ad- case, him as an civil and was entitled cross-examine question verse L. c. 22. The substantial party. G. adequate motive then had credibility testing of Cur- on cross-examination Berger, supra, par. testimony. See 4 & M. ley’s J. Weinstein McCormick, supra, The defend- (b) (1) [04]; case, ant was in the civil as one plaintiff defending civil was defendants case ground agreement parties illegal was sub- That issue of G. L. 268A. reason violation c. present case. stantially same as the tried issue examination matter, that, It tactical is not fatal directed primarily Curley at the civil trial to its than agreement rather formation and terms of the Cir. Turner, (10th illegality. Poe 490 F.2d Cf. that was matter “on a waived 1974) (cross-examination *7 agree of the formation and terms issue”). not a real The issue very damaging ment were to the defendant of in illegality both trials. argues defendant that his constitutional
The imposes rigorous him against confront witnesses more He relies general law of evidence. limitations than the Stubbs, particularly on Mancusi v. U.S. where the Court said that
(1972), af- reliability” of and there issue bore sufficient “indicia evaluating satisfactory basis “the trier fact a forded of In the defend- the truth of the that case prior statement.” by set reason of denial ant’s first conviction had been aside second counsel, and at his effective assistance Re- important trial an witness had unavailable. become trial first testimony given by corded that witness at the evidence, defendant contended admitted that the cross-examination at the first had inadequate. require- held constitutional Court that op- satisfied, adequate ments since “there was an were cross-examine” portunity counsel at the first opportunity.” “availed himself that lay not think an ab- We do the Court intended down solute well as requirement of actual cross-examination as like adequate opportunity for cases cross-examination for present problem no of ineffective which there was assistance of In the case “indicia of reli- present counsel. defendant, as ability” are furnished the fact that plaintiff case, called as witness the civil had claim, fact provide part basis for his the defendant’s own at both trials cor- Curley’s testimony. roborated much of charge 4. Reasonable doubt. In his on reasonable doubt, jury they must be instructed guilt kind of cer- convinced of the defendant’s with “the 373 Mass. matters of in those you you when are involved tainty have have your own life.” We you importance the highest confusing de as instructions such several times criticized many in As degree importance. gree certainty with case, taken charge in this cases, think the other such we proof be conveyed concept whole, adequately See, e.g., Commonwealth yond a reasonable doubt. Common 97, 116-117 Contrast Fielding, Ferreira, ante, 116, 128-129 (1977). wealth v.
Judgment affirmed. J., joins). Abrams, with (dissenting, J. whom Liacos, trial on the is entitled to a new in this case grounds charge who convicted (1) of G. L. c. not reflect construction defendant did he was majority opinion; con given by (a), *8 na theory of law which misconstrued victed under a the admission 268A, 17 (a); ture of G. L. c. § part of the Common recorded as his denied defendant constitu wealth’s case-in-chief confront his accuser. tional calling This for a this court is the first case to reach of inter- 268A, (a). task construction G. L. c. § provisions statute, harmony the other preting the with difficulty, as 268A, is one of not inconsiderable of G. L. c. parties of both confusion apparent is evident from scope of the offense the trial as to the nature and defined 17 (a). § of this by majority of the
The view
statute taken
is, how-
is
I am in
The fact
court
a view with which
accord.
not followed
reveals it as a view
at
ever, that
this record
—judge
by
prosecutor
either the
or an able trial
the trial
Appeals
is it
with that of the
Court.
nor
a view accord
Dutney,
App.
Ct.
Commonwealth v.
Cf.
by
charge
excepted
adequately
on this issue
arguments
incorporating
his motion for a directed ver
relative to
charge.
propriety
See Commonwealth
the issue of
dict on
Freeman,
(1967) .
Commonwealth v. Canon. meaning further of 17 (1976). Some elaboration of the § seems (a) appropriate this circumstance. Chapter comprehen- 268A of is a the General Laws thwarting
sive measure aimed at use of in- improper fluence on public State local officials. Section 17 (a), grounded, specifi- which the defendant’s conviction is cally municipal em- regulating directed the conduct of ployees which is inconsistent in- responsibilities with the job. herent in the proper performance government of a Conflict of occupy interest laws such (a) as an area § bribery acceptance between or the gratuities offer and and innocent trivial persons seeking or association with municipal favor of authorities for or rea- personal business See Report sons. Staff to Subcommittee No. “The Conflict Laws,” of Interest Committee on the Judi- House ciary, Cong., 85th 2d (March 1,1958). Sess.
The conduct proscribed by (a) request is the receipt, by a municipal employee, compensation from a nonmunicipal source private whose interests relate to particular matter in which municipality has a direct and substantial Compensation, interest. defined “any money, c. includes thing of value or eco- nomic benefit conferred on by any person or received return for services rendered or to be rendered himself or another.”
Section 17 (a) provisions tracks the of 18 U.S.C. § Buss, See The Massachusetts Conflict of Inter- est Statute: An Analysis, 45 B.U.L. 299 (1965); Rev. *9 Braucher, R. Massachusetts, Conflict of Interest in Perspectives Law, Essays of for Austin Scott Wakeman 8 (1964); generally Manning, see B. Federal of Conflict Interest such, Law As it is (1964). clear that the intent of Legislature the in enacting (a) incorporate, as § the crucial offense, elements of this those elements which the are basis of the correlative Federal These ele- offense. ments the (1) receipt compensation are of as defined in 1, (2) contingent receipt promise § the or of services rendered. In element, apparent the absence of either the impropriety of the official’s does not out conduct make the 373 Mass.
Commonwealth v. Canon. Con- Manning, supra See at offense under (a). § be or to it is the rendered versely, immaterial services may the be viewed exchange compensation rendered in May Id. proper in nature. 43. See otherwise This 1949). Cir. (D.C. F.2d man “a section of the old maxim that statute reflects the preclude It circum- cannot serve two masters.” seeks em- leading by public of loyalties stances a conflict a any ployee. such, showing As not require it does — — deci- attempt by influence action inaction official or merely showing of economic required sions. What is by employee services rendered benefit received loyalty to be when his sole private rendered interests public should be to the interest. by municipal
It
equally
every
that not
act
seems
clear
may
which
employee
as the basis of an indictment
serve
pro-
fails to
between the various activities
discriminate
ac-
by the
once
statutory
scribed
scheme. What
were
bribery
so
under
tivities involved
called
offenses
268, 8,
268A,
by
par-
G. L. c.
are now covered
G. L. c.
Sta-
(b).
See Commonwealth ticularly
and 3
§§
siun,
Other
defined
penal
offenses are
by
Additionally,
various
a number
statute
sections.
23, proscribed
acts
covered are
G. L. c.
nonpenal
may
grounds
terms.
latter
for ad-
Such
acts
against
offending employee
action
ministrative
provisions
the criminal
of the
or not.
covered
statute
decision,
In
currently
the case
before the court for
city engineer Marl-
concedes that he was
in-
during
borough
planning stages
the real estate
scheme
the time
received an initial
vestment
and at
he
payment
$5,000 following the
of what was called
sale
However,
parcel
developer.
the defend-
Davenport
to the
not
argues,
$5,000
ant
he
did
effect, received
from a
compensation
private
constitute
within
source
deny
The defendant does
meaning of
statute.
accepted
consequence
direct
$5,000
he
was a
payment
developer,
property
Davenport
the sale
failed to demon-
but
contends that
*10
505
Commonwealth Canon. enact- been so criminal what had not to prior make compensation 268A, namely, to receive ment of G. L. c. rendered, or to be ren- for private from sources services matter any particular in dered, private such sources to substantial a direct and municipality in which the has interest. view under this
It is incumbent on the Commonwealth prom- rendered or (a) employee of to show that 17§ to a money in exchange ised for relation services a direct particular municipality in which the has matter in this case particular and substantial The matter interest. special permit. is the of the issuance general defendant’s argues that the The Commonwealth a for the site constitutes “study” problems of sewer mat- rendering agree general I that as a services. would a exchange money constitute ter such action would (a), there sufficient evidence violation of 17 defend- exchange compensation (i.e., such services di- deny the motion for a ant’s investment to interest) that difficulty arises is neither verdict. Where rected in his the case denial judge’s expressed view of verdict, charge, nor the Com- the motion for a directed bill motion for a response monwealth’s this particulars presentation its of the case defined alleged criminal aspect basis of as the Commonwealth’s say the defendant’s convic- conduct at the trial. To jury judging because, any event, a tion should stand theory correct of law could the facts of a case tried on a guilty improperly invade have reached a verdict of province weigh the relevant evidence applicable legal principles. accord with the jury, as tried case, law of this and submitted majority’s with the of the nature was not in accord view Commonwealth of the crime under statute. See Graves, judge’s under- Mass. proposition to rest on the standing of seemed (a) money justify only receipt need shown here were “services” as discussed the conviction. Nowhere they have defined; nor need majority opinion or in the It follows that judge’s under view the case. majority by given the statute the construction convic- retroactively to validate used myself cannot be consti- of what theory entirely different tion based on be re- should I the conviction believe the offense. tuted opportunity can have versed so statutory with the theory consistent case on a defend this prohibition. case-in-chief, During the Commonwealth’s Curley, coindictee, one civil trial
given *12 testify on refusal following Curley’s read in evidence contends grounds. The defendant Fifth Amendment testimony violated Curley’s former admission the wit- be confronted with right “to Sixth Amendment introduction I hold against him.”5 would nesses proceeding in a civil given in this case indicted with who was by an individual thereafter right constitutional abridged with adverse witnesses. be confronted diligently unavailability of has been a witness Where the of testi the introduction established, we have sanctioned trial involv the defendant’s initial criminal mony given at oppor charges at the defendant had an ing similar which v. Commonwealth tunity to cross-examine the witness. Gallo, v. Clark, 467, Commonwealth (1973). 363 Mass. 470 Commonwealth v. Glass 320, (1931). 328-334 275 Mass. v. Rich 65, Commonwealth man, (1925). 73-74 Accord, Mancusi v. ards, 434, 437-440 (1837). 18 Pick. Mattox United Stubbs, 408 204 v. (1972); U.S. Similarly, we have authorized (1895). 237
156 U.S. pre testimony given at at a criminal trial introduction when proceedings in the same criminal liminary hearings during preliminary opportunity had the the testi witness and where to cross-examine the hearing be unavailable mony witness was demonstrated to of that Caine, 366 trial. Commonwealth v. at the defendant’s 5 Rights the Massachusetts Con 12 of the Declaration of Article similar “face to to meet adverse witnesses sets forth a stitution to the United clause of the Sixth Amendment face.” The confrontation through proceedings applied the Four was to State States Constitution Texas, (1965). U.S. 400 Amendment in Pointer v. 380 teenth
508
Commonwealth v. Canon. Mustone, 371-372 (1974). Commonwealth v. 366, Mass. Caruso, 490, Mass. 492-493 (1968). v. Andrews, petitioner, 362, Mass. 366-367 (1925). Cf. Bell, Accord, 468, Mass. States v. Havey 1287, F.2d 1290 (2d Kropp, Cir. 1974); v. Green, F.2d 1057 (6th Cir. 1972). Cf. v. California 149 (1970) given U.S. (testimony by a at a witness preliminary hearing, op at which the defendant had an portunity to witness, cross-examine the in properly troduced at the defendant’s subsequent trial when the subject witness full available cross-examina tian) ; United Ricketson, States (7th F.2d 1974); Singleton, United States Cir. 460 F.2d 1152-1153(2d Cir. 1972) (admitting deposition defend ant’s trial did not violate the Sixth Amendment where the defendant had opportunity to cross-examine the de ponent when the deposition was taken and where deponent was unavailable at trial).
The question presently is markedly before us different from that decided preceding Nor is the ques- cases. tion here same before this court recently in the *13 decided case of DiPietro, ante, Commonwealth v. 369 (1977). issue here is whether a consti- right tutional by confrontation is breached intro- the testimony given duction of former during by a civil trial a whose testimony witness live becomes “unavailable” at the defendant’s subsequent criminal This trial. case ex- perceptible hibits a discord the protected between interests by right the of confrontation and the sup- which rationale ports recognized exception hearsay well rule permitting, special conditions, under the admission of tes- timony given judicial during proceeding. a legal
Both the and recog- courts6 commentators7 have nized right the confrontation and hearsay rule 6 Green, 149, Evans, (1970). v. 399 U.S. 155 Dutton v. California (1970). U.S. 7 Wigmore, (Chadbourn 1974) (hereinafter 5 J. Evidence rev. Wigmore). McCormick, (2d 1972) cited See Evidence ed. (hereinafter McCormick). cited as Mass. 494 v. Canon. have However, the courts safeguard values. similar the confrontation parameters careful to note that Therefore, congruent. rule are not hearsay clause constitutionally though hearsay are some statements even uniformly not admissible, hearsay rule do exceptions to Evans, 400 Dutton v. the confrontation clause. contour Green, at supra 74, 86 U.S. .8 California right.” right basically “The to confrontation is designed is It Page, Barber U.S. full cross- prosecution available to make witnesses ensure examination defendant and jury before the given under oath of witness opportunity the demeanor who will have an to observe right entitles the witness as he testifies. primary “The personally.
to confront adverse witnesses object provision question of the constitutional prevent such as depositions parte affidavits, were ex against cases, being sometimes admitted in used civil prisoner personal in lieu of a examination and cross-exami- oppor- nation of the witness which the accused has sifting tunity, only testing the recollection and him to stand witness, compelling conscience of the but of may they to face face with order look stand and the him, judge by upon his demeanor gives manner which he is he worthy belief.” Mattox v. United U.S. 242-243 (1895). prosecution unavailable after
When
witness becomes
testifying
pre-trial hearing
first
at a
or at the defendant’s
necessary,
Supreme
a second trial becomes
has
of the confronta-
Court
concluded that
substance
advantage
tion
afforded the defendant
seeing
face,
had
face to
and of
“once
the witness
sub-
*14
jecting him to
of a
Mattox
the ordeal
cross-examination.”
States, supra
Accord,
v.
United
at 244.
Commonwealth
v.
Mass,
Gallo, 275
at 328-334.
however,
argues,
Wigmore
Dean
that confrontation is
element
merely
hearsay
opportunity
another
for the
rule
hence is
name
Wigmore
1366, 1397.
§§
of cross-examination.
Commonwealth Canon. At the outset of trial the conflict on indictments, interest mo- presented a tion judge compelling to an order coin- seeking Curley testify dictee to theory that he had waived his to privilege against assert self-incrimination to the extent grand that he testified before at the civil trial on the criminal matters related to charges. Alternatively, sought the Commonwealth permis- Curley’s sion to introduce stenographically recorded testi- mony given during the earlier civil denied trial. The testify compel Curley Commonwealth’s motion but thereafter allowed the Commonwealth to introduce portions testimony given trial. civil The judge permitting never articulated reasons for Curley’s Fifth majority Amendment claim to stand. The opinion finds “plausible” that a claim is privilege “plausible” sufficient. If “valid,” agree. means I It seems to me, however, resulting that a decision of a a loss consti- tutionally protected specific interest should be more as to particular which circumstances warrant kind procedure here used. unavailability during a witness trial is a criminal
a condition precedent former introduction of testi- mony in conformance with the clause confrontation hearsay exception Plainly rule. the unavailabil- ity of witness is established when the physi- individual’s presence cal impossible procure. However, is the salient consideration not whether physical pres- the individual’s obtainable, ence is but per- whether the son is available. Mason v. 408 F.2d cert, (10th denied, 400 1969), Cir. U.S. 993 Ac- Turner, Poe cord, 1974); F.2d Cir. (10th Allen, United States (10th 1969); F.2d Cir. J. Weinstein & M. Berger, Evidence par. 804 (a) [01] (1976) (Weinstein McCormick Berger); & validly
I agree that, prospective when witness declines proper to testify based on a assertion of Fifth Amend- guaranty steadfastly ment against self-incrimination or testify despite so, refuses order to do the testi- court *15 511 494 United unavailable. is rendered of witness many cert, denied, Cir.), Elmore, (4th 423 F.2d 778 States v. Allen, supra at United States v. 400 U.S. (1970). Fed. R. Evid. supra at 906. Mason v. (West); (a) See Evid. (a) (1). Cal. Code §240 253; par. McCormick Berger [01]; & 804 (a) Weinstein Annot., 45 (1956). A.L.R.2d who jury before
The to confront a witness of a clear case should not be lost the absence hear the Confrontation, Liacos, showing Right of The of need. Right of Con- (1970). Liacos, Trial J. Am. Law. Look, 34 Am. Hearsay Rule: Another frontation and regard I note in this Trial Law. J. 153 any issue findings fails to record reveal prior testimony of or not a constitutes whether witness’s circumstances, record privilege. waiver of In these jus- of fails to demonstrate satisfaction even the threshold Curley transcript use of the in lieu of tification testimony. live unavailability Curley’s testi-
Additionally,
live
mony at the
on the conflict of interest
defendant’s trial
factor in a determination
only
indictments
an initial
testimony
placed
before
properly
whether
former
was
Curley’s
testimony
jury. Because
former
the use
prevented
physically confronting
from
Cur-
ley
proceedings,
during the criminal
the circumstances
given must be
testimony
which the former
examined
given
compli-
to ascertain
Of
ance
clause.
requisites
with the
of the confrontation
primary
Curley’s
concern is whether
in the civil
reliability,”
Mancusi
trial bore sufficient “indicia
Evans,
Stubbs,
213;
Dutton v.
at
U.S.
U.S.
satisfactory
for the
the defendant’s
afford
basis
subsequent criminal
to evaluate the trustworthiness
testimony.
for cross-examination are
Opportunity and motive
reliability
any
crucial factors
evaluation of
most
fur-
testimony.
prior judicial proceeding
must
former
opportunity to confront
the defendant with an
nish
witness and to cross-examine him while is under *16 More importantly, oath. the considerations guide which the conduct of the cross-examination or the decision to waive during cross-examination the trial be must functionally equivalent to the pre- considerations which vail at the later trial testimony where former is in- The troduced. defendant must party have been earlier action. permits nothing confrontation clause less. issue on testimony which the was introduced the first proceeding as well as the purpose which the testimony was offered substantially must be to similar issue purpose and for which same testimony is offered at the subsequent criminal trial. See McCormick 257. § The issue the purpose and offering need not be identical in both proceedings, they but must sufficiently similar to ensure that the defendant had the same motive for cross-examining the witness at the earlier proceeding as he would have had at later criminal if the appeared Turner, witness had testify. See Poe v. supra; Peterson v. United 424 (5th F.2d 1965); Cir. Franklin, States v. Supp. F. 341 (D.D.C. 1964); Fed. R. Evid. 804 (b) (1); McCor- mick 257; Wigmore 1387; Berger par. § & Weinstein 804 (b) Wingate, Cf. United States v. 520 F.2d [04]. 309, 316 (2d Cir. 1975); First Nat’l Bank v. National Air- lines, Inc., 22 46, 48 (S.D.N.Y. F.R.D. 1958).
The defendant in the present party plaintiff case was a in the prior proceeding. civil That trial was the result an action against initiated Curley Lynch by him to recover his profits share by realized estate real investment Among venture. the defenses by relied on Cur- ley Lynch was the agreement assertion that include the defendant the real estate illegal venture was it because violated Curley by G. L. c. 268A. called testify defendant about the real estate venture and the agreement oral made which the defendant a coinvestor the project. Having opposing called the party put- while ting case, in his own the defendant was entitled to cross- examine However, him. G. L. c. issue on an testimony was introduced was Curley’s which estate ven- in the real agreement to include parties. The ture reached had been an examining Curley was to demonstrate motive for defendant agreement which made the had concluded him to receive entitled participant project Con- the venture. equal profit share of realized trial given by Curley in the civil versely, at the defendant’s by the Commonwealth was introduced illegally had prove criminal gain. Had public private used office foster on the indict- the defendant’s trial person testified cross-examining him ments, the defendant’s motive for *17 un- have certainly He would would have altered. in inconsistencies doubtedly probed for inaccuracies and stronger testimony have had a Curley’s and he would impeach to the witness. motive the defend- important considering in whether
Equally same cross-examining ant’s motive for the witness the underlying proceedings in is the shift in the both obvious the In civil action liability associated with the cases. the recovery on basis of sought defendant financial the alleged contract, prosecution, breach of but in criminal the professional only liberty, personal not but his his and reputation The crucial community, in the was at stake. promised ren- question private services were not in the defendant was private project dered as- Although the civil of the defenses issue at trial. one response to the defendant’s contract claim serted alleged illegality agreement, the foundational the liability parallel. theory and of the two cases were not In case, Curley’s circumstances of this reli- civil to sufficient indicia of trial failed contain justify jury to in the ability placement its before the trial the conflict of interest indictments. is therefore entitled a new trial at which to abridged by to confront not be will by that given introduction of witness proceeding. earlier civil Mass.
Commonwealth v. Canon. (dissenting, Liacos, J., joins). J. with whom Abrams, I respectfully from to majority dissent the failure of the grant this well law new established case. in this judge duty “to is that has a declare is, exceptions what law with qualifica- its and tions, explain it, grounds and to state reasons and it,” way “clearly such a will be intel- law ligible to the minds of men of good judgment and common experience, legal knowledge but without and skill.” Com- Porter, monwealth Met. (Shaw, C.J.)
Although jury, the trial read the statute in his attempt distinguish conscientious from (a) 17§ 2 (b) appears (b), adopted have the posi § § tion only money receipt need be shown justify a conviction under Such a view is (a). § interpretation in accord with today places this court on 17 (a).1 Nevertheless, majority jury find that instructions were adequate jury and that were war ranted in returning a I guilty agree verdict. While with the court’s view, while, my construction (a), ample jury exists on which a evidence could convict Canon, I with disagree majority’s disposition of this majority case. The assume without discussion that a agree would them with convict the *18 would interpretation under today’s assuming Even (a). of 17§ I fact, this to be think proper that basic fairness and a regard system jury grant for the we the de require that fendant a new trial.
In past be jurors we have held it fundamental guided by clear and correct instructions on the applicable legal principles. Corcione, 364 Commonwealth Mass. v. 1 Although specific exception did in not take a to the structions, charge except request after the he did to the denial of his judge’s instructions. The construction of statute was in issue throughout my exception is, and the thereto view, adequacy preserve sufficient to of the instructions issue 228, appeal. Crosscup, for review on See 369 Mass. Commonwealth v. 568, (1975); Commonwealth, 241 M. DeMatteo Constr. Co. 338 Mass. v. (1959). 587-589. 494 515 373 Mass.
Commonwealth
611,
77,
Kelley,
618
359
(1974). Commonwealth v.
Mass.
Rollins,
92
638
(1971).
630,
Commonwealth v.
(1968).
430,
435
Carson,
Commonwealth v.
Mass.
(1965).
Porter, supra at
See Com-
Commonwealth v.
Benders,
monwealth v.
(1972).
Instructions
Mass.
which are prejudicially
misleading
erroneous or
on a cru-
point
cial
always
of law have
new
required a
trial. Com-
Corcione, supra
monwealth v.
at 616-618. Commonwealth
Benders,
v.
supra
Brewster,
at 707-708. United States v.
62,
82-83 (D.C.
F.2d
Commonwealth
1974).
Cir.
Cf.
Albert, 310
811,
v.
Mass.
812 (1942). See Commonwealth
Freeman,
v.
There is no reason depart from basic principles Indeed, this case. fairness mandates otherwise. Canon should not only be the exception general to a rule.
trial, the arguments, and the suggested instructions all the jury only receipt money need shown to justify a conviction jurors under (a). were not given any specific guidance on the essential element of “services rendered to be rendered.”
Moreover, legal under our system, responsibility stating and explaining law is allocated to judge, duty and the of deciding questions of applying fact and of the law to the given facts is jury. Abbott, 120, Met. 124 (1847). Sparf & Hansen v. U.S. 106 (1895). Common-
wealth Dickerson, Mass. 798, 800-802 (1977) (Quirico, J., concurring). This division of functions be- tween the and the long recognized has *19 an essential element in providing justice: separa- “In this tion of the functions of court jury and is found the chief value, as well safety, as jury system. Those func- 373 Mass. endan- disregarded without be confounded
tians cannot security justice, as well as the stability public gering & Hansen v. rights.” Sparf personal of private Bellino, 320 See Commonwealth at 106. supra cert, denied, 330 U.S. Mass. distinction trial blurs the Canon a new grant
failure these between functions. important the most system provides
Finally, in and understand laymen participate means which can duties they owe “It makes them feel that legal system. govern- its society, they and that have a share to ment____The years hundreds jury system has some touch- law to the constantly bringing the rules sup- contemporary (emphasis common sense” stone of English 348- Holdsworth, History A Law . plied) W. (3d 1922). ed. this case majority’s disposition I from the dissent step but first in diminish- appears it to be since me in the administra- of citizen ing participation extent flow from such justice many and the which tion of benefits participation. is material reasons, where, here, as there
For these interpretation our of a statute and disparity between given a new trial mandated. statute “[W]e of a authority upon ourselves duties have no take should fact, to determine what verdicts tribunal of jury____Convenient help- rendered have been finally litigants to have these cases might ful as it be to the litigation, we must decline act without further decided sitting in matter that comes us extrajudicially before Prince, Welding a court.” Electric Co. v.
392 (1909).