Thе defendant, Raymond P. Vinnie, was convicted of murder in the first degree. The jury had received instructions on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal, he claims a series of errors by
We review those claimed errors that were preserved before or during trial, and those that were resurrected by the judge in postconviction rulings on Vinnie’s motion for a new trial
1. Facts. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with thе issues raised. Commonwealth v. Reed,
Charles repeatedly expressed his wish to Vinnie; to his mother; to his father, Larry Hardison; and to others, that Vinnie leave the house. On the morning of January 28, 1990, Charles found his mother crying in response to Vinnie’s yelling and smashing a glass on the floor, and Charles said to Vinnie, “Nobody asked you to move back here.” Shortly thereafter, Vinnie shoved Charles against a wаll. In March and again in early April, Charles asked his mother when Vinnie, who had not moved out yet, would be doing so.
Charles last was seen alive at 7 p.m. on April 11, 1990, by his father, who had stopped by the Milton residence to drop off strings for Charles to restring a tennis racket. Charles’s mother returned home from an evening class at approximately 10 p.m., went to the kitchen, saw the tennis strings and racket, and closed
Police officers investigating the murder scene saw white powder together with a tom paper envelope and a ripped package. Two days later, Charles’s mother discovered under Charles’s bed rubber gloves and twenty-eight glassine packets, stapled closed, containing white powder. The white powder in the basement and under the bed proved to be baking soda. A special agent of the United States Drug Enforcement Administration testified that the circumstances were “completely inconsistent with an actual drug transaction or a facsimile drag transaction.”
Tracy West, a long-time acquaintance of Vinnie, testified that in early 1990, Vinnie said he was having problems with Charles and wanted to teach Charles a lesson by having someone wound him. West recruited Derrick Sealy to make threatening telephone calls to the victim’s house and to shoot and wound the victim. Sealy, after taking $1,000 and a gun from West, provided by Vinnie, did not follow through with the plan to wound Charles. On the afternoon of April 11, 1990, West visited Vinnie at his print shop, where he watched and then assisted Vinnie in filling glassine bags with baking soda. Vinnie told West that he had a “mission,” and that he intended to kill Charles. Significant additional evidence implicated Vinnie in Charles’s murder.
2. The alibi defense. Vinnie argues that several errors combined to deрrive him of the opportunity to present evidence of an alibi. Critical to his alibi is the time that Charles was shot. On the evening of the murder, Charles spoke with several high school friends on the telephone. At the end of his conversation with Antoinette Barrow at some time between 8:30 p.m. and 8:50 p.m., Charles said that he thought he heard his mother coming in
Vinnie maintained that he was at his print shop in Brockton on the evening of the murder until closing at 9:15 p.m. or 9:30 p.m. He then went to the home of. a friend, Hal Pompei, arriving
First, Vinnie claims that the Commonwealth’s refusal to narrow the time frame that the murder occurred in its indictment or bill of particulars,
Noting that the effect of particulars is to “bind and restrict the Commonwealth as to the scope of the indictment and the proof to be offered,” Commonwealth v. Hare,
“A bill of particulars should give a defendant reasonable notice оf the nature and character of the crimes charged.” Commonwealth v. Amirault,
Vinnie raises two further issues concerning his opportunity to present alibi evidence. Vinnie contends that his alibi defense was sabotaged by Trooper Flaherty’s interference with witnesses who were available on the last day of trial to testify to
3. Jury instruction. Vinnie next claims an error in the jury instructions. The judge charged that one of the elements of murder in the first degree was that “the defendant caused or did an unlawful killing.” Shortly after beginning deliberations, the jury asked, “Must we find that [the defendant] fired the gun that killed Charles or is it sufficient that he caused the killing? If the latter, must he have been present at the killing?” To this question, the judge responded, “You would have to find on the basis of all the credible evidence and the reasonable inferences to be drawn therefrom that the defendant was present and killed the deceased. This does not preclude the involvement or non-
The judge was not required to respond to the jury’s request with an instruction on the specific way that Charles’s death was caused or the instrument or means used — questions that the jury were required to decide for themselves, even in cases such as this where the cause and manner of Charles’s death were not disputed. Nor, in repeating
4. The defendant’s interviews with the police. Next, Vinnie argues that his statements to police in a series of interviews throughout the investigation
Miranda warnings are necessary only when a person is subject to “custodial interrogation.” Commonwealth v. Jung,
First, we look at the statements challenged by Vinnie’s trial counsel, but admitted by the judge. The May 30, 1990, interview was conducted in Vinnie’s print shop office, while the November 2, 1991, interview was conducted in his Georgia residence, neither venue suggestive of intimidation, coercion, or police advantage. On May 30, 1990, a reasonable person in Vinnie’s position may have believed after seven prior interviews that he had become one of several foci of the investigation, but there was still no probable cause for his arrest at that time. Warnings are not required simply because the person questioned is one whom the police suspect. See Commonwealth v. Morse,
As for the earlier interviews, to which there was no objection at trial nor was the matter raised in Vinnie’s motion for a new trial, “[a] defense counsel’s strategic decisions do not constitute ineffective assistance of counsel unless they are ‘manifestly unreasonable.’ ” Commonwealth v. Parker,
5. Admission of the victim’s statements. Testimony was admitted from several friends of Charles that Charles wanted help to beat up Vinnie, that he wanted to fight or shoot Vinnie, and that he would kill Vinnie, if Vinnie touched his mother again.
Vinnie also challenges the admissibility on hearsay grounds of testimony from Charles’s tennis coach that in January, 1990,
6. Alleged grand jury improprieties and other alleged improper conduct by the prosecution. Vinnie raises several issues of grand jury impropriety or other improper conduct by the prosecution. In his postconviction motion to dismiss the indictment or for a new trial, Vinnie alleged that unauthorized persons — three police investigators — were present during the grand jury proceedings, supporting this charge with his own affidavit and that of his daughter. Affidavits of the officers, the prosecutor, and the court reporter, as well as сorrespondence from Vin-nie’s own trial counsel, disputed this allegation, except that, as the judge found in ruling on Vinnie’s motion, Flaherty was in the grand jury room before the grand jury entered and at a time when the prosecutor advised Vinnie of his rights and confirmed that Vinnie, indeed, wanted to testify. “[T]he presence of an unauthorized person before a grand jury will void an indictment.” Commonwealth v. Pezzano,
Vinnie’s postconviction motion also claimed that the grand jury process was flawed by false,
We are more troubled by the Commonwealth’s eliciting in the grand jury hearing testimony from West on criminal activity that he undertook with Vinnie, see note 17, supra, an issue that the judge did not specifically address in ruling on Vinnie’s post-conviction motion. In other cases, we determined that the integrity of the grand jury proceedings had not been seriously impaired by the admission of evidence оf prior criminal activity, but noted that such information had surfaced inadvertently in response to a grand juror’s question, not by the prosecutor’s
Next, we address the issue of the exculpatory evidence, see note 18, supra. “Where evidence meeting the constitutional standards for materiality is initially suppressed, but then disclosed, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecution’s disclosure was sufficiently timely to allow the defendant ‘to make effective use of the evidence in preparing and presenting his case.’ ” Commonwealth v. Lam Hue To,
7. The stapler, the glassine bags, and the telephone records. Vinnie next claims for the first time here that he did not consent to provide to the police certain items — staplers from his print shop and glassine bags from his stamp collection; that the items were seized by the police without warrant; and that trial counsel erred by not moving to suppress the items. We review whether errors by counsel created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Waite,
Flaherty testified that, on request, Vinnie consented to providing the staplers
Next, Vinnie claims that trial counsel erred by not moving to suppress records of telephone calls made to Vinnie’s print shop. On April 20, 1990, the district attorney requested records from the New England Telephone Company for Vinnie’s print shop telephone, pursuant to an administrative subpoena in compliance with G. L. c. 271, § 17B, set out in relevant, part in the margin.
Vinnie argues two issues regarding the admissibility of the telephone records: that the district attorney did not have “reasonable grounds for belief” that Vinnie’s telephone was being used for an “unlawful purpose”; and, that the statute violates art. 14 of the Massachusetts Declaration of Rights. On the first issue, the Commonwealth argues that, by the time of the district attorney’s letter asking for telephone records, Vinnie had told Flaherty of a call to Hal Pompeii close to the time of the murder, and that, therefore, the district attorney had reasonable grounds to believe that Vinnie may have used the telephone for the unlawful purpose of covering up his crime by establishing a false alibi. On the second issue, the Commonwealth urges us to accept the holding in Commonwealth v. Feodoroff,
We previously have not construed G. L. c. 271, § 17B. On a threshold issue not reached in Feodoroff, supra at 731, we hold that a defendant may move to suppress telephone records acquired by administrative subpoena and a judge should allow such a motion if it is shown that a district attorney had no reasonable grounds for belief that the target was using the telephone for an unlawful purpose. In so holding, we emphasize that the statute does not provide the district attorney with a free hand to issue routine administrative subpoenas for telephone records absent the reasonable grounds called for in the statute. Having said that, we conclude that the Commonwealth in this case had grounds, although somewhat thin, for its belief that Vinnie had used his telephone for the unlawful purpose of fabricating an alibi. For the reasons set forth by the Appeals Court, Vinnie’s constitutional attack on the statute also fails. Feodoroff, supra at 729-730.
By statute, “[t]he degree of murder shall be found by the jury.” G. L. c. 265, § 1. In our opinions, we have held that the statutory language establishes a defendant’s right to a jury’s determination of the degree of murder, but we have not decided whether a defendant may waive an instruction on murder in the second degree. We have held that the statute “requires a trial judge to instruct on murder in the first and second degrees if there is evidence of murder in the first degree, even though there appears to be no hypothesis in the evidence to support a verdict of murder in the second dеgree.” Commonwealth v. Brown,
We take this occasion to clarify that the statute imposes a duty on the judge to give an instruction on murder in the second degree and that the jury’s determination of the degree of murder is not subject to a defendant’s waiver.
Because we have not previously decided whether a defendant may waive the jury’s determination of the degree of murder, we must decide whether to apply the categorical rule only prospectively, or to reverse this verdict as well. The facts of this case persuade us that, although the jury were not allowed to determine the degree of murder, the verdict should stand. Three considerations taken in unison suрport this conclusion. First, Vinnie not only did not object to, but invited, this error. After consultation with his trial counsel, he elected to limit the jury’s verdict options. That Vinnie invited the omission of the instruction, and would have objected to its inclusion, indicates that he believed that there was no rational view of the evidence that would warrant the jury’s returning a verdict of murder in the second degree. Second, the Commonwealth did not seek an instruction on murder in the second degree and acquiesced in the judge’s decision to forgo such an instruction. Finally, our review of the record confirms the conclusions of the trial counsel, the prosecutor, and the judge, all of whom, familiar with the evidence and protecting all the interests at stake, saw no reason to charge on murder in the second degree. Appellate counsel, while pointing out the judge’s error, fails in either Vin-nie’s motion for a new trial or his appellate brief, tо demonstrate how the omission prejudiced Vinnie. In such circumstances, we conclude that the omission of the instruction does not require reversal.
9. We affirm the conviction and the judge’s ruling on Vin-nie’s postconviction motion
Judgment affirmed.
Order denying motion for a new trial affirmed.
Notes
Vinnie filed a motion to dismiss or, in the alternative, for a new trial in this court. We remanded the motion for hearing in the trial court. The motion was denied by a judge in the Superior Court who was also the trial judge. He conduсted an evidentiary hearing on the motion and issued careful and comprehensive findings of fact and rulings.
Ineffective assistance of counsel claims, although of constitutional dimension, raise claims of trial errors that, of course, were not preserved by an allegedly incompetent trial counsel. Generally, we review such errors as to whether there is a substantial likelihood of a miscarriage of justice because our statutory standard of G. L. c. 278, § 33E, is more favorable to a defendant than is the constitutional standard for determining the ineffectiveness of counsel. Commonwealth v. Wright,
In this case, most of the claimed errors were preserved or resurrected and qualify, if we cоnclude that an error was committed, for review under the standard of harmless beyond a reasonable doubt or the nonprejudicial error standard. Vinnie’s only claimed errors that would not qualify for one of these more favorable standards, because they were not preserved or resurrected, are his claims of ineffective assistance of counsel for not moving to suppress Vinnie’s statements in several interviews with the police, see Part 4, infra, and for not moving to suppress certain physical evidence and telephone records, see Part 7, infra. We note that trial counsel objected without success to the introduction of telephone records on grounds other than those raised on appeal here; consequently, that objection did not preserve the issue on appeal for review under the nonprejudicial error standard.
Charles’s mother, in fact, did not arrive home until later that night.
Trooper Flaherty was assigned to the district attorney’s office in this case and was the lead investigator.
The indictment alleged that the murder occurred “on or about April 11, 1990.” The Commonwealth repeated that time frame in a bill of particulars, but also provided Vinnie a death certificate which fixed the time of death at about 8 p.m. Subsequently, Vinnie received discovery materials, including grand jury minutes and police reports detailing evidence anticipated to support the Commonwealth’s theory that the victim was murdered between 8:30 and 9 p.m. At a pretrial hearing on Vinnie’s motion to order the Commonwealth to complete its answer to the defendant’s bill of particulars, Vinnie pressed the issue for the purpose of reading the bill of particulars to the jury. The judge reserved his ruling “until the evidence concerning time, place, manner and means is elicited in the case in chief.” At the heаring, the judge explained, “If you’re going to have exhaustive testimony from witnesses as to ... the approximate time of whatever happened . . . and a Commonwealth’s response to a bill [of] particulars would be simply a means for trying to abstract from that an approximate time, what’s the evidentiary value of it?” After completion of the prosecution’s case-in-chief, Vinnie did not revisit the issue.
The initial police interview with Vinnie, conducted after complete Miranda warnings, included Vinnie’s account of his whereabouts on the day and evening of April 11, 1990.
The Commonwealth agreed to assist the defense by securing the availability of the alibi witnesses. Trooper Flaherty called the witnesses to secure their presence. While Vinnie’s defense counsel was interviewing one of the witnesses in the courthouse corridor, Flaherty intervened to say that the witness could, but did not have to, talk to Vinnie’s defense counsel. Flaherty repeated this to another alibi witness.
Because Vinnie, in cross-examining West and Sealy, implied that one or both went to the Hardison home that night and actually shot Charles, the prosecutor asked for a jury instruction on joint venture. The judge observed that there was no evidence that anyone besides Vinnie and Charles were present at the Hardison home around the time of the murder. The judge, therefore, declined to give “a straight joint venture instruction.”
The judge’s instructions stated numerous times that the jury had to find that Vinnie committed an unlawful killing.
Vinnie was first interviewed on the morning of April 12, 1990, at the Milton police station, at which time he was read Miranda rights; he does not seek suppression of that interview. Subsequently, six interviews were conducted at Vinnie’s print shop between April 12, 1990, and May 30, 1990. Trooper Flaherty also elicited information after meeting Vinnie at the Hardison residence on May 23, 1990, while Vinnie removed his belongings. Vinnie was interviewed at his residence in Georgia on November 2, 1991. On June 12, 1993, Flaherty invited Vinnie to make a statement at the grand jury proceedings, but elicited no information. From the second interview on April 12, 1990, until Vinnie was arrested on July 7, 1993, Vinnie was given no Miranda rights. Vinnie’s defense counsel at trial specifically objected to admissibility of statements on May 30, 1990, and November 2, 1991.
A motion to suppress Vinnie’s statements should have been brought before trial. Mass. R. Crim. R 13 (c) (2),
The Bryant factors are: “(1) the place of the interrogation; (2) whether the investigation has begun to focus on the suspect, including whether there is probable cause to arrest the suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its сontours by the suspect; and (4) whether, at the time the incriminating statement was made, the suspect was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with the defendant’s arrest.” Commonwealth v. Bryant,
Vinnie’s trial counsel did not object to this testimony when it was offered. On the previous day of trial, however, Vinnie’s counsel objected frequently, without success, to admission as state-of-mind exceptions to hearsay of other out-of court statements by the victim. Vinnie’s appellate counsel argues that further objection by trial counsel would have been futile. We consider the claimed errors, as if they had been preserved by timely renewed objection.
A serological analysis comparing the saliva of Vinnie and West with saliva found on two cigarette filters discovered at the scene of the murder determined that Vinnie’s saliva was “positive” for a certain characteristic
The alleged misleading testimony before the grand jury hearing concerned whether Vinnie, on his route to work each morning, drove to Brockton along Route 138 (also known as Blue Hill Avenue) or on Blue Hill Parkway.
The prejudicial testimony at the grand jury was elicited from West concerning his involvement with Vinnie in previous criminal activities, including arson and mail fraud.
The exculpatory evidence concerned a man’s threat on March 13, 1992, to his wife’s friend that, according to the friend, he would “take care of [her] like [he] took care of Charles Hardison.” The wife asked, “ ‘Did you say that you killed Charles Hardison?’ . . . and he said, ‘Yah, yah, that’s what I said.’ ” The wife and her friend reported the threat to the Milton police. The prosecutor and police involved in the Hardison investigation denied knowledge of the incident or the police report, until it surfaced during the course of the trial. The husband and the wife’s friend testified at Vinnie’s trial, recounting different versions of the words used in the threat. The husband denied involvement in the murder.
After Vinnie moved to interview the Commonwealth’s witness, Derrick Sealy, incarcerated at the time, the judge called Sealy to see if he was willing to talk to Vinnie’s trial counsel and advised Sealy that he could consent to or decline the interview. Sealy told the judge that he was willing to speak on the condition that two police officers were present. When trial counsel went to interview Sealy, Trooper Flaherty was present in the place of one of the police officers mentioned by Sealy, and Flaherty repeated to Sealy his right to speak or not speak with Vinnie’s trial counsel. Sealy chose not to be interviewed at that time. Sealy’s testimony on cross-examination concerning this incident reveals Sealy’s complete understanding of his rights and no undue influence exerted by Flaherty on Sealy’s willingness to have a pretrial interview.
Vinnie’s claim that Flaherty tampered with and switched an item of physical evidence introduced at trial depends heavily on the credibility of witnesses to this incident. We defer to the judge’s assessment of credibility and his resolution of this issue.
Flaherty collected staplers from Vinnie, Larry Hardison, and Tracy West. He provided other staplers for Vinnie’s use, in exchange for taking and holding the staplers from the print shop. Six staples found with glassine packets of white powder at the Hardison house came from one of Vinnie’s staplers, according to testimony of a special agent of the Federal Bureau of Investigation who had tested and examined the staples and staplers in one of its laboratories.
Vinnie’s testimony on the glassine bags was as follows:
Q.: “And during these same interviews, you voluntarily turned over to the police some stamp envelopes from your stamp collection, didn’t you?”
A.: “I didn’t turn them over voluntarily.”
£>.: “Did they ask you if they could have some of the envelopes?”
A.: “They did not ask me.”
Q.: “Did they ask you if you had a stamp collection?”
A.: “They asked me if I had a stamp collection.”
Q:. “Did they ask you if they could see it?”
A.: “They told me they needed to see it.”
Q.: “Did you let them take four or so envelopes out of the box that you had the stamps in?”
A.: “They told me that they needed to take them.”
“Whenever ... a district attorney has reasonable grounds for belief that the service of a common carrier . . . furnished to a person or location, is being or may be used for an unlawful purpose he may, acting within his jurisdiction, demand all the records in the possession of such common carrier relating to any such service. Such common carrier shall forthwith deliver to the . . . district attorney all the records so demanded.”
We recognize, as we have before, that “[t]he statute creates an unavoidable inconsistency because a jury’s obligation to find a defendant guilty of the highest crime proved beyond a reasonable doubt may conflict with the stated
In 1858, the Legislature revised the murder statute, see St. 1858, c. 154, and divided murder into degrees “to mitigate the harshness of the common law rule imposing a mandatory death penalty on all murderers.” Commonwealth v. Dickerson, supra at 803 (Quirico, J., concurring). While the Legislature clearly intended to benefit at least some defendants, it was also responding to “concern about the difficulty in obtaining a conviction when the jury must choose between a verdict of guilty of murder, punishable by death, and a verdict of not guilty.” Id. at 804. Thus, the division of murder into degrees was also intended to protect the public interest, operate in some cases to the advantage of the prosecution and “forestall the jury from taking the law into their own hands by refusing to convict of a capital offense.” Id. at 805.
In Commonwealth v. Woodward,
In addition to the brief filed by Vinnie’s appellate counsel, Vinnie filed pro se a supplemental brief and supplemental reply brief. We have addressed the first two issues raised. The third issue raised pro se — the circumstances surrounding the appointment of Vinnie’s trial counsel — was adequately addressed by the judge in ruling on Vinnie’s postverdict motion for a new trial.