Com. v. DeChristoforo

• Decision Date: 30 August 1976
• Citation: 371 Mass. 26,353 N.E.2d 769
• Parties: COMMONWEALTH v. Benjamin A. DeCHRISTOFORO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 769

353 N.E.2d 769

371 Mass. 26

COMMONWEALTH

v. Benjamin A. DeCHRISTOFORO.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 2, 1976.

Decided Aug. 30, 1976.

Paul T. Smith, Boston (Jeffrey M. Smith, Boston, with him), for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty. (Alan L. Kovacs, Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER & WILKINS, JJ.

QUIRICO, Justice.

On April 30, 1969, the defendant was convicted in the Superior Court of murder in the first degree and of illegal possession of firearms. The jury recommended that the death penalty not be imposed and he was sentenced to imprisonment for life on the murder conviction. His convictions were affirmed by this court on December 7, 1971, in Commonwealth v. De Christoforo, 360 Mass. 531, 277 N.E.2d 100, (1971). The case is now before us on the defendant's appeal from the denial of his third motion for a new trial in which he alleges that he was prejudiced at the trial because he was denied access to the transcript of the testimony of a police officer before the grand jury, and because of improper remarks by the prosecutor in his closing argument to the jury. He argues in his brief that because of the alleged errors, 'the trial judge had no discretion to deny the defendant's motion for a new trial,' and he concludes by requesting 'that in any case, this Court, in the exercise of its powers under G.L. (Ter.Ed.) c. 278, § 33E, 'order a new trial."

We hold that there was no error in the trial judge's denial of the defendant's motion for a new trial and that we should not grant any relief under G.L. c. 278, § 33E.

A. SUMMARY OF PRIOR PROCEEDINGS.

A brief summary of the many prior proceedings relating to this case may help to furnish some background to the present appeal. However, the evidence which was presented at the defendant's trial and which resulted in his convictions in the Superior Court is already summarized in our opinion in Commonwealth v. De. Christoforo, supra at 532--534, 277 N.E.2d 100, and need not be repeated here.

1. After the defendant was convicted by the jury he filed a motion for a new trial based on a claim of newly discovered evidence and that motion was denied. It is of no further significance in the present appeal. The issues on which the defendant sought review by this court and which were decided in 360 Mass. 531, 277 N,.e.2d 100, included the following of present significance: (a) the trial judge's denial of his motions for inspection of the minutes of the testimony of a Medford police officer (Carr) before the indicting grand jury, and (b) the judge's denial of a motion for a mistrial because of certain remarks by the prosecutor to the jury in his closing argument. We upheld the trial judge on all issues raised by the appeal, and affirmed the judgment on each indictment.

2. As to the grand jury minutes we held (at 534--536, 277 N.E.2d 100) that under our case law at that time the defendant was required to show a 'particularized need' for the minutes, that he had not made such a showing, and that the motions to inspect the minutes were therefore properly denied. Commonwealth v. Doherty, 353 Mass. 197, 209--210, 229 N.E.2d 267 (1967), cert. denied, 390 U.S. 982, 88 S.Ct. 1106, 19 L.Ed.2d 1280 (1968), overruled on other grounds on Connor v. Commonwealth, 363 Mass. 572, 296 N.E.2d 172 (1973). Commonwealth v. Ladetto, 349 Mass. 237, 244--245, 207 N.E.2d 536 (1965). We also noted (360 Mass. at 536 n.2, 277 N.E.2d 100) that since the defendant had failed to have the minutes produced and marked for identification and incorporation in the record on appeal we would not speculate on whether they contained anything which might be helpful to the defendant. We then added (at 536, 277 N.E.2d 104) that our action did not preclude the defendant from again moving for a new trial 'at the hearing on which he may, by proper action, compel the production of Officer Carr's grand jury testimony for determination by the trial judge whether such testimony was in any way inconsistent with his testimony at the trial.' ¹

3. As to the alleged improper remarks to the jury by the prosecutor in his closing argument we held (at 536--539, 277 N.E.2d at 105) that, although the remarks were improper, '(t)he judge acted properly within his discretion in denying a mistrial and in relying on curative instructions (to the jury) to erase the error.'

4. On January 12, 1972, the defendant filed a second motion for a new trial, and the motion was denied on May 26, 1972. This motion apparently was made pursuant to the language contained in the last sentence of par. 2 above which was quoted from our opinion of December 7, 1971, in Commonwealth v. De Christoforo, 360 Mass. 531, 536, 277 N.E.2d 100 (1971). By this motion the defendant again sought access to the grand jury minutes of Carr's testimony, and the judge, after reading the minutes, stated that he saw no 'particularized need' to permit the defendant to examine them, refused to incorporate them in the record, and denied the motion. The defendant made no attempt to obtain appellate review of the denial of this motion.

5. At this point the defendant, instead of seeking appellate review of the denial of his second motion for a new trial, sought relief in the Federal Courts. He filed a petition in the United States District Court for the District of Massachusetts for a writ of habeas corpus contending that he had been denied a fair trial in the Superior Court because of the judge's denial (a) of his motions for access to the grand jury minutes and (b) of his motion for a mistrial based on the prosecutor's improper remarks in final argument to the jury. As to the grand jury minutes the United States District Court judge denied relief on the ground that the defendant had not appealed from the trial judge's denial of his second motion for a new trial (see par. 4 above) and therefore he 'had not exhausted available state remedies" and as to the prosecutor's remarks he denied relief on the ground that the remarks 'were not so prejudicial as to deprive the (defendant) of his constitutional right to a fair trial.' The petition was denied. DeChristoforo v. Donnelly, Misc.Civil No. 72--96--G (D.Mass.1972).

The defendant appealed from the denial to the United States Court of Appeals for the First Circuit which reversed on the sole ground that certain of the prosecutor's remarks in his closing argument were so prejudicial as to constitute a denial of due process. DeChristoforo v. Donnelly, 473 F.2d 1236 (1st Cir. 1973). The Supreme Court of the United States granted certiorari on the Commonwealth's petition in Donnelly v. DeChristoforo, 414 U.S. 974, 94 S.Ct. 273, 38 L.Ed.2d 216 (1973), and then on May 13, 1974, it reversed the judgment of the Court of Appeals by its decision in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 43 L.Ed.2d 431 (1974).

Because of the United States District Court judge's holding that the defendant 'had not exhausted available state remedies' as to the grand jury minutes, the decisions of the Court of Appeals and of the Supreme Court were based solely on the issue of the prosecutor's remarks in argument.

6. On August 26, 1974, the defendant filed in each case a third motion for a new trial, this time stating that it was 'for the reason that justice may not have been done.' ² G.L. c. 278, § 29, as amended by St.1966, c. 301. The motion then states the following principal reasons why the defendant thinks that 'justice may not have been done': (a) because he was not allowed to see Carr's grand jury testimony, (b) because of the prosecutor's alleged improper remarks in his final argument to the jury, and (c) because the defendant was convicted of murder in the first degree while his two codefendants were permitted to plead guilty to murder in the second degree with resulting differences in parole eligibility (G.L. c. 127, § 133A, as appearing in St.1965, c. 766, § 1). The motion was heard on October 10 and 17, 1974, and on January 6, 1975, the judge filed a written decision stating his subsidiary and general findings, including a conclusion that 'justice has been done,' and denying the motion 'on all grounds.'

7. At the hearing on the defendant's third motion for a new trial the transcript of Carr's grand jury testimony was marked as an exhibit and the Commonwealth for the first time furnished a copy of it to the defendant. The significance of this transcript is that it reveals a difference in the testimony which Carr gave before the grand jury from that which he gave at the defendant's trial. Carr was one of the police officers who stopped the automobile in which the defendant was riding with his two codefendants and with the body of the murder victim. At that time and place the defendant Frank Oreto told the officers that his name was 'Joseph Rego,' and the defendant gave them a name other than his true name. As to the victim one of the defendants said that he was 'John Simeone from Boston,' who had been in a fight in Revere and whom they were taking to a hospital. The victim was in fact one Joseph F. Lanzi, and he was already dead.

At the defendant's trial Carr testified that the defendant was the person who told the officers that the victim was 'John Simeone.' The transcript of his testimony before the grand jury showed that he had testified there that it was Oreto who had given the wrong name for the victim. At the time of the trial the defendant had not been permitted to see Carr's grand jury testimony and he was therefore not in a position to cross-examine him on this one difference between Carr's grand jury testimony and his trial testimony. The defendant contends that he was thus prejudiced in a manner and to an extent which compelled the judge, as matter of law, to grant him a new trial.

In denying the defendant's third motion for a new trial the judge made the following...