42 Mass. App. Ct. 711 | Mass. App. Ct. | 1997
Gary E. Lavin, the defendant, spent most of the afternoon of June 6, 1995, at the Dramatic Club in Framingham with some friends and his father, Edward Lavin, the club’s manager. Upon receiving a telephone call from his girlfriend at around 8:45 p.m., the defendant left the club and drove to a house on Benson Avenue, a short distance away. There an argument ensued between the defendant and his girlfriend. She needed drugs and the defendant refused to help. Their altercation expanded into public view when she fled the house and ran down the street toward the club, with the defendant in pursuit. The chase ended about fifteen minutes later when the defendant’s girlfriend ran back home again and took refuge in the cellar. Someone called the Fram-
At trial before a jury of six in the Framingham District Court, the defendant brought an oral motion in limine to exclude evidence of his father’s arrest. In an unrecorded lobby conference, the prosecutor agreed not to introduce evidence of the defendant’s father’s arrest as long as defense counsel refrained from questioning the father about what occurred in front of the house. With that assurance, defense counsel withdrew his motion.
As expected, the defendant’s father appeared as a witness on his son’s behalf. He testified that the defendant was at the club for several hours before the telephone call, and had been served only one alcoholic beverage. Defense counsel carefully and deliberately confined his direct examination of the father to events preceding his arrival at the house.
On cross-examination, the prosecutor accused the defendant’s father of being intoxicated on the evening in question. The witness denied the accusation. Defense counsel let the matter rest, asking nothing more about the father’s sobriety. After the defendant completed his case, the prosecutor called Joseph Besardi, one of the arresting officers, to rebut the defendant’s father’s testimony that he was not intoxicated. The following exchange occurred:
Witness: “He was extremely intoxicated. He was boisterous, he was arrogant, he pushed his way into the scene when we were speaking to his son. He was told several times to step back. He finally pushed his way into the scene again, raised his hands, and came towards me. He was placed under arrest. . .” (emphasis added).
Upon completion of the rebuttal testimony, defense counsel, no doubt alarmed at Besardi’s breach of the agreement, requested a bench conference. The judge allowed the officer’s testimony to stand. The jury ultimately returned a verdict of guilty.
Relying on Commonwealth v. Felton, 16 Mass. App. Ct. 63, 66 (1983), the defendant argues that even if the testimony about his father’s state of sobriety was otherwise admissible, Officer Besardi’s revelation of the ensuing arrest violated the agreement of the prosecutor that he would not introduce evidence of the father’s arrest unless defense counsel dealt with what happened in front of the house during his direct examination.
In Felton, the prosecutor, at an unrecorded lobby conference held prior to the presentation of the case, promised not to introduce evidence of the defendant’s prior convictions. Id. at 64. No motion to exclude the evidence was filed at that point. Relying on this representation, defense counsel put the defendant on the stand and elicited his version of the incident. The prosecutor violated the agreement by questioning the defendant about a prior conviction, and the jury convicted. Ordering a new trial, we admonished that “[t]he Commonwealth must keep its promises.” Id. at 66. Contrast Commonwealth v. Varney, 391 Mass. 34, 43-44 (1984) (prosecutor did not violate agreement where defendant opened up the otherwise forbidden issue).
Here the defendant argues, and we agree, that Officer Be-sardi’s revelation to the jury of the arrest of the defendant’s father not only destroyed defense counsel’s strategy, but caused irreparable harm by suggesting to the jury that “the acorn does not fall far from the tree,” seriously undermining the credibility of a key defense witness.
The prosecutor’s attack on the father’s credibility in her
Prophylactic considerations assume importance in fashioning a remedy for deliberate violations of pretrial agreements in a criminal case. It is well settled that where a defendant relies on the promise made by a prosecuting attorney, the court will enforce the promise because the “public faith which has been pledged” by such officers must be “duly kept.” Commonwealth v. Benton, 356 Mass. 447, 448 (1969). See to the same effect Commonwealth v. Michel, 381 Mass. 447, 450 n.4 (1980); Commonwealth v. Tirrell, 382 Mass. 502, 512 (1981).
We do not have the benefit of what was said to Officer Be-sardi after the judge approved the agreement excluding the “arrest” testimony. It is true, as the Commonwealth argues, that the phrasing of the prosecutor’s question did not suggest the inappropriate response given by Officer Besardi. However, it may be that the only way to prevent deliberate violations of such agreements or pretrial rulings is to formulate a per se rule which would equally bind the prosecutor, as well as any witness for the prosecution, to the agreement.
In the instant case, we find it unnecessary to adopt such a rule because the rebuttal testimony of Besardi unfairly
Judgment reversed. Verdict set aside.
The record indicates only that the defendant’s father may have been intoxicated and that he had walked to Benson Avenue. It is unclear on what charge he was arrested.
Though not as a per se matter, Massachusetts courts have held prosecutors accountable for the errors of police officers. See Commonwealth v. Manning, 373 Mass. 438, 442 n.5 (1977) (as “prime mover” behind indictment, arresting officer must be considered part of prosecution team); Commonwealth v. St. Germain, 381 Mass. 256, 261 n.8 (1980) (“the police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney, were guilty of [delayed disclosure of exculpatory evidence]”) (citations omitted); Commonwealth v. Redding, 382 Mass. 154, 157 (1980) (same); Commonwealth v. Lam Hue To, 391 Mass. 301, 311 (1984) (“inept and ‘bungling’ performance of the police” is attributed to prosecution). Contrast Commonwealth v. Waters, 410 Mass. 224, 229 (1991) (actions of police officers not attributable to prosecution where such actions not taken in furtherance of law enforcement, but as part of unlawful scheme).