Grieco v. Meachum

• Decision Date: 07 April 1976
• Docket Number: No. 75-1336,75-1336
• Citation: 533 F.2d 713
• Parties: Lewis GRIECO et al., Petitioners-Appellants, v. Larry MEACHUM, Warden, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 713

533 F.2d 713

Lewis GRIECO et al., Petitioners-Appellants, v. Larry MEACHUM, Warden, et al., Respondents-Appellees.

No. 75-1336.

United States Court of Appeals, First Circuit.

Argued Jan. 7, 1976.

Decided April 7, 1976.

David Berman, Medford, Mass., for appellants.

Robert V. Greco, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

These are six appeals from dismissals of habeas corpus petitions challenging the constitutionality of petitioners' convictions in the Massachusetts courts for crimes related to the 1965 murder of one Edward Deegan. The convictions were affirmed on appeal by the Massachusetts Supreme Judicial Court, Commonwealth v. French, 357 Mass. 356, 259 N.E.2d 195 (1970), and subsequent denials of motions for a new trial were also affirmed. Commonwealth v. Cassesso, 360 Mass. 570, 276 N.E.2d 698 (1971). The government's star witness at trial was Joseph Baron-Barboza who testified, in substance, that petitioners Tamaleo and Limone approached him to kill Edward Deegan in 1965, and that he enlisted the aid of petitioners Grieco, French, Cassesso, and Salvati, among others, to carry out this task. A further statement of the facts can be found in the reported opinions of the Massachusetts state courts. French, supra; Cassesso, supra.

The joint prosecution of the six defendants, now petitioners, for capital offenses occupied 50 days and resulted in 469 assignments of error. French, supra, 357 Mass. at 362 n. 2, 259 N.E.2d 195. After exhausting their state remedies, petitioners brought this habeas corpus action in federal district court presenting 90 items of claimed constitutional error in their trial. The district court found 88 of the asserted errors lacked evidentiary support in the record, were not shown to have resulted in prejudice to the petitioners, or were not of constitutional proportions. As to the remaining two assignments, the district court found that Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), did not compel a finding of constitutional error in the admission of the testimony of one Glavin against petitioner Cassesso. Second, the district court found, after an evidentiary hearing, that the practice of the prosecuting attorney at trial in submitting trial memoranda to the judge without providing copies to defense counsel did not violate due process in that the petitioner's counsel had acquiesced at trial, and in any event there was no showing of prejudice.

On appeal, substantially all of the 90 claims of error have been briefed and are presented for our consideration. Our review of a state court conviction is limited to searching for constitutional error. 28 U.S.C. § 2254(a). Therefore, we shall particularize only those issues which arguably rise to that threshold. The 90 claims can be divided into the following categories: (1) failure of the trial court to sever the trials of the six defendants, (2) denial of pre-trial discovery, (3) objections to the selection and impartiality of the jury, (4) evidentiary rulings, (5) instructions to the jury, (6) misconduct by the trial court and prosecuting attorney, and (7) various allegations concerning the denial of directed verdicts and denial of motions for a new trial. Like the district court, we find that most of the issues presented do not rise to constitutional proportions. Consequently, we will discuss in detail only selected issues under categories (1), (4), and (6).

I. Failure of the Trial Court to Sever

Petitioner Limone contends that the trial court's refusal to sever the trials of the defendants created constitutional error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). He bases his claim upon the admission of testimony of Joseph Baron relating conversations between Baron and petitioners Tamaleo and Cassesso which tended to link Limone to the decision to kill Deegan.

A short discussion of the underpinnings of Bruton discloses the inappropriateness of this claim. Bruton is concerned with the prejudice inherent in the introduction of a confession made by one co-defendant which implicates another, non-confessing co-defendant. In the absence of an established exception to the hearsay rule, the confession could not be offered against the non-confessor. But in a joint trial of the two co-defendants, the same jury which decides the non-confessor's case has heard the confession, though it was not offered against him. The Court, in Bruton, held that limiting instructions, the normal means to insure that such inadmissible evidence is not considered by a jury, were insufficient to cure the extreme prejudice created by the co-defendant's confession. Therefore, the proper remedy would be to sever the trials of the defendants.

In this case, the statements at issue were, at most, admissions made by various of the petitioners in the course of a conspiracy or joint criminal enterprise. In both Massachusetts, French, supra, 357 Mass. at 380, 259 N.E.2d 195, and in the federal courts, United States v. Clayton,450 F.2d 16 (1st Cir. 1971), statements by co-conspirators made during the pendency and in furtherance of a criminal conspiracy are admissible against all conspirators as an exception to the hearsay rule. If, as the petitioner requests, the trials had been severed, the very same statements could have been offered against him at his separate trial, given a proper showing of conspiracy. The petitioner, accordingly, has not suffered prejudice because he was tried together with the other defendants. Bruton is inapplicable.

Petitioner's arguments resolve into a basic confrontation clause challenge to the co-conspirator exception to the hearsay rule. There is no merit in that claim. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). In a practical sense, moreover, the questioned testimony was of minimal importance when viewed against the remainder of Baron's testimony which overwhelmingly implicated Limone. Even if there were constitutional error in admitting this testimony, it appears to us as harmless error beyond any doubt. The other grounds asserted to support error in refusal to sever the trials such as antagonistic defenses and conflicting trial strategies have not been developed with any particularity, and have not been shown to have resulted in prejudice.

II. Evidentiary Rulings

Of some dozen challenges to evidentiary rulings, the only one worthy of discussion is the admission of certain testimony by one Glavin against petitioner Cassesso. Glavin, a prisoner serving a life sentence for an unrelated murder, had been approached by a fellow inmate at MCI, Norfolk, named Ventola. Cassesso was also incarcerated at the institution pending trial for complicity in Deegan's murder. Ventola offered Glavin $50,000 to confess to the murder of Deegan for which Cassesso had been indicted. Glavin would be schooled in the details of Deegan's murder, and the money would be paid to a trustworthy attorney to be held for Glavin's family. Glavin, after this approach by Ventola, ¹ reported the proposition to Agent Hanlon of the Worcester, Massachusetts, FBI office, a personal acquaintance. Hanlon told Glavin to speak with Cassesso as if he were going along with the plan. Cassesso, in the course of some three conversations, allegedly confirmed Ventola's offer, and with two others, added the requirement that Glavin kill a named person so that they would have "something on him".

Glavin testified to Cassesso's conversations with him at trial. These otherwise hearsay statements were presumably admitted as admissions of a defendant by conduct tending to show consciousness of guilt of past crimes. Cassesso challenges the testimony as elicited by the government while an indictment was pending in the absence of counsel, and claims that its admission was in violation of Massiah v. United States, supra.

The district court found that the factual situation in the present case and in Massiah had certain parallels; both involved post indictment incriminatory statements, made without the advice of counsel, admitted into evidence. It found, however, several distinctions. The first difference involves the position of the government agents in the two cases. Agent Hanlon, who instructed Glavin to pursue the matter with Cassesso, was employed by the federal government, and had no prior connection with the state prosecution of Cassesso for complicity in the murder of Deegan. We do not, however, find it dispositive that Hanlon worked for a separate branch of the government. But if the circumstances of this case were that neither Hanlon nor Glavin knew of the indictment pending against Cassesso, and inadvertently had been made aware of these incriminatory statements while pursuing other inquiries, we would be inclined to find that Massiah was not violated. United States v. Garcia, 377 F.2d 321 (2d Cir. 1967).

There is, however, a more substantial distinction between the statements in the case at bar, and those in Massiah. Massiah, after he was indicted and released on bail, made "several incriminating statements", 377 U.S. 202, 84 S.Ct. 1200-01, 12 L.Ed.2d 248, during a conversation with Colson, a co-defendant. Unbeknown to Massiah, Colson had previously decided to cooperate with the authorities, and by prearrangement, the conversation was overheard, by means of a bugging device, by an FBI agent who testified to Massiah's admissions at trial. Cassesso's statements, on the other hand, were primarily uttered in the commission of another substantive offense, subornation of perjury, and were only incidentally admissible in his trial on the pending indictment. ² Because of this distinction we find that Cassesso's Sixth Amendment right to counsel was not violated by Glavin's...