Commonwealth v. FrancilCommonwealth v. Francil
- Reporters:
- , ,
- Before:
- Kass
Defendant stands convicted of breaking and entering in the daytime.
1
On appeal he argues that there was no evidence placed before the grand jury that he had committed the offense and that the indictment handed up was, therefore, without evidentiary support; that the integ
The sole witness heard by the grand jury was James Leahy, a Braintree police officer who, in addition to what he learned from his investigation and those of fellow officers, based much of his testimony on statements made by the victim of the crime, Ralph Sassi. In summary, Leahy’s account was as follows: Three men entered Sassi’s apartment by forcing open the sliding glass doors of a balcony. Sassi, who is legally blind but has some slight vision, recognized the voice of one of the men as that of a cab driver for Shore Taxi whom he knew as John Smith. That driver had taken Sassi from the Quincy Square MBTA stop to his Brain-tree apartment at least seven times, and had been in his apartment on two occasions. During the course of the theft, the man whose voice Sassi recognized was addressed as John by one of the perpetrators. Among the items stolen from the apartment were receipts the cab driver had given to the victim, which had been signed “John Smith.” 2
Leahy’s investigation took him to the offices of the Shore Taxi Company. No John Smith was employed there, but Shore Taxi had one employee with the first name, John; his last name was Francil. Through his investigation Leahy eliminated the other drivers as suspects, and satisfied himself that John Smith and John Francil were one and the same.
1. Sufficiency of the Evidence.
On appeal the defendant urges for the first time that the grand jury failed to “hear sufficient evidence to establish the identity of the accused.” In so doing, he relies on
Commonwealth
v.
McCarthy,
385 Mass. 160, 163 (1982), which was decided well after the instant case was tried. We consider
Commonwealth v. McCarthy, supra, dealt with an absence of any evidence of criminal activity by the defendant. See also Connor v. Commonwealth, 363 Mass. 572, 577 (1973). The McCarthy decision did not alter the established principle that when there is evidence of criminal activity by the defendant put before the grand jury, a court will not sift through that evidence to test whether it is enough or whether it is persuasive. Commonwealth v. Galvin, 323 Mass. 205, 211-212 (1948). Commonwealth v. Gibson, 368 Mass. 518, 524-525 (1975). Commonwealth v. Robinson, 373 Mass. 591, 592-593 (1977). Commonwealth v. Saya, 14 Mass. App. Ct. 509, 514 (1982). As Mr. Justice Black observed in Costello v. United States, 350 U.S. 359, 363 (1956), “If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed.” Compare Model Code of Pre-Arraignment Procedure § 340.5 (1975).
In this case the grand jury heard evidence which, at the least, wove a thread of identification around the defendant. The police officer had testified that: save for the defendant, he had eliminated as suspects all the drivers on Shore Taxi’s roster; the only driver named “John” whom Shore Taxi employed was the defendant; and the victim, during the course of the break into his apartment, heard one of the three persons who broke in address as “John” the man whose voice the victim recognized as that of the taxi driver. It was not a defect in the evidence presented to the grand jury that a fair portion of it was hearsay.
Based on the series of questions and answers set out in the margin, 4 the defendant moved that the indictment ought to be dismissed because the integrity of the grand jury proceeding had been impaired. See Commonwealth v. Gib son, 368 Mass. at 525. Specifically, the defendant maintains that the proceedings became tainted because Officer Leahy’s answers to the grand jury were inaccurate and misleading and that the stain deepened when the prosecutor failed to correct the inaccuracy.
After hearing, the trial judge found that the officer’s testimony “was an honest presentation of his views and opinions held, based upon substantive evidence and facts that he had discovered and was privy to during the course of his investigation.” Furthermore, the judge found “that there was no intent on the part of this officer to mislead the grand jury” and concluded that “as a result of [the officer’s] testifying . . . and also by presentation . . . made by . . . the Assistant District Attorney, the integrity of the grand jury was not in any material way . . . impaired.”
3. Deprivation of Counsel of Choice.
After the indictment was returned, defendant’s first attorney of record filed a motion to dismiss the indictment, alleging that the testimony set out in note 4,
supra,
“was false, [that] the said witness knew [it] was false and [that]
Defendant does not claim that Mr. Kane’s representation was in any way defective;
6
the essence of his complaint is that the motion judge’s actions created a conflict of interest which deprived him of the counsel he had retained. Although a court may not arbitrarily dismiss defendant’s counsel of choice,
United States
v.
Laura,
607 F.2d 52, 55-57 (3d Cir. 1979), trying a case is not a “parlor game,” and counsel must be prepared to support their actions in the face of a strong reaction by the trial court.
Allen
v.
Snow,
635 F.2d 12, 14 (1st Cir. 1980), cert. denied, 451 U.S. 910 (1981). The motion judge took appropriate action to protect the defendant’s right to an impartial decision on his mo
Judgment affirmed.
Notes
Although “John Smith” is thought of as a quintessential pseudonym, the name is not infallibly a fake. There are twenty-nine John Smiths in the 1982 Boston telephone directory, as well as eleven John Does and two Jane Does.
Evidence which would be competent at trial is, of course, preferable. St. Pierre, at 656.
The prosecutor: “And did you subsequently identify Mr. Francil, in fact, as the John Smith, driving the Shore Taxi?”
Officer Leahy: “Yes, sir.” « »
Juror: “How did you identify John Smith as the one driving the taxi?”
Officer Leahy: “These,receipts that the victim received from the cabdriver are all signed John Smith. There is no John Smith working for the taxi company. There is a John Francil. ...”
The prosecutor: “And did you, in fact, eliminate other drivers of Shore Taxi?”
Officer Leahy: “Yes, sir.”
Juror: “And the victim has since identified John Smith?”
Officer Leahy: “No. The victim has told us it was John Smith, who was known as John Francil to us.”
Juror: “But he has identified him?”
Officer Leahy: “Yes, sir.”
As the judge observed, there is a palpable difference between moving to dismiss because the jury may have been misled by an ambiguity and charging the police and the district attorney with commission of crimes, i.e., perjury and suborning perjury.
The record discloses that Mr. Kane had ample time to prepare for trial, zealously pressed pretrial motions, challenged the Commonwealth’s evidence, and presented an alibi defense. The defendant expressed no dissatisfaction with either the substitution of counsel or with Mr. Kane’s representation.
See S.J.C. Rule 3:09, Canon 3(C), as amended, 382 Mass. 811 (1981). Compare United States v. Laura, 607 F.2d at 58-59 & n.6.
The right to be represented by counsel of choice is well recognized, Lindsey v. Commonwealth, 331 Mass. 1, 5 (1954); United States v. Laura, supra; however, this right is not absolute. Commonwealth v. Connor, 381 Mass. 500, 503 (1980). United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969), cert. denied, 397 U.S. 946 (1970). If the defendant wishes to retain an attorney burdened by a conflict of interest, he can do so only after full disclosure and an unequivocal waiver. Commonwealth v. Connor, 381 Mass. at 503-506. Commonwealth v. Hodge, 386 Mass. 165, 170 (1982). United States v. Bernstein, 533 F.2d 775, 788 (2d Cir.), cert. denied, 429 U.S. 998 (1976).