Com. v. Champagne

• Decision Date: 20 January 1987
• Citation: 399 Mass. 80,503 N.E.2d 7
• Parties: COMMONWEALTH v. Raymond CHAMPAGNE. (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 7

503 N.E.2d 7

399 Mass. 80

COMMONWEALTH v. Raymond CHAMPAGNE. (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Sept. 10, 1986.

Decided Jan. 20, 1987.

Ellen A. Howard, Committee for Public Counsel Services, Boston, for Raymond Champagne.

Edward J. McCormick, III, Norfolk, for Ronald Hogan.

Charles J. Hely, Asst. Dist. Atty. (Stephanie Martin Glennon, Asst. Dist. Atty., with him) for Com.

John M. Russell, Jr., Boston, for James Gallo, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ. WILKINS, Justice.

The defendants, inmates in the State prison at Walpole (now Cedar Junction), were convicted in August, 1979, of murder in the first degree of a fellow inmate, Stephen L. Curvin. ² The defendants raise a variety of issues, some advanced individually and others advanced jointly. The issues arise both on appeals from the convictions and on appeals from the denial of posttrial motions. We affirm the convictions and decline, pursuant to G.L. c. 278, § 33E (1984 ed.), to order that the verdicts be reduced or a new trial be held.

The victim died of multiple stab wounds inflicted by a sharp instrument or instruments on the night of November 15, 1978, in a cell on the flats, or bottom level, of cell block one (block B1) of the prison. The evidence warranted the conclusion that the victim, who had been stabbed in the cell of inmate Ronald Roberts, staggered down the flats toward a desk in front of a closed grillwork door where a correction officer was on duty. The victim was removed from the cell block and died shortly thereafter. Bloodstained pants were found in Champagne's cell, which was next to Roberts's cell, the cell where the stabbing took place. As will appear more fully later, Roberts's testimony tended to establish Hogan's guilt. Another inmate, James Bernadini, gave testimony particularly incriminating of Champagne, including an admission by Champagne that he had stabbed the victim. Additional facts will be presented with respect to particular issues.

1. Champagne objects to the sufficiency of the grand jury evidence to support the indictment against him. The grand jury received evidence, all hearsay, on January 9, 1979. ³ The case against Champagne was based on a report of a medical examiner as to the cause of death and the testimony of John Nasuti, a State trooper assigned to the office of the district attorney.

The grand jury evidence involving Champagne was unquestionably thin. According to his grand jury testimony, Nasuti obtained his information from two inmate informants who lived in block B1 of the maximum security section of the prison. Around 8:30 P.M. on the night of the killing Flaherty told one inmate that he was going to stab the victim and that the inmate should leave his cell or get the victim out of the cell into another one. The inmate left his cell and went to another area. About 9 P.M., according to one source, three individuals, not including Champagne, went to that cell, in which the victim was stabbed. Only one informant gave information as to Champagne's presence. He saw Champagne go into the cell as the scuffle was taking place.

In the circumstances the grand jury reasonably could have inferred that Champagne was in the cell or the immediate vicinity of the cell in which the stabbings occurred and that, for fear of being caught or identified, the persons involved permitted only participants in the commission of the crime to be present. The grand jury were warranted in concluding that this was probably not a situation in which Champagne was merely present in the cell or its vicinity. ⁴

Champagne also complains that the integrity of the grand jury was impaired in violation of his State and Federal due process rights and his right under art. 12 of the Massachusetts Declaration of Rights to an unbiased grand jury. This argument is based on the colloquy between a grand juror and the investigating State trooper which is set forth in the margin. ⁵ Champagne claims prejudice in the witness's statement that the three or four people involved here had been suspected of attacks on other prisoners. This statement was made in response to a question from a grand juror. The record is clear that the prosecutor and the witness did not intentionally undertake to present this information to the grand jury in order to procure an indictment. See Commonwealth v. Mayfield, 398 Mass. 615, 621, 500 N.E.2d 774 (1986). The prejudicial portion of the answer is not unresponsive, although it would not have been admissible at a trial. The answer suggested some weakness in the Commonwealth's case against Champagne because it showed that Champagne might reasonably have been only a suspect and that he had no motive to kill the victim.

The standard for determining whether grand jury bias entitles a defendant to relief is more strict than that applied to the bias of a petit jury. See Commonwealth v. McLeod, 394 Mass. 727, 732-733, 477 N.E.2d 972, cert. denied sub nom. Aiello v. Massachusetts, 474 U.S. 919, 106 S.Ct. 248, 88 L.Ed.2d 256 (1985). Champagne has not shown that presentation of information that he and others had been suspected of previous attacks on inmates was likely to have made a difference in the grand jury's determination to indict him. See Commonwealth v. Mayfield, supra 398 Mass. 621-622, 500 N.E.2d 774.

Champagne belatedly argues that the grand jury testimony on which his indictment was based was known to the Commonwealth and its agents to be false. The claim is that the informant, one Butler, who, Nasuti testified, saw Champagne enter the cell in which the stabbing took place, was in a location in the cell block from which he could not have seen what he was said to have seen. This argument was not presented in support of the initial motion to dismiss the indictment, but was advanced in Champagne's second motion for postconviction relief which this court remanded for consideration by the trial judge. The trial judge concluded that, although the informant's trial testimony did not fully support the statements attributed to him before the grand jury, there was nothing to show that the investigating officer knowingly presented false testimony to the grand jury. ⁶ Nor was there any showing that at any time the prosecutor or any agent of the Commonwealth knew that the grand jury had been given false information. Irreconcilable inconsistencies between trial evidence and evidence presented to the indicting grand jury are not sufficient by themselves to warrant dismissal of an indictment.

In any event, the claim that the Commonwealth presented false testimony to the grand jury should have been presented, if it was worth presenting at all, at least at the time of the filing of the defendant's first motion for postconviction relief. See Mass.R.Crim.P. 30(c)(2), 378 Mass. 900 (1979). This court will be most strict in requiring timely challenges to indictments based on the asserted impairment of the grand jury process.

2. Hogan argues that the evidence did not warrant his conviction and that his motion for a required finding of not guilty, filed at the close of the Commonwealth's case against him, should have been allowed. In testing the sufficiency of the Commonwealth's evidence, we apply the standard set out in Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979).

We summarize the evidence which could have satisfied a rational trier of fact that, as a joint venturer, Hogan participated in or aided in the attack on Curvin. Shortly before the attack Hogan called Ronald Roberts out of his cell. They were joined by Flaherty and Gallo. Flaherty told Roberts that he had a "beef" with Curvin "from the streets" and that he wanted to go in and "buff" Curvin up and added: "[I]t's going to take three of us to go in the room." Hogan said, "I know Ronny [Roberts] for a while," and "I can trust him." Gallo told Roberts that, if he did not want the "beef" to "go down" in his cell, "to move the guy to [Gallo's] room." Following this exchange Hogan, Gallo, and Flaherty went into Champagne's cell and then upstairs. There was evidence that Hogan was in Champagne's cell with Flaherty, Gallo, and Champagne immediately after the assault and that it looked like Hogan was taking off his clothes. Roberts testified that after he had returned to his cell shortly after the assault, he heard Hogan from cell 13 request, "Ronny, send over a pair of pants," and also say: "[W]e'll find out who the rat is now." From this the jury could have concluded that Hogan had been present at the assault and was then trying to conceal his participation. Likewise, the testimony of correction officer Evans that he saw Hogan, Gallo, and a third inmate running up the cell block stairs, if credited, could be viewed as evidence of Hogan's consciousness of participation. Although the inference from these facts is not compelled, the jury could reasonably have found that Hogan was a joint venturer with at least Flaherty and Gallo in a plan to assault Curvin, and that Hogan assisted in carrying out the plan at least by calling Roberts out of his cell in an attempt to isolate Curvin in the cell.

The further question is whether, although Hogan could have been reasonably found to have participated in the joint venture, the evidence warranted, on the standard of the Latimore case, a verdict of murder in the first degree. "The theory underlying joint enterprise is that one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal." Commonwealth v. Soares, 377 Mass. 461, 470, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). See Commonwealth v. Blow, 370 Mass. 401, 407-408, 348 N.E.2d 794 (1976); Commonwealth v. Richards, 363 Mass. 299, 307-308, 293 N.E.2d 854 (1973). To be convicted of murder on a joint venture...