Com. v. Allen
| Citation | 379 Mass. 564,400 N.E.2d 229 |
| Parties | COMMONWEALTH v. Max J. ALLEN et al. 1 (and a companion case). |
| Decision Date | 23 January 1980 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard A. Gargiulo, Boston, for Michael R. Cappiello.
Ronald F. Kehoe, (Barbara Bruce Williams with him), Boston, for Max J. Allen.
Albert L. Hutton, Jr., Boston, for Martin Koplow.
Paul W. Shaw, Asst. Atty. Gen., for the Commonwealth.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.
On October 13, 1977, two indictments were returned against Max J. Allen, Michael R. Cappiello, Martin Koplow and George Lincoln, each charging them with conspiring to commit a crime involving a building at 50 Symphony Road in Boston. One indictment charged them with conspiring to cause the building to be burned, and the other with conspiring to cause the building to be burned with intent to defraud and injure the insurer thereof, both indictments alleging that the crimes were committed between February 1 and August 8, 1975. Allen, Cappiello and Koplow (the defendants) were tried together to a jury and were convicted on both indictments on September 29, 1978. They were then sentenced to serve concurrent terms in a House of Correction and to pay fines as follows: Allen, two years and $10,000; Cappiello, two and one-half years and $10,000; and Koplow, eighteen months and $5,000. 2
The cases are now before us on the appeals by the three defendants under G.L. c. 278, §§ 33A-33G, as the result of our removal of the cases from the Appeals Court on our own initiative. G.L. c. 211A, § 10(A). Lincoln was not tried with the defendants, but he was the principal prosecution witness against them. He later pleaded guilty pursuant to a plea bargaining arrangement.
The defendants have joined in a single brief in which they argue errors allegedly committed by the trial judge in relation to the following matters: (a) a pretrial investigation of prospective jurors conducted by investigators hired for that purpose by defense counsel, (b) the separation of members of the sequestered jury for the purpose of voting in a primary election, (c) the scope and extent of the cross-examination of Rose Koplow, the wife of one of the defendants, and (d) instructions to the jury regarding the testimony of accomplices to the alleged crimes. We hold that there was no error and therefore affirm the convictions.
We summarize the evidence to the extent necessary for our disposition of these appeals.
In 1966 the defendants Allen and Cappiello purchased the three story, twenty-nine unit apartment building at 44-50 Symphony Road as an investment. In 1968 they conveyed the property to Koplow, as trustee of a realty trust, subject to the mortgage then outstanding. Koplow was to repair the building, rent and manage it, and pay the mortgage instalments when due. In 1972 Koplow refinanced the property which resulted in the discharge of the prior mortgages and the giving of a new one in the increased amount of $125,000. At the request of the mortgagee bank, Allen and Cappiello signed an agreement to guarantee payment of the mortgage, and they also indemnified Koplow against personal liability on the mortgage. In the several years thereafter the Symphony Road area deteriorated generally, with many apartment buildings vacant, boarded up or uninhabitable.
Koplow's building suffered damage from two fires, one on March 10, 1974, and another on February 26, 1975, at which times it was covered by fire insurance of $125,000. The insurer paid $25,132.83 as a result of the first fire and $36,904 as a result of the second fire. Certain proceeds from the fire insurance were applied to the reduction of the mortgage, leaving a principal balance of about $77,000. At this time the mortgage was in default, and nearly $7,000 was owed in back real estate taxes. The firemen found some evidence that the second fire was of incendiary origin, and there was reason to believe that the fire insurer might cancel its policy.
Cappiello started seeking buyers for the property late in 1974, and in the course of that search he met Lincoln in the spring of 1975. Lincoln testified that Cappiello told him that Koplow had set the February, 1975 fire (to collect on the fire insurance policy) but that he had not done a sufficiently thorough job. He testified further that he and Cappiello negotiated an agreement under which the defendants would convey the property to Lincoln, who would procure insurance and then burn the building to pay off the balance of the mortgage, provided the defendants would first pay all arrears on the mortgage, taxes, and water bills to avert suspicion. For this, again according to Lincoln, he was to receive $10,000 in cash and title to the property before the fire, and he was to have the benefit of any refunds of real estate taxes in the event of abatements, and of any excess of proceeds from the fire insurance remaining after paying off the mortgage.
The three defendants met with Lincoln and his attorney at Cappiello's law office on May 12, 1975, and, after some further negotiations, an agreement was signed providing for the sale of the Symphony Road property by Koplow to Lincoln for $108,000. Two days later the same parties again met at the same place for the passing of papers for the conveyance. Again there were further negotiations, but ultimately the transaction was closed and the property was conveyed to Lincoln. Thereafter, some disagreements arose between the parties with the result that on August 7, 1975, Lincoln, without notifying the defendants, recorded a deed transferring the property back to Koplow.
There was much additional evidence which, if believed, would tend to prove the existence of the conspiracies charged against the defendants in the two indictments in question, but it is not necessary to summarize this evidence for our decision of the limited issues argued by the defendants. However, we shall refer to additional evidence when we discuss those issues.
On August 1, 1978, the judge, in anticipation of the trial of this case, ordered summonses to issue for two special venires of 100 persons each, one for September 12 and one for September 13, 1978. Empanelment of the jury began on September 13, and entailed voir dire questions in addition to those specified by G.L. c. 234, § 28. These additional questions related to media coverage of arson charges, attitudes about arson and about insurance companies, and other matters. 3 Thirteen prospective jurors were questioned, and two were empanelled, the first day. Nine more were questioned, and one seated, on the morning of September 14. At the mid-morning recess, the Commonwealth informed the judge during a lobby conference that investigators for the defendants had been at work in the prospective jurors' neighborhoods, interviewing neighbors of the prospective jurors. As the ensuing and later exchanges between judge and counsel are important to our disposition of this appeal, we reproduce portions of them:
The judge: "Are the facts that he asserts substantially true?"
Counsel for Cappiello:
The judge: "You have conducted interviews in the neighborhoods where the jurors were from?"
Counsel for Cappiello: "Yes, your Honor."
The judge: "Don't you think that's extraordinarily dangerous?"
Counsel for Cappiello: "Well, your Honor, I think that, understanding our responsibility and reviewing the statute and reading what authority granted us to exercise our discretion and within the responsibility of the statute, we carefully made sure we never interviewed any jurors, jurors' families, relatives of any jurors, and I so represent."
The judge: "But wouldn't the juror know couldn't the juror find out that you people were investigating her by the interviewee telling her or him?"
Counsel for Cappiello: "Quite possibly."
The judge:
Counsel for Cappiello: "I don't know if that's been done. . . ."
The judge: "You're interviewing neighbors, no?"
Counsel for Cappiello: "Let me make sure they are noting the type of neighborhood, the type of house they live in."
The judge:
Counsel for Cappiello: "I don't know that that was done, your Honor."
The judge: "That's the part that's bothering me."
At that point counsel for Koplow volunteered to have the investigator called in to court to explain what was being done. The court responded:
The judge:
Empanelment then resumed. After two more prospective jurors were questioned, defense counsel requested a bench conference. At the bench, counsel for Koplow began by stating that the investigation wasn't his idea, but that he acquiesced in it based partly on his thinking that "certainly the Government does similar things in investigating the background of jurors . . . ." The judge responded in the following colloquy:
The judge:
Counsel for Koplow: "Not interviewing neighbors "
The judge: "That's the...
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