Com. v. Ciampa

• Decision Date: 14 December 1989
• Citation: 406 Mass. 257,547 N.E.2d 314
• Parties: COMMONWEALTH v. Carmen G. CIAMPA (and ten companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 314

547 N.E.2d 314

406 Mass. 257

COMMONWEALTH v. Carmen G. CIAMPA (and ten companion cases ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 5, 1989.

Decided Dec. 14, 1989.

Daniel P. Leonard (Kenneth J. Fishman, with him), for Mark D. Orlandella.

Bernard Grossberg, Boston, for Carmen G. Ciampa.

Jane A. Donohue, Asst. Dist. Atty., for Com.

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

WILKINS, Justice.

In November, 1985, the defendants were convicted of murder in the first degree, robbery while armed and masked, assault with intent to murder while armed, assault by means of a dangerous weapon, and receiving a stolen motor vehicle. ² Each has appealed from his convictions and from an order denying his motion for a new trial.

The case against the defendants depended greatly on the credibility of one William DeVincenzi, an admitted accomplice in the crimes, who testified for the Commonwealth pursuant to a written plea agreement in which the prosecution promised that it would recommend a specific sentence in return for DeVincenzi's truthful testimony in this and other cases. We reverse the convictions because of prejudicial errors in the handling of the plea agreement that were not cured by the judge's charge.

On April 11, 1983, during an armed robbery of Tello's, a store in the East Boston section of Boston, a security guard was shot and killed. One year later, DeVincenzi confessed to participating in the crimes (and in many others). In December, 1984, he signed a plea agreement. Under the plea agreement, in exchange for DeVincenzi's truthful cooperation, which was defined in part as the giving of "complete and honest testimony at any and all proceedings if called as a witness," the Commonwealth agreed to accept from DeVincenzi a plea of guilty to manslaughter in connection with the security guard's death and to recommend a sentence of from twelve to twenty years. ³ If DeVincenzi were not to cooperate truthfully and a judge were so to find by a preponderance of the evidence at the time of sentencing, the Commonwealth would be free to make any sentencing recommendation it wished.

DeVincenzi gave extensive trial testimony concerning preparations for the robbery, the robbery and shooting, and the participants' conduct following the event. The jury deliberated during four days before returning their verdicts. During that time the jury asked for further instructions on reasonable doubt, on determining the credibility of witnesses, and on circumstantial evidence. It seems a reasonable inference that the jury were concerned over the credibility of DeVincenzi's testimony.

Before testifying to the events of April 11, 1983, DeVincenzi testified, over objection, on direct examination by the Commonwealth that he came to an agreement with the Suffolk district attorney's office in exchange for his testimony in nineteen cases, including the ones on trial. He stated his understanding that, for his truthful testimony, the district attorney's office would recommend a sentence of from twelve to twenty years on all his cases. DeVincenzi testified to executing the plea agreement. The judge then, over objection, admitted the plea agreement, with certain parts redacted. Again over objection, the judge permitted the prosecutor on direct examination to read the agreement to DeVincenzi paragraph by paragraph and ask him if what was read to him was his understanding of each paragraph. Next, the prosecutor over objection was allowed to introduce DeVincenzi's testimony that his attorney signed a statement representing that DeVincenzi understood the agreement, that the attorney had reviewed the agreement with him, and that the attorney believed that DeVincenzi's decision to enter into the agreement was an informed and voluntary one. ⁴

DeVincenzi then proceeded to describe the robbery of the Tello's store in East Boston during which, according to him, the defendant Orlandella drove a stolen brown Chrysler automobile, DeVincenzi sat in the front passenger seat, and the defendant Ciampa sat in the back seat with a sawed-off shotgun. In the course of the confrontation with the manager of the store and the security guard, who were crossing a parking lot to make a bank deposit, Ciampa shot the security guard and killed him.

The defendants advance a succession of arguments concerning the prosecution's use of the plea agreement in connection with DeVincenzi's testimony. They claim that admission of the agreement in evidence was in effect a representation by the prosecutor that DeVincenzi's testimony was credible, a form of vouching by the prosecutor who was not subject to cross-examination. We disagree and conclude that, if appropriately handled, such a plea agreement does not constitute improper prosecutorial vouching for a witness. Such an agreement does, however, present the possibility that the jury will believe that the witness is telling the truth, thinking that, because of the agreement's truthfulness requirement, the Commonwealth knows or can discover whether the witness is telling the truth. United States v. Wallace, 848 F.2d 1464, 1474 (9th Cir.1988) (the implication is "that the prosecutor can verify the witness's testimony and thereby enforce the truthfulness condition of its plea agreement"). We shall return to this problem.

We accept the rule, as do the United States Circuit Courts of Appeal generally, that testimony pursuant to a plea agreement, founded on a promise of truthful cooperation, and the plea agreement itself are admissible. See United States v. Mealy, 851 F.2d 890, 899 (7th Cir.1988); United States v. Dadanian, 818 F.2d 1443, 1445 (9th Cir.1987); United States v. Martin, 815 F.2d 818, 821 (1st Cir.), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987); United States v. Townsend, 796 F.2d 158, 163 (6th Cir.1986); United States v. Librach, 536 F.2d 1228, 1230 (8th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976). The trial judge must study the agreement with care, however, and eliminate prejudicial and irrelevant provisions. See United States v. Cosentino, 844 F.2d 30, 34-35 (2d Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988) (the judge should "eliminate potentially prejudicial, confusing or misleading matter"), citing cases involving redaction of references to protective custody for the witness's family and references to threats against witnesses; United States v. Brown, 720 F.2d 1059, 1073 (9th Cir.1983) (reference to polygraph should have been deleted). ⁵

The judge erred in the manner in which she handled the plea agreement. Various provisions of the agreement should have been redacted and were not. The statement that the agreement was "contingent upon the truthfulness of [DeVincenzi's] representation to the Commonwealth that he, personally, did not shoot [the victim]" should have been redacted on request by a defendant. That statement can be read as asserting the Commonwealth's reasoned conclusion that DeVincenzi's representation was correct. The judge should also have deleted references in the agreement that DeVincenzi would be placed in a program to protect his life and safety. The language was unfairly prejudicial to the defendants because it implied that the Commonwealth agreed that DeVincenzi reasonably believed his life and safety would be in jeopardy, if he testified against the defendants. See Commonwealth v. Andrews, 403 Mass. 441, 450, 530 N.E.2d 1222 (1988); United States v. Arroyo-Angulo, 580 F.2d 1137, 1145 (2d Cir.1978), cert. denied, 439 U.S. 1131 (1979). Repeated references to the witness's obligation to tell the truth should have been deleted. See United States v. Mealy, supra at 899. Although the judge properly directed that the statement signed by DeVincenzi's attorney should not go to the jury, over objection, she permitted the Commonwealth to obtain testimony from DeVincenzi that his attorney had signed a statement representing that DeVincenzi understood the agreement and that his attorney believed that DeVincenzi's decision to make the agreement was an informed and voluntary one. The attorney's hearsay statement in effect indicated that he believed DeVincenzi was telling him the truth, thus justifying his advice to DeVincenzi to plead guilty and to testify against the defendants. ⁶ We emphasize that this opinion concerns only an agreement between a prosecutor and a witness expressed in a written plea agreement in which the Commonwealth promises a sentencing recommendation in exchange for truthful testimony.

The prejudice arising from admission of the plea agreement with damaging provisions not deleted and from DeVincenzi's testimony concerning his attorney's involvement with the plea agreement was not alleviated by the judge's charge. The charge failed adequately to direct the jury's attention to the potential influences of the plea agreement on DeVincenzi's credibility and failed as well to dispel any implication inherent in the plea agreement, and in the presentation of DeVincenzi as a government witness, that the government knew or was warranting that DeVincenzi was telling the truth. ⁷ The aspects of the charge most relevant to DeVincenzi's credibility are set forth in the margin. ⁸ That language insufficiently conveys a need for caution as to DeVincenzi's testimony. The charge did not tell the jury to weigh DeVincenzi's testimony with care and not to consider DeVincenzi's guilty plea as evidence against the defendants. It did not adequately focus the jury's attention on the incentives that could have influenced DeVincenzi's testimony. It did not warn the jury that, in entering into the agreement and presenting him as a witness, the government did not know whether DeVincenzi was telling the truth and did not emphasize that DeVincenzi's truthfulness was solely a question for the jury to decide. Only by a cautionary instruction covering these points...