Com. v. Cook

• Decision Date: 02 April 1980
• Parties: COMMONWEALTH v. Vernard COOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 363

403 N.E.2d 363

380 Mass. 314

COMMONWEALTH v. Vernard COOK.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1979.

Decided April 2, 1980.

Thomas J. Mundy, Asst. Dist. Atty., for the Commonwealth.

Roger Witkin, Boston, for defendant.

Before HENNESSEY, C. J., and QUIRICO, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

This is a petition by the Commonwealth under G.L. c. 211, § 3, for relief from the action of a judge of the Superior Court in allowing the defendant's motion for new trial under G.L. c. 278, § 29. ¹ A single justice of this court denied the Commonwealth relief and ordered the petition dismissed. The case is before us on the Commonwealth's appeal from the judgment of dismissal. We affirm the judgment.

The defendant, Vernard Cook, was convicted of murder in the first degree and related offenses, ² by a jury on June 12, 1973, and appealed therefrom to this court. We affirmed his conviction by our opinion in Commonwealth v. Cook, 364 Mass. 767, 308 N.E.2d 508 (1974). For a summary of the evidence presented at Cook's trial, see id. at 768-769, 308 N.E.2d 508. In addition to reviewing Cook's assignments of error on direct appeal, we reviewed the record and transcript pursuant to our powers under G.L. c. 278, § 33E, and held that "(j) ustice does not require a new trial or the entry of a verdict of a lesser degree of guilt on any of the indictments." Id. at 772-773, 308 N.E.2d at 511. The point now raised was not argued in the prior appeal and was not discussed by this court in its opinion.

On December 16, 1976, Cook filed a pro se motion for a new trial, and a judge of the Superior Court appointed new counsel to represent him thereon. On February 28, 1977, the new counsel filed a substitute motion for a new trial, on the grounds of ineffective assistance of counsel, and judicial and prosecutorial overreaching. The judge who had presided over the original trial had retired, so the motion was heard by another judge of the Superior Court (motion judge). Hearings on the motion were held on December 21, 1977, and again on March 2, 1979; the delay between the two hearings being due to the unavailability of a witness. The original trial counsel for Cook and the prosecutor for the Commonwealth testified. On May 14, 1979, the motion judge filed Findings, Rulings and Order granting Cook's motion.

The Commonwealth sought relief from that decision and order by the present petition under G.L. c. 211, § 3. The single justice who heard the petition filed a memorandum in which he "assume(d), without deciding, that the Commonwealth may seek relief under G.L. c. 211, § 3, from the granting of a motion for a new trial," and ruled that "(a)lthough the circumstances do not seem to have required the allowance of the motion . . . I cannot rule that the allowance . . . was an abuse of discretion." The Commonwealth is appealing from that decision of the single justice.

After the parties argued before this court, Cook's counsel filed a "suggestion of mootness," because Cook had earlier escaped from prison and his whereabouts were still unknown. A fugitive from justice cannot pursue an appeal, because "(b)y his voluntary act, which renders him unavailable to await the decision of the court, he has waived appellate rights." Commonwealth v. Rezendes, 353 Mass. 228, 228, 230 N.E.2d 647, 647 (1967). We see no reason to deprive the Commonwealth of appeal because of the act of the defendant, however. The Commonwealth is entitled to a determination of what its rights will be should Cook be apprehended or otherwise return to Massachusetts.

The facts forming the basis for the motion for a new trial were, in broad outline, as follows. During Cook's trial, the prosecutor called to the stand Joseph Andrews, Cook's coparticipant in the crime, whose trial had been severed under the Bruton rule. ³ Andrews testified, but, as to all but innocuous questions, he refused to answer on the ground that his answers might tend to incriminate him. Cook's trial counsel did not at any point object, except, request a voir dire, or request a jury instruction.

A somewhat more lengthy recapitulation of the Andrews episode is necessary to provide the proper factual context for the ruling of the motion judge. The evidence against Cook at his trial was, as we noted on direct appeal, largely circumstantial. Cook, supra, 364 Mass. at 772, 308 N.E.2d 508. ⁴ The prosecutor told the jury in his opening statement that Cook and Andrews were alleged to have committed the robbery and murder. Before Andrews was called to the stand, other eyewitnesses had testified that a tall man and a short man participated in the robbery. ⁵ As soon as Andrews was sworn as a witness but before he took the stand, he said, "I don't want to say anything." His own attorney immediately advised him that he had a right to refuse to answer any question the prosecutor might ask. At that point in the trial neither the judge, nor the prosecutor, nor Cook's trial counsel did anything to explore whether Andrews intended to invoke his privilege against self-incrimination. The judge simply stated: "He may take the stand." Andrews answered several preliminary questions, including his name, the fact that he was then in custody at Charles Street jail, ⁶ that he had known Cook for eight or nine years, and that he, Andrews, lived one block from Humboldt Avenue. An eyewitness to the escape had earlier testified that at some time after the robbery he identified the escape car which was then parked on Humboldt Avenue.

When the prosecutor asked Andrews, "(d)id you see the defendant back on December 20th, 1972" (the date of the robbery), Andrews pleaded the Fifth Amendment and refused to answer on the ground that he might incriminate himself. He gave the same answer when asked whether or not Vernard Cook was the owner of an automobile during the month of December, 1972.

When asked if he knew Sergeant Whalen (to whom he had made a confession), Andrews replied that he had seen him before. The prosecutor then asked if Andrews had ever spoken to Whalen, and Andrews invoked the privilege against self-incrimination. After several further questions, in response to many of which Andrews invoked the same privilege, the prosecutor showed Andrews "this piece of paper" and asked him to read it to himself. He next asked Andrews if he had read enough of the document to recognize it, and Andrews answered in the affirmative. The prosecutor asked if the paper was "a stenographic copy of the statement that you gave to Sergeant Whalen," whereupon Andrews again invoked the same privilege. Direct examination then ceased. Cook's trial counsel asked one question (which the motion judge in his findings characterized as "meaningless"): "Sir, have you ever seen or talked to me?" The witness answered that he had not.

The evidence presented at the hearing on the motion for new trial revealed that there had been preliminary negotiations before Cook's trial for a plea arrangement for Andrews. Both the Cook and the Andrews prosecutions were being handled by the same assistant district attorney. The prosecutor testified that he had a strong case of murder in the first degree against Andrews including a confession made after full Miranda warnings, and that he had offered to accept a plea to murder in the second degree from him in exchange for his testimony against Cook. No agreement was ever reached, however, and when the prosecutor called Andrews to testify at the Cook trial, he did not know whether Andrews would testify fully or invoke his privilege. Andrews' attorney testified that he suggested to the prosecutor that he call Andrews. Cook's trial counsel testified that he had failed to take any action regarding the Andrews episode because he was unaware at the time of any legal basis for doing so.

The contents of Andrews' confession never reached the jury, so there was no per se violation of Bruton, supra, or of Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The motion judge ruled, however, that the incident taken as a whole, with inferences the jury might have drawn from Andrews' refusal to answer certain questions, "added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant," quoting from Namet v. United States, 373 U.S. 179, 187, 83 S.Ct. 1151, 1155, 10 L.Ed.2d 278 (1962). He found that the prosecutor "consciously (came) close to the edge of committing a Bruton and Douglas error . . . (and) in effect, denied confrontation to the defendant." Accordingly, he granted Cook a new trial.

1. Propriety of review under G.L. c. 211, § 3. General Laws c. 211, § 3, as amended through St.1973, c. 1114, § 44, provides in pertinent part: "The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided . . .." The order of the Superior Court judge is not appealable under G.L. c. 278, § 28E, governing interlocutory appeals. Commonwealth v. Mc Carthy, --- Mass. ---, --- ^a, 378 N.E.2d 429 (1978). ⁷ Cook argues that the Commonwealth has a remedy under G.L. c. 278, § 33E. He cites no case, however, construing § 33E as providing a remedy to the Commonwealth in the case of the grant of a motion under G.L. c. 278, § 29. See G.L. c. 278, § 33E. ⁸

The fact that the Commonwealth has no other remedy does not make c. 211, § 3 review automatic, however. We have rarely allowed Commonwealth appeals of interlocutory matters under our supervisory powers. See McCarthy, supra at --- ^b, 378 N.E.2d 429; Commonwealth v. Frado, 372 Mass. 866, 866, 362 N.E.2d 206 (1977). ⁹ We will review interlocutory matters in criminal cases only when "substantial claims" of "irremediable" error are presented, Beckman v. Commonwealth, --- Mass. ---, --- ^c, 388 N.E.2d 678 (1979), and only in "exceptional circumstances," ...