Bocchicchio v. Curtis Publishing Co.

• Decision Date: 09 March 1962
• Docket Number: Civ. A. No. 22905.
• Citation: 203 F. Supp. 403
• Parties: Felix BOCCHICCHIO v. CURTIS PUBLISHING CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

203 F. Supp. 403

Felix BOCCHICCHIO v. CURTIS PUBLISHING CO.

Civ. A. No. 22905.

United States District Court E. D. Pennsylvania.

March 9, 1962.

Thomas D. McBride and Michael von Moschzisker, Philadelphia, Pa., for plaintiff.

Philip H. Strubing, Philadelphia, Pa., for defendant.

VAN DUSEN, District Judge.

This libel action is now before the court on plaintiff's MOTION FOR NEW TRIAL filed after judgment was entered for the defendant on the special verdict of the jury.¹ Plaintiff contended that the fourth (Exhibit P-1) in a series of six articles (Exhibits D-1A to D-1E and P-1) by Rocky Marciano (world heavyweight boxing champion from 9/23/52 until his retirement undefeated on 4/27/56), as told to two reporters (Gross and Hirshberg) and published in defendant's magazine (The Saturday Evening Post), contained defamatory material which was libelous, per se. This fourth article, published October 6, 1956, had as its title "DIRTY WORK AT RINGSIDE" and as its sub-title "For the first time, Rocky discloses the startling truth about his title fight with Jersey Joe Walcott." In the article itself, the following wording appears:

"* * * it seemed like everything in the world was done to steal it from me before I even got it.

* * * * *

"* * * I was almost blinded for three rounds of the fight.

* * * * *

"* * * here's the truth, as it was told to me by the policeman who found out. I was blinded by capsicum Vaseline. According to the policeman, Walcott's manager, Felix Bocchicchio, rubbed it on Joe's gloves and on the upper part of his body.

From the sixth round through the eigth, every time Walcott jabbed me and his glove came in contact with my eyes, or every time I clinched with him and got my face against his body, my eyes would smart."²

I. Alleged Errors in Rulings on Evidence

A. The identity of Melchiore's informer was privileged (par. 2 of Motion For New Trial).

On the issue of conditional privilege (N.T. 100), defendant produced evidence during its case that Melchiore, a Philadelphia police officer, had told Marciano in 1953 at Grossinger's that plaintiff has been given capsicum vaseline for the first Walcott-Marciano fight of September 1952 (N.T. 102). Marciano never learned the name of the informer (N.T. 139). Melchiore refused to give Hirshberg the name of the person from whom Melchiore is supposed to have received his information (N.T. 405, 406). Editor Paxton was furnished the tape of the Hirschberg-Melchiore interview and heard it prior to publication (N.T. 276). As part of his rebuttal, plaintiff's counsel called Melchiore (now a county detective, assigned to the District Attorney's office — see N.T. 368), and stated that the following question was being asked the witness on the issue of truth (N.T. 374-6):

"Now, at the time of the visit to Mr. Marciano at Grossinger's, what information did you possess, if any, as to what caused the impairment to Mr. Marciano's vision?" (N.T. 371, 374, 376).

Melchiore answered (N.T. 376 & 377):

"I had received some information that capsicum Vaseline was used on the gloves of Jersey Joe Walcott.

* * * * *

"* * * the complete information I had was what was given to Felix Bocchicchio by Blinky Palermo, capsicum Vaseline, and it was put on the gloves of Jersey Joe Walcott."

After stating that this information came "from an informant of mine" (N.T. 377), Melchiore was asked by plaintiff's counsel (N.T. 379-380), "Who told it to you?" The witness stated "I do not wish to answer"³ and was questioned by counsel and the court outside the presence of the jury in order to determine whether he could be persuaded to answer the question voluntarily or should be required to answer it. The record discloses that Melchiore had consistently refused to answer this question, when asked by Hirshberg and when his deposition (Document No. 20) was taken in this case, since "in police lines we never name our informers" (N.T. 406). In answers to questioning by the trial judge, the witness stated that he felt he should not answer for these reasons:

"A Because I have — I have other informants, also, which is a very important part of my life of a police officer, or any law-enforcement officer. Informants are very important.

"Q That is right. I understand that.

"A And you could just about say we are only as good as our information is outside and if I reveal the name of one, there is not one of them out there will ever trust me again in other information. I have informers throughout the City of Philadelphia, and if I reveal the name of one, I know I am lost to everything. My job as a law-enforcement officer would be very hard.

"Q Well, now, is this particular man this important to you when, if I ordered you to do it, how could he reasonably expect you not to?

"A I don't know. It is a hard thing when a man tells you in trust and that trust is taken away.⁴

Plaintiff's counsel then questioned the witness as follows (N.T. 391-3):

"Q Now, I am not going to ask you at this point —

* * * * *

"I am not going to ask you his name, but to establish who he is, he is a police informer?

"A Yes, to me, yes.

"Q That is, he informs to you on the cases of crime and investigations that you are making?

"A Yes.

"Q He is not — and I am not casting any slur upon him — but he is not among the people who would be recognized as a respectable man; is that right?

"A No. He is not.

"Q * * * Now, were you making this investigation on behalf of your employer, the City of Philadelphia?

* * * * *

"THE WITNESS: I attempted to make this investigation for the City of Philadelphia. After the information I received from the informer, I attempted to pursue it further, and at that time I couldn't come up with any other information."⁵

After both counsel had concluded their questioning of the witness (N.T. 397-8), the trial judge stated that he was concerned with the possible application of the privilege stated in § 2334(f) of the 1961 Edition of Wigmore on Evidence and adjourned the trial to consider the matter (N.T. 398-9).

On the resumption of the trial, the witness made clear that the informer⁶ had given him the information in his capacity as a Philadelphia police officer "as he has done all the way through" and the trial judge sustained the witness' objection⁷ to answering the question (N.T. 400).

The above quotations make clear that a Philadelphia police officer, not represented by counsel, claimed the privilege for communications by informers to the Government. See Mitchell v. Roma, 265 F.2d 633, 635 (3rd Cir. 1959); 8 Wigmore, Evidence, § 2374F, p. 761-2 (McNaughton Rev. 1961).⁸ The United States Court of Appeals for the Third Circuit has stated in Mitchell v. Roma, supra, at pages 635-636:

"The courts should be solicitous to protect against disclosures of the identity of informers. (Citing case.)

"The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of violations of law to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. (Citing case.)

"However, the privilege must give way where the disclosure of an informer's identity * * * is essential to a fair determination of a cause, * * *. As it is put in the Model Code and Uniform Rules, supra, the privilege exists unless the judge finds that the disclosure of the informer's identity is essential to assure a fair determination of the issues."

The information related to Melchiore could only be relevant on the issues of truth and conditional privilege and the identity of the source of the information, as opposed to its accuracy, was not relevant on either issue, nor was the disclosure of this identity on the third day of the trial "essential to a fair determination of the issues."

As stated above, Melchiore disclosed the identity of the person (Blinky Palermo) whom it was alleged gave the vaseline to plaintiff. Also, the deposition of Melchiore had been taken by plaintiff on September 20, 1957 (more than four years before the trial) and he had stated that he "couldn't reveal" the source of his information as it was "police information" (pp. 17-8 and 22 of Document No. 20 and N.T. 406). Plaintiff cannot fail to ask for an order requiring such disclosure, either during discovery or at the pre-trial conference (see Document No. 15), and then claim that it is essential to a fair determination of the case to permit him to secure the identity of such an informer during the rebuttal portion of a trial (on the afternoon of the day before both parties rested).

The Federal Courts have consistently indicated that the strength of this privilege is greater in civil cases such as this than in criminal cases, such as Roviaro v. United States, 353 U.S. 53 (1957), and cases cited in that case at pp. 60-62, 77 S.Ct. 623, 1 L.Ed.2d 639 relied on by plaintiff, where the informer had been a participant in the criminal act. See United States v. Carey, 272 F.2d 492, 493 (5th Cir. 1959); Mitchell v. Roma, supra; cf. Miller v. United States, 273 F.2d 279, 281 (5th Cir. 1959);⁹ Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12, 28 L.Ed. 158 (1884).

Under the facts in this record, the ruling of the trial judge in sustaining the objection of the witness to answering the question was justified under the above-mentioned privilege.

B. On the record in this case, there was no error in admitting for impeachment purposes plaintiff's conviction for a felony without requiring defendant to ask plaintiff the particular felony involved (pars. 3 & 8 of Motion For New Trial).

The rule in this court and in this Circuit is that the sentence of conviction of a witness, whether or not a party, for a felony may be shown for impeachment. See United States v. Montgomery, 126 F.2d 151, 155 (3rd Cir. 1942); National Labor Relations Board v. Baldwin Locomotive Works, 128 F.2d 39, 46 (3rd Cir. 1942); Masters v. Commissioner of...