Com. v. Gagliardi

• Citation: 488 N.E.2d 10,21 Mass.App.Ct. 439
• Parties: COMMONWEALTH v. Philip J. GAGLIARDI.
• Decision Date: 21 January 1986
• Court: Appeals Court of Massachusetts

Page 10

488 N.E.2d 10

21 Mass.App.Ct. 439

COMMONWEALTH v. Philip J. GAGLIARDI.

Appeals Court of Massachusetts Middlesex.

Argued Sept. 11, 1985.

Decided Jan. 21, 1986.

James W. Sahakian, Asst. Dist. Atty., for the Com.

William A. Bolton, Reading, for defendant.

Before GRANT, CUTTER and PERRETTA, JJ.

PERRETTA, Justice.

After a jury found the defendant guilty of the murder in the second degree of Donald Kingsley Costello, he brought a motion for a new trial under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), which was allowed by the trial judge on the ground that "justice may not have been done and that the interests of justice require a new trial." The trial judge gave detailed and comprehensive reasons in explanation of his ruling on the motion. The Commonwealth appeals, alleging that these reasons are the result of the judge's "application of law to clearly erroneous facts" and constitute an abuse of discretion. Our review of the record indicates that there is "evidence to support the judge's decision to order a new trial." Commonwealth v. Preston, 393 Mass. 318, 324, 471 N.E.2d 340 (1984). We affirm.

I. The Evidence at Trial.

Numerous witnesses testified at trial, but, as will be seen, the Commonwealth's case against the defendant depended upon the testimony of Paul Mullis, Jr., an immunized witness. Mullis and the defendant had known each other for some years, and Mullis had sold cocaine for the defendant in the two months prior to Costello's death on December 12, 1983.

On December 11, 1983, Mullis was tending the bar at the American Legion Post 45 (post) in Medford. The defendant arrived there at 9:30 P.M. Although he had been drinking prior to his arrival at the post, he was not intoxicated. However, while at the post, the defendant fell considerably under the influence of alcohol and drugs (cocaine). He was argumentative and clumsy, bumping into tables and twice being careless with a gun he was carrying in his coat pocket.

When the post closed at 12:40 A.M., the defendant was unable to drive. He was assisted to the front passenger seat of his Cadillac. Mullis, who had the keys to the defendant's car, was going to drive the defendant to his house, and told his (Mullis') sister-in-law to follow him in his car. Upon arriving at the defendant's house, the defendant got out of the car, stumbled about, fell to the ground, and refused to go inside. Mullis came around to help the defendant up. Once on his feet, the defendant ran back into his car, insisting that he was going to remain with Mullis.

Mullis told his sister-in-law to leave his car, to get into the Cadillac, and that he would drive her home. After dropping off his sister-in-law, Mullis set out for his father's house to give him the post keys. While waiting at a traffic light, the victim and a friend, Glen Enos, pulled alongside the Cadillac. Mullis and the victim had been close friends for years. A conversation ensued, and instead of going to his father's house, Mullis followed the victim back to the post parking lot, where the victim, also intoxicated, joined Mullis and the defendant in the Cadillac. Enos decided that he wanted to go home, but the Cadillac was blocking the path of his car. Mullis, the victim, and the defendant were discussing "doing" some cocaine, and Enos became impatient. An argument erupted, and the defendant got out of the car with his gun to go for Enos, but Mullis pulled him back and subdued him. Mullis moved the Cadillac, and Enos left the lot.

Mullis then drove the victim and the defendant in the Cadillac to Mullis' father's house. Only Mullis went into the house. He ate a sandwich, left the post keys, and returned to the defendant's car. With the victim in the left rear seat and the defendant in the front passenger side, Mullis drove to the defendant's house. There was more discussion about cocaine. Believing that they were all going into the defendant's house, Mullis got out of the car and walked to the back of it. As he did so, he saw the victim looking out the window. He appeared upset. The inside car light came on, and then Mullis heard gun shots. He could not say how many shots he heard, but one came through the rear window, spraying glass over him.

Afraid that the defendant was shooting at him, Mullis ran. As he was running, he threw away some cocaine that he had been carrying. In the course of his flight, he climbed a number of fences and cut his hands. Mullis circled back to a point where he could see the Cadillac. He watched for about five minutes. He saw two bodies in the car, but neither made any movement.

Mullis next ran to his house, two streets away, awakened his wife, and sent her off to relatives. He disposed of more cocaine and telephoned the defendant's house. When the defendant answered, Mullis asked if the victim was hurt. The defendant refused to talk on the telephone. Mullis went outside to see if his wife was on her way, and in the flurry of his activities, he locked himself out of his house. Returning to the defendant's house, Mullis secretly watched him running in and out of his house with trash bags; he saw no one in the Cadillac. Mullis again ran off, this time going to the defendant's brother's house, one street away, where he left the defendant's keys. He then ran over a mile and a half to his parents' house. It was now close to 3:00 A.M. He telephoned a friend, one Domenic Marcellino, who picked Mullis up within ten minutes. As they drove around, Mullis told Marcellino that the defendant had shot the victim.

Marcellino refused to believe that the victim could be dead. He drove near to the defendant's house, but from where they were parked, neither Marcellino nor Mullis could see the Cadillac: they did not know whether the Cadillac had been moved or whether they simply could not see it from their observation point. Because Marcellino was running out of gas, they drove to a gas station, and returned to the defendant's house at about 3:35 A.M. Again, they did not see the Cadillac, but they saw that the defendant's house was on fire. They did not stop and went directly to Marcellino's house, where Mullis stayed until his wife picked him up later that morning. He was too shocked and frightened to accept Marcellino's advice that he go to the police.

In the meantime, at 3:40 A.M., the fire department responded to an alarm and went to the defendant's address. It was discovered that an accelerant had been used to start the fire which had three points of origin. The master bedroom had been ransacked. There was blood of the victim's type, AB, ¹ on a porch board. The kitchen was in disarray: cabinet doors were open, trash and trash bags were strewn about the floor, and there was blood on the refrigerator. Blood was also found on the fence separating the defendant's and a neighbor's yards. The defendant's gun was found on that neighbor's pool cover.

At 7:33 A.M., the defendant's car was discovered by a Tufts University police officer who had not seen the car on his earlier patrol of the area at 3:45 A.M. The victim's body was in the left rear passenger seat. The car was littered with household trash and trash bags. There was a can of charcoal lighter fluid on the driver's side of the front seat. Four days later, December 16, 1983, the defendant was arrested. A month later, he was indicted for murder in the first degree.

II. Allowance of the Motion.

The trial judge described five occurrences and their effects which led him to conclude that the defendant was entitled to a new trial.

A. Discovery. An autopsy was performed on the victim on December 12, 1983, from which the pathologist concluded that two bullets had entered the victim's brain, one from the right rear of the neck and the other through the nose, fracturing the orbital and nasal bones. The ballistician given the bullet fragments from the victim's brain concluded, however, that because the fragments weighed less than a single bullet, the pathologist was wrong. By mid-February, the ballistician had advised his superior officer of his view, and the prosecutor was so informed no later than February 29. On March 3, the ballistician informed the pathologist of his opinion, but the pathologist disagreed.

Although defense counsel was aware prior to trial of the weight discrepancy between the ballistician's and the pathologist's reports, he was not aware of the fact that the ballistician had told anyone that he (the ballistician) believed the pathologist was in error.

Two additional facts were not disclosed to defense counsel prior to trial. One of the witnesses informed a detective that Mullis' father had told him not to talk with anyone, including the police, about the events in question. Additionally, an examination of Mullis for occult blood on December 14 revealed that he had cuts on the knuckles of both his hands.

B. The Commonwealth's opening statement. In its bill of particulars filed on March 5, the Commonwealth specified that the defendant "committed the murder by shooting the victim twice in the head." Faced with the contradiction between the reports of its experts, the ballistician (one bullet) and the pathologist (two bullets), the Commonwealth called in another pathologist, Dr. Katsas. On March 12, Dr. Katsas met with Dr. Sanchez, the pathologist who had performed the autopsy and who had concluded that there were two bullets in the victim's brain.

Consistent with the bill of particulars, the prosecutor asserted in his opening statement on March 19 that the victim was shot in the head twice. One shot hit him "directly in his nose," taking the "right or left part of his nostril," and this shot "was most likely a contact wound which means the gun was put to his nose and fired." Another shot was "in the back of the neck-head and that shot ... went into his brain. Both bullets were recovered within his brain."

On March 24, a Saturday, the ballistician, the two pathologists, a State police detective, and the...