Com. v. De Christoforo

• Decision Date: 07 December 1971
• Citation: 360 Mass. 531,277 N.E.2d 100
• Parties: COMMONWEALTH v. Benjamin A. DE CHRISTOFORO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 100

277 N.E.2d 100

360 Mass. 531

COMMONWEALTH v. Benjamin A. DE CHRISTOFORO.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 4, 1971.

Decided Dec. 7, 1971.

Manuel Katz, Boston, for defendant.

John F. Mee, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

REARDON, Justice.

This is an appeal by the defendant under G.L. c. 278, §§ 33A--33G, from his conviction for first degree murder in the Superior Court. The jury, which unanimously recommended that the death penalty not be imposed, also found the defendant guilty of illegal possession of firearms. The case comes to us on a transcript of the proceedings below, a summary of the record, and the defendant's assignment of errors.

The following facts are undisputed. About 3:55 A.M. on April 18, 1967, a car in which the defendant and three others were riding was stopped in Medford by two police officers. Shortly thereafter the officers discovered that the occupant of the right hand side of the front seat was dead, having been shot once in the right side of the head and three times in the left side of the chest. The officers also discovered an unfired derringer on the floor of the car behind the driver's seat, and a .38 special caliber Smith & Wesson revolver, which had been fired once, on the rear right hand seat. A pathologist later estimated that the deceased, identified as Joseph Lanzi, died in the car sometime between 3 and 4 A.M. from the wounds described above. The head wound had been inflicted by the Smith & Wesson revolver and the chest wounds by a Harrington & Richardson revolver which was discovered sometime afterward buried in the vicinity of where the car stopped. Before the officers' suspicions were aroused, however, both the defendant, who had been sitting behind the driver in the back seat, and the driver, one Carmen Gagliardi, had left the scene. The other occupant, Frank Oreto, was arrested by the officers after their discovery that the fourth man in the car was dead.

Indictments for murder in the first degree and illegal possession of firearms were returned against Gagliardi, Oreto, and the defendant. On October 26, 1967, Oreto, the only one in custody, pleaded guilty to second degree murder and the gun charges. The defendant, against whom an F.B.I. warrant for unlawful flight was lodged in April, 1967, was apprehended by the F.B.I. in November, 1968, at his grandmother's house, where he had been living continuously since the incident. Gagliardi and the defendant were brought to trial together but only the defendant's case went to the jury. At the conclusion of all the evidence Gagliardi pleaded guilty to second degree murder and the firearms charges, and his pleas were accepted.

The Commonwealth, conceding that it was the other two occupants of the car who fired the actual shots, relied on circumstantial evidence to connect De Christoforo in a joint venture with them to kill Lanzi. Evidence was introduced through Officer Carr, one of the two policemen who stopped the car, that the defendant gave a false name when they asked his identity. He also allegedly told them that the man in the front seat, whom the officers at first thought was asleep, was named 'Johnny Simeone,' that he had been involved in a fight in Revere and that they were taking him to the hospital. The defendant's immediate flight from the authorities and subsequent concealment was cited by the prosecution as evidence of guilt.

In addition to efforts to impeach the testimony of Officer Carr, counsel for De Christoforo called only character witnesses and the defendant's grandmother. Although he stated in his opening address to the jury that he intended to prove that the defendant was in the car only because he was being given a ride home from 'The Attic,' a bar in which he worked, he introduced no evidence to support this theory. He repeated in his closing argument that there were many reasons consistent with innocence to explain the defendant's presence in the car, including his being given a ride home. Similarly, no evidence substantiated the suggestion in the opening that 'certain pressures' other than consciousness of guilt explained the defendant's flight and concealment.

We treat with several issues raised by the defendant.

1. The defendant contends it was error to deny his motion to inspect the minutes of the testimony of Officer Carr before the grand jury. Two motions to inspect the grand jury minutes, one with respect to each indictment, were filed before trial and were denied at that time without prejudice to their renewal. During cross-examination of Officer Carr, the defendant renewed his motions with respect to Carr's grand jury testimony and moved in the alternative that the judge make an in camera inspection of the minutes. The judge denied all the motions.

In a number of recent decisions we have held that a judge is not required to grant such motions unless the defendant establishes a 'particularized need' to see the grand jury minutes involved. Commonwealth v. Ladetto, 349 Mass. 237, 244--245, 207 N.E.2d 536. Commonwealth v. Doherty, 353 Mass. 197, 209--210, 229 N.E.2d 267. Commonwealth v. Carita, 356 Mass. 132, 141--142, 249 N.E.2d 5. Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 16 L.Ed.2d 973. The judge properly applied the rule laid down in these decisions in denying the defendant's motions. Although the defendant contended that in two respects the testimony given by Carr at the trial was inconsistent with prior statements made by him, in neither instance was the alleged prior inconsistent statement claimed to have been made as part of testimony before the grand jury. In one instance the defendant pointed out an inconsistency between Carr's testimony at the trial and his testimony at an earlier probable cause hearing in which Oreto was the defendant. ¹ He made full use of this inconsistency in an attempt to impeach Carr's testimony at the trial. In the other instance the defendant claimed an inconsistency between Carr's police report, made shortly after the incident, and his testimony at the trial. As to the events involved in the testimony, Carr's testimony on this point was supported by the unchallenged testimony of Officer Brady who was with Carr when the events occurred. We conclude that there was no inconsistency between Carr's testimony and his report which he clarified at the trial. The defendant did not show that the grand jury minutes would cast further light as to either of the alleged inconsistencies (compare Commonwealth v. Gordon, 356 Mass. 598, 602--603, 254 N.E.2d 901) or that the grand jury testimony might be in any other way inconsistent with Carr's testimony at trial. Commonwealth v. Otero, 356 Mass. 724, 252 N.E.2d 210. In these circumstances there was likewise no need shown for the trial judge to inspect the minutes in camera himself. Commonwealth v. Cook, 351 Mass. 231, 233, 218 N.E.2d 393. Commonwealth v. Doherty, 353 Mass. 197, 210, 229 N.E.2d 267.

The defendant urges that we review and reconsider our holdings in the recent cases cited above which require a showing of a 'particularized need' before being permitted access to the grand jury testimony of a witness who becomes a witness at the trial of an indictment returned by the grand jury. We recognize the difficult burden which this rule places upon a defendant seeking to impeach such a witness on the basis of inconsistencies between his grand jury testimony and his trial testimony. It may be desirable that we give further consideration to this rule. However, it is not appropriate to do so on the limited record of the case before us. ² Such a change, if any, might more appropriately be accomplished for prospective application by exercise of the rule making power of this court. In this particular case the defendant is not precluded from seeking relief by way of a motion for a new trial at the hearing on which he may, by proper action, compel the production of Officer Carr's grand jury testimony for determination by the trial judge whether such testimony was in any way inconsistent with his testimony at the trial. Earl v. Commonwealth, 356 Mass. 181, 248 N.E.2d 498.

2. The defendant moved for a mistrial at the conclusion of the prosecutor's closing argument because of certain remarks in that argument. He claims also that the judge's instructions to the jury did not adequately cure the prejudicial effect of these remarks.

The defendant is quite justified in objecting to certain portions of the prosecutor's closing argument. It was clearly improper for the prosecutor to state, 'They (the defendant and his counsel) said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.' It was further improper for the prosecutor to state at another point his personal belief of the guilt of the accused. Am. Bar Assn. Canons of Professional Ethics, Canon 15. Commonwealth v. Mercier, 257 Mass. 353, 376--377, 153 N.E. 834. Commonwealth v. Cooper, 264 Mass. 368, 374, 162 N.E. 733. Greenberg v. United States, 280 F.2d 472, 474--475 (1st Cir.). Harris v. United States, 131 U.S.App.D.C. 105, 402 F.2d 656, 658--659.

The prosecutor's argument as a whole, however, did not require a mistrial. The judge acted properly within his discretion in denying a mistrial and in relying on curative instructions to erase the error. Commonwealth v. Bellino, 320 Mass. 635, 644, 71 N.E.2d 411, and cases cited. The judge adequately guarded the defendant's rights in each instance.

Counsel immediately objected to the first statement cited above. Although the transcript at this point is not clear, ³ the judge was later at pains to point out that he recognized at the time that the argument was improper. The record suggests, as the judge said, that his statement to this effect was not heard over...