*1 Christoforo. Commonwealthv. De Benjamin A. De vs. Christoforo. January 4, Middlesex. 1971. December Spiegel, Quirico, Tauro, C.J., Cutter, Reardon, Braucher, Present: Hennessey, & JJ. Criminal, grand jury, Argument Practice, Disclosure of evidence before discretion, Charge by prosecutor, Mistrial, jury, Requests, Judicial Capital case, rulings instructions, trial, Fair Error, and New trial. process Law, harmful. Whether error Constitutional Due of law. inspect grand by Denial motions the defendant in a criminal case alternatively jury testimony police of a officer and minutes inspection minutes was not make an in camera of such “par- must show a under the rule that error where, although grand jury ticularized need” to see the minutes by testimony given at the trial defendant contended that the officer respects prior by was in two inconsistent with statements made him, alleged prior in neither instance inconsistent part grand statement claimed to have been made as of the officer’s jury testimony grand jury and the defendant did not show that the light alleged minutes would cast further as to either of the grand jury testimony might inconsistencies or that the other way be inconsistent with the officer’s at the trial. Tauro, Spiegel, J., [534-536] dissenting. C.J., A required improper mistrial of a murder case was not where remarks prosecutor closing argument, of the when he said .that the counsel, stating they hoped jury defendant and his while the that the guilty, prosecutor’s hoped would find him belief guilty something would find him degree less than first murder, prosecutor personal and when the stated his belief of guilt, by were cured instruction to the specifically covering objectionable general the first remark and a closing arguments admonition that counsel in their “very “closing arguments often became overzealous” and are not your consideration,” evidence for prosecutor and where the remarks of the insignificant and harmless when viewed in the great weight context guilt [536-539]; of evidence of improper closing argument aggravated jury’s was not knowledge Tauro, pleaded guilty [539]. that a codefendant Spiegel, J., dissenting. C.J., Assignments judge’s of error give requested based on the failure to in a instructions criminal case were without substance where the judge’s charge adequately subject covered the matter of the [539-540] requests. v. Commonwealth De Any allowing, error in on cross-examination of a character witness for *2 case, questions the defendant at the trial witness’s aof criminal whether the opinion detrimentally of the defendant would be affected by certain assumed facts about him was harmless where such questions merely prosecution’s theory, stated the with which the already familiar, were charged of the defendant’s role in the gave negative questions. offence and the witness [541] answers to both G. L. c. Statement to the United States Constitution. in murder, is not new trial in a 265, 2, establishing procedure single as to § verdict both violative of the capital judge’s case, functions in and this court’s review of his action. Fifth and [541] and Fourteenth Amendments punishment having dealing with a motion for for first determine degree [542-543] Following degree a conviction of first murder one found shot to death in an automobile in which the defendant and two other men riding, were there was no abuse of in discretion denial of a motion grounded newly for a new trial supported by on discovered evidence and affidavits, containing hearsay, much to the effect that only inwas the automobile because he had been therein, derringer offered a ride home that a in found victim, belonged prospective automobile defence testify call, threatening telephone witnesses did not because of a hiding and that the defendant fled and went into after the crime only riding because he was afraid of one of the men who had been in [541-543] the automobile. Court Superior
Indictments found and returned in the on May 10, 1967.
The cases tried J. were before Sullivan, Manuel Katz for the defendant.
John F. for the Com- Assistant District Mee, Attorney, monwealth. appeal by is an
Reardon,
J. This
the defendant under
33A-33G,
from his conviction for
G. L. c.
first
§§
Superior
jury,
murder
Court.
The
degree
which
unammously
penalty
recommended
the death
not be
guilty
illegal
posses-
also found the defendant
imposed,
a transcript
The case comes to us on
of firearms.
sion
below,
summary
record,
and the
the proceedings
assignment of errors.
undisputed.
facts are
About 3:55
following
a.m
1967, a car
which the defendant
and three
April
Commonwealth De
riding
stopped
police
Medford
two
others
officers
Shortly thereafter the
discovered that
officers.
right
dead,
hand side
the front seat was
occupant
right
side of the
having
shot once
head
been
in the left side of the chest. The
three times
officers also
derringer
an unfired
on the floor of
car
discovered
be
seat,
special
and a .38
caliber
hind the driver’s
Smith &
Wesson revolver, which had been
once,
fired
on the rear
hand
A
right
seat.
pathologist
later estimated that
deceased, identified as Joseph Lanzi, died in the car some
4 a.m.
time between
from the wounds described above.
head wound
had been
inflicted
&
Smith Wesson
*3
and
revolver
the chest
aby
wounds
Harrington & Richardson
which was
revolver
discovered sometime afterward buried
vicinity of
in the
where the car stopped. Before the officers’
were
suspicions
aroused, however, both the defendant, who
sitting
had been
behind the
in
driver
the back seat, and the
driver,
Gagliardi,
one Carmen
had left the scene. The other
Frank
occupant,
Oreto, was
by
arrested
the officers after
discovery
their
that
the fourth man in the car was dead.
Indictments
murder in the first degree and illegal
of firearms
possession
were returned against Gagliardi,
and the defendant.
Oreto,
On
October
1967, Oreto, the
custody, pleaded
one in
only
guilty to
degree
second
mur-
gun charges.
and the
der
The defendant, against
whom
I. warrant for
flight
F. B.
unlawful
lodged
was
in April, 1967,
apprehended by the F. B. I.
was
in November, 1968, at his
house, where he
grandmother's
had been living continu-
Gagliardi
the incident.
ously since
and the defendant were
together
only
to trial
but
brought
the defendant’s case went
jury. At the conclusion of all
evidence Gagliardi
degree
to second
guilty
murder and
pleaded
the firearms
were
pleas
accepted.
and his
charges,
Commonwealth, conceding that
it was
the other
car who
fired
occupants
the actual shots,
two
relied
evidence
connect De
circumstantial
Christoforo in a
with them to kill Lanzi.
venture
Evidence w-as in-
joint
De
Carr,
Officer
one of the two
through
policemen
traduced
that
car,
gave a
false name
stopped
who
identity. He also allegedly
his
asked
told them
they
when
at first
who
officers
seat,
in the front
man
named “Johnny
was
asleep,
Simeone,” that
was
thought
fight
in
and
olved
Revere
that they
inv
been
he
hospital. The defendant’s
him
immediate
taking
subsequent
authorities
concealment
was
flight
guilt.
as evidence of
prosecution
cited
impeach
of Of-
In addition to efforts
only
Christoforo called
character
for De
Carr, counsel
ficer
grandmother. Although he
the defendant’s
witnesses
intended to
address
he
opening
in his
stated
only
car
because he
that the defendant
prove
Attic,”
“The
bar which
a ride home from
being given
theory.
support
no evidence
he introduced
worked,
he
many
there were
closing argument
in his
repeated
He
to explain
innocence
consistent
reasons
being given
ride home.
car, including
in the
presence
suggestion
substantiated
Similarly, no evidence
than consciousness
other
pressures”
“certain
opening
flight and concealment.
the defendant's
guilt explained
defendant.
raised
issues
with several
We treat
deny
his mo-
it was error
contends
1. The defendant
*4
testimony
Officer Carr
minutes of the
inspect
to
tion
inspect
grand
Two motions
grand jury.
before
indictment,
each
respect
minutes, one
jury
without preju-
at
time
and were denied
before
filed
of Of-
During cross-examination
renewal.
dice to their
respect
motions with
renewed his
defendant
Carr,
ficer
in
the alternative
testimony
moved
grand jury
to Carr’s
in
the minutes.
inspection
an
camera
judge make
that the
motions.
all the
judge denied
judge
have held that a
we
decisions
a number
recent
In
motions unless the defendant
such
grant
required
is not
grand jury
to see the
need”
“particularized
establishes
Commonwealth,
Ladetto,
349 Mass.
minutes involved.
197,
Doherty,
244-245. Commonwealth
237,
v. De
141-
Carita,
356 Mass.
209-210. Commonwealth
142. Dennis v.
U. S.
870. The
laid down in
in
the rule
these decisions
properly applied
Although
the defendant’s motions.
denying
respects
testimony given by
in two
contended that
Carr
prior
inconsistent with
at
trial was
statements made
alleged prior
instance was the
him,
neither
inconsistent
part
testimony
have been made as
statement claimed
In one
grand jury.
instance the
before the
inconsistency
an
between
out
Carr’s
pointed
testimony at
testimony
the trial and his
at an earlier probable cause
hearing in which Oreto was the defendant.1 He made full
an
inconsistency
attempt
impeach
use
Carr’s
trial.
In
testimony at the
the other instance the defendant
inconsistency
between
police
claimed
Carr’s
report,
shortly
incident,
after the
made
and his testimony at the
trial. As to the events involved in the testimony, Carr’s
testimony
point
supported by
on this
the unchallenged
testimony
Brady
of Officer
who was with Carr when the
occurred. We conclude that
events
there was no incon-
sistency
testimony
Carr’s
report
between
which he
at the trial. The defendant did not
clarified
show that
would cast
grand
light
minutes
further
as to either of
alleged
(compare
inconsistencies
Commonwealth v.
or
Gordon,
598, 602-603)
grand
way
testimony might be
other
inconsistent with
trial.
Carr’s
Commonwealth Otero, 356 Mass.
circumstances there was
these
likewise no need
inspect
for the trial
shown
minutes
camera
v. Cook,
The defendant reconsider our cases cited above holdings require in the recent which need” before “particularized being permitted of a showing *5 story At the trial Carr stated that the defendant told him the false about car, probable hearing dead man in the whereas at the cause the the he attributed story to Oreto. v. De Christoforo. testimony of a jury to grand
access the witness who be- trial a at the of indictment by comes witness returned recognize the difficult We grand jury. the burden which seeking to places upon impeach this rule such of inconsistencies between his grand witness on the basis testimony. It may trial testimony and his be jury desirable However, to this consideration rule. give that we further do on so the limited not record of the appropriate is if change, any, might Such ap- case before us.2 more accomplished by for propriately prospective application making of power exercise the rule of this court. this particular seeking defendant is not precluded case the motion for trial at by way hearing relief of a a new the compel he the of may, by action, production which proper jury by for grand testimony Officer Carr’s determination in- testimony any way was in whether such at the trial. Earl Com- consistent with monwealth, Mass. moved for a mistrial the conclusion
2. The defendant closing argument of certain because prosecutor’s also judge’s He claims that the argument. in that remarks adequately jury pre- did not cure the to the instructions of remarks. judicial these effect justified in objecting quite is to certain The defendant closing argument. It prosecutor’s of portions prosecutor state, "They for clearly improper [the defendant, appealing party presenting of has burden prejudiced by appeal that he was which shows an error a record on court Klangos, by court. Commonwealth the trial committed grand portion any no minutes or us contains The record before grand testimony given concerning Carr before the other information jury. any way. incorporated There in the record are minutes the several nothing availed himself indicate produced marking, having open the minutes court methods to him excep incorporation with his in the record in connection identification respect We cannot minutes. his motions with tions speculate denial they anything on whether contain minutes contain or on what has not helpful The defendant might to the defendant. which have been furnishing showing that he us with record sustained prejudiced burden inspect grand judge’s on his motions action judge inspect minutes motion that alternative minutes and his camera. *6 537 360 531 Mass. Commonwealth De Christoforo. they hope you his said find him
defendant and
counsel]
frankly
they
you
think that
quite
hope
not
guilty.
something
first-degree
little less than
find him guilty
for
improper
prosecutor
It was further
to
murder.”
point
personal
his
belief of
state at another
Assn.
Ethics,
Am. Bar
Canons
Professional
accused.
Mercier,
Counsel to the first cited statement Although above. at this transcript point clear,3 is not judge pains point was later at out recognized that he argument the time that improper. record judge as suggests, said, that his statement to this effect was not heard over expostulation. defence counsel’s In addition, judge stated explicitly later that he would given immediate have instruction to the jury to disregard if the comment defence counsel asked for one. No such made. In of a. motion was the absence request suitable successfully now argue defendant cannot that an immediate the jury necessary prejudicial instruction erase the remark. suggest, effect of We however, in many may for instances it be more effective the judge give im- instructions. mediate closing arguments the judge
After the declared his willing- general in addition to include charge ness closing specific of both counsel a arguments reference whatever transcript saying shows that was recorded as “No” in what interpret agreement statement, counsel's we argument.” defence “That is not fair
Commonwealth v. De Christoforo.
thought
were unduly prejudicial.
remarks
with a
compliance
request
written
adequate
for instructions
objectionable
this first
remark
about
submitted
counsel
specifically
covered
subject
*7
Although
charge.
language
in his
the
he used was less
that requested by
than
the
emphatic
defendant, who took
it, it was sufficient to
exception
safeguard
to
the defendant's
rights.
Devlin,
Commonwealth
specifically Attorney those statements made the District. instruct disregarded by improper and should be them.” v. De improper argu- has contended here The defence jury’s of the in its because effect aggravated ment pleaded guilty. This the codefendant knowledge guilty plea the codefendant’s valid, because premise presenta- way inconsistent in no Although the defendant jury. to the his defence tion of in his opening and attorney represented testify, did not was in jury that closing statements innocently and was was there but automobile murder jury, upon learn- killing. with the way in no involved that at least then one other oc- knew guilty plea, of the ing criminal responsibility had admitted vehicle of the cupant to conclude logical It is not murder. for the prosecutor that, any implied argument accept would whom the defendant blamed for of the men one because *8 was any defendant pleaded guilty, the less murder the firm in that guilty his assertion he was not any himself of whatsoever. crime must improper argument
The also be relation viewed weight guilt. of the evidence of the to the The an extremely strong was against one. case that probable jury argument It is not drew In suggested by now inferences the defence. subtle prosecutor insignificant were and event, the remarks great weight context of of viewed harmless guilt. of evidence judge’s of on Assignments error based failure instructions are without substance. requested Three
give instructions with the of dealt inference innocence requested which is jury must draw from consistent which the evidence they Although accurately and guilt with both innocence. instruct law, required was not stated relevant He ade- jury urged the terms the defendant. requested of instructions. the substance quately covered 94, 311 Mass. 113. Common- Mannos, 458. Commonwealth Aronson, wealth Mass. instructed the 170-171. He Monahan, Commonwealth v. De Christoforo. and
fully accurately on presumption of and innocence proof which the burden the Commonwealth must sustain. specifically He cautioned them not their base decision suspicion conjecture or and further instructed them on proper treatment of circumstantial as opposed to direct in assessing guilt. evidence requested
A final instruction fco the effect necessarily feeling not reflect “[f]light guilt.” does property instructed evidence of the defendant’s scene, flight, actions on the concealment, later “as an guilt.” could admission of be taken He cautioned addition, however, them “common insists fairness you draw guilt before inference of for the crime of should killing, you be satisfied that acts these or words a part least the motive or conscious- cause guilt which acts spoken.” ness caused these or words to be require could not “Having given more. defendant guidance . . judge] correct rules their . [the required go not possible findings further discuss upon fact which a acquitted.” might Com- monwealth v. Greenberg, 557, 585. Common- v. Payne, wealth addition, possi- bility that flight prompted by fear than rather had already suggested in argument been jury by defence counsel. 4. Four alleged other errors now argued were raised *9 in the assignment of errors. It is the upon incumbent de capital fendants in cases, as in kind of any case, to other adequate file assignments according pro of error the provided cedures G. L. c. 278, 33A-33G. Section 33E §§ that chapter of does not of applicability affect the the other in capital sections only cases but us to order empowers trial “‘if new that law satisfied’ because of error of or of fact the verdict is miscarriage justice, of or where because newly jus discovered evidence or for some other reason requires tice trial.” v. Bellino, new Commonwealth briefly We with three of deal these De injustice None of them demonstrates contentions. 33E. 'by us under action § corrective require which would for the witness a character put questions were (a) Four were ex- questions Two cross-examination. on defendant by not conceded allowed are questions The two cluded. Any error, improper. to have been the Commonwealth whether the questions the however, was harmless because detrimentally would be opinion of the defendant witness’s merely him stated facts about assumed certain affected mur- in the role theory of the defendant’s prosecution’s the addition, already familiar. which with were der, negative questions. to both answered the witness clearly hearsay testi- excluded judge properly (b) The what the de- grandmother about mony by the defendant’s several at her house said to her when he arrived fendant murder. hours after the pro- is no merit to the contention
(c) There
de-
having
in G. L. c.
for
265, 2,
provided
cedure
§
punishment
in a
verdict both
single
termine
Fifth and Fourteenth
degree
first
murder violates the
The
United States Constitution.
Amendments
recently resolved
Supreme Court has
United States
Crampton
California,
in McGautha
decided
issue
sustained
in which the court
183, 208-220,
402 U. S.
Ohio,
statute.
constitutionality
a similar Ohio
denial
final
from
argument
stems
defendant’s
some
motion,
trial.
amended
for a
his motion
new
filed,
originally
it was
months after
six and one-half
outlined
newly discovered evidence
allegedly
based on
to the effect
affidavits. Three
these
four
be-
murder
night
car
“The
home
him ride
had offered
Gagliardi
cause
father, also
three,
Attic.” One
suggest
would
which
account of an incident
contained
belonged
car
in the back of the
derringer
found
witnesses
also
defence
That affidavit asserted
Lanzi.
*10
who to be a testifying at trial threaten- prevented davits were during call made to father ing telephone the defendant’s affidavit, by trial. fourth counsel for the defendant The of a Medford stated the substance police officer, on behalf a with father before the of conversation was that the apprehended to the effect defendant Gagliardi. was hiding only frightened because he
If
in
the evidence described
affidavits
been
at
jury,
trial
form and
offered
admissible
believed
this
might
information
have led to
different result.
well
opening
for
indicates that
statement
did in fact
defence
intend to introduce such evidence. The
hardly newly discovered, although
thus was
evidence
it was
why
affidavits advance
reason
much of
not offered
however,
trial.
threatening telephone call,
does
explain why
who stated in
father,
neither the defendant’s
testify
pleaded
his affidavit
he
others to
de-
call,
police
nor
Medford
officer
called
spite
delay
testify.
any explanation
Nor
there
over
six
presented
and one-half months
counsel
before defence
Much of
information
information to the court.
not have
hearsay
and would
stated
the affidavits was
in that
event.
form
been admissible
newly dis-
ground of
for a
trial on the
The motion
new
sound discretion
evidence was
covered
addressed
246 Mass.
Dascalakis,
12,
v.
judge.
Commonwealth
449. Com-
369,
Mass.
Sacco,
32-33. Commonwealth
Common-
394-395.
Devereaux,
391,
monwealth
248,
v. Chin
283 Mass.
Kee,
wealth
v. Sheppard,
likewise accept not have to Heffernan, 48, 350 Mass. 53. He did undisputed. Common- though they them as true even v. 369, wealth v. 450. Commonwealth Sacco, v. Doyle, Mass. 410. Commonwealth Millen, 406, 633, 552, Mass. 637. Commonwealth v. Coggins, In weighing presented the new evidence he was en- knowledge place titled make use of his of what had taken (Commonwealth Sacco, supra, 451; at the at Com- monwealth v. Kee, 248, 257), Chin and he was not required give reasons for his action. Commonwealth requirement was no Finally, there Sacco, at 450. supra, affi- support in hear oral by he procedure which was free to choose davits; he Millen, supra, motion. Commonwealth would consider the Coggins, supra, 556-557. at 410. Commonwealth cir- at 54. these supra, v. Heffernan, of dis- not disclose abuse does cumstances the record followed motion, of the which in denial judge’s cretion four and the submission argument by oral sides both the motion. support affidavits 33E, through as amended L. c. under G. Acting § evidence. carefully reviewed the have we St. c. testing view particularly We have done evidence and re- contention unsupported defendant’s unsworn statement principally ferred to process in the motor vehicle in a that he was 360 Commonwealth v. De caught situation being up home when he was driven not involved. Our personally murder which he re- jury open view return indicates did, justice require does not they verdict which degree than that entry of verdict of lesser re- a new trial. turned or there be
Judgments affirmed. *12 After a careful review of (dissenting). C. J. Tauro, majority opinion I agree entire record am unable to with right to a fair trial constitutional has I of the preserved. which, been will discuss several factors to this combination, lead me decision.1 objection, was tried defendant, jointly The over his with a pleaded guilty (in codefendant.2 The codefendant jury) degree absence of the to murder the second at the The trial then conclusion the evidence. resumed with only present. judge The the defendant De Christoforo jury. “Mr. stated, Foreman, gentlemen madam and Gagliardi You will is notice [co]defendant pleaded ‘guilty,’ the dock. has and his case has been He will, therefore, go forward disposed of. We argu- The of the case of De Commonwealth vs. at two o’clock this afternoon.” ments will be held closing arguments During prosecutor’s the course conceded jury to the he made certain remarks which are An these remarks improper.3 have been issue raised majority concerning ruling right disagree 1 I also with the jury inspect grand minutes. I make no further comment on this issue J., viewpoint Spiegel, except express my concurrence with the in his dis senting opinion. in the denial of the defendant’s There was no abuse of discretion motion separate a trial. prosecutor: reaching you am will have at all “I sure no trouble The you by way know what want to do verdict in this case. verdict. I don't they you guilty. quite frankly They they hope that find him not said guilty something they hope you will find him little less think that object first-degree “I to that.” than murder.” Defendant’s counsel: argu- jud/he: fair “I don’t think —.” Defendant’s is not “That counsel:
Commonwealth v. De Christoforo. they whether prejudicial so in nature in circum- stances of the require case trial. new There are two subdivisions to this issue: Should im- have mediately jury instructed the at the time the remarks were made? Were given by the instructions jury during general charge sufficient to overcome the prejudicial harm to the If defendant? there exists a reason- able doubt as to the resolution of questions these must be resolved in favor of the defendant.
In accordance with our statutory authority respon- sibilities we must examine improper remarks of prose- cution in the context of the entire case. G. L. c. 278, 33E. § should have given been explicit instructions they were to draw no inference as to De Christoforo’s innocence or from the elimination of the codefendant from the case. Announcing to merely that codefendant pleaded guilty, without more, had the probable effect of leading to *13 speculation surmise and in its deliberation. In such failing circumstances give explicit to instructions diminished significantly the defendant’s right ato fair impartial and verdict. Christoforo,
De left as the sole defendant, and without appropriate instruction jury, to the found himself in a precarious position. It inwas this setting prose- that cutor improper made remarks in his closing argument to the jury.
As Supreme Court of the United stated, States has prosecuting attorney “is representative not of an ordinary party to a controversy, but of a sovereignty whose obligation govern to impartially is as compelling as its ob- judge: “No.” Defendant’s ment.” counsel: “That isn’t so.” The prosecutor: degree.” “Let’s talk about murder in the first hearing At on the motion for mistrial the maintained that ir- respective of its transcription, stated, absence in the official he had at the improper remarks, response time of the objection, to “No. improper argument.” However, This is appear this statement does not in the transcript official of the evidence. L. stenogra- See G. c. 80. If the court § pher jury fact judge’s did not hear the statement it is reasonable to assume that Moreover, urged later, did not. as it will be if these instructions were in given they adequate. far from
Commonwealth v. De interest, therefore, in a govern all; at whose ligation case, it shall win a but prosecution criminal is not that . may prosecute . . He justice shall be done. — But, so. indeed, he should do vigor earnestness blows, liberty he is not at to strike may while he strike hard improper duty It as much his to refrain foul ones. is wrongful conviction as produce methods calculated just one.” every legitimate bring means about is use S. 88. See Smith Berger States, United 295 U. Talle, 585, 591; People Cal. Commonwealth, App. 650, 678-679. prejudicial nature emphasized highly
It must
that the
be
jury can
fully
prosecutor’s
statement
jury already
with the fact
only
context
assessed
pleaded guilty.
had
knew
the codefendant
this turn of
instructions
clarifying
had received no
prosecutor’s argument
circumstances,
events.
that both defend
with the
may
left
have
inference
than first
charge
ato
lesser
plead guilty
ants had offered to
attorney
accepted
had
and that
the district
degree murder,
offer.
rejected De Christoforo’s
codefendant’s offer but
offence,
plead
if
had offered to
to lesser
Even
ad
its
Indeed,
fact
inadmissible.
would have been
Kercheval v.
fatal error. See
mission would constitute
Abel,
Commonwealth Commonwealth v. 294 Mass. Sherman, 379, 368, Levine, 441, Doherty See Betts Randle, 444; First for the Appeals 419. As of the Court per- to bis express Circuit has stated, permit “To counsel as to phrased if so (even sonal in the belief suggest not known knowledge of additional evidence him a not even accorded jury), privilege would afford cross-examination. subject witnesses oath and under credi- Worse, reliability creates the-false issue if bility of This is one of peculiarly counsel. unfortunate Greenberg v. advantage backing.” them has the of official United States, 280 F. (1st Cir.). 2d 472, 475 See Harris United States, 402 2d 656, (D. F. 657-659 C. Hall v. Cir.); United States, 2d (5th 419 F. 582, 586 Cir.). The statement prosecutor his personal belief the defendant’s guilt compounded the harm serious resulting prosecutor’s improper earlier statement, for the statements taken together might lead to an inference prosecutor had personal knowledge of by reason of the defendant’s attempt unsuccessful plead to a lesser crime. The cumulative effect prose- remarks cutor with no adequate and instructions, corrective coupled jury’s knowledge without clarifying instructions that the codefendant pleaded guilty at the close evidence, seriously prejudiced the right a fair trial.
Moreover,
in his final instructions failed to
correct the harmful effect
the improper argument.
It is
the rule of this
jurors
generally
are
expected
follow
instructions
with-
disregard matters
drawn from their consideration. Commonwealth v. Bellino,
645. Commonwealth v. Crehan,
609, 613.
there have been
However,
persuasive opinions
that correcting instructions cannot
preju-
overcome serious
dicial
effect. What
stated
Justice
Jackson
concurring opinion in Krulewitch United States, 336 U. S.
practical
453, constitutes
and realistic
appraisal
*15
531
548
360 Mass.
Commonwealth v. De
assumption
situation.
naive
that prejudicial
the
“The
can
to
...
all
jury
be overcome
instructions
effects
the
unmitigated
know to
practicing lawyers
be
fiction.” There
in which
is
such
prejudicial
are
the
circumstances
effect
to
it cannot
corrected
instructions
proportions
be
123, 135,
v.
391
the
In Bruton
U. S.
jury.5
some contexts in which the
“QTjhere
the court stated:
are
cannot,
or
jury
not,
risk that
will
follow instructions
the
consequences
and
of failure
vital
to
so
the
so
the
great,
and human
defendant,
practical
limitations
in-
ignored.”
jury system
Moreover,
cannot be
corrective
sufficiently strong
accomplish
structions must
counteracting
prejudicial
effect of
purpose
adverse
Inc.
Broadway
Heina v.
Fruit Mkt.
or evidence.
remarks
v.
See
Crehan,
304 Mass.
611. Commonwealth
infra.
485-486;
231 Mass.
Ry.
London v.
St.
Bay State
283 Mass.
14-15.
Strieker
Scott,
judge
jury
did not instruct
case,
In the instant
call
argument was made nor did he
improper
the time the
v. Cabot,
an
retraction.
Commonwealth
immediate
See
In his final instructions
counsel are made.” In the circumstances of such statement was far from sufficient to overcome case the instructions duty was the damage done. “It the serious im- grossly fact that argument been emphasize point plain, language out in unmistakable proper;- instruct it was unwarranted which particulars the improper con- cast in their deliberations aside such presented them, using that had been siderations obviously correct the cogent language would clear (that Cabot, 241 Mass. defendant’s was found in Error Commonwealth Domanski, one), and in Commonwealth defence was 66, technical (that be drawn should from the inference 69-70 unfavorable defendant had theie was no evidence where failure to call witnesses n witnesses Telegram Gazette, call). v. Common & Inc. Worcester he could Gordon, 598, 603-604. wealth,
Commonwealth v. De Com- This was not done.” argument. harmful effect of the Bay London v. 131, 241 Mass. 150-151. Cabot, monwealth Ry. State St. had majority notes that if defence counsel opinion
The improper immediate instructions the time the requested given “[Tjn them and that judge remarks the would have a defendant cannot now request suitable the the absence an instruction to successfully argue that immediate necessary prejudicial to erase the effect the remark.” may stake, a be at capital In a case where man’s life (as G. L. c. 33E requirements view of the amended § majority of the is un- through 453), c. this view St. responsibility (as the ultimate tenable. The has the defendant a fair review) guaranteeing we have trial. In of this case it was judge’s the circumstances immediately, with clear and lan- obligation unmistakable guage, prosecutor’s arguments to instruct that the Moreover, grossly improper. he should have ordered by prosecutor. though their retraction Even defence may counsel have moved for immediate corrective in- structions, objections his to the remarks were sufficient to judge. action require prosecutor’s immediate prejudicial were so in nature that the judge comments should sponte. acted sua the total have circumstances of case could nothing less have safeguarded the defendant’s to a fair right constitutional trial. of the in this far prosecution
The remarks
case were more
newspaper publicity
than the
prejudicial
prosecutor’s
criminal
in the Crehan case.6 The
argu-
record
or
permitted
perhaps
sug-
ment
in the instant case
even
gested an
conceded
inference
Crehan,
609, during
In Commonwealth v.
the trial certain news
paper
assumption
implied
articles
that each
had a
criminal record.
“On this
required
some action
possibility
to overcome the
prejudice.
judge recognized
and, rejecting
argument
for
mistrial,
general
stated,
required
immediate instructions
decided
were not
and that
charge
adequate.”
in the
would be
caution
This court
further
“Postponing
charge, however,
instruction
until
risked an
Judgments
adverse effect in the interval.”
were reversed.
Commonwealth v. De Christoforo. merely hoping something and was for a little less than a degree. verdict of murder the first This diminished his greater degree to a far chance for a fair trial than would have of his publication newspaper in a criminal background. prosecutor newspaper, ostensibly speaks Unlike of his authority office. The prosecutor’s “personal spokesman status and his role as government . . . give ring what he of authen- tend[ed] [said] . . . ticity impart implicit tend[ing]. stamp of be- *17 States, Hall v. 419 F. lievability.” United 2d 583-584 remarks (5th Cir.). prosecutor’s probably for a called In any judge’s mistrial. event the failure to instruct the with sufficient jury adequately and force to eliminate the to the defendant fatal prejudice serious constitutes error. final Moreover, judge's the routine instructions to the far from to the By were sufficient correct error. then the position had so deteriorated his chances for a fair his fate virtually deliberation of the eliminated. I
For believe that the defendant did not these reasons re- I fair trial. a new trial. grant ceive a would I am in (dissenting). complete J. accord with Spiegel, dissenting opinion. Nevertheless the Chief Justice’s feel my disagreement majority's with to also state the impelled requiring to rule the defendant to show a adherence the inspect grand jury “particularized need” minutes grand who testified of witnesses before the testimony at trial. subsequently testified who jury and imposes rule the defendant a well- current and is thus out of burden, touch intolerable nigh disclosure, rather than suppres realization “growing ordinarily promotes materials proper sion, of relevant Dennis United justice.” administration of criminal instance, at bar for States, 384 U. S. In the case entitled to majority hold that grand jury disclosure “did not show because he De Christoforo. Commonwealth v. alleged
minutes light would cast to either further testimony might grand jury inconsistencies ... or testimony be in with Carr's at way other inconsistent trial.'' How could such a showing, the defendant make (see, e.g. of an witness absence admission Com- monwealth v. Carita, 132, 141-142), without first inspecting It task confronting the minutes? is a formidable need,” show unless "particularized per- chance he is possessed of supernatural powers. the case 657, 667-668, of Jencks involving U. S. request defendant's reports written inspection of F. I. agents B. concerning they as which events testified trial, pointed the court out: first "Requiring accused to show reports conflict between actually deny the accused evidence relevant and ma- terial his defense. determining The occasion for a con- flict cannot until arise after has the witness testified, unless he admits conflict . . is helpless . the accused know or discover conflict without inspecting reports. A requirement of a showing conflict would in- clearly *18 compatible our standards for the administration of justice criminal in the federal courts must therefore be rejected.”
This court in Commonwealth v. Cook, 231, 233, Pittsburgh citing Plate Glass v. States, Co. United 360 U. S. 395, Dennis v. States, United 855, 384 U. S. has said that a requiring our rule "particular- defendant to show a ized need” appears to be the same as the Federal rule. We recognize, should that however, many Federal Courts of Appeals have interpreted the Dennis as implicitly case re- pudiating "particularized need” standard.1 One court in Cargill v. the case United States, 381 F. 849, 2d 851- 1 Supreme upon Court in the Dennis case Since based its decision its supervisory powers upon over Federal District. Courts and not a con Connor, right accused, compelled we are not to follow it. stitutional Picard, Supp. (D. Mass.). 843, 308 F. 846 case and other Federal This they controlling cases noted in this dissent are cited not because are be but they represent cause believe that a rule of reason. 360
552 Mass. 531 Commonwealth v. De Christoforo.
852 (10th Cir.) opinion, has to' said relative Dennis requirement case: “The Court retains the ‘particularized need’ secrecy be shown order is but such need shown holds lifted, may effect when the defense that it transcript states wishes to use the purpose for the impeaching witness, to refresh recol- as far as lection, credibility. or to test his Thus the Court if most, is has cross-examination concerned removed require- particularized of the substance from the need all, opin- it has term. this ment, although Under retained ion, appears grand is the defense entitled transcript jury's func- of the witness’s when ended, during are request tions and when the made necessary purpose trial that it is of cross- for the course examining purposes. such witness the above mentioned Supreme Court mentions and to some extent relies . 657 . . Jencks United 353 U. S. States, rationale of it is rarely ‘that ... point. The Court also states on this prosecution have access to for the exclusive justifiable justifiable Exceptions fact. are of relevant storehouse ” consideration.’ compelling and most only by the clearest govern- Appeals have held that once Three Courts has a trial, has at testified witness ment the'subjects testimony on grand jury to examine his right trial, the government unless which he testified about justifying protective show circumstances exist special can 365, F. 2d Youngblood, States United order. F. United States v. 2d Cir.). Amabile, (2d United 433 F. 2d Harris v. Cir.). States, (7th Cir.). Court, C. The First Circuit (D. 1128-1129 F. 2d (1st Cir.), Schlinsky *19 “the Dennis light opinion, of the that, has said very easily met. ‘particularized need’ requirement Dennis for cross-examina- [[case], as in ¡[the] Here, (1st F. 2d 436 v. cf. Walsh United 371 But tian.” Cir.). Relating (Standards Association Bar
The American 360 531
Commonwealth v. De Christoforo. 2.1 Discovery Trial, and Procedure Before [iii], p. § [a] Draft has [Approved 1970]) prose recommended required grand portions cutor be disclose those containing testimony persons minutes relevant whom call he intends to as witnesses at the trial. Several State grant statutes similar inspection defendants rights of advance of trial. Cal. E.g. Penal Code Code 938.1; Iowa § Ann., 772.4; Ky. Rev. § Rules Criminal Stat., Procedure, Rule 5.16 (2); Minn. Stat. Okla. Stat. Ann., 628.04; § Tit. Ann., 22, §
It is
that in
true
certain
it may
instances
be advisable to
maintain grand jury secrecy in
trial
protect
advance of
safety
(See,
v.
e.g. Posey
witnesses.
United States,
F. 2d 545
the case
Cir.],
involving
murder
[5th
civil rights
three
workers near Philadelphia, Mississippi,
in June, 1964.) But as courts and commentators have
pointed
often
out, once witness has
testified
trial, the
reasons for preserving grand jury secrecy simply fade away.
Mead,
Gray, 167, 170.
State
Faux,
9 Utah 2d
Plate
Co.
350, 353.
Glass
Pittsburgh
United
States,
Our decisions stan- origin. I comparatively not, are of recent do however, dard to follow a persuasive this a reason rule which does find not light logical analysis. principal stand the stare no not court is infallible. decisis is absolute because There no to overrule a should be reluctance decision which is it was not wrong, originally either because sound when subsequent prove or because events promulgated to be wrong.2 majority opinion if 2 indicates that
Footnote grand jury had included minutes defendant could have appeal, this court then record determined prejudiced by had been the judge’s whether defendant the right inspect them, denying action in I himself “in do refusing or to read them camera.” not appellate or an court a trial should con- believe not that a defendant would have been able clude under- credibility by grand jury use min- a witness’s mine privilege should the sole the defendant. This be utes. enough adversary judges it is for system, judge. “In our may of what be useful to the defense determination effectively only by be made an can advocate” properly Dennis v. U. supplied). United 384 S. (emphasis vastly is different the situation This where in direct examination an has been excluded question In this court. such instance, before proof offer An court could determine that the evidence con- course, would have proof the offer of benefited the tained using grand jury cross-examination defendant. of knowing questions no what just we have means minutes, might ask, or what the answers counsel 2 abrupt argued impact may of an that the reversal is lessened It longer from a in the future a court date will no follow the assertion that rule 527; See, Colby Carney e.g. Hosp. originally enunciated. United (2d Youngblood, Cir.); 2d States v. States v. Amabile, of theory 379 F. (7th validity Although appreciate Cir.). 2d F. prospective holding case, I see such in a civil no merit whatever in such liberty is at when defendant’s life or stake.
Commonwealth v. De *21 or might be, what benefit the might derive there- from.
I am of
firm opinion
that we should hold that
at
has testified
trial or at
Commonwealth, after witness
any preliminary
hearing,
required
or voir
turn
dire
portion
grand jury
over to
the defendant the relevant
can
testimony, unless the Commonwealth
demonstrate
testimony
compelling
keep
need to
such
secret. Disclosure
secrecy only
finding process;
facilitates the fact
inhibits it.
2. Officer
that
told a
Carr testified
false
story about the dead man in
car. The Commonwealth
introduced tins
of guilt.
evidence to
consciousness
show
Cross-examination of
showed that
had pre-
the officer
he
viously
hearing
testified at a
cause
probable
it was
Oreto who
I
told this
Even if
falsehood.
were inclined to
follow
by
majority
the rationale employed
would feel
obliged
“particularized
to hold that
requisite
need” was
established and
would be
consequently
unable to conclude
the judgment
should be
this case
affirmed. See
Commonwealthv. Carita,
132, 141-142;
Common-
wealth v. Doherty,
353
215-216 (dissenting opin-
ion). Compare
Kiernan,
Commonwealthv.
The Commonwealth should have interest no convict ing testimony accused on which the basis has not been so impeached as the thoroughly evidence I see permits. no basis for apparent assumption majority, with out having grand jury minutes, seen the that De Christoforo could not benefit from an examination of them because he had full . . inconsistency “made use of . an earlier [an] [at probable ... hearing] impeach cause Carr’s testimony trial.” of grand jury this area of disclosure testi mony, Supreme Court of the United States has said: justification relying upon is no ‘assumption.’” “There Dennis v. States, 384 U. S. United In a Court has held situation, similar Federal a crucial prin- issue “[inconsistent cipal particularized ‘a prosecution witness demonstrated v. De Christoforo. Plate Glass required by Pittsburgh
need’ as Co. United States, produce pertinent ... U. S. grand jury Harrell v. 317 F. minutes.” 2d (D. fn. There the officer Cir.), arresting C. 580, 581, of his given several different versions seizure nar cotics taxicab. The refused to allow the defendant grand jury examine officer’s testimony, or to in camera, apparently do the same himself theory any possible on the material inconsistencies merely quite would be cumulative. The court rightly pointed having grand jury out that seen the “[njot testi *22 mony, position speculate no even to its on might what effect disclosure have had Hutcherson’s credibility, with him or with jury. We cannot assume that Hutcherson was so discredited the disclosed incon discrediting impossible.” sistencies further Id. at 581. pretence determining
3. make no I am guilt. However, innocence or convinced that he did a fair thus I judg- not receive trial and would reverse the and set ment aside verdict.