*1 257 Commonwealth Ciampa G. Carmen vs.
(and ten cases1). companion Suffolk. December 14, 1989. 1989. April Lynch, Greaney, & Lucos, C.J., Wilkins, JJ. Nolan, Present: Abrams, O’Connor, Practice, Criminal, witness, Plea, Agreement prosecutor Cap- and between Evidence, guilt. ital case. Consciousness of Homicide. Testimony pursuant plea agreement prose- to a and between a witness cution founded on the as well promise cooperation, witness’s of truthful itself, agreement as the at a admissible criminal trial. [261] convictions, largely upon Certain dependent criminal which were the credi-
bility of accomplice pursuant an admitted who testified to a written court, plea agreement, reversed this where the trial erred agreement in admitting redacting repeated in evidence without ref- truth, erences obligation to the witness’s tell a reference to the placement program protection witness’s in a safety, of his life and language and contingent that the was on the truth of the homicide, representation witness’s that he did not shoot the of a victim and admitting where the also erred in the wit- signed ness’s had attorney representing a statement that the witness understood the attorney and that the the witness believed had entered freely voluntarily. into the and [262-263] J., JJ., joined, dissenting. with whom Nolan and O’Connor, Lynch, At a largely depen- criminal trial in which the Commonwealth’s case was upon dent alleged pursu- accomplice of an who testified plea agreement, ant to a written to the instructions conveyed insufficiently a need to the witness’s with cau- treat tion, failed adequately to focus have influ- on the incentives that could suggestion enced testimony, that witness’s dispel and did not prosecution vouching for the witness’s truthfulness. [263-264] J., JJ., dissenting. joined, with whom O’Connor, Nolan Lynch, guidance Observations judges for the in future criminal trials in which alleged accomplice pursuant plea agreement. testifies [264-266] 33E, reviewing Statement of this court’s G. function under L. c. § degree. conviction of murder in the first [267-269] against 1 Five Ciampa Carmen G. five D. Orlandella. Mark v. Ciampa. *2 Abrams, J., Liacos, C.J., opinion of joined, in concurred whom to aspects of the instructions
the court and commented on other jury. in the Court Superior Indictments found and returned De- and nine on two on Department, September cember 1984. Hamlin, J. L.
The cases were before Sandra tried for him) P. J. Fishman with . (Kenneth Daniel Leonard Mark D. Orlandella. Ciampa.
Bernard for Carmen G. Grossberg Donohue, for the A. Assistant District Attorney, Jane Commonwealth.
Wilkins, November, 1985, con- In the defendants were J. while armed and degree, robbery victed of murder in the first armed, masked, while assault assault with intent to murder a mo- receiving means of and stolen by dangerous a weapon, and tor Each has from his convictions appealed vehicle.2 from for a new trial. an order his motion denying on the depended greatly
The case the defendants DeVincenzi, of admitted accom- one William crimes, in the who testified for the Commonwealth plice pur- which the suant to a written in prosecution plea re- a sentence in that it would recommend promised specific and other turn for DeVincenzi’s in this testimony truthful er- cases. reverse the convictions because of prejudicial We that were rors in the handling plea cured the judge’s charge. by Tello’s, a 11, 1983, of during robbery
On an armed April Boston, security guard of a store the East Boston section to later, confessed DeVincenzi was shot and killed. One year others). In Decem- (and in many in the crimes participating ber, 1984, agree- he a Under signed plea agreement. ment, cooperation, DeVincenzi’s truthful exchange shotgun his unlawfully carrying a 2 Ciampa of was also convicted person. and which was defined in as the giving “complete part as a honest at and all if called proceedings any witness,” the Commonwealth to from DeVin- agreed accept cenzi a in connection with guilty manslaughter death of from security guard’s recommend sentence twelve If DeVincenzi were not to twenty years.3 cooperate truthfully were so to find preponderance evidence the time the Commonwealth sentencing, would be free to it make recommendation sentencing wished. gave
DeVincenzi concerning extensive trial *3 preparations the the and robbery, robbery shooting, and the conduct event. The delib- participants’ following the during erated four before their Dur- days returning verdicts. ing that time the asked for further on rea- instructions doubt, sonable witnesses, on determining the credibility and on circumstantial evidence. a It seems reasonable infer- ence that the jury were concerned over the DeVincenzi’s testimony.
Before testifying to the events of DeVin- April testified, cenzi over objection, on the direct examination Commonwealth that he came to an with the Suf- agreement folk district in attorney’s office for his in exchange cases, nineteen the ones on trial. He his un- including stated that, for derstanding his truthful the attor- testimony, district ney’s office would recommend a to sentence from twelve on all twenty years his cases. execut- DeVincenzi testified to ing then, agreement. The over ad- objection, mitted plea agreement, with certain redacted. parts Again objection, over permitted prosecutor agreed 3 The (a) also to recommend concurrent DeVincenzi, charges against (b) sentences on other pending to to endeavor institution, have DeVincenzi serve his in appropriate sentence Federal (c) acknowledge to cooperation governmen DeVincenzi’s truthful to other agencies courts, (d) tal try and charges pending Hamp to to have in New basis, shire DeVincenzi disposed (e) of on to use a concurrent and programs available within limits life and protect lawful safety during confinement. v. Ciampa. par- read to DeVincenzi direct examination to to him him if what read agraph by ask paragraph Next, understanding prosecu- was his of each paragraph. tes- introduce DeVincenzi’s objection tor over was allowed to his statement signed representing a timony attorney had attorney that the agreement, DeVincenzi understood him, be- attorney and that the reviewed the with the agreement lieved decision to enter into that DeVincenzi’s was an informed and one.4 voluntary describe the robbery
DeVincenzi then proceeded him, which, during according Tello’s store East Boston au- stolen brown Chrysler the defendant Orlandella drove a seat, tomobile, sat in front passenger DeVincenzi shot- seat a sawed-off defendant sat the back Ciampa manager with the gun. In the course of the confrontation crossing who guard, parking the store and the security guard security lot shot the deposit, Ciampa to make bank and killed him. con- arguments
The defendants a succession of advance in con- use of the cerning prosecution’s claim that admis- with DeVincenzi’s testimony. They nection in effect in evidence was sion of the agreement *4 testimony that DeVincenzi’s representation the by prosecutor credible, was who vouching was the by prosecutor form conclude to We and subject disagree not cross-examination. does that, handled, agreement plea if such appropriately witness. for a vouching not prosecutorial constitute improper does, however, the agreement present possibility Such an truth, telling witness is the believe that the the will re- that, truthfulness thinking agreement’s because discover or can knows quirement, v. States United is the truth. telling whether the witness 1464, (the Wallace, 1988) implica- Cir. (9th 848 F.2d 1474 testimony witness’s verify tion “that the can prosecutor attorney’s to did contain the agreement it went 4 The statement, examina signed polygraph of a to the results and reference tion deleted. 406 261 v. and condition of its thereby plea enforce the truthfulness We agreement”). shall return to this problem. rule,
We
as do
State Circuit Courts
accept
the United
to a
agree
Appeal generally,
pursuant
plea
ment,
and the
founded on a
of truthful
promise
cooperation,
See United States
v.
plea
itself are admissible.
890,
United States
851
v.
Mealy,
(7th
1988);
F.2d
899
Cir.
Dadanian,
1443,
United
(9th
818 F.2d
1445
Cir.
1987);
cert,
Martin,
States v.
denied,
818,
(1st Cir.),
815 F.2d
821
Townsend,
United States v.
484
(1987);
U.S. 825
796 F.2d
158,
Librach,
1986); United States
(6th
Cir.
v.
536 F.2d
cert,
1228,
denied,
(8th Cir.),
262
v. Ciampa.
in which she handled the
erred in the manner
should
agreement
agreement. Various
provisions
statement
that
have been redacted and were not. The
agreement was
the truthfulness
“contingent upon
[DeVin-
he,
that
per-
to the Commonwealth
representation
cenzi’s]
been re-
did
should have
not shoot
sonally,
[the victim]”
can be
That statement
dacted on
defendant.
request by
read
Commonwealth’s reasoned conclusion
asserting
The judge
that
was correct.
DeVincenzi’s representation
in the
should also have deleted references
to
his life
protect
DeVincenzi would be
a.
placed
program
the de-
safety.
unfairly
and
The language
prejudicial
agreed
fendants because it
that the
implied
his life and safety
that DeVincenzi
believed
reasonably
defendants.
be in
if he testified
would
jeopardy,
Andrews,
(1988);
450
See Commonwealth v.
(2d
580 F.2d
United States v. Arroyo-Angulo,
cert, denied,
1978),
Repeated
Cir.
U.S.
should
obligation to tell the truth
references to the witness’s
at
Mealy,
States v.
899.
supra
have
United
been deleted. See
directed that
the statement
Although
properly
jury,
to the
signed by
go
DeVincenzi’s
should
attorney
to obtain
over
she
the Commonwealth
objection,
permitted
signed
his
had
attorney
from DeVincenzi that
DeVincenzi understood
statement
representing
his
believed that
agreement and that
attorney
volun-
decision to
was an informed
make
in effect indicated
hearsay
one. The
statement
tary
attorney’s
truth, thus
him the
telling
that he believed DeVincenzi was
to tes-
guilty
his advice to DeVincenzi to
justifying
plead
prosecution
on the Commonwealth’s
depend
did not
on the results of the
testimony.
satisfaction with the witness’s
obtaining
contingent
Testimony pursuant
made
conviction,
testimony, would
witness’s
as a result
indictment or a
lie,
not meet
test
present
great
would
presumably
too
an inducement
United States
fairness,
be admitted. See
of fundamental
and would not
Waterman,
supra
201;
Dailey,
supra
States at 1531.
United
*6
Commonwealth Ciampa. the We this tify against opinion defendants.6 that emphasize concerns agreement an between a and a wit- only prosecutor ness expressed in a which agreement written in the plea in sentencing recommendation promises exchange for truthful testimony.
The prejudice from admission of arising plea agree- the ment with damaging provisions not deleted and from DeVin- cenzi’s concerning his testimony attorney’s involvement with the plea agreement was not alleviated the judge’s charge. The charge failed to the to adequately jury’s direct attention the potential influences of the plea DeVin- cenzi’s and as well credibility failed to dispel any implication in inherent the in agreement, and the of plea presentation witness, DeVincenzi government as a that government the knew was warranting DeVincenzi was the telling truth.7 The of the most to aspects charge relevant DeVin- cenzi’s are set forth in credibility margin.8 language the That insufficiently conveys a need for as caution to DeVincenzi’s testimony. The charge did not tell jury weigh to DeVin- cenzi’s and testimony care not to consider DeVincenzi’s as guilty evidence the defendants. did It not ade- 6 Thebetter any signature course would be to prosecu also delete of the tor or representative other of the Commonwealth as from the admitted evidence. objected aspects 7 The charge concerning defendants DeVin sufficiently cenzi put special on notice of the need in concerning struction objec We need DeVincenzi. not consider whether the sufficiently tions were preserve focused appellate issues various challenges to holding prejudicial instructions. Our is that the ad portions agrément mission of of was not cured in the charge. give 8 “Youshould weight testimony your each witness such as in good judgement fairly it person entitled to The receive.” fact that accomplice an testimony “in itself question raises a .... words, accomplice you need not be other corroborated. In need not evidence, you have beyond you other if find a reasonable doubt believe you William DeVincenzi.... Whether believe should accomplice your of an good judgment upon rests in based all the you evidence before may [plea] agreement .... You consider the hopes advantages judging the witness have as to future his credibility.” focus incentives that could attention on the quately jury’s It influenced did warn testimony. have that, in him entering presenting into *7 witness, did not know whether DeVin- government a not cenzi was and did telling emphasize truth jury a question DeVincenzi’s truthfulness was solely covering cautionary to decide. a instruction these Only by to evaluate the could the have been in a points jury position pursu- of the agreement presented impact plea ant to it. to aid trial judges
We add a few observations intended in We the future. handling accept similar circumstances rule general may that on direct examination prosecution witness has entered into out the fact that the bring properly understands agreement generally and that the witness Cosentino, v. See United States obligations his under it. 33; McNeill, 5, 728 14 (1st at v. F.2d United States supra 1984). timing the admission a plea Cir. discretion, if it clear from ar- in evidence in the is that, gument or comment the defense because the witness’s credibil- challenge the defendant will Cosentino, v. States supra. on cross-examination. United ity admission of It would be with a to defer discretionary examination, after the defendant until redirect by show- credibility has undertaken to the witness’s impeach a deal with the ing prosecution witness had struck treatment. bolster- Any attempt order to favorable obtain tell his concerning obligation the witness ing by questions examination. Such proce- the truth should await redirect would mitigate prosecutorial dure tend appearance might on direct examination vouching that similar questions should prosecutor If ever when the create. there is a moment by paragraph, the agreement, paragraph be allowed to read rep- whether each paragraph and ask the witness successively in the case (as happened understanding resents witness’s and not examination us), during would be redirect before it during direct examination. 265
A
restate
prosecutor
closing argument
govern-
*8
ment’s agreement with the witness and may argue reasonable
inferences from the
plea agreement’s
truthful
requirement
Martin,
822-823;
See United States v.
at
testimony.
supra
Dennis,
1029,
United States v.
786 F.2d
1046-1047 (11th
cert,
Cir. 1986),
denied,
If, however,
(1987).
266
406
noted,
As we
could be
agreement by
have
the
itself
plea
government
as
that
viewed
an
the
implied representation by
be
repre-
witness’s
will
truthful.
testimony
implied
of credi-
sentation of
exceeds any implication
far
credibility
calling
testify
from
a witness
bility arising
simply
improper
under
of the possible
oath. Because
hearing
influences
could
from
testi-
jury
develop
that
written
that offers
given
to a
mony
pursuant
if
witness tells
benefits to a witness but
only
substantial
truth,
that, although
have
generally
courts
determined
exhibit a
hear such witness and receive as an
jury may
and force-
agreement,
specifically
must
copy
par-
tell
the witness’s
fully
study
890,
ticular
Untied States v.
851 F.2d
Mealy,
care. See
Cir.
“must
considered
(7th
1988) (witnesses’
be
testimony
Moreover,
their
is
great
guilty plea
with caution
care.
the defendants”);
not to
considered
evidence against
be
Shaw,
(9th
1987),
829 F.2d
Cir.
United States
cert,
circumstances,
denied, 485
(1988) (in
U.S.
if
court had
given
would have been better
the trial
“[i]t
instruction that
the reference to truthfulness in
a way
does not mean that the
has
government
truthful,”
but
did
knowing
that the
witness’s
tell the
should examine the benefited
they
wit-
ordinary
“with
caution
greater
than
200 n.8
nesses”);
Dailey,
States v.
759 F.2d
United
*9
instructed to
(1st
1985) (the
Cir.
should “be
jury
specifically
States
care”);
weigh the
with
United
accomplice’s testimony
cert, denied,
Sims,
375,
1983),
(11th
v.
719 F.2d
378
Cir.
of
(1984)
suggestion
465
(trial judge dispelled any
U.S. 1034
in
that testi-
vouching
mind
by instructing
jury
keep
“is
given
always
to an
mony
pursuant
immunity
care”).
with great
to be received with caution and weighed
should
do
that
judge
We
words
particular
not prescribe
however,
jury’s
will
use. We
focus
do
expect,
evaluating
give
care
must
attention on the particular
they
contin-
is
to a
given pursuant
telling
on
witness’s
the truth.
gent
267
In ad- on which we determine that discussing grounds *10 mission of the and certain concern- plea agreement testimony 257 406 Mass.
268 v. Ciampa. error, states its view the dissent reversible ing it constitute not instances, that, rights preserved appellate in certain Our argued appeal. not specifically at trial or an issue was 278, reviewing (1988 ed.), 33E L. c. function under G. § consider, not is to degree in the first conviction of murder review, but also is for appellate issues only clearly preserved Brown, v. (see Commonwealth sues on the record apparent Corcione, [1978]; 376 166-168 Mass. there is a determine whether [1974]), For miscarriage justice. example, substantial likelihood Callahan, (1980), Mass. in Commonwealth advanced on arguments appeal this court all the rejected then, first degree, of murder in the a defendant convicted record, identified an of the based on its review independent court error, 826), required (id. below argued new trial. to order a that concerned of the trial
In the course of that portion
it,
concerning
agreement
admission of the
witness testifying
to the
objected
one or more defense counsel
self-serving quality
of the
to the
agreement;
to the content
truthfulness;
the bootstrap-
references to
agreement’s
DeVincenzi
benefits to
of the statement that the
ping quality
did not
DeVincenzi
on the fact
agreement
of the
depended
witness;
victim;
to the
reading
agreement
shoot the
con-
inherent in
and to the hearsay representations
in the exe-
counsel
the involvement of DeVincenzi’s
cerning
counsel
At another point
agreement.
cution of the plea
different but unidenti-
to raise a
belatedly,
sought, perhaps
doing
from
so.
but was barred
objection
fied
They
job.
a better
could have done
trial counsel
Surely
of the
of specific portions
could
moved for the redaction
have
gen-
ruled that
after
same
along
motion
eral was admissible. Indeed
pretrial
counsel
Perhaps appellate
lines would have been appropriate.
por-
of specific
on the inappropriateness
should have focused
thought inap-
those they
other than
tions of the
us the
before
event,
fully
regard
In
we
propriate.
because
new trial
should be a
whether there
question
*11
errors that we have identified and viewed collectively prejudicial.
As to a crime that once carried the of death and penalty that now alone calls for the of a sentence of life imposition imprisonment without the possibility parole, special duty has been assigned us under G. L. c. 33E. We must § disregard omissions of counsel if justice us to order a requires new trial. Such an can appellate process be trouble- rightly some to the trial judge because it does not mean in all in- stances in which we order a new trial that the trial has erred in any (or traditional even nontraditional) sense. That is, however, problem inherent in the process of us required under 33E. §
The judgments reversed, are aside, the verdicts set and the cases are remanded to the Court for Superior retrial.
So ordered. J. (concurring, Liacos, C.J., with whom I joins). Abrams, agree with the court, opinion but I add the following comments concerning the instructions in answer to the dis- sent’s contention that the judgments should be affirmed.
1. The defendants challenge the trial Identification.1 judge’s instruction on identification as inappropriate prejudicial. They also claim that judge’s instruction on this point shifted the impermissibly burden of from proof prosecution to defense in violation of the defendants’ right to due process of law. The defendants’ contentions are based on the inappropriateness of any identification instruction at all 1 The jury: stated to the you “Are convinced that the witness had capacity adequate and an opportunity to observe the individual . . you “Are eye-sight the witness had the and the time neces satisfied sary under the circumstances to see the individual you . . con “[A]re vinced that the good witness did not make a faith mistake in the identifica tion of an individual . . “You consider whether or not a witness may have lying. a motive for You have to be convinced that the identifica tion by words, offense, made subsequent, witness in other after the product of his own added.) recollection (Emphasis ....’’ v. Ciampa. are correct. Positive
in the of the case. They circumstances de The was never at issue. identification of the defendants of an ac fendants linked to the crime DeVincenzi, them for who had known William complice, murder. some time before the identification applied instructions on Lennon, two de- Christine *12 of and Rugnetta Joseph the car and getaway
fense witnesses observed witnesses. Both among the men saw they testified that neither defendant was in the car. were not “identification” Because these witnesses for instruction of the sort nor- witnesses the prosecution, witness identifies a defendant mally given when a prosecution was wholly inappropriate.
The was not incorrect but also gravely instruction only referred judge to the defendants. The prejudicial repeatedly if doubt the might give to factors that rise to reasonable identification the testifying prosecution; witnesses were and urged credibility Rugnetta she the to consider the of jury and when they lying Lennon whether be mistaken might they claimed were not the men had they that the defendants admonitions, seen in the car. These which getaway normally be beyond the of convinced requiring serve function the was the of perpetrator a reasonable doubt that defendant crime, encouraged way this case were in a applied the defense witnesses with Because regard suspicion. the agreement (see of the of truthtelling aspect court, with the 258-259), of ante combined opinion weigh which the were instructed to jurors skepticism witnesses, the error was prejudicial. the defense counsel, at- judge After defense objection by timely “curative” In the to fashion a curative instruction.2 tempted instruction, stated, the Com- burden is on “[T]he a rea- identity beyond monwealth to defendant prove any Lennon witnesses Christine sonable doubt. In mentioning had they I did not mean to Joseph Rugnetta, imply bar, as to attorney expressed concern 2 At side assistant also district applied to defense witnesses. appropriateness of the instructions as burden The then into to prove anything.” lapsed her error “The previous by adding: my giving you purpose [Rugnetta identification as far as charge, Lennon] concerned, are was so could evaluate their credibil- that you This refer- ity added). witnesses” (emphasis identification ence to had the effect of reemphasizing skepti- cism with which these defense witnesses should be viewed. correction therefore did not eliminate the le- attempted gal error.
Both the original and the “curative” instruction impermis-
shifted the
sibly
burden of
from the Commonwealth to
proof
the defense in violation
the defendants’
to due
right
pro-
Franklin,
cess of law. See Francis v.
Both defendants offered alibi witnesses. Common- witness, Pezzella, wealth then offered to rebut Anthony that, alibi of the defendant Ciampa. shortly Pezzella testified your memory instructions were as . . . follows: “It is that controls 3 The witnesses, you have heard . you . . from various which if believe it, Ciampa April concerns where Orlandella at various times 11, 1983, your the date of upon this incident. Based determinations of evidence, upon you facts and reasonable is for inferences based credible it stories, say given conflicting to whether a defendant has or whether in fact you presented you find that there has been mean to to a false alibi. I don’t suggest indicating are only you that is the situation. I am that these you may guilt you matters consider as first find that consciousness of if they present are evidence.” [the] Commonwealth v. Ciampa. murder, after the he questioned about his Ciampa wherea- bouts crime, at the time of the said that he had Ciampa been at home that night. Because these two ac- exculpatory counts offered by alibi Ciampa at trial and his state- —his ment conflict, to Pezzella—were in the prosecutor requested, and the judge gave, an instruction ac- concerning conflicting counts as evidence of consciousness of guilt.4
The judge’s charge improperly broadened the of evi- scope dence that can be taken as indicating conscience. guilty Generally, own only defendant’s statements or actions can indicate witnesses, consciousness of guilt. alibi Testimony by therefore, is an basis for an inappropriate instruction on con- sciousness of guilt. Basch, See Commonwealth v. 386 Mass. 620, 624 (1982). Orlandella,
With respect there is no evidence of any statement him as to his whereabouts on 11. The April jurors were permitted to infer his guilt consciousness of if they disbelieved his alibi witnesses. This was an unconstitu- tional burden on his right to present evidence. sub- “[Ejvery ject a criminal shall prosecution] have a right produce [in all proofs, be favorable to him.” Art. 12 of the Massachusetts Ohio, Declaration of Rights. Doyle Cf. U.S. 610 (1976); Mahdi, Commonwealth v.
As defendants, to both the instruction impermissibly shifted the burden of from the Peo- proof Commonwealth. In Leasure, ple 34 A.D.2d (N.Y. 1970), the court re- ' versed a conviction on these same grounds, with the admoni- tian that burden of guilt never shifts from the proof “[t]he *14 Id. at People.” Berth, 689. Cf. Commonwealth v. 385 Mass. 784, 787 (1982) (burden of shifts when a in- proof structs, “You either believe one side or believe the other you side”); Commonwealth v. 157 Mass. Trefethen, (1892) (prosecution not contend that a denial of guilt itself evidence against defendant). This lowering 4 Although only this apparently apply instruction was meant Ciampa, did not so limit it. in a Commonwealth’s burden of also resulted “substan- proof occurred.” miscarriage justice tial likelihood that a [had] Cole, 38. See G. L. c. Commonwealth v. at supra 33E. I would a new trial on the erroneous instruc- grant § tions agree- as well as the manner in which the written plea ment was handled.
O’Connor, J. with whom Nolan and (dissenting, Lynch, JJ., join). Much of the court’s consists of “observa- opinion future,” tions intended to aid trial ... ante at judges 264, and of on commentary concerning issues re- anticipated trial. Ante at 267. I direct attention to that solely my part the court’s sets opinion that forth the court’s rationale reversing the convictions.
The court is correct when it that the admission in evi- says dence of DeVincenzi’s agreement did not constitute im- plea that, handled,” permissible “vouching,” “if appropriately “testimony to a on a pursuant agreement, founded plea promise truthful and the it- cooperation, plea concludes, self are admissible.” Ante at 261. The court however, that reversible judge committed error in the manner in which she handled the agreement. Ante 262-264. I do not agree with that conclusion.
The court identifies four errors in the perceived handling of the Ante at 262. first plea agreement. per- ceived error is that the judge failed to redact from agreement the “contingent statement that the upon truthfulness of to the representation [DeVincenzi’s] he, Commonwealth that vic- did not shoot personally, [the statement,” court, “That “can be according to the tim].” read as asserting the Commonwealth’s conclusion reasoned that DeVincenzi’s de- was correct.” Neither representation fendant argues the on failure point The defendants’ appeal. to argue the is understandable. The that the point provision agreement is contingent the truthfulness of representation that he did fairly not shoot the victim cannot conclusion, be construed as the Commonwealth’s asserted *15 v. Ciampa. was truthful. otherwise, the representation that reasoned that, if DeVincenzi’s repre- more than The statement no says false, the Com- been turn out to have sentation indeed should to a sentenc- obligation respect will have no monwealth nor neither required Redaction was recommendation. ing appropriate. reason to the court as a identified by second “error”
The have should also the convictions reverse “[t]he would DeVincenzi references in the deleted Ante safety.” his life and in a to protect be placed program redact to requested Neither defendant at 262. that issue argues to them nor nor objected those references of that lan- Nevertheless, that redaction agree I on appeal. ef- discuss below the I have been guage appropriate. would do so. failure to fect of references to Next, “[rjepeated the court states that been de- truth should have to tell the obligation witness’s there I submit Ante at 262. agreement. leted” from the plea error, in this re- error, no certainly prejudicial was no providing the agreement The court' concedes that gard. in evi- properly the truth was to tell obligation 851 F.2d Mealy, States dence. in United Nothing court, supports (7th 1988), Cir. relied 898-899 not for the judge reversible error assertion that it was court’s to obligation witness’s to the to redact references repeated to testified pursuant five witnesses Mealy, truth. In tell the length, were five agreements pages The agreements. witness’s to that four or five references and each contained that, court said Mealy testify truthfully. promise avoid should the government drafting agreements, “[i]n if it wishes references to truthfulness unnecessarily repetitive Nevertheless, we into evidence. the agreements introduce dispro- in this case agreements do not believe that the plea of truthful the promise or repeated portionately emphasized in the present The repetitions Id. 899-900. testimony.” repeti- twenty twenty-five to the case do hot come close re- (and certainly found acceptable tions that the court error) Mealy. versible Clampa. *16 of these con- error on which the reversal
The last asserted Common- victions turns is that “permitted that his attor- from DeVincenzi wealth to obtain that DeVincenzi a statement signed representing had ney that his believed attorney understood the and that in- was an the agreement DeVincenzi’s decision to make was Ante at 262. This evidence formed and one.” voluntary of The proper consequence and was inadmissible. hearsay that error is discussed below. erro- judge’s from the
The court reasons that the prejudice neous the aforementioned provisions, failure to redact DeVincenzi’s attor- her erroneous admission in evidence of statement, not alleviated by out-of-court ney’s instructions, errors therefore re- and that judge’s jury view, the court has cor- reversal. Ante at 263. In quire my One is the failure to rectly identified two errors. only refer- redact from the the witness plea agreement protection ences, out-of- and the other is the admission of the attorney’s court statement. trial,
At the defendants did not the witness pro- preserve Furthermore, tection issue for have not appellate they review. so, course, argued we are re- Even point appeal. 278, 33E, G. L. c. to consider whether the failure quired by § references, redact the witness viewed protection case, likelihood of a context the entire a substantial poses mur- with to the convictions of miscarriage justice respect Also, der convic- degree. in the first to the other respect tions, Free- our in Commonwealth v. decision pursuant man, 556, 352 Mass. we conduct a similar (1967), 563-564 test; one, said, be harder as we have that previously 33E, than the to sat- test under c. for the defendant § Lennon, n.6 Mass. 448-449 isfy. Commonwealth Richmond, 562- (1987). Commonwealth v. 563 n.4 (1980). defendants, court, does argument unaided by refer- agreement’s
not discuss the of the significance say ences to the witness protection program except agreed the references that the Commonwealth “implied v. Ciampa. life would be safety DeVincenzi believed his reasonably Ante at if he testified the defendants.” jeopardy, 262. if belief the defendants’ dan- Even DeVincenzi’s about gerousness significant were more in the total marginally than cases, the inclu- context these doubtful very proposition, witness references sion in the protection demonstrate, suggestion, does not the court’s despite contrary that DeVincenzi considered those references to be necessary or even advisable. For all that in the record those appears agreements, references were included in such routinely them, was indiffer- DeVincenzi did not insist on and indeed *17 ent to jury’s exposure about their inclusion here. the Surely, risk of a that kind of evidence did not create a substantial miscarriage justice.
I testi- turn to the erroneous admission of DeVincenzi’s that his a statement to the effect mony attorney signed had that DeVincenzi’s to into the decision enter was hearsay an informed and one. “The voluntary attorney’s statement,” he be- the court “in effect indicated that says, truth, justifying lieved DeVincenzi was him the thus telling his advice and to guilty testify to DeVincenzi to plead The court indulges the defendants.” Ante at 262-263. Yes, in a non the statement was inadmis- sequitur. attorney’s sible The absolutely attorney’s but it was harmless. hearsay, at- statement whatsoever about whether the nothing implies believed torney robbery DeVincenzi’s account murder. convictions,
In court relies on the defendants’ reversing these, view, were not four errors. Two of perceived my errors, two, cumula- and the considered individually other Therefore, join were not reversible. I cannot tively, court’s or subscribe to its result. opinion court’s ex-
Further discussion is
Despite
appropriate.
eviden-
to the four asserted
pressed
holding
limitation
its
to cure
instructions
errors and the
failure
her
tiary
seems
therefrom,
the court’s opinion
perceived prejudice
that,
have been
also
the issues
suggest
although
to
review,
there
for the
properly preserved
purpose
other defects court states convictions. The reversing court toward jury’s direct the “The failed charge adequately follows: on the plea influences of attention to the potential im- as well dispel DeVincenzi’s and failed and in agreement, presenta- inherent in the plication witness, govern- that the government tion of DeVincenzi as a telling DeVincenzi warranting ment knew or was charge] insufficiently language the truth. . . . [The] [of testimony. DeVincenzi’s a need for caution as to conveys DeVincenzi’s charge jury weigh did not tell the as evi- guilty plea with care and not to consider DeVincenzi’s focus the not adequately dence defendants. It did against the have influenced incentives that could attention jury’s that, in en- the jury It did not warn testimony. witness, him as a into the tering presenting was tell- did whether DeVincenzi government not know DeVincenzi’s truth- ing the truth and did not emphasize Only by fulness was for the to decide. solely question could the instruction these cautionary covering points of the plea have been in a to evaluate the impact position to it.” Ante agreement and testimony presented pursuant *18 263-264. on the bearing
I do not that the instructions agree jury Furthermore, they even if were defective. plea agreement defects, if not such regard, somehow defective in that review, cause not be for would properly preserved appellate demonstration, attempted not for reversal in the absence of a risk of a court, a substantial the that the defects created by view, no error was In there miscarriage justice. my clearly such a risk. creating its 260, court expresses ante at the in its
Early
opinion,
that admission
with the defendants’ “claim
disagreement
by
the
was in effect a
representation
in evidence
credible, a
was
the
that DeVincenzi’s
prosecutor
subject
who was not
form of
the
vouching by
prosecutor
occurs
Vouching
right.
cross-examination.” The court was
guarantor
‘as a
when “the
itself
prosecution portrays
257
278
v.
witness
truthfulness’
assurances that the
by making personal
not
indicating
is
truth
. . .
information
telling
that
v.
United States
heard
evidence
the testimony.”
as
supports
Munson,
337,
1987),
(1st Cir.
quoting
819 F.2d
344-345
cert,
818,
Martin,
(1st Cir.),
v.
815 F.2d
821
United States
Leslie,
denied,
759
v.
(1987).
Did
direct
adequately
instructions fail
*19
agree-
the plea
influences of
attention
jury’s
potential
I
charges?
as the court
ment on DeVincenzi’s credibility,
did
tell
not
charge
think
The court states that
not.
“[t]he
not
care and
jury
weigh
testimony
consider DeVincenzi’s as evidence guilty plea Commonwealth, inas other Ante at 263. In this fendants.” courts, States, instructing judges but unlike in the Federal are not juries ordinarily permitted in civil or criminal cases Kane, to comment on the evidence. See Commonwealth Wig See also 9 J. Mass. Ct. 138 n.9 App. Thus, more, Federal 1981). ed. (Chadbourn Evidence § whether cases are of doubtful assistance to a determination to the jury in these cases should have commented “with care.” weighed that DeVincenzi’s should be testimony Furthermore, the judge I am aware of no case that requires in the cases to instruct the jury circumstances these be considered as evidence witness’s is not to guilty plea defendants. rule trial Even if this court were to adopt requiring judges to make sure that the are aware of the special accom- circumstances that of an may impair no rule plice testifying agreement, to a written pursuant should be a more focused or that would adopted require instruction than the one in this case. stronger given “An judge instructed the in as follows: part accomplice one, DeVincenzi, is one referring and I am now to William intent, who unites and with common knowingly, voluntarily, A with a in commission of a crime. principal offender who is an crime is a criminal himself person to a accomplice . . . The credibility. itself raises a question corroborated, of an . . . not be need accomplice is the case in although consider whether such you may be- should weighing you Whether accomplice’s credibility. good judg- lieve the of an your rests accomplice ment based all the before You should you. evidence upon convict a reasonable defendant unless believe you beyond doubt that the the truth. accomplice telling
“Now, William in this case evidence that there is also DeVincenzi, in the Tello’s who has participation admitted his murder, . . . made a with the Government under which certain were made to him in return promises consider his truthful You cooperation testimony. *20 Mass. '257 Clampa. the witness have as to this .and any hopes well as the future his advantages judging credibility, to whom witness who came before you be been made.” The should not judge required had promises defendant. the scale to benefit a his or her thumb on place If, indeed, that the there should be any requirement of an accomplice pursu- remind the that the jury testimony that requirement ant to a be plea agreement may suspect, was met in this case. not, but, if they
The instructions were even adequate, have been un- jury may it cannot be said that the reasonably jury aware situation presented that DeVincenzi’s From the openings and issue of his unique credibility. critical that DeVincenzi and the evidence the were informed criminal, that his was an that he was accomplice, Commonwealth, and had in a sense “bought” by been in the course Surely that his motivation was highly suspect. trial, been no comment of this seven-week even if there had aware of the would have been by judge, acutely with care. weigh necessity they Thus, view, the obvious if the did fail to state my there is no with as much as the court would vigor require, that, instruc- risk not one had the a substantial certainly the result would have tions met the court’s requirements, been different. is- have numerous argued
I am aware that the defendants these convictions reversing sues relied on court in by I, at all. court or not mentioned mentioned barely too, discus- will refrain from what would be an unproductive cases has remanded the sion of those issues since the court for retrial.