Com. v. Ciminera

• Decision Date: 06 January 1981
• Parties: COMMONWEALTH v. Anthony CIMINERA (and two companion cases). 1
• Court: Appeals Court of Massachusetts

Page 366

414 N.E.2d 366

11 Mass.App.Ct. 101

COMMONWEALTH v. Anthony CIMINERA (and two companion cases). ¹

Appeals Court of Massachusetts, Norfolk.

Argued Oct. 9, 1980.

Decided Jan. 6, 1981.

Thomas P. McCusker, Jr., Westwood, for Anthony Ciminera.

John P. Courtney, Newton, for George Navikauskis.

John F. Sheehan, Providence, R.I., for David Jarjura.

Charles J. Hely, Asst. Dist. Atty. (Gerald M. Kirby, Asst. Dist. Atty., with him), for the Commonwealth.

Before BROWN, GREANEY and KASS, JJ.

KASS, Justice.

Each of the defendants was convicted of rape of the same young woman on the night of July 23, 1978. In the aggregate they make ten claims of error in the conduct of their trial and the disposition of certain post-trial motions.

1. Admission of testimony by the defendant Navikauskis of the use of marihuana. During cross-examination of the defendant Navikauskis, the prosecutor put the question: "Had you used any of that pot earlier in the evening?" Over objection, Navikauskis was allowed to answer, "Yes, I did." Navikauskis argues that this improperly introduced into the case a criminal offense of which he had not been convicted, which had no bearing on his guilt or innocence of rape, and which was highly prejudicial. See Commonwealth v. Spare, 353 Mass. 263, 267, 230 N.E.2d 798 (1967). In the instant case, however, the evidence was sought for the bearing it had on the ability of Navikauskis to remember the events of the night. As such, it was a proper question. Commonwealth v. Barber, 261 Mass. 281, 290, 158 N.E. 840 (1927) (use of alcohol by the witness has bearing on his ability to remember). Commonwealth v. Adrey, 376 Mass. ---, --- ^a, 383 N.E.2d 1110 (1978) (use of amphetamines by the witness has bearing on his memory). See Leach & Liacos, Handbook of Massachusetts Evidence 120 (4th ed. 1967). While the probative value of the use of marihuana in these circumstances was less than overpowering, the prejudicial effect likely to flow from it was weaker still. See Commonwealth v. Blow, 362 Mass. 196, 201, 285 N.E.2d 400 (1972). That the codefendants had marihuana in their possession and were talking about it had already been called to the jury's attention on two occasions by defense lawyers while they were cross-examining the victim. The defense, having opened the subject, is in a poor position to complain of the prosecution following it up. Commonwealth v. Doherty, 371 Mass. 413, 415-416, 357 N.E.2d 767 (1976). Commonwealth v. Coolbeth, 4 Mass.App. 855, 855-856, 357 N.E.2d 30 (1976).

Navikauskis seeks to differentiate his case from the general category of cases dealing with attacks on testimonial faculties on the ground that the answer required of him had the additional curse of requiring him to incriminate himself, thus violating his constitutional privilege not to do so. It is probably enough to say of this argument that Navikauskis never raised the privilege question at trial, and, therefore, cannot raise it for the first time on appeal. Commonwealth v. Johnson, 371 Mass. 862, 867, 359 N.E.2d 1286 (1977). Commonwealth v. Podlaski, 377 Mass. ---, --- n.4 ^b, 385 N.E.2d 1379 (1979). In any event, "(w)hen a defendant in a criminal proceeding voluntarily takes the stand to testify that act is a waiver of his entire privilege as to any facts material to the crime for which he is being tried." Blaisdell v. Commonwealth, 372 Mass. 753, 764, 364 N.E.2d 191 (1977). Commonwealth v. O'Connor, 7 Mass.App. ---, --- ^c, 387 N.E.2d 190 (1979). ²

2. Testimony of Margaret Sweeney. During the course of what, viewing the evidence most favorably to the Commonwealth, was a fairly wild night for the defendants, they stopped at about 3:50 A.M. at a self-service gasoline station attended by Margaret Sweeney. She was allowed to testify that the defendants had arrived in a green Pontiac LeMans automobile; that Ciminera, Jarjura and Navikauskis got out of the car; that Navikauskis asked her for oil; and that the other two defendants also approached the booth where she was working. This testimony came in for the purpose of identifying the defendants and placing them in the general vicinity of the rapes and the place of their subsequent arrest. It was agreed among counsel and the judge that Sweeney was to testify only for purposes of identification and that the subject of a crime (at trial thought to be an armed robbery; see part 4, infra ) having been committed at the gas station by the defendants was to be avoided. Sweeney was allowed to testify that immediately following the defendants' departure from the gas station, she called the police. This laid the foundation for testimony by the arresting officer, a town policeman, as to how he came to detain the defendants before the State police had even received a complaint that the rape had occurred.

Once the relevance of Sweeney's telephone call to the police is established, it does not become inadmissible because it might tend to prove the commission of another crime. Commonwealth v. Eagan, 357 Mass. 585, 589-590, 259 N.E.2d 548 (1970). Commonwealth v. Caine, 366 Mass. 366, 370-371, 318 N.E.2d 901 (1974). Commonwealth v. Kines, 5 Mass.App. 632, 634, 367 N.E.2d 861 (1977), cert. denied, 434 U.S. 1076, 98 S.Ct. 1267, 55 L.Ed.2d 783 (1978). See also Commonwealth v. Lamoureux, 348 Mass. 390, 393-394, 204 N.E.2d 115 (1965). The Commonwealth may introduce evidence which aids the jury by giving them a total picture, including a description of the circumstances under which the crime was committed. Commonwealth v. Campbell, 5 Mass.App. 571, 588, 366 N.E.2d 44 (1977). Against the possibility that Sweeney's testimony had prejudicial effect, the judge instructed the jury immediately following her testimony that "its only significance is on the issue of the identification of the defendants in relation to the charges before the jury. And that is all. The jury will not consider her testimony as having anything to do with any other case." The jurors are expected to follow instructions as to matters withdrawn from their consideration. See Commonwealth v. Eagan, 357 Mass. at 589, 259 N.E.2d 548.

The defendants Ciminera and Jarjura argue, however, that the judge's instruction made matters worse by implying that the defendants were charged with another crime. No objection was taken to the instruction. If the concluding phrase was infelicitous, it was a sufficiently subtle error as not to create a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). We are particularly disinclined to credit the likelihood that the jury might have been misled because after the testimony of the arresting officer, which followed hard on Sweeney's, the judge again instructed on the limited purpose, i. e., identification, of the evidence being received. See Commonwealth v. Hanscomb, 367 Mass. 726, 731, 328 N.E.2d 880 (1975); Commonwealth v. Smith, 3 Mass.App. 795, 338 N.E.2d 559 (1975). Contrast Commonwealth v. Wood, --- Mass.App. ---, --- - --- ^d, 388 N.E.2d 330 (1979), Id., --- Mass. --- ^e, 404 N.E.2d 1223 (1980).

3. Motions to sever. Ciminera and Jarjura argue there was error in the denial of their motions to sever their trials from that of Timothy McLaughlin. This motion developed when three of the defendants undertook to stipulate Sweeney's identification testimony, but McLaughlin would not, because he wanted to inquire whether Sweeney had observed him asleep in the car at that time. Motions to sever are addressed to the discretion of the trial judge and no abuse of discretion is apparent to us in the judge's disposition of the motion. The defendants acted together throughout their escapade and the evidence tended to affect them in common. Commonwealth v. Cruz, 373 Mass. 676, 690, 369 N.E.2d 996 (1977). Commonwealth v. Hogan, 7 Mass.App ---, --- ^f, 387 N.E.2d 158 (1979), and cases cited.

4. Motion for a new trial based on Sweeney's false testimony. The offense which the gas station attendant Sweeney had reported to the police was an armed robbery. Subsequent to the conviction of the defendants of rape and prior to the start of a trial on the charges of armed robbery, Sweeney substantially changed her story. The defendants, she said, had indeed stolen a bag of money, but had not used any weapons or threat of force. Sweeney said that she had reported the theft as having occurred at gunpoint because, under her employer's rules, she should not have let the defendants into the attendant's enclosure, and she was fearful that this infraction might cost her the job.

Sweeney's revised version of the events of that night spared the defendants a trial for armed robbery; it is hard to see that it has any bearing on their trial for rape since Sweeney never testified at trial that a robbery had occurred. Her false testimony occurred at a suppression hearing. The defendants cannot claim to be prejudiced by a story that Sweeney never told the jury. The inference that something had happened at the gas station which caused her to call the police was as accurate under the true version as the false one. In effect, what the defendants are offering as a basis for their motion for a new trial is a claim of newly discovered evidence. We have recently had occasion in Commonwealth v. Markham, --- Mass.App. ---, --- ^g, 411 N.E.2d 494 (1980), to consider the standards which a trial judge is to apply in acting on a motion for new trial based on newly discovered evidence. Having those standards in mind, we think the trial judge acted correctly in denying the motion. It is hardly plausible that a jury exposed to the facts of the defendants' larceny would have reached a different conclusion.

As an alternate ground for a new trial the defendants argue that the trial judge so severely limited their cross-examination of Sweeney that he in effect deprived them of their right of confrontation of witnesses under the Sixth Amendment. Commonwealth v. Cook, --- Mass. ---, --- ^h, ...