Com. v. Cunningham

• Citation: 543 N.E.2d 12,405 Mass. 646
• Parties: COMMONWEALTH v. Leo P. CUNNINGHAM (and eight companion cases 1 ).
• Decision Date: 23 August 1989
• Court: United States State Supreme Judicial Court of Massachusetts

Page 12

543 N.E.2d 12

405 Mass. 646

COMMONWEALTH v. Leo P. CUNNINGHAM (and eight companion cases ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 1, 1989.

Decided Aug. 23, 1989.

Willie J. Davis, Boston, for Louis Riley.

Roger Witkin, Boston, and Jamie Ann Sabino, Cambridge, for Leo Cunningham.

John F. Palmer, Boston, for Michael Riley.

Laura Callahan Burnham, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

This appeal by three defendants arises out of the same incidents as those in Commonwealth v. Libran, 405 Mass. 634, 543 N.E.2d 5 (1989), decided today. The evidence is set forth there, but we shall summarize the facts briefly here. On December 21, 1984, Ramon Libran (Libran), a codefendant of the three defendants, participated in a fight at an American Legion hall in Chelsea. The next evening, Libran rode around Chelsea in an automobile driven by defendant Leo Cunningham (Cunningham), searching for the people who had fought with him. Also in the vehicle were Leo's girl friend, Margaret McClellan, and the defendants Louis Riley (Louis) and Michael Riley (Michael). A group of witnesses testified that the Cunningham vehicle forcedtheir automobile to stop, and then Libran came over to determine whether any of the occupants were the people with whom he had fought. When he decided they were not the ones, Libran and the others returned to their vehicle.

Richard Mucci testified that later that evening, the group approached him. Libran and Louis grabbed him and held knives against him. Libran asked Mucci where he could find "Meiggs, Maronski, Borum, and Westmoreland" because, "whoever I find first I am going to kill them."

At approximately midnight, the group was driving along Webster Street in Chelsea when Libran told Cunningham to stop the automobile because he had spotted Meiggs. Meiggs had been walking with his friends, Christopher Borum and Michael Maronski. Meiggs testified that four people got out of the vehicle and that two of them, Libran and Louis, approached him. Borum and Maronski ran in the opposite direction, while Meiggs stood where he was. Libran chased Maronski up the street, away from the automobile, and stabbed Maronski several times. Meanwhile, Louis confronted Meiggs and he admittedly punched Meiggs and cut him with a knife. Maronski died as a result of his injuries inflicted by Libran.

These defendants were each convicted of manslaughter (on an indictment charging murder in the first degree) and two counts of assault and battery by means of a dangerous weapon. Each defendant brought a motion for a new trial. After a hearing, the trial judge denied the motions. The defendants appealed, and we transferred the appeals to this court on our own motion.

Each of the defendants asserts error in the denial of his motion to suppress and the refusal of the judge to sever his trial. Defendants Leo Cunningham (Cunningham) and Michael Riley (Michael) assert error in the denial of their motions for a required finding of not guilty of manslaughter. We conclude that the judge ruled correctly on the motions regarding Louis Riley (Louis) and that his convictions are affirmed. Because we believe that the rights of Leo Cunningham and Michael Riley under the Sixth Amendment to the United States Constitution were violated by the judge's admission of the codefendants' statements, and that the error affected the verdicts against them, we reverse Leo Cunningham's conviction of manslaughter and Michael Riley's convictions of manslaughter and assault and battery by means of a dangerous weapon. We remand for new trials.

1. Motion to sever. Each of the defendants brought a motion to sever his trial on grounds that his rights under the Sixth Amendment to the United States Constitution were violated when the judge admitted the statements that the nontestifying codefendants made to the police. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). As we explained in Commonwealth v. Libran, supra, 405 Mass. 634, 543 N.E.2d 5 (1989), the trial judge, in deciding to admit all of the codefendants' statements relied on precedent the reasoning of which the United States Supreme Court has since rejected. The appropriate standard, set out in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), is that, unless a nontestifying codefendant's statement incriminating the defendant is directly admissible against the defendant, the confrontation clause bars its admission at their joint trial. Id. at 193, 107 S.Ct. at 1719.

The Cruz case holds that a violation of the confrontation clause in this manner may, in some instances, be harmless error beyond a reasonable doubt. Id. at 194, 107 S.Ct. at 1719. This court has decided that it will apply a stringent test to determine if a Bruton error is harmless beyond a reasonable doubt. Commonwealth v. Dias, 405 Mass. 131, 134-138, 539 N.E.2d 59 (1989). Commonwealth v. Sinnott, 399 Mass. 863, 872, 507 N.E.2d 699 (1987). The test is whether the "spillover," which is created by those portions of statements that do not perfectly interlock, was "without effect on the jury and did not contribute to the verdict." Commonwealth v. Sinnott, supra.

These three defendants were prosecuted on a joint venture theory for most of the indictments. "The test [for joint venture] is whether each defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary." Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041, S.C., 390 Mass. 254, 454 N.E.2d 901 (1983). These defendants admit that they were present during the incidents. Thus they were in a position to render aid and assistance, if necessary. The only contested issue is whether each had the requisite intent at the time of the incidents.

In this case we must examine the statements of the codefendants to determine whether the spillover had any effect on the jury's decisions regarding the defendants' intent. We conclude that the statements of the codefendants did not affect the verdicts against Louis Riley, but that the statements of the codefendants may have influenced some of the verdicts against Leo Cunningham and Michael Riley, and thus those verdicts must be set aside.

Cunningham told police that he gave Libran the knife the afternoon before the incident so that Libran could defend himself against the people who had attacked him. Michael Riley stated that Libran grabbed the knife immediately before the attacks on Meiggs and Maronski. Louis Riley said that Cunningham gave Libran the knife just before Libran left the automobile to pursue Meiggs and Maronski. The only person who testified concerning Cunningham's role in arming Libran was Cunningham's girl friend, who testified that Cunningham told her that he had given Libran the knife earlier in the day.

Cunningham contends that the statement of a codefendant that he armed Libran just before the attack, as opposed to giving him the knife hours earlier for self-defense purposes, reinforced a conclusion that he intended that Libran inflict grievous bodily harm on the victim. Cunningham points out that these statements are not cumulative of evidence properly before the jury. One important factor we use to determine if an admission is harmless beyond a reasonable doubt is whether the improperly admitted evidence is cumulative of evidence that is properly before the jury. Commonwealth v. Sinnott, supra, 399 Mass. at 872 n. 8, 507 N.E.2d 699. We agree that these statements, which Cunningham did not have an opportunity to challenge through cross-examination, were not cumulative and may have affected the jury's decision that Cunningham had the intent necessary for manslaughter. Because the contradiction between Cunningham's admissions and the statements of his codefendants relates only to Cunningham's role in arming Libran for the attack on Maronski, the codefendants' statements could only have affected the verdict against him that resulted from that incident, i.e., the manslaughter conviction. There was other evidence that tended to show that Cunningham had the requisite intent for manslaughter, but it was not overwhelming, at least as that term is defined in Commonwealth v. Marini, 375 Mass. 510, 521 n. 12, 378 N.E.2d 51 (1978) (three full confessions by defendant). Since we cannot know what the jury regarded as critical, we must reverse Cunningham's manslaughter conviction because of the prejudice resulting from the admission of the statements.

Michael Riley's statement when he surrendered to police was exculpatory on the issue of intent. According to Michael's statement, after Libran asked the occupants of Richard Cippolone's automobile if they were the ones who had fought with Libran the previous evening, Michael said to Libran, "[L]ook man this is crazy, I want to go home." In describing the incident in which Libran threatened Richard Mucci with a knife, Michael stated that he grabbed Libran's arm to prevent him from cutting Mucci, and that, when Michael told Mucci to drive away, he used a "mean" voice so that Mucci would listen because Michael did not want any harm to come to Mucci. Michael also claimed, in his statement, that he believed that they were heading home when Libran spotted Maronski and told Cunningham to stop the automobile. Michael stated that he lost sight of Libran when Libran chased Maronski, that he tried to break up the fight between his brother and Meiggs, and that he ran down the street and then back because he got scared and panicked. He stated that he learned that Libran had stabbed someone only when Libran returned to the car and told them.

The statements of Leo Cunningham and Ramon Libran portray Michael as having an intent to assault the people for whom Libran was searching....