Com. v. Angiulo

• Decision Date: 11 June 1993
• Citation: 415 Mass. 502,615 N.E.2d 155
• Parties: COMMONWEALTH v. Gennaro ANGIULO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 155

615 N.E.2d 155

415 Mass. 502

COMMONWEALTH v. Gennaro ANGIULO.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Jan. 5, 1993.

Decided June 11, 1993.

Anthony M. Cardinale, Robert L. Sheketoff, Boston, with him, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for the Comm.

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

LIACOS, Chief Justice.

From January through May, 1981, the Federal Bureau of Investigation (FBI) conducted court-authorized surveillance at 98 Prince Street and 51 North Margin Street in the North End section of Boston. ¹ Utilizing audio and video equipment, Federal agents monitored and recorded arrivals and departures of persons from the above-described premises. Federal agents also monitored and recorded conversations that took place inside the premises.

Based in large part on the fruits of the electronic surveillance, a Federal grand jury returned a two-count indictment charging Gennaro Angiulo (defendant) ² with "conspiring to engage in racketeering activities, among them, conspiring to murder and being [an] accessor[y] before the fact to the murder of Angelo Patrizzi," and substantive violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) and (d) (1988). The substantive violations alleged, inter alia, that the defendant conspired to murder Angelo Patrizzi and that the defendant was an accessory before the fact to Patrizzi's murder.

The case was tried to a jury in the United States District Court for the District of Massachusetts. The jury convicted the defendant. The Federal judge sentenced the defendant to forty-five years in prison and fined him $120,000.

After the Federal trial, a grand jury sitting in Essex County indicted the defendant on charges of conspiracy to murder, and of being an accessory before the fact to the murder of Angelo Patrizzi. ³ The defendant moved to dismiss the indictment arguing that the prior Federal prosecution barred the Commonwealth's prosecution. See Commonwealth v. Cepulonis, 374 Mass. 487, 373 N.E.2d 1136 (1978). A judge in the Superior Court denied the defendant's motion to dismiss. The defendant sought interlocutory relief pursuant to G.L. c. 211, § 3 (1990 ed.). A single justice of this court reserved and reported the case to the full bench. We affirmed the motion judge's decision in part, allowing the Commonwealth to prosecute the defendant on the charge that he was an accessory before the fact to murder in the first degree; and we reversed in part, dismissing the conspiracy count on double jeopardy grounds. Angiulo v. Commonwealth, 401 Mass. 71, 514 N.E.2d 669 (1987).

Accordingly, the defendant was tried as an accessory before the fact to murder in the first degree. See G.L. c. 274, § 2 (1990 ed.). The trial took place in December, 1987. The jury returned a verdict of guilty. The judge sentenced the defendant to a term of life imprisonment. Asserting a number of errors, the defendant appealed. The appeal was entered in the Appeals Court. We took the case on our own motion. For the reasons set forth below, we reverse the defendant's conviction.

First, we summarize the relevant evidence. In 1978, Joseph Porter, Angelo Patrizzi's half-brother, was shot to death. Porter's body was found in a stolen automobile in Revere. Patrizzi believed that two individuals, Frederick Simone and Cono Frizi, were responsible for the murder. Patrizzi resolved to kill Simone and Frizi to avenge his half-brother's death. News of Patrizzi's intention, however, reached Simone and Simone's associates. ⁴ Simone and his associates planned a preemptive strike; Patrizzi would be killed before he killed Simone or Frizi.

For some period of time up to January 26, 1981, Patrizzi had been incarcerated for criminal offenses unrelated to the present case. On January 26, Patrizzi was transferred to a half-way house. While a resident of the half-way house, Patrizzi was "employed" at Surf Auto Body in Revere. At trial, the director of the half-way house testified that Patrizzi's transition back into society did not proceed smoothly. He recalled a day in February, 1981, when Patrizzi was visibly upset and carried on in a manner that disturbed the other residents and the staff. In response, the director summoned Patrizzi to a meeting where he attempted to calm Patrizzi. In response to the director's queries, Patrizzi responded, as told by the director, "They killed my brother.... I've got to get them." On March 3, 1981, the director listed Patrizzi as being on "escape status."

On March 11, 1981, the FBI intercepted a conversation, which occurred at 98 Prince Street, between the defendant, Samuel Granito, and Simone. The conversation reveals that the defendant knew about Patrizzi's intentions as well as the plot to kill Patrizzi. Granito and Simone told the defendant that they had unsuccessfully attempted to kill Patrizzi on two occasions. Granito and Simone also told the defendant that Patrizzi had been given money, gold, clothing, and a "no-show" job at Surf Auto Body so they would know of his whereabouts. Nonetheless, Patrizzi had disappeared. The defendant expressed his displeasure that the plan to kill Patrizzi had gone awry and demanded an explanation as to how he had eluded them. Later, the defendant affirmed the need to kill Patrizzi.

On March 12, 1981, the FBI intercepted a conversation, which also occurred at 98 Prince Street, between the defendant and another associate, Ilario Zannino. During the conversation, the defendant told Zannino about his conversation with Granito and Simone. The defendant asked Zannino to assist with the Patrizzi "problem." The defendant, having been previously informed that Patrizzi was hiding in the South Boston section of Boston, told Zannino that he would give him Patrizzi's telephone number when he received it. Zannino expressed some concern: he wanted to make sure that he "hit" the right man. Zannino said he knew "what to do" after he acquired Patrizzi's telephone number.

On April 3, 1981, the FBI intercepted a conversation of Zannino and two associates, Ralph Lamattina and Johnny Cincotti. The conversation took place at 51 North Margin Street. Referring to Patrizzi, Zannino told Lamattina and Cincotti that Patrizzi had been "clipped" and his body put in a trunk. Zannino cautioned the men to keep silent about this development.

On June 11, 1981, Lynn police found Patrizzi's body in the trunk of an automobile. The Lynn police officer who discovered the body testified that Patrizzi had been "hog-tied." Patrizzi's legs were bent from his knees up to his buttocks. A rope was tied around his ankles. It extended up his back and was knotted around his neck. The rope was "fairly" taut. The officer testified that Patrizzi's body was found inside a sleeping bag. Four or five strands of rope were tied around the sleeping bag.

The medical examiner conducted an autopsy on June 13, 1981. He identified Patrizzi's corpse through medical and dental records and reported the cause of death as asphyxia due to strangulation by ligature. Patrizzi had been dead at least two weeks prior to the autopsy. The medical examiner could not determine the exact date or time of death because of the degree of decomposition of the body.

The defendant raises numerous issues on appeal. We consider only those issues that are dispositive or which may recur at a new trial and provide additional facts as necessary.

1. Jurisdiction and scope of review. After sentencing, the judge advised the defendant of his right to appeal citing G.L. c. 278, § 28 (1990 ed.). The defendant's appeal originally was entered in the Appeals Court. In his brief, filed in the Appeals Court prior to transfer of the case to this court, the defendant argued that he is entitled to appellate review pursuant to G.L. c. 278, § 33E (1990 ed.). The defendant claims that § 33E applies, notwithstanding his conviction as an accessory before the fact to murder in the first degree, because he is a defendant in a "capital" case, ⁵ as that term is used in § 33E. The defendant argues § 33E applies because he could have been indicted and tried on the underlying substantive felony, murder in the first degree, see G.L. c. 274, § 3 (1990 ed.), and because he is subject to the same punishment as one who has been convicted of murder in the first degree as a principal, see G.L. c. 274, § 2 (1990 ed.). ⁶ We agree.

General Laws c. 278, § 33E, vests exclusive appellate jurisdiction in capital cases in this court. The scope of review mandated by § 33E is broader than that available to a defendant in a noncapital case. Commonwealth v. Cullen, 395 Mass. 225, 228, 479 N.E.2d 179 (1985). If the defendant is a "capital" defendant as the term is used in § 33E, then he is entitled to a standard of review considerably broader than that to which he would otherwise be entitled.

We proceed to consider whether the defendant, convicted as an accessory before the fact to murder in the first degree, is a "capital" defendant as that term is used in G.L. c. 278, § 33E. We begin with the statute. Section 33E defines a capital case as "a case in which the defendant was tried on an indictment for 'murder in the first degree' and was convicted of murder in the first degree." Given such a case, the General Court has directed us "to review the 'whole case' to determine whether the verdict is 'against the law or the weight of the evidence.' " Dickerson v. Attorney Gen., supra, 396 Mass. at 741, 488 N.E.2d 757, quoting G.L. c. 278, § 33E. On such a finding, the statute empowers us to " 'order a new trial or ... direct the entry of a verdict of a lesser degree of guilt,' if the interests of justice so require." Id. at 741-742, 488 N.E.2d 757. As we have stated, the "uniquely thorough review of first degree murder convictions is warranted by the infamy of the crime and the severity of its consequences." Id. at 744, 488 N.E.2d 757. One convicted...