Com. v. Gagliardi, No. 89-P-293

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before WARNER; ARMSTRONG
• Citation: 559 N.E.2d 1234,29 Mass.App.Ct. 225
• Docket Number: No. 89-P-293
• Decision Date: 30 October 1990
• Parties: COMMONWEALTH v. Philip J. GAGLIARDI.

Page 1234

559 N.E.2d 1234 29 Mass.App.Ct. 225 COMMONWEALTH
v.
Philip J. GAGLIARDI. No. 89-P-293. Appeals Court of Massachusetts,
Middlesex. Argued Oct. 17, 1989.
Decided Sept. 19, 1990.
Further Appellate Review Denied
Oct. 30, 1990.

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[29 Mass.App.Ct. 226] David Kelston, Boston, for defendant.

James W. Sahakian, Asst. Dist. Atty. (David R. Marks, Asst. Dist. Atty., with him), for Comm.

Before [29 Mass.App.Ct. 225] WARNER, C.J., and ARMSTRONG and CUTTER, JJ.

[29 Mass.App.Ct. 226] ARMSTRONG, Justice.

Following the allowance of a new trial motion (reviewed in Commonwealth v. Gagliardi, 21 Mass.App.Ct. 439, 488 N.E.2d 10 [1986] ), the defendant, represented by new counsel, was retried and was again convicted of murder in the second degree. The case is here again on his appeal from the conviction.

The facts that could be found by the jury, based (as at the first trial) principally on the testimony of Paul Mullis, Jr., are largely the same as those set out at 21 Mass.App.Ct. 440-443, 488 N.E.2d 10. In broad outline these are that the defendant, intoxicated with alcohol and possibly cocaine, left an American Legion post with Mullis at 12:40 A.M. on December 12, 1983, in the defendant's Cadillac automobile, driven by Mullis. They were joined for a time by Glen Enos and the victim, Donald Kingsley Costello, and when Enos departed, Costello remained with Mullis and the defendant in the Cadillac. They drove to the defendant's house in Medford. Mullis stepped out of the car, then fled when shots were fired inside [29 Mass.App.Ct. 227] the car. The defendant had been carrying a revolver all evening and had been both careless with it (dropping it on the floor at the post) and increasingly belligerent (he had drawn the revolver on Enos, and he had earlier threatened Mullis and offered to "take care of" a waitress's [Jenkins's] husband for her). Having withdrawn to a safe distance, Mullis discarded cocaine he was carrying, then circled back to observe the Cadillac. He saw the two men sitting in the car motionless. Mullis then ran to his home nearby to tell his wife to leave the house and stay with relatives. He discarded more cocaine, telephoned the defendant's house (the defendant answered but refused to talk on the phone), returned on foot again to watch from a distance (the defendant was going in and out of his house with trash bags), went to the defendant's brother's house (also nearby) to return the keys to the Cadillac, telephoned a friend (Dominic Marcellino) who joined him, returned with Marcellino to observe (they did not see the Cadillac), and after getting gasoline for Marcellino's car returned again (at 3:35 A.M.) and observed the defendant's house on fire. The two went back to Marcellino's house. Mullis refused Marcellino's advice that he go to the police.

Meanwhile, fire department personnel who had responded to an alarm at 3:40 A.M. found that the fire in the defendant's house had been set, the kitchen was littered with trash and trash bags, and the bedroom had been ransacked. Blood of Costello's type (AB) was found in many places (including on the porch railing and wall and on the refrigerator). The revolver was later found on the neighbor's pool cover. (There was blood on top of the fence between the neighbor's house and the defendant's.) The Cadillac was found on Latin Way, on the Tufts University campus about a mile from the defendant's house. The rear window was shattered, with at least one visible bullet hole. Inside was a can of charcoal starter fluid and a large amount of trash. Costello's dead body with bullet wounds in the face and neck was in the left rear passenger seat. A campus policeman had not observed the car there when making his rounds at 3:45 A.M. Additional facts appear below where relevant to specific issues.

[29 Mass.App.Ct. 228] The defendant's claims of error are numerous, but they can be grouped into nine broad categories.

1. Delays and omissions in the Commonwealth's responses to discovery motions. Failures in this category were

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partly responsible for the first judge's decision to allow the defendant's new trial motion. As was pointed out in the earlier decision of this court, a defendant should have the use of discovered facts in advance of trial and not learn of them as they may be dribbled into the trial at the prosecutor's discretion. 21 Mass.App.Ct. at 447, 488 N.E.2d 10. In the first Gagliardi decision we were reviewing a determination by the first trial judge to allow a new trial motion. This, we pointed out, lay largely in his discretion. 21 Mass.App.Ct. at 448-449, 488 N.E.2d 10. Here we review the second trial judge's exercise of discretion not to grant any of several motions for a mistrial (or dismissal) as failures of disclosure came to light. This we do cognizant of the overriding principles that delays by the Commonwealth in disclosing evidence do not mandate retrial where the defendant fails to demonstrate that he suffered adverse consequences due to the delays, Commonwealth v. Adrey, 376 Mass. 747, 755, 383 N.E.2d 1110 (1978); Commonwealth v. Wilson, 381 Mass. 90, 114 (1980); Commonwealth v. Gregory, 401 Mass. 437, 443, 517 N.E.2d 454 (1988), and that a dismissal of the charges is not normally warranted except in those cases where the nondisclosures or late disclosures are "deliberate and intentional," Commonwealth v. Light, 394 Mass. 112, 114, 474 N.E.2d 1074 (1985), or where the delay has irremediably harmed the defendant's opportunity to obtain a fair trial, Commonwealth v. Lam Hue To, 391 Mass. 301, 314, 461 N.E.2d 776 (1984). See generally Commonwealth v. Light, 394 Mass. at 115-116, 474 N.E.2d 1074 (Liacos, J., dissenting), and Commonwealth v. Cronk, 396 Mass. 194, 198-200, 484 N.E.2d 1330 (1985).

a. The Campbell statement and tape. On the third day of testimony (September 28, 1987), counsel for the defendant announced that he had information to the effect that the Commonwealth was in possession of a police report of a taped interview of January 5, 1984, with one Mark Campbell and that the report and tape were not among the materials that had been turned over to the defense in response to court [29 Mass.App.Ct. 229] orders. An overnight search turned up the missing report of the interview but not the tape, which was not located until after the trial. (The report was found by the judge to be a substantially verbatim transcription of the tape.) The significance of the interview is said to be that it indicated that there was a fourth person in the defendant's car on the night of the murder, one MacNeill, Mullis's brother-in-law who, if not himself the murderer, was possibly a witness to it and a conspirator in a plot to frame the defendant. ¹

The defense theory--one that had to be developed through other witnesses because the defendant did not testify--was that by 1:30 A.M. at the latest, Mullis, driving the defendant's car (with the defendant in the front passenger seat and Costello, the victim, in back), dropped the defendant at his house, Mullis retaining possession of the keys and the car; that the defendant's son Paul picked the defendant up shortly thereafter and drove him to Scarborough, Maine, to the home of the defendant's son Philip, Jr., and his wife; that they arrived there at about 3:00 A.M. (according to one DiSanto, Philip, Jr.'s father-in-law) or perhaps 3:30 A.M. (according to Paul); and that the defendant, thus, was not in Massachusetts when the murder, according to Mullis's story, was taking place. ² Knowledge of the presence of MacNeill in the car, the defendant argues, might have enabled him to adduce (presumably through MacNeill) evidence

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contradicting Mullis's false claim that the defendant was the killer.

Mark Campbell was commander of the American Legion post in December, 1983, and was there when the post was closed up the night of Costello's murder. In prior statements, including his testimony at the first trial in 1984, he had [29 Mass.App.Ct. 230] stated that Mullis and the defendant drove off together, in the defendant's Cadillac, sometimes indicating that they were alone, at other times indicating that he didn't know whether additional persons might have been in the Cadillac. The January 5, 1984, statement differed from the prior statements in that it indicated that MacNeill left the post in the Cadillac with Mullis and the defendant. Upon receiving the 1984 report, defense counsel had his investigator interview Campbell, who reiterated that he thought MacNeill was part of the group that left the hall together at closing and that he "saw" MacNeill get into the Cadillac or (two sentences later in the investigator's report) that he "assumed" MacNeill got into the Cadillac. Later in the trial (on October 22, 1987), the defendant called Campbell as a witness, and Campbell took the position that he had not seen MacNeill get into the Cadillac but assumed he had done so because the group that closed the post left in two cars. (There was no dispute that the car in which Campbell left, Mullis's, was driven by Mullis's sister Kathy and had no other passengers.) MacNeill himself, although available to both sides (see part 7, infra ), was never called as a witness.

After trial the judge made findings with respect to the circumstances of the late production of the report and the nonproduction of the tape. He concluded that the Commonwealth had been negligent but that it had not deliberately or wilfully suppressed the report or the tape. He also found that the delays had not prejudiced the defendant in the preparation and conduct of his defense. ³

[29 Mass.App.Ct. 231] However unfortunate the delay in production may have been, the judge was justified in concluding that it did not impair the defense. The trial went on for nearly another month. The defendant was thus in a position to investigate the alleged MacNeill involvement, even if only by interviewing MacNeill himself. So far as the...