Com. v. Fazio

• Decision Date: 20 June 1978
• Citation: 375 Mass. 451,378 N.E.2d 648
• Parties: COMMONWEALTH v. Vincent P. FAZIO (and six companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 648

378 N.E.2d 648

375 Mass. 451

COMMONWEALTH v. Vincent P. FAZIO (and six companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1977.

Decided June 20, 1978.

Albert L. Hutton, Jr., Boston (Ralph F. Champa, Jr., Somerville, with him), for defendants.

Thomas E. Dwyer, Jr., Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

Three defendants were tried in the Suffolk Superior Court on indictments charging each with kidnapping, with intent to extort money (G.L. c. 265, § 26), making threats with intent to extort money (G.L. c. 265, § 25), assault and battery to collect a loan (G.L. c. 265, § 13C), and assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A). Defendant Charles L. Costa was also charged with knowingly transporting illegal alcoholic beverages (G.L. c. 138, § 22). On the defendants' motions at the close of the Commonwealth's case, the trial judge directed verdicts of not guilty as to so much of the kidnapping indictments as charged extortion, on the indictments charging threats to extort, and on the indictments charging assault and battery to collect a loan. The jury found the defendants guilty of kidnapping and assault and battery with a dangerous weapon. Additionally, Costa was found guilty of illegal transportation of alcoholic beverages. The defendants claimed an appeal pursuant to G.L. c. 278, §§ 33A-33G. We allowed the defendants' application for direct appellate review.

The defendants claim three grounds on which they believe reversal of their convictions is required. First, they argue that the prosecutor was guilty of prejudicial misconduct by including in his opening statement a summary of the testimony that he expected to elicit from the alleged victim. The basis for this allegation of misconduct is the fact that the alleged victim had, through his counsel, announced in court prior to the prosecutor's opening statement that he would invoke the constitutional privilege not to incriminate himself and consequently would refuse to testify. Second, the defendants argue that the judge failed adequately to instruct the jury so as to protect the defendants from the prejudicial effect of the prosecutor's opening statement. Third, the defendants assert that the prosecutor's action in calling the alleged victim to the stand and compelling him to claim the privilege in the presence of the jury was prejudicial and grounds for reversal.

We find no error, and thus affirm the the judgments of the Superior Court.

1. The Prosecutor's Opening Statement. The alleged victim, and prospectively the Commonwealth's chief witness, was one Owen J. Roberts, III. Roberts had been in the protective custody of the district attorney's office from the time of his appearance before the grand jury on December 3, 1975, until April 20, 1976, when he was ordered held on $100,000 bail with double surety as a material witness. During that period he apparently had been fully cooperative with law enforcement officials. On April 21, at a hearing on a motion by Roberts's counsel to reduce bail, Roberts's counsel informed the judge, the prosecutor, and the defense attorneys that his client had decided to "invoke his privilege against self-incrimination as to any events which are alleged to have occurred on November 30, (1975) which forms the crux of this case." The prosecutor indicated to the judge that, until that moment, he had believed Roberts "fully intended to cooperate and testify in this case."

On the first day of the trial, April 26, immediately after the jury had been empanelled, the judge held a hearing out of the presence of the jury. The purpose of the hearing, requested by the attorneys for the defendants, was to inquire (a) whether the prosecutor intended to refer in his opening statement to testimony expected to be elicited from Roberts, and (b) as to the effect that should be given to the announcement by Roberts's counsel that his client would invoke the Fifth Amendment. The following information was presented to the judge during the course of that hearing. First, the prosecutor stated that he would tell the jury that they would hear certain testimony tending to establish the guilt of the defendants. The content of that expected testimony would in fact be based to a significant degree on the testimony of Roberts before the grand jury, although the jury would not be told that Roberts was the prospective witness, nor told how the prosecutor knew what that witness would testify. Second, counsel for the defendants brought to the attention of the judge Roberts's stated intention to invoke the Fifth Amendment with regard to the events on the night in question. Third, counsel for the defendants argued that to allow the prosecutor to describe Roberts's expected testimony would allow prejudicial information to reach the jury. They argued that this would create the impression that Roberts had been threatened and was afraid to testify, an impression that would be strengthened when Roberts actually took the stand and invoked his Fifth Amendment privilege.

After hearing the argument of counsel, the judge refused to grant a motion by the defendants that the prosecutor be ordered not to refer in his opening to the testimony he hoped to elicit from Roberts. The judge did instruct the prosecutor generally that he could include in his opening only such facts as he could "reasonably anticipate" would be admitted in evidence. Counsel for the defendants took exception to the judge's refusal to grant their motion.

The issue raised by the preceding facts is before us on two assignments of error. One assignment of error cites the judge's actions in allowing the prosecutor to refer in his opening statement to the evidence he expected to introduce through Roberts's testimony (although he did not identify the testimony as coming from Roberts either by name or as the alleged victim). The other assignment claims error in the judge's denial of the defendants' motion for mistrial, made after the defendants rested, based on the prejudicial impact of the prosecutor's reference during his opening to facts that were never proved during trial.

"The proper function of an opening is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence." Posell v. Herscovitz, 237 Mass. 513, 514, 130 N.E. 69, 70 (1921). The prosecutor in a criminal action in general may state in his opening anything that he or she expects to be able to prove by evidence. Commonwealth v. Martin, ---Mass. ---, ---^a 362 N.E.2d 507 (1977). Commonwealth v. Hartford, 346 Mass. 482, 486, 194 N.E.2d 401 (1963). Commonwealth v. Makarewicz, 333 Mass. 575, 583, 132 N.E.2d 294 (1956). Although the expected testimony or other evidence that the prosecutor alluded to in his opening may not materialize during trial, it will not be presumed that the prosecutor acted in bad faith. Commonwealth v. Hartford, supra 346 Mass. at 486, 194 N.E.2d 401. Compare S.J.C. Rule 3:22, DR 7-106(C)(1), 359 Mass. 796, 821 (1972) (a lawyer shall not "allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence"); cf. Proposed S.J.C. Rule 3:22A (1975) (Prosecutorial Function) (it is unprofessional conduct for prosecutor to allude to evidence in his opening unless there is "reasonable basis . . . in good faith" that evidence will be admitted).

The defendants emphasize language in one of our cases that they interpret as establishing a much narrower view of the permissible scope and content of a prosecutor's opening statement. In Commonwealth v. Bearse, 358 Mass. 481, 487, 265 N.E.2d 496, 499 (1970), we said that a statement should not have been made in the prosecutor's opening unless there was "no doubt of its admissibility." The special circumstances of that case limit the reach of the quoted language. We noted in Bearse that the prosecutor's statement was, in the circumstances, "irretrievably and fatally prejudicial to the defendant." The ambiguous testimony which was characterized as the "core" of the Commonwealth's case in Bearse was, by force of the prosecutor's opening statement, transformed from the possible meaning "Don't sell it, Dad" to "Don't shoot me, Dad." In contrast, the instant case does not present a situation where the force of the prosecutor's opening remarks was overwhelmingly prejudicial and likely to leave an indelible imprint on the jurors' minds. The essence of much of the expected testimony, as referred to in the prosecutor's opening, was introduced at trial through the eyewitness testimony of the arresting police officers. The prosecutor was not, however, able to introduce independent evidence of the existence of a loan from the defendants to Roberts a fact which the prosecutor told the jury in his opening that he expected to establish through testimony. Nonetheless, there was no resulting prejudice to the defendants for the reason that the judge granted motions for directed verdicts on all those charges involving a loan transaction or an intent to extort money.

Moreover, the failure of the prosecutor to prove the existence of a loan transaction or extortion, and the resulting action of the judge in directing verdicts on the related charges, may well have undercut the jury's confidence in the prosecutor thereby benefiting, rather than prejudicing, the defendants. We think that the special circumstances of the Bearse case do not apply to the facts before us and that the usual standard, recently reiterated in Commonwealth v. Martin, supra, is applicable. The prosecutor properly could have referred in his opening to anything that he expected to be able to prove by evidence. This expectation must, of course, have been reasonable and grounded in good faith. See Gladden v. Frazier, 388 F.2d 777 (9th Cir. 1968).

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