Com. v. Cassesso

Decision Date08 December 1971
Citation276 N.E.2d 698,360 Mass. 570
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesCOMMONWEALTH v. Ronald Anthony CASSESSO (and companion cases).

David Berman, Medford, for defendant Limone (Ronald J. Chisholm, Boston, for defendant Cassesso, with him).

Jack I. Zalkind, Asst. Dist. Atty., for the Commonwealth.

Before CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

CUTTER, Justice.

Cassesso and Peter Joseph Limone were found guilty as accessories before the fact of the murder (on March 12, 1965) of Edward Deegan and of conspiracy to murder Deegan and Anthony Stathopoulos. Each of these defendants is under sentence of death. The facts which appeared at trial are stated at length in Commonwealth v. French, 357 Mass. ---, a 259 N.E.2d 195, cert. applied for sub nom. Limone v. Massachusetts (August 25, 1970) 39 U.S.L. Week 3072. b In that case, this court affirmed the judgments.

Each of these two defendants now has filed a motion for a new trial. Each motion purports to be supported by, or refers to, three affidavits (one of Mr. David Berman, counsel for Limone, dated May 6, 1970, one of William W. Stuart, apparently verified twice, viz. July 29, and August 4, 1970, and a brief and somewhat cryptic affidavit of Joseph Baron (also known as Barboza) dated July 28, 1970).

The Superior Court judge who presided at the original trial held a hearing on the motions on October 14, 1970. After examining one of the affidavits, the judge indicated he would 'give counsel an opportunity to amend and put in affidavit form the evidence that would be offered in case there would be a new trial.' At a later stage in the hearing, counsel for a defendant (Henry Tameleo) who, on this record, is not shown to have appealed from any denial of his motion for a new trial, informed the judge that he was 'in process of obtaining other affidavits' and asked for additional time 'to prepare affidavits that very well might be persuasive.' The judge reiterated his intention, '(I)f the district attorney's argument was well founded' to deny the motions, 'but (to) give the defendants opportunity to amend, with additional affidavits' and that the denial would be 'without prejudice' in all instances. Counsel for Tameleo then asked for thirty days in which to prepare additional material.

Counsel for Limone (Mr. Berman) contended that the issue then before the judge was 'not whether there should be a new trial, but whether there should be evidence heard on . . . whether there should be a new trial.' Mr. Berman, in effect, conceded 'that the matters contained in the . . . sheets' attached to his own affidavit (described below) were hearsay, but requested an evidential hearing so that he might establish through other witnesses (apparently Officer John Doyle and Officer Thomas Robson) whether the 'sheets' were a copy of an authentic, existing report. The judge pointed out to Mr. Berman that he could interview the persons mentioned in his affidavit and the attached sheets and submit later their affidavits. After a somewhat inconclusive discussion, the judge in effect ruled that Mr. Berman's affidavit was hearsay, and 'on that ground,' subject to an exception saved for all defendants, denied his motion for an evidential hearing on his own affidavit.

At the close of the hearing, the judge concluded (with respect to all the affidavits) that he would not deny the motions for new trials but allow the defendants thirty days to amend the motions and to file affidavits. The docket entries in the two cases now before us are set out in part in the margin. 1 Their motions were denied on November 17, 1970, after the thirty day period had expired, without the filing of any additional affidavits or other material. Cassesso and Limone appealed.

THE AFFIDAVITS.

A short summary of each affidavit will facilitate discussion of the case.

(a) The Baron affidavit. Baron had been a vital, principal prosecution witness at trial. As was stated in Commonwealth v. French, 357 Mass. ---, c 259 N.E.2d 195, (hereafter cited French, p. ---, 259 N.E.2d 195, 226), 'the principal issue before the jury was one of Baron's credibility.' He was obviously 'a highly vulnerable witness' with 'a long criminal record.' His present affidavit of only fifteen printed lines (as it appears in the record) recites that he was 'free from duress or coercion'; that he wishes 'to recant certain portions of . . . (his) testimony during . . . trial insofar as . . . (his) testimony concerned the involvement of Henry Tameleo, Peter J. Limone, Joseph L. Salvati and Lewis Grieco in the killing of Teddy Deegan,' and that the testimony (not described) which he now offers 'to give concerning the killing of . . . Deegan and those individuals responsible for his death will be the whole truth known to' him. There is no further substantive specification concerning (a) the parts of his trial testimony which he wishes to recant, (b) the testimony which he will give if there is a new trial, or (c) the place at which, or the circumstances in which, this affidavit was given.

(b) The Stuart affidavit. Stuart states (as of August 4, 1970) that he is a fortyone year old police officer, assigned to the intelligence section of the Boston police force, and then proceeds to assert the following matters, among others. On March 14, 1965, he interviewed Edward Bennett (unidentified) who told him that Baron, Roy French, 'Stats' (later identified as Stathopoulos), Chico Amico (see FRENCH, P. --- , 259 N.E.2D 195),D one Chiampa, Romeo Martin, and Cassesso participated in the Deegan murder. Stathopoulos and French led Deegan into an alley where all (except Stathopoulos and French) killed Deegan. Bennett said that Baron had told him the reason for killing Deegan was his friendship with enemies of a gang with which Baron was friendly. This information Stuart says he reported to Deputy Superintendent Blake, although Bennett was not identified in that report. Soon thereafter Stuart twice interviewed Martin (died or killed July 9, 1965; see FRENCH, P. ---, fn.5, 259 N.E.2D 195,E which contains an extended necrology of persons directly or indirectly connected with the trial), who had been (but then was no longer) an informant for him. Martin denied all direct knowledge of the killing but said he had been at the Ebb Tide Lounge in Revere with the persons named by Bennett. He gave what purported to be a hearsay report of the murder similar to that given by Bennett but (apparently by inadvertence) at the 'end of the narration, he said: 'I saw somebody get the number of my registration plate as we were leaving the scene. " Stuart in his affidavit claims that, in the summer and fall of 1967, but prior to October 25, 1967, he reported these conversations to Officer John Doyle, permanently assigned to the office of the district attorney for Suffolk County. No facts are set out in the affidavit concerning the circumstances in which the Stuart affidavit was given or the motives or inducements for giving it.

(c) Mr. Berman's affidavit. Mr. Berman states in his affidavit dated May 6, 1970, that on 'May 5th or May 6th, 1970 an unknown person delivered to his office in a plain white envelope the pages, true copies of which are annexed to this affidavit. Affiant has never before . . . been aware of their existence. According to affiant's information and belief these pages are part of a report prepared for and by Officer John Doyle,' and 'this report was prepared before the (Superior Court) trial' of the defendants. Mr. Berman asserts that the report is 'substantially inconsistent with testimony given against . . . Limone by . . . Baron and . . . Stathopolous (sic).' Also '(a) ccording to affiant's information and belief neither this report not (sic) the contents . . . were ever divulged to any person representing . . . Limone nor (sic) to . . . Limone himself, . . . (or) to any person likely to bring the contents . . . to the attention of . . . Limone or his counsel,' but was 'available to the Assistant District Attorney who prosecuted the case against Peter Limone in the Superior Court.' Beyond the statements quoted above, nothing appears of the circumstances in which Mr. Berman gave his affidavit. Attached to the affidavit is a document headed 'John Doyle's Office 1--236 238--499 on September 8--Stathopolous (sic).' This referred to a trip about September 8, 1967, to Maine by M.D.C. Officer Robson and State Trooper Endorato to pick up Stathopoulos and take him to Massachusetts. That afternoon an interview between Stathopoulos and Baron took place near Barnstable. Stathopoulos was reported as having then told a story of the Deegan murder which need not be repeated here. We assume, as Mr. Berman asserts in his brief, that the story may contain some 'prior inconsistent statement by Stathopolous (sic) (which) would' or might tend, at least indirectly, to impeach his credibility, and that the statement also may be in some respects arguably inconsistent with parts of Baron's testimony.

1. We have recently said that, upon 'a motion for a new trial based upon recantation by a material witness, the duty of the trial judge is to give grave consideration to the credibility of the witness's new testimony' and that 'the motion is addressed to his sound judicial discretion.' COMMONWEALTH V. ROBERTSON, MASS., 259 N.E.2D 553, 556.F See Commonwealth v. Gwizdoski, 284 Mass. 578, 581, 188 N.E. 383. See Batsell v. United States, 403 F.2d 395, 402--403 (8th Cir.), cert. den.393 U.S. 1094, 89 S.Ct. 865, 21 L.Ed.2d 785. This is in line with the usual rule that such motions are addressed to the sound discretion of the court. See Commonwealth v. Devereaux, 257 Mass. 391, 397--399, 153 N.E. 881. See also Commonwealth v. Heffernan, 350 Mass. 48, 52--54, 213 N.E.2d 399, cert. den.384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673. The judge was not obliged to believe the affidavits (see Coonce v. Coonce, 356 Mass. 690, 692, ...

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