Com. v. Cinelli

Decision Date16 May 1983
Citation389 Mass. 197,449 N.E.2d 1207
PartiesCOMMONWEALTH v. Arthur J. CINELLI (and seven companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Edward J. McCormick, III, Westwood, for Arthur J. Cinelli.

James S. Gallagher, Brookline, for Rocco Costa.

Carmel A.J. Motherway, Asst. Dist. Atty., for the Commonwealth.

Thomas G. Shapiro, Boston, for Mass., Assn. of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Judge.

The defendants were convicted by a jury on October 21, 1981, of armed robbery, armed assault with intent to murder, unlawful carrying of a firearm, 2 and assault and battery with a dangerous weapon. The convictions arise out of the armed robbery and shooting of Sergeant Richard McGlynn, a Medford police officer, on May 2, 1981, outside the offices of BayBank/Middlesex on Mystic Avenue in Medford. The defendant Cinelli received a sentence of from twenty to twenty-five years at the Massachusetts Correctional Institution at Walpole for armed robbery and concurrent sentences on the remaining indictments. The defendant Costa received a sentence of from eight to twelve years for armed robbery and concurrent sentences on the remaining indictments. The defendants appealed, and we granted Cinelli's application for direct appellate review.

Costa claims error in that (1) the trial judge denied his motions for required findings of not guilty and for relief under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), and that (2) a motion judge of the Superior Court ordered him to shave his beard in preparation for a court supervised lineup. Cinelli claims error in that (1) the indictments should have been dismissed under our decision in Commonwealth v. Manning, 373 Mass. 438, 367 N.E.2d 635 (1977), (2) certain statements he made to the police should have been suppressed, and (3) certain property seized during a search of his home under a search warrant should have been suppressed. 3 Both defendants also argue that the Commonwealth's refusal to disclose certain evidence violated the mandates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the convictions.

1. Evidence. There was evidence of the following facts. Shortly after 6 P.M. on May 2, 1981, McGlynn, carrying two night deposit bags containing more than $20,000 in cash and checks, proceeded to the office of BayBank/Middlesex on Mystic Avenue, Medford, and parked his vehicle near the night depository. As he inserted the key into the night depository, an automobile carrying two men drove up behind him. The passenger displayed a handgun and demanded the deposit bags. McGlynn reached for his service revolver. Shots were fired, and McGlynn was struck twice. The passenger seized the bags and got back inside the automobile. Several more shots were exchanged. 4 The assailants then drove off toward the intersection of Harvard and Mystic Avenues. They abandoned the vehicle one-half mile from the bank. It was later determined that the automobile used by the assailants had been stolen from the Beachmont MBTA station in Revere, several miles from the residences of the defendants.

On May 2, 1981, Robin Mullen and several friends, Teresa Rago, Maria Rago, Carla Pagliucia, George Ferraira, Jr., and Stephen Taglieri were gathered at Mullen's house at 15 Bennett Street in Medford. At approximately 4 P.M., Costa telephoned the house. Teresa Rago volunteered to escort Cinelli and him from the nearby parking lot of Grossman's Lumber to the Mullen house. Teresa drove to the lot and found the defendants seated in a black Fiat automobile facing the BayBank/Middlesex office on Mystic Avenue. Teresa signaled to them, and they followed her to Mullen's house.

After the arrival of the defendants, some members of the group watched various television shows, the last of which commenced at 6 P.M. At some point, the defendants left. They arrived together at the Royal Auto Body Shop in Malden between 6:30 P.M. and 6:45 P.M.

The Commonwealth presented three witnesses, Teresa Rago, Carla Pagliucia, and Robin Mullen, who testified that the defendants left the house at about 6 P.M. They testified that Costa was then wearing mirrored sunglasses and a dungaree jacket with the collar turned up and had a beard of some sort.

The victim, McGlynn, testified that, while he did not have an opportunity to observe the driver of the automobile, he had a clear view of the passenger. He described the passenger as a well built male, approximately twenty-one years old, with a full face, wearing a light colored "scally" cap. He testified that he was "[a]bsolutely certain" that Cinelli was that man. 5

Two other witnesses also identified Cinelli as the passenger. Janice Gaudet testified that, while she was stopped at the intersection of Harvard and Mystic Avenues at about the time of the robbery, the assailants' vehicle veered within a few feet of her vehicle at a speed of fifty to sixty miles an hour. Gaudet identified Cinelli as the passenger, with 70% certainty. 6 She also described the driver and stated that the driver was wearing mirrored sunglasses and a jacket "zipped all the way up." She could not make an identification at trial. While she stated that Costa resembled the driver, she testified that she would rule him out if it were shown that he had a beard on May 2.

Another witness, Kevin Poirear, said that he had an opportunity to observe the assailants briefly as their automobile raced through the intersection of Harvard and Mystic Avenues. He testified that the driver had black hair, olive complexion, a clean shaven face, and was not wearing sunglasses. Poirear identified Costa as the driver, but stated later that he would disqualify Costa as a suspect if it were shown that Costa had a full black beard on May 2. Poirear also testified that he caught a fleeting glimpse of the passenger and identified Cinelli as the passenger. 7

The Commonwealth also introduced evidence of certain incriminating statements made by Costa. Teresa Rago testified, and Costa admitted, that on May 10, 1981, Costa was angry that she had told other persons that he and Cinelli were in Medford together at 6 P.M. Louise Marini, Costa's girl friend at the time of the robbery, testified that Costa expressed concern that he would be arrested and stated that the eyeglasses in a composite published in a newspaper could have been sunglasses.

The Commonwealth also introduced in evidence statements made by the defendants to the police at the time of their respective arrests. Lieutenant Leo A. Sacco of the Medford police department testified that Cinelli stated that, while he had been with Costa at the Royal Auto Body Shop earlier in the day, he was with Judith Luciano at the time of the robbery. John Brady, a Medford police officer, testified that Costa first denied being in Medford on May 2. 8 Brady also testified that, after he identified himself, Costa stated, "You're McGlynn's partner. If you want to kill me, I know where you're coming from."

The defendants sought to establish a defense of alibi. Costa testified that he and Cinelli met Teresa Rago in the Grossman's Lumber parking lot across from the BayBank/Middlesex office and proceeded to Mullen's house. He stated that they left shortly after 5 P.M. and went directly to Costa's house in Revere, arriving at 5:30 P.M. Although it appeared that it was about to rain, he said that they washed Cinelli's automobile. They then departed for the Royal Auto Body Shop at approximately 6:10 P.M. Costa stated that he was with Cinelli from 4 P.M. to 7 P.M. on May 2. Cinelli did not testify.

Several witnesses corroborated Costa's testimony. Stephen Taglieri testified that two men who resembled the defendants arrived at Mullen's house some time in the afternoon and left around 5 P.M. George Ferraira testified that two men who may or may not have resembled the defendants arrived at Mullen's house and left at approximately 5 P.M. He stated that he departed with Taglieri at about 6 P.M.

Three witnesses also testified that the defendants were outside Costa's house in Revere washing Cinelli's Fiat automobile at 5:30 P.M. on May 2. Robert C. Anderson, Jr., testified that he looked out of his window and saw the defendants washing the automobile. He recalled the weather as being clear and sunny with some clouds at the time. Frank Bramante testified that he talked with the defendants while they were washing the automobile. He stated that it appeared that it was going to rain. Lucille Bramante testified that she heard her husband talking with Costa at 5:45 P.M. Costa's grandmother also testified that on May 2 the defendants arrived at her house in Revere between 5:15 and 5:20 P.M. and then washed the automobile. She stated that they left the house at 6:10 P.M.

2. Sufficiency of the evidence. Costa argues that the judge erred by not entering required findings of not guilty. In reviewing the propriety of the denial of a motion for required findings of not guilty, we examine the record to determine whether the evidence, read in a light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crimes beyond a reasonable doubt. Commonwealth v. Hill, 387 Mass. 619, 623-624, 442 N.E.2d 24 (1982). Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979).

Essentially, Costa contends that the failure of the Commonwealth to produce a witness who would definitely identify him as the driver of the assailants' vehicle rendered its case defective. 9 We conclude, however, that the Commonwealth produced ample evidence indicating that Costa participated in the robbery. It is undisputed that, two hours before the robbery, the defendants were parked across from the BayBank/Middlesex office, and had an opportunity to plan their deeds. Three witnesses testified that ...

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