Com. v. Flemmi

• Decision Date: 26 September 1974
• Citation: 316 N.E.2d 740,2 Mass.App.Ct. 533
• Parties: COMMONWEALTH v. Vincent J. FLEMMI.
• Court: Appeals Court of Massachusetts

Page 740

316 N.E.2d 740

2 Mass.App.Ct. 533

COMMONWEALTH v. Vincent J. FLEMMI.

Appeals Court of Massachusetts, Suffolk.

Argued April 16, 1974.

Decided Sept. 26, 1974.

Charlotte A. Perretta, Boston, for the defendant.

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

Before ROSE, GOODMAN and GRANT, JJ.

ROSE, Justice.

In March, 1970, the defendant was tried before a judge of the Superior Court (the trial judge) and a jury on indictments charging assault with intent to murder, assault by means of a dangerous weapon and unlawful carrying of a firearm. He absconded before the completion of the trial and was defaulted. The trial continued without him, and the jury returned verdicts of guilty on all three indictments. He was not apprehended until seven months later, by which time his ordinary rights of appellate review had been lost. See G.L. c. 278, § 33H (as inserted by St.1964, c. 634 § 2). He thereafter filed a motion to remove the defaults and for a new trial. The trial judge denied that motion and imposed sentences. The Supreme Judicial Court affirmed those actions in COMMONWEALTH V. FLEMMI, --- MASS. ---, 277 N.E.2D 523 (1971)^A.

In June 1972, the defendant again moved for a new trial pursuant to G.L. c. 278, § 29 (as amended through St.1966, c. 301), on grounds not raised by his previous motion. The trial judge had died, and the motion was heard by another judge of the Superior Court (the motion judge). The defendant now appeals under G.L. c. 278, § 33B, from the denial of that motion.

As the issues raised by the second motion for a new trial were based entirely on facts fully known to the defendant at the time of his trial, ¹ the Commonwealth challenges his right to have them decided on his appeal from the denial of that motion. While a motion for a new trial may not ordinarily be used as a vehicle to compel review of such questions (Commonwealth wealth v. McLaughlin, --- Mass ---, --- - ---, ^b 303 N.E.2d 338 (1973) and cases cited), the defendant relies on the exception to that rule which sometimes exists when the issues reach constitutional dimensions (see Earl v. Commonwealth, 356 Mass. 181, 184, 248 N.E.2d 498 (1969); Commonwealth v. Penrose, --- Mass. ---, ---, ^c 296 N.E.2d 819 (1973); Picard v. Connor, 404 U.S. 270, 272, n. 3, 92 S.Ct. 509 30 L.Ed.2d 438 (1971); but see Commonwealth v. Antobenedetto,--- Mass. ---, ---, 315 N.E.2d 530 (1974)). We need not decide whether the present case falls within that exception, however, as the motion judge could, in his discretion, consider those issues and thereby preserve them for our consideration on appeal. Commonwealth v. Blondin, 324 Mass. 564, 567, 87 N.E.2d 455 (1949), cert. den. 339 U.S. 984, 70 S.Ct. 1004, 94 L.Ed. 1387 (1950). Commonwealth v. McGrath, --- Mass. ---, ---, n. 2, ^d 280 N.E.2d 681 (1972). Commonwealth v. Thompson, --- Mass. ---, ---, n. 2, ^e 286 N.E.2d 333 (1972). It is clear from the record of the hearing on the motion and from the findings entered thereon by the motion judge that he so exercised his discretion. Contrast Commonwealth v. McLaughlin, supra, --- Mass. at --- - ---, ^f 303 N.E.2d 338.

We therefore proceed to the merits. The issues raised by the motion before us arose in connection with the testimony of two Commonwealth witnesses, both of whom were incarcerated at the time of the trial for unrelated offenses and both of whom gave evidence highly damaging to the defendant. The first of those witnesses was not Abboud, the victim named in the two assault indictments against the defendant, both of which (together with the indictment for unlawful carrying of a firearm) were generated by the same incident. The controversy regarding Abboud's testimony concerns a telephone conversation he had with the defendant a few days after the incident and certain events surrounding that testimony which occurred during the trial. The issue before us with regard to the other witness, one Carita, is the propriety of the trial judge's exclusion of certain evidence.

Abboud's version of the incident itself was substantially as follows. The defendant was rumored to have accused Abboud of 'talking to the cops', and Abboud sought him out at a restaurant on the evening of the incident to discuss the matter. The two men left the restaurant in Abboud's automobile together with a friend of Abboud who drove. Abboud sat on the passenger side of the front seat but was turned around toward the defendant, who sat in the back seat. Abboud saw the defendant draw a pistol and swing it up in Abboud's direction, at which point Abboud catapulted himself into the rear of the automobile in an effort to wrest the gun away from the defendant and 'fire the shots off'. The driver fled from the moving vehicle when the struggle began. Abboud was bitten on the hand by the defendant. During the struggle the gun went off, but Abboud was not shot. The driverless car soon came to a stop when it crashed into a parked car, and Abboud then took flight. Abboud later learned that the defendant had been wounded in the shoulder. Abboud soon encountered a man walking a dog, gave the man an explanation of his disheveled condition (later admitted to have been false), and got the help of the man and the man's wife in dressing the bite wounds and in notifying the police. Several days later Abboud became an inmate at the Charles Street Jail, where he had another conversation which will be described later in this opinion.

The foregoing testimony was elicited during Abboud's direct examination by the prosecutor. It was partway through that examination that the subject of the controversial telephone conversation was first broached. The defendant's counsel promptly moved for a voir dire. There followed a bench conference which was not reported after which the defendant's counsel stated that he had 'no objection to this conversation'. Abboud then testified as to his recollection of the conversation, which consisted mainly of threats by the defendant against Abboud and his 'loved ones'. At one point the defendant's counsel urged the prosecutor to 'refresh his memory' and the latter apparently used some document for that purpose. The record of the trial does not disclose what that document was and contains no further reference to it, though it later became a major focal point in the defendant's motion for a new trial. Abboud's testimony as to the substance of the conversation consumed less than three of the firty-three pages of the trial record devoted to Abboud's direct examination, and was followed by testimony concerning subsequent events.

At the conclusion of Abboud's direct examination the defendant's counsel requested another bench conference (this one reported) in which he made two oral motions: (1) to be furnished with Abboud's testimony before the grand jury, and (2) to 'be furnished with all statements in the possession of the District Attorney's office, given by this witness, having to do with the circumstances that took place that night' (sic). The trial judge agreed to examine the grand jury minutes to determine the existence of a particularized need. ² The following colloquy then occurred:

Defendant's counsel: 'All right, your Honor. I point out to Your Honor and I'd argue on these motions that the witness has told one story on the witness stand, but apparently told a different story . . . to the first persons he met after this incident. I also point out, Your Honor, at the bench here, with regard to my previous motion for a voir dire, . . . the Assistant District Attorney indicated that this witness was going to testify with regard to the telephone conversation that the defendant said, 'Why did you try to shoot me?' And he has not so testified during the course of that conversation.'

The prosecutor: 'Get it on cross-examination. It's as simple as that.'

The discussion then shifted to the subject of the false account of the incident which Abboud gave to the man with the dog and to the man's wife, and contained no further reference to the telephone conversation. After a recess the judge ruled on the motion relating to the grand jury minutes, and the following colloquy ensued:

Defendant's counsel: 'May I also have my motion for statements . . . that he furnished law enforcement officers?'

The judge: 'Well, what do you say about that?'

The prosecutor: 'Well, Your Honor, I know of no law in this Commonwealth where statements by witnesses must be furnished to defense counsel.'

The judge: 'I'll deny that motion and save your rights.'

Abboud was cross-examined at length before the defendant's counsel reached the subject of the telephone conversation, when he learned for the first time that the conversation, with Abboud's consent and cooperation, had been tape recorded by the police. When asked whether during that conversation the defendant had said, 'Why did you shoot me?', Abboud answered in the negative. That was immediately followed by another colloquy:

Defendant's counsel: 'I'll renew my motion, if Your Honor please, to produce.'

The judge: 'What?'

Defendant's counsel: 'Any statement.'

The judge: 'No. I'll exclude it and save your rights. We have been over that already and I have already excluded it.'

The defendant's counsel then moved (again orally) 'that the defense be furnished the tape recording of this conversation.' He argued that he needed the tape to establish the fact that the defendant had asked Abboud 'Why did you shoot me?' The judge denied the motion, and the defendant's counsel excepted. The subject was ended (and never again raised at the trial) by the following exchange:

The judge: 'I am referring specifically to the tape recorder' (sic).

Defendant's counsel: 'Yes.'

The judge: 'Not the conversation as related from the witness stand by this witness or any other witness.'

Defendant's counsel: 'Yes, Your Honor.'

No effort was made by the prosecutor at any time to introduce the tape recording in evidence.

In his 1972 ...