Com. v. Donahue

• Citation: 344 N.E.2d 886,369 Mass. 943
• Parties: COMMONWEALTH v. John F. DONAHUE.
• Decision Date: 23 March 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 886

344 N.E.2d 886

369 Mass. 943

COMMONWEALTH

v. John F. DONAHUE.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 5, 1976.

Decided March 23, 1976.

Melvin s. Louison, Taunton (Jerry E. Benezra, Boston, with him), for defendant.

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

Before HENNESSEY, C.J., and REARDON, BRAUCHER, KAPLAN, and WILKINS, JJ.

HENNESSEY, Cheif Justice.

This is an appeal under G.L. c. 278, §§ 33A--33G, following a verdict of guilty on an indictment for receiving stolen property. The defendant was sentenced to one year in a house of correction, which sentence was suspended and the defendant was placed on probation for two years. Subsequently, the defendant's motion for stay of execution of said sentence was allowed by the judge. Thereafter, the defendant filed three separate motions for new trials, which motions were denied and to which denials exceptions were duly saved.

Upon review of the assignments of error, we conclude that there was no error and that the judgment shall be affirmed.

The facts are as follows. The Commonwealth presented its case through four witnesses: Brian Fernald, who testified under a grant of transactional immunity; Harvey Freedman; Canton police detective Sergeant John Ruane, Jr.; and State police detective Lieutenant William Bergin. The Commonwealth also introduced in evidence thirteen Singer brand electrical heating units.

Essentially, the immunized witness, Brian Fernald, testified that on December 17, 1973, he met with one John Gregory and Stoughton police officer Thomas Allen. Following a conversation with Allen, Fernald was given a car by Allen and Fernald and Gregory proceeded to the construction site of Belnel Gardens in the Hyde Park section of Boston, where they stole approximately seventy electrical baseboard heaters, some light fixtures and some tools. They placed the stolen goods into the car and then returned to Stoughton to the home of Jeffrey Gambrazzio. Allen removed three of the heaters from the car and took them across the street to the home of Joan Nardozzi; twelve of the heaters were left in the car and the remainder were sold to Gambrazzio. Fernald, Allen and Gregory then drove to the defendant's home in Stoughton. The defendant was at the time the police chief of Stoughton. In the presence of the defendant and Allen, Fernald and Gregory unloaded the twelve heaters and placed them in the defendant's garage. This was done after the defendant conferred with Allen, and then pointed or gestured toward the defendant's garage. Fernald identified the Commonwealth's exhibits 1A--1L as being the units he stole from Belnel Gardens and delivered to the defendant.

Harvey Freedman testified that he was an electrical contractor and was performing electrical work at Belnel Gardens during December of 1973. He testified that between fifty to 100 Singer brand electrical heating units were stolen from the construction site and he identified the Commonwealth's exhibits 1A--1L as belonging to him and as being the same units he had been installing in Belnel Gardens.

Sergeant John Ruane, Jr., testified that as a result of a conversation with Fernald on May 21, 1974, he obtained a warrant to search the home of Jeffrey Gambrazzio. He identified the Commonwealth's exhibits 1A--1L as being the same units he removed from Gambrazzio's home under the terms of the search warrant.

Lieutenant William Bergin testified that on June 4, 1974, he met with the defendant, the defendant's attorney and others. At this meeting Bergin presented the defendant's attorney with a stenographic copy of Fernald's statement made to an assistant district attorney and Bergin on May 22, 1974. As the defendant's attorney read the statement aloud, the defendant remarked at one point that he had seen electrical heating units in his garage but, in response to a question from Bergin, the defendant stated that he did not know who delivered them to his garage, who removed them, or where they were then located.

Gambrazzio testified that he is a licensed electrician and knew the defendant. At the request of Stoughton police officer Thomas Allen he visited the defendant's home, estimated an electrical job and subsequently did deliver heating units to the defendant's garage which were other than Singer brand units. He further testified that he knew the immunized witness, Fernald, and had worked with him at Joan Nardozzi's home where Gambrazzio had installed electrical heating units. Gambrazzio was unable to identify the Commonwealth's exhibits 1A--1L as being the same units that were taken from his home under the provisions of a search warrant by the Canton police.

The defendant testified that Fernald had never been at his house. The defendant admitted seeing electrical heating units in his garage but did not know who delivered them or who removed them.

1. There was no error in the denial by the judge of the defendant's motion to dismiss or for other appropriate relief for an alleged violation of Rule 63 of the Superior Court (1974).

Rule 63 reads as follows: 'Stenographic notes of all testimony given before any grand jury shall be taken by a court reporter, who shall be appointed by a justice of the superior court and who shall be sworn. Unless otherwise ordered by the court, the court reporter shall furnish transcripts of said notes only as required by the district attorney or attorney general' (emphasis supplied).

The defendant argues that, in violation of the rule, the district attorney used a secretary-employee from his office who was not fully trained as a court reporter. Further, the secretary utilized a tape recorder rather than the usual transcription methods.

It is clear, at least, that the woman was sworn in by the presiding judge as a 'reporter' for the grand jury. In any case, we need not further consider whether the rule of court was violated, since no prejudice to the defendant has been shown. The defendant points to one mistake in the transcript of the testimony of a witness. Arguably this was a serious error, but it was rectified before trial and the trial proceeded with defense counsel in possession of correct transcripts.

We leave to the judges of the Superior Court consideration of the broader principle argued by the defendant, i.e., that it may not be in the interest of fair administration of grand jury proceedings to have stenographic or reportorial service performed by one employed in the district attorney's office, or by one only partially trained for such service.

2. The defendant argues that the judge misunderstood and misapplied the statute (G.L. c. 233 §§ 20 E and 20F) with regard to the grant of immunity to the witness Brian Fernald. There is no question that Fernald was the most important witness against the defendant. The defendant's argument asserts that the district attorney used the grand jury appearance of this witness merely as a contrivance to procure immunity for him, and thus assure his cooperation with the prosecution.

The grand jury returned the indictment in this case on October 15, 1974. The witness appeared thereafter on November 14, 1974, before the same grand jury and claimed his Fifth Amendment privilege as to all questions related to the subject matter of the indictment. The Commonwealth then applied for a grant of immunity under G.L. c. 233, § 20E, and the application was allowed by a Justice of the Supreme Judicial Court on January 3, 1975. The term of the indicting grand jury had by then expired, and the witness appeared before a new grand jury on January 9, 1975, and gave testimony. Subsequently, after a voir dire hearing on the issue, the trial judge ruled that under G.L. c. 233, § 20G, the witness had immunity for the transaction in this case.

In concluding that there was no error, we observe that there was full compliance with the statutory procedure, and that immunity was properly granted before both the grand jury and the trial jury. The questions which the witness at first refused to answer, and those which he later answered, were related to the indictment and to relevant conduct of the defendant and other persons. The argument of the Commonwealth, that the testimony of the witness was procured for the possible purpose of securing further indictments related to this defendant and this indictment, is at least as logical as the somewhat conjectural contention of the defendant that the proceedings were contrived by the district attorney for the purpose of securing immunity for the witness.

3. The defendant asserts error in the denial of his motion for a directed verdict pursuant to G.L. c. 233, § 20I, because the Commonwealth did not, as required by that statute, produce any evidence in support of the testimony of the immunized witness, Fernald, on any element of the Commonwealth's prima facie case. We do not agree.

Section 20I of c. 233, inserted by St.1970, c. 408, provides: 'No defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity under the provisions of section twenty E.' In Commonwealth v. DeBrosky, 363 Mass. 718, 730, 297 N.E.2d 496, 505 (1973), this court stated that § 20I must be read 'to require that there be some evidence in support of the testimony of an immunized witness on at least one element of proof essential to convict the defendant.'

The elements of proof 'essential to convict' a defendant of the crime of receiving stolen goods are: (1) one must buy, receive or aid in the concealment of property which has been stolen or embezzled, (2) knowing it to have been stolen. See G.L. c. 266, § 60; Commissioner of Pub. Safety v. Treadway, --- Mass. ---, --- ^a, 330 N.E.2d 468 (1975).

Clearly the Commonwealth's proof here resided primarily in the testimony of the immunized witness. Contrary to the defendant's argument, however, there was corrobative evidence within the requirements of the statute, as ...