2 Mass. App. Ct. 667 | Mass. App. Ct. | 1974
On June 30, 1971, in proceedings held under G. L. c. 278, §§ 33A-33G, a jury convicted Albert Lombardo and Kenneth J. Viera on separate indictments
All the convictions rested largely on the testimony of one Kevin Boily, arguably a participant in the material events, who identified Lombardo as the principal assailant and implicated Viera in the commission of both offences. On November 14, 1972, both defendants filed virtually identical motions for a new trial on the “ground of newly discovered evidence.” This court was advised of the pendency of those motions and deferred the argument of the original appeals until after the denial of the motions on July 12, 1973. Lombardo’s convictions and the orders denying the 1971 motions for a new trial were subsequently affirmed by this court. Commonwealth v. Lombardo, ante, 387, 392 (1974). We declined at that time to consider the denial of the 1972 motions because the factual bases for those motions were not in the record then before us. The denials of those motions are now before us on further records and appeals.
Attached to the motions are affidavits of present counsel for both defendants
The motions were submitted to the trial judge on the opposing affidavits (and attachments) and on agreed portions of Body’s testimony at the trial. No witnesses were called. The judge, in denying the motions, summarized portions of the evidence at trial, found as facts the matters set out in the prosecution affidavits, found and ruled that the defendants had failed to prove the allegations of their motions, and found and ruled that there had been no violation of the defendants’ constitutional rights in the circumstances. We find no error in those actions.
The court records pertaining to Boily disclose that on April 17, 1970, a complaint issued from a District Court charging him with having committed an assault on Kevin
We summarize the pertinent portions of Boily’s testimony at trial, all of it elicited on cross-examination by the then counsel for the defendants. Boily was arrested by the Rhode Island State police near his home in Providence in the afternoon or evening of April 20, 1970. He discussed the case with both the Rhode Island police and the Massachusetts State police before being taken to the District Court the following morning. He knew when he was taken to court, and later when he was committed to
The case of Giglio v. United States, 405 U. S. 150 (1972), is distinguishable. In that case a conviction was reversed because a member of the prosecution remained silent while the government’s key witness denied at trial that he had been promised immunity when the fact (as established by a government affidavit) was that another member of the prosecution had earlier promised the witness immunity in return for his testimony before the grand jury. The distinction between the Giglio case and
Nor can we accept the reasoning of, or the result reached by, the majority of the court in Burkhalter v. State, 493 S. W. 2d 214 (Texas Cr. App. 1973), cert. den. 414 U. S. 1000 (1973). We endorse the following thoughts expressed in the dissenting opinion filed by Morrison, J., in that case: “[T]he prosecution’s intention is not the critical factor. The rationale for permitting the jury to hear about an ‘arrangement’ is that such information may be a factor for determining the witness’ credibility. The witness’ motives and bias, then, are the controlling element. It, therefore, follows that the jury need not be given more information than the witness himself actually possesses.” 493 S. W. 2d at 219. We think that in the present cases the jury heard more than the defendants offered to show at the hearing on their motions.
The orders denying the motions for a new trial filed on November 14, 1972, are affirmed.
So ordered.
The Superior Court approved a substitution of counsel for Viera prior to the filing of the motions now under consideration. There has been no change of counsel for Lombardo.
The district attorney’s affidavit includes the following: “[A]t no time either prior to the indictments being returned or subsequent thereto have I or members of my staff communicated to Kevin Boily an offer of immunity or any inducements in return for his testimony as a Commonwealth’s witness in the prosecution of Kenneth Viera and Albert Lombardo. The above facts are true to the best of my knowledge and belief.” The assistant’s affidavit contained the following: “I never participated in any negotiations with Kevin Boily, the Commonwealth’s material witness, relative to immunity from prosecution. However, it was my understanding that he was not to be prosecuted for his participation in the aforementioned matter. 1 do not recall from what source I received that information."
All these facts had been matters of public record fdr more than a year prior to the commencement of the trial. The defendants no longer argue that they were “newly discovered” at the time when the present motions were filed on November 14, 1972.
Boily testified on redirect examination that what he told the district attorney was what he had already told the Rhode Island and Massachusetts police at the time of his arrest.
We also concur with, the judge’s remark that it would have been better practice for the trial prosecutor to have revealed the precise state of affairs to the defendants.
Indeed, the defendants all but concede in their brief that the Giglio case does not apply unless the article in the Providence Journal was correct.