380 Mass. 513 (1980), Commonwealth v. Niziolek

Citation:380 Mass. 513, 404 N.E.2d 643
Party Name:COMMONWEALTH v. Joseph NIZIOLEK, Jr.
Case Date:May 02, 1980
Court:Supreme Judicial Court of Massachusetts
 
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Page 513

380 Mass. 513 (1980)

404 N.E.2d 643

COMMONWEALTH

v.

Joseph NIZIOLEK, Jr.

Supreme Judicial Court of Massachusetts, Hampden.

May 2, 1980

Argued Jan. 9, 1980.

[404 N.E.2d 644] Linda J. Thompson, Springfield (Efrem A. Gordon, Springfield, with her), for defendant.

Dianne M. Dillon, Asst. Dist. Atty. (William Welch, Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

Page 514

HENNESSEY, Chief Justice.

The defendant was tried to a jury on one indictment for burning a dwelling house (arson), one indictment for burning insured property, and four indictments for larceny of over $100. He was found guilty on each of the six indictments. 1 He was sentenced to concurrent two and one-half year terms in the Hampden County House of Correction on the arson indictment and one larceny indictment and to three years probation on the indictment for burning insured property. The remainder of the convictions were placed on file. We reverse the conviction on the arson charge, and affirm the other judgments.

Prior to trial the defendant filed a motion requesting a continuance until the cases against his two codefendants, Melvin Davis and Raymond Bednarz (who had pleaded guilty to all charges), had been disposed of by way of imposition of sentence. In this motion the defendant asserted that Raymond Bednarz was a potential defense witness but might assert his Fifth Amendment privilege against self-incrimination if called to testify prior to sentencing. After a hearing the motion was denied. A renewed motion for continuance was filed in which the defendant asserted that Raymond Bednarz had indicated that he would give essential exculpatory testimony only if sentenced first. This motion was accompanied by the defendant's affidavit to the same effect. The judge took no action on this motion. As a result of the defendant's motion, the Commonwealth moved for sentencing in the Bednarz case, and Bednarz was sentenced prior to the resting of the Commonwealth in the instant case.

Page 515

The judge, after a hearing, denied the defendant's motion for a new trial and for stay of execution of sentence. The judge filed findings with regard to adverse inferences arising from failure to produce the witness Bednarz. The defendant appealed his convictions and the denial of his motion for a new trial. The defendant's renewed motion for stay of execution of sentence was denied by the trial judge. The defendant then filed a motion for stay of execution of sentence pending appeal which was granted by a single justice of the Appeals Court. The defendant's appeal was transferred to this court on our own motion.

The defendant raises the following issues in this appeal: (1) whether the trial judge erred in ruling that the Commonwealth could comment to the jury on the failure of the defendant to call Bednarz as a witness; (2) whether the judge erred in instructing the jury that they could infer from the defendant's failure to call Bednarz that he would have testified adversely to the defendant; (3) whether the judge erroneously instructed the jury that the defendant's pretrial statement to police was an admission inconsistent with innocence; (4) whether the judge erred in instructing the jury concerning the elements of the crime of arson; (5) whether the Commonwealth's closing argument concerning a Federal tax lien on all the defendant's property was of such an improper and prejudicial nature as to require reversal of the defendant's convictions; (6) whether the judge erred in excluding from evidence certain records of [404 N.E.2d 645] criminal convictions of two of the prosecution witnesses.

We conclude that there was error in the judge's charge concerning the elements of arson and therefore we reverse the defendant's conviction on the arson indictment. Because there was no other error, we affirm the convictions of burning insured property and larceny over $100.

The facts may be summarized as follows. On November 23, 1976, a fire occurred at the defendant's three-family house located at 59-61 Sorrento Street in Springfield. The house was insured by Aetna Life and Casualty Company, from which the defendant received insurance payments for

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a portion of the estimated cost of repair to the house, the contents of the house, and specific additional living expenses.

The Commonwealth presented no physical or scientific evidence of arson. Former Fire Chief Joseph McClellan testified that he responded to the fire and was of the opinion that it was incendiary in nature.

The main witness for the Commonwealth was Melvin Davis, who claimed to be the intermediary between Raymond Bednarz, the defendant's alleged agent for procuring an arsonist, and Norman Babineau, the man who actually set the fire. Davis's testimony set up the following chain of events. Davis first met the defendant through Raymond Bednarz at a time when Davis was employed by Bednarz on a part-time basis. In a conversation which took place at Bednarz's place of business in November, 1976, and which involved the defendant, Bednarz, and Davis, the defendant told Davis that he was in financial difficulty and that he would like to have his house "torched." On the evening this conversation occurred, Bednarz gave Davis $250 as a down payment on the cost of burning the defendant's house. Davis, in turn, gave this money to Norman Babineau. The following evening, Babineau came to Davis's home and the two made preparations for the fire and proceeded to the defendant's property where Babineau set the fire.

Davis saw the defendant the following day at Bednarz's place of business. The defendant showed Davis a picture of the burned house which had appeared in the morning newspaper. The defendant told Davis that he and Babineau had done a "good job." The defendant then gave Bednarz $500. Bednarz kept $250 as repayment of the $250 that he had already given Davis, and gave Davis $250 as the balance to be paid to Babineau for burning the house.

The Commonwealth also called Kenneth Ingram. He testified that he had known the defendant for about five years. Ingram stated that at the request of the defendant he went to the house on Sorrento Street one month before the fire in order to repair the roof. However, Ingram found the roof to be beyond repair. When Ingram informed the defendant

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of the condition of the roof, the defendant replied, "I would like to burn the damn thing."

Approximately two weeks later Ingram was with the defendant and Raymond Bednarz at Bednarz's place of business. The defendant asked Ingram if he knew of anyone who would burn his house, or if Ingram would burn his house. Ingram responded negatively to both of these questions. About a week later the defendant telephoned Ingram at his home and asked once more if Ingram would find someone to burn the house. Ingram again rejected the defendant's request.

The Commonwealth introduced the defendant's pretrial statement through Officer Michael Dowd. The first paragraph stated that the defendant and Raymond Bednarz had had a conversation "(s)ometime in October of 1976" about having the defendant's house "torched." The remainder of the statement said that no arrangement had been made between the defendant and Bednarz to have the house burned. On cross-examination, Officer Dowd was unable to furnish any more detail on the substance of the October, 1976, conversation between Bednarz and the defendant; nor could he clarify whether it was Bednarz or the defendant who brought up the subject of arson. Raymond Bednarz was not called as a witness for the Commonwealth, although [404 N.E.2d 646] it was conceded that he was available.

The defendant took the stand on his own behalf. He stated that Davis and Ingram had come to him after the fire and announced that they were responsible for setting it. He also testified that they requested money which he refused to pay.

The defendant explained his October, 1976, conversation with Raymond Bednarz. He testified that Bednarz had mentioned torching the house in response to the defendant's complaints about repeated vandalism of the house. The defendant recalled having said that he did not want the house burned and that he was going to move into it. There was no further conversation between the two on the subject and no agreement was made.

1. The judge ruled that, under the particular facts of this case, it was permissible for the Commonwealth to comment

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in closing argument on the defendant's failure to call Raymond Bednarz as a defense witness. As a result, the prosecuting attorney argued to the jury as follows: "Let me say that Bednarz was here and I could have called Bednarz if I so desired as a witness . . .. And let me ask you this, who would have gained by Bednarz getting on the stand to clarify the (defendant's pretrial) statement? Who would have gained? Niziolek."

The defendant contends that it was erroneous as a matter of State law to permit this comment. We disagree. 2 "We have in a series of cases, both civil and criminal, permitted, when justified, comment on a party's failure to call witnesses." Commonwealth v. Franklin, 366 Mass. 284, 292, 318 N.E.2d 469, 474-475 (1974). "(S)ome of the most important factors which the judge should consider in deciding whether comment is to be allowed," id. at 293, 318 N.E.2d at 475, will be discussed as they pertain to the facts of the instant case.

One crucial factor is whether the missing witness was available to the defendant. Id. The so called "missing witness" in the instant case, Raymond Bednarz, was indicted with the defendant and others for the arson of the defendant's house and a related crime. But verdict and sentencing were complete and unconditional in Bednarz's...

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