Com. v. Colantonio

• Decision Date: 29 August 1991
• Docket Number: 90-P-1265,Nos. 89-P-364,s. 89-P-364
• Citation: 31 Mass.App.Ct. 299,577 N.E.2d 314
• Parties: COMMONWEALTH v. James COLANTONIO.
• Court: Appeals Court of Massachusetts

Page 314

577 N.E.2d 314

31 Mass.App.Ct. 299

COMMONWEALTH v. James COLANTONIO.

Nos. 89-P-364, 90-P-1265.

Appeals Court of Massachusetts,

Suffolk.

Argued May 9, 1991.

Decided Aug. 29, 1991.

Frank L. Bruno, Winthrop, for defendant.

Mark D. Zanini, Asst. Dist. Atty., for Com.

Before WARNER, C.J., and GILLERMAN and IRELAND, JJ.

WARNER, Chief Justice.

During a confrontation near the Jeffries Point Yacht Club in East Boston, the defendant killed William Moran by striking him on the head with a baseball bat. He was indicted for first degree murder along with James All. At trial, the defendant testified that he struck Moran with the bat because he believed Moran was reaching for a knife during an altercation with All, the defendant's friend. The defendant tried to strike Moran on the shoulder, but Moran ducked, and the bat hit him on the side of the head. A Superior Court jury convicted the defendant of second degree murder. He appealed, and new counsel filed a motion for a new trial. The motion was denied after a hearing. This is a consolidated appeal from the defendant's conviction and from the denial of his motion for a new trial.

The New Trial Motion.

The defendant's motion was grounded on All's refusal, based on his privilege against self-incrimination under the Fifth Amendment to the United States Constitution, to testify for the defense at trial. All pleaded guilty to manslaughter on the first day of his and the defendant's trial. His plea was accepted, and his sentencing was postponed. The defendant claims that he is entitled to a new trial for three reasons. (1) All's potential testimony constitutes newly-discovered evidence because All, having been sentenced at the time of the new trial motion, could no longer invoke his privilege against self-incrimination to avoid testifying at a new trial. All's testimony, the defendant asserts, would bolster his unsuccessful claim that he acted in defense of another. (2) The Commonwealth exercised improper influence over All's availability as a witness by agreeing to his guilty plea before the defendant's trial and to the postponement of sentencing until afterward. (3) The defendant's trial counsel provided ineffective assistance by failing to introduce as evidence at trial a statement All had given to the police. The defendant's motion was accompanied by a supporting affidavit consisting of a statement by his new attorney asserting his belief that if All were to testify, his testimony would be favorable to the defendant. ¹

"A trial judge upon motion in writing may grant a new trial if it appears that justice may not have been done. Mass.R.Crim.P. 30(b), 378 Mass. 900 (1969). A motion for new trial is addressed to the sound discretion of the judge, and the judge's disposition of the motion will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error. Reversal for abuse of discretion is particularly rare where the judge acting on the motion was also the trial judge" (citations omitted). Commonwealth v. Moore, 408 Mass. 117, 125, 556 N.E.2d 392 (1990). ²

To succeed in his claim that he is entitled to a new trial in order to present All's potential testimony, the defendant "must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305, 491 N.E.2d 246 (1986). The motion judge correctly found that no showing had been made that All would provide material testimony. ³ The defendant's motion was not accompanied by an affidavit stating what All's testimony would be or whether he would be willing to testify. See Commonwealth v. Tobin, 392 Mass. 604, 618-619, 467 N.E.2d 826 (1984); Commonwealth v. Buckley, 6 Mass.App.Ct. 922, 923, 380 N.E.2d 720 (1978); Commonwealth v. Crowe, 21 Mass.App.Ct. 456, 487, 488 N.E.2d 780 (1986). In light of the defendant's failure to demonstrate that All's testimony "would probably have been a real factor in the jury's deliberations," Commonwealth v. Grace, supra, 397 Mass. at 306, 491 N.E.2d 246, the motion judge did not consider, and we need not, whether such testimony could properly be considered "newly discovered" under Mass.R.Crim.P. 30(b). See Commonwealth v. Toney, 385 Mass. 575, 580, 433 N.E.2d 425 (1982). ⁴

The defendant claims that he was deprived of his right to present a defense, his right to compulsory process, and his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution, because the Commonwealth improperly influenced All's availability as a witness. ⁵ To substantiate these claims, the defendant must show that the prosecution's actions caused a loss of material and favorable testimony. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867-872, 102 S.Ct. 3440, 3446-49, 73 L.Ed.2d 1193 (1982); United States v. Hoffman, 832 F.2d 1299, 1303 (1st Cir.1987); Commonwealth v. Crawford, 12 Mass.App.Ct. 776, 782-784, 429 N.E.2d 54 (1981); Commonwealth v. Snook, 28 Mass.App.Ct. 955, 957-959, 551 N.E.2d 61 (1990). Cf. Commonwealth v. Pisa, 372 Mass. 590, 593-597, 363 N.E.2d 245 cert. denied, 434 U.S. 869, 98 S.Ct. 210, 54 L.Ed.2d 147 (1977). The defendant has failed to demonstrate that any action of the prosecutor influenced All's decision not to testify. He has not shown that it was, in fact, the Commonwealth that moved for the postponement of All's sentencing. ⁶ The fact that the prosecutor stated that he might call All as a rebuttal witness, after All had earlier refused to testify for the defense, does not demonstrate that the Commonwealth wielded an improper influence over All. Furthermore, as we have said, the defendant has made no showing that All's testimony would have been material and exculpatory. The motion judge correctly found that the defendant had not substantiated his claims in these respects.

Likewise, the judge correctly found that trial counsel's failure to attempt to have All's statement to the police admitted in evidence did not constitute ineffective assistance. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974) (the court must determine "whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence"). The judge determined that "All's statement, although somewhat supportive of Colantonio's claim of self-defense, also contained information that was damaging to Colantonio." ⁷ She further observed that All's statement would have had limited corroborative value because All was the defendant's friend and an alleged participant in the crime who had pleaded guilty. As the judge concluded, the decision not to attempt to introduce All's statement was not a "manifestly unreasonable trial tactic." ⁸ See Commonwealth v. Callahan, 401 Mass. 627, 634-635, 519 N.E.2d 245 (1988). The judge properly exercised her discretion in denying the defendant's motion for a new trial.

The Direct Appeal.

The defendant asserts numerous grounds of error.

1. All's assertion of his Fifth Amendment privilege. The defendant contends that the trial judge erred in permitting All to invoke his Fifth Amendment privilege against self-incrimination, thereby violating the defendant's rights under the Federal and State Constitutions and a State statute. ⁹ At the time All refused to testify for the defense, he had been indicted for first degree murder and his guilty plea to manslaughter had been accepted by the judge. The trial judge ruled that All had a valid Fifth Amendment privilege. Defense counsel agreed. The defendant now argues that because All's guilty plea to manslaughter had already been accepted, his testimony could not have incriminated him and that it was therefore error to permit him to invoke a Fifth Amendment privilege not to testify.

"We apply Federal standards to determine whether a claim of privilege is justified. Under those standards, a refusal to testify on Fifth Amendment grounds must be upheld unless it is ' "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency" to incriminate.' The privilege 'not only extends to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant' " (emphasis in original, citations omitted). Commonwealth v. Borans, 388 Mass. 453, 456, 446 N.E.2d 703 (1983), quoting in part from Hoffman v. United States, 341 U.S. 479, 486, 488, 71 S.Ct. 814, 818, 819, 95 L.Ed. 1118 (1951). A witness who may be "effectively immunized from further prosecution by his prior conviction[ ] ... 'does not lose his Fifth Amendment right to refuse to testify concerning other matters or transactions not included in his conviction. Furthermore, neither a practical unlikelihood of prosecution nor the prosecutor's denial of an intention to prosecute negates an otherwise proper invocation of the Fifth Amendment' " (citations omitted). Commonwealth v. Borans, supra at 459, 446 N.E.2d 703. Moreover, we do not " 'balance' [a defendant's] rights under the Sixth Amendment against his witness's decision to invoke the Fifth Amendment. Rather, we examine the record only to determine the propriety of the witness's refusal to testify on Fifth Amendment grounds." Commonwealth v. Francis, 375 Mass. 211, 215, 375 N.E.2d 1221, cert. denied, 439 U.S. 872, 99 S.Ct. 205, 58 L.Ed.2d 185 (1978).

Although All's testimony could not expose him to prosecution for the crime to which he had pleaded guilty, testimony concerning the episode could expose him to prosecution for a related crime, such as conspiracy. See Commonwealth v....