Com. v. Curtis

• Decision Date: 07 April 1983
• Citation: 448 N.E.2d 345,388 Mass. 637
• Parties: COMMONWEALTH v. Daniel J. CURTIS. (and two companion cases). 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 345

448 N.E.2d 345

388 Mass. 637

COMMONWEALTH v. Daniel J. CURTIS. (and two companion cases). ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Nov. 2, 1982.

Decided April 7, 1983.

William C. Madden, Boston, for Daniel J. Curtis.

Michael J. Traft, Asst. Dist. Atty. (Albert A. DeNapoli, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Alan Chapman, Boston, for Mark Giglio, submitted a brief.

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

LYNCH, Justice.

On December 30, 1980, the defendants Daniel J. Curtis and Mark J. Giglio were convicted by a jury of murder in the second degree in the beating death of Michael Robinson. The defendants were sentenced to life imprisonment. The defendants appeal from these convictions claiming that error was committed by the trial judge in (1) failing to grant immunity to a defense witness; (2) ruling that if the defendants testified at the hearing on their motion to have a defense witness immunized they would thereby waive their Fifth Amendment privilege against self-incrimination; and (3) failing to suppress a statement made by the defendant Mark Giglio after he was in the custody of the police. Additionally, the defendants appeal from the denial by a single justice of this court of their petition under G.L. c. 211, § 3, requesting a grant of immunity to a defense witness. We granted the defendants' application for direct appellate review of their convictions and consolidated their appeals with the appeal from the single justice's decision. We conclude that there was no error and affirm the convictions.

We summarize the evidence and the proceedings below relevant to these appeals. On the evening of July 14, 1980, Michael Robinson, a sailor assigned to the U.S.S. Edson, a ship under repair in the General Shipyard in East Boston, was beaten by a group of East Boston youths on Border Street in a brawl between some sailors and the youths. Robinson died eight days later from head injuries inflicted in that beating. The incident which precipitated the fray is a matter of dispute. Lenny T. Curtis, the brother of the defendant, Daniel Curtis, testified at the trial that on that evening he had been jostled and struck by one of the black sailors sitting outside the General Shipyard fence when he refused to give him a cigarette. A sailor who testified stated that Curtis walked by undisturbed by the sailors.

Curtis testified that after this alleged attack he told his friend, Eddie Colon, to "[g]o get my two brothers." Colon rode his bicycle toward the Central Square area of East Boston and saw the defendant, Mark Giglio, and two other friends, Michael Brulport and Joseph DeDominicis. Colon told them that "Lennie needs some help down there. Some sailors [are] bothering him." The four youths proceeded back to the place where the sailors were sitting.

The youths approached the sailors and began making abusive comments. ² Some white sailors, including Michael Robinson, joined the other sailors and told the youths to leave the sailors alone. At this point, a red Cadillac automobile driven by Louis Lepore arrived at the scene and stopped. Daniel Curtis was a passenger in this car. Giglio ran over to the car and told Curtis that his brother Lenny Curtis had been beaten "by those sailors over there." According to Giglio's testimony, some of the youths then ran over to Lepore's car and began taking bats from the trunk.

Sensing imminent trouble, the sailors began walking back to the shipyard. A gang of youths began chasing them. While fleeing, Michael Robinson either tripped and fell or was pushed to the ground. Two sailors, Seaman Tony Webb and Petty Officer Rickie Brandford, testified that they saw a number of the youths attack Robinson with baseball bats and a bottle. During the attack, Seaman Webb concentrated on one assailant. Webb later identified Daniel Curtis as this assailant from a police photo identification book, and subsequently repeated this identification at a District Court hearing, and at the trial. Eddie Colon, who had originally summoned the other youths, testified that he saw Mark Giglio strike Robinson with a bottle while Robinson was on the ground.

After attacking Robinson, the youths retreated and Webb and Brandford returned to help Robinson. The sailors found Robinson unconscious and bleeding from his head. The police and an ambulance arrived shortly thereafter and Robinson was taken to Massachusetts General Hospital. He was examined there by Dr. Tagi, the chief resident of neurosurgery. Dr. Tagi testified that the victim had sustained severe head injuries resulting in a minimum of ten fractures which were caused by at least five "very considerable" blows. The object that caused the injuries, the doctor stated, "was a blunt instrument wielded with an awful lot of force ... many times." These injuries, he stated, were consistent with those that could be inflicted with a baseball bat or a full bottle.

After a police investigation, the defendants Curtis and Lepore were called to the East Boston police station, where they both made statements. On July 22, Michael Robinson died of the injuries he sustained in the beating. The next day Curtis and Lepore were arraigned in the East Boston District Court for their involvement in the murder.

On August 7, 1980, a Suffolk County grand jury indicted Daniel J. Curtis, Mark J. Giglio, and Louis Lepore for murder in the first degree of Michael Robinson. On December 8, 1980, Giglio filed a substituted motion to suppress statements he made to the police on the grounds that they were obtained in violation of his Miranda rights and that any waiver of his rights which he had made was not voluntary. The judge denied this motion.

Prior to the start of the trial the defendants moved for the judge to order the prosecutor to seek a grant of immunity from prosecution, under the provisions of G.L. c. 233, §§ 20D and 20E, for Joseph DeDominicis, a prospective defense witness who had been present at the brawl. In support of this motion the defendant Curtis filed an affidavit stating that he saw another person named Richard Mazzone hit the victim with a baseball bat and that DeDominicis was in a position to observe this. The Commonwealth opposed the motion on the ground that it would interfere with an ongoing "John Doe" grand jury investigation into the possible participation of others in this crime. DeDominicis had been called before this grand jury and had invoked his privilege against self-incrimination.

At the hearing on this motion, DeDominicis again asserted his Fifth Amendment privilege on the advice of counsel. DeDominicis' lawyer told the judge that his client was seeking full transactional immunity from prosecution prior to his waiving his privilege against self-incrimination. Lepore's attorney on behalf of all the defendants then recited an offer of proof to the judge as to what DeDominicis would testify if granted immunity. Lepore's attorney stated that DeDominicis would testify to being present at the incident and seeing Richard Mazzone club the victim twice with a baseball bat. After hearing this offer of proof, the judge denied the motion.

On December 11, the defendants requested a single justice of this court to grant immunity to DeDominicis under G.L. c. 211, § 3. ³ After a hearing, the single justice reserved his decision until the Commonwealth's cases were presented at the trial so that he would be better able to determine whether the testimony of the witness would be necessary.

After the prosecution had completed its cases, the defendants filed another motion with the trial judge asking him to grant judicial immunity for DeDominicis under his "inherent" power to assure the defendants a fair trial. The judge conducted a voir dire hearing on this motion in which DeDominicis again claimed his Fifth Amendment privilege. The judge then met privately with the witness and his counsel. DeDominicis agreed to allow his attorney to relate to the judge what the substance of his testimony would be if he were granted immunity. At this conference the witness' counsel stated that DeDominicis would testify that he was able to see, at least during a portion of the fight, that Curtis and Giglio did not have weapons. Further DeDominicis would testify that he did not see who hit the victim but that he did see Mazzone standing over the victim with a bat in his hand. The judge denied this motion and ordered the transcript of the lobby conference impounded as well as his findings and rulings based on it.

Subsequently, the defendants renewed their petition before the single justice. The impounded material was delivered to the single justice, who examined it. He denied the defendants' petition. The impounded material eventually was released to the defendants' attorneys on June 7, 1982, by order of a single justice of this court.

1. The defendants' motions to immunize the witness DeDominicis. The defendants appeal from the denial by the judge of their motions for him either (a) to order the Commonwealth to seek a grant of immunity under G.L. c. 233, §§ 20D and 20E, for the prospective defense witness DeDominicis, because the witness would assert his Fifth Amendment right against self-incrimination if called to testify at trial or (b) to fashion a "judicial immunity" himself for the witness to preserve the defendants' rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and art. 12 of the Declaration of Rights of the Massachusetts Constitution. Although these motions seek the same result, they are based on distinct statutory and constitutional grounds and we shall discuss them separately.

a. The judge properly denied the defendants' motion to order the prosecutor to seek a grant of immunity under the statute. G.L. c. 233, §§ 20C and 20I. The statutory scheme provides no mechanism for a judge of the Superior Court to order the prosecutor to seek a...