Com. v. Gagnon

• Decision Date: 30 July 1990
• Citation: 557 N.E.2d 728,408 Mass. 185
• Parties: COMMONWEALTH v. Daniel G. GAGNON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 728

557 N.E.2d 728

408 Mass. 185

COMMONWEALTH v. Daniel G. GAGNON.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 9, 1990.

Decided July 30, 1990.

William P. Homans, Jr., Boston, for defendant.

Sharon B. Soffer, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree, unlawfully carrying a firearm, and conspiracy to burn a motor vehicle. On appeal, the defendant claims error in (1) the examination of John Butler, a defense witness who testified that Louis Marotta had admitted that he, not the defendant, had shot the victim; (2) the judge's rulings in connection with defense counsel's efforts to show before the jury that Marotta had claimed his privilege against self-incrimination, to comment on Marotta's absence as a witness, or to show that Marotta had been nonresponsive to a subpoena to testify at the trial; and (3) the admission in evidence of a spent cartridge. The defendant also claims that there was insufficient evidence to convict him of the conspiracy charge. We reject the defendant's claims and affirm the convictions. We also conclude that there is no basis to exercise our power under G.L. c. 278, § 33E (1988 ed.), to direct the entry of a verdict of a lesser degree of guilt or to order a new trial in connection with the murder conviction.

The Commonwealth presented evidence to the jury of the following. In the early evening of September 28, 1986, the victim, a thirteen year old boy, was sitting with two friends, Paul Carpenter, ¹ thirteen, and Michael Vincent, eleven, on the front porch of Carpenter's home in Revere. A fourth boy, eight year old Michael Bruno, was leaning against a gray Chrysler automobile parked in front of the house. A man approached Bruno and told him "to get off his car." Carpenter testified that he recognized this man as the defendant, whom he believed to be the stepfather of another boy who lived on the street. The defendant then got into his car and drove away.

A few minutes later, Carpenter, Vincent, and the victim walked across the street to do "pull-ups" on a fence. As they approached an alley between two houses, the boys encountered the defendant and another man, later identified as Louis Marotta. Carpenter described Marotta as approximately five feet eight inches tall, heavy set, dark haired, and shorter than the defendant. Carpenter described the defendant as having a beard and moustache, while Marotta had no facial hair. Vincent described the defendant as about six feet tall, thin, with brown hair, moustache, and beard. The defendant asked the boys if they had been throwing rocks at Marotta's car, which they denied.

At that point a neighbor, Lisa Wilson, arrived at the scene and asked what was going on. Wilson testified that the taller of the two men, neither of whom she recognized, told her that the boys had been throwing rocks at a car. Wilson described this man as having blondish hair and a moustache. After the boys again denied throwing the rocks, Wilson turned and started walking home.

As she turned to walk home, Wilson heard the taller man say, "You think it's funny? I'll blow your f'n brains out." ² Vincent testified that the defendant said "that he was going to blow our brains out," and both Vincent and Carpenter reported hearing the defendant ask, "Do you want me to kill you with my hands or with a gun?" ³ The defendant then raised his hand to the victim's face and shot him just beneath the left eye.

With regard to more particular detail, both Vincent and Carpenter testified that they saw the defendant shoot the victim. Vincent stated that he saw the defendant with a gun in his hand, and as he ran away, turned and observed the "flash" of the gun and the victim fall to the ground. Carpenter testified that he saw the defendant "put his hand next to [the victim's] face" when he saw a "flash" and the victim fall to the ground. Carpenter then saw the defendant flee the scene with Marotta close behind him. This is the primary evidence on which the Commonwealth relied. We shall relate additional facts and evidence, including the evidence pertaining to the defendant's conviction for conspiracy to burn a motor vehicle, as we discuss the various claims of error.

1. Examination of John Butler. The defendant contended at trial that Louis Marotta had shot the victim. To support that contention, he called as a witness John Butler. Butler testified on direct examination that he had met a man known to him as "Louis" through his (Butler's) former girl friend, Mary Quish, and that he had seen "Louis" occasionally over a six-year period. Butler indicated that he read a news article contained in the Thursday, January 14, 1988, edition of the Boston Herald newspaper. That article (which was admitted in evidence) described the start of the trial and the opening statements of counsel. In particular, the piece stated that defense counsel had told the jury that the defense "would prove [that the defendant's] cohort, twenty-three year old Louis Marotta, Junior of Hyde Park had fired the gun."

According to Butler, the news article stimulated his memory as to an incident that had occurred in the fall of 1986. Butler stated that at that time he had been at a liquor store in Hyde Park to buy liquor when he heard a voice from a parked car say "Hi, Jackie. How ya doing?" Butler saw the man known to him as "Louis" in the backseat of the car with a gun in his hand. Butler testified that Marotta then stated that he was "on the run [because] he just shot some kid."

Based on the news article, Butler called his former girl friend, Quish, and learned that "Louis's" last name was Marotta. He then went to the police and picked out Marotta's picture from a photographic display. Finally, Butler indicated in his direct examination that he had not initially believed Marotta's statement because he thought Marotta was just attempting to act "[m]acho."

As might be expected, the prosecutor's cross-examination of Butler was vigorous. The defendant now claims that four aspects of that cross-examination were improper and that the judge should not have instructed the jury during Butler's testimony on the subject of witness credibility.

(a) As has been indicated, Butler testified on direct examination that a news article about the trial in the January 14, 1988, edition of the Boston Herald revived his memory with respect to Marotta's alleged statement against penal interest. On cross-examination, Butler admitted that he had told the police that there were certain news stories in the media that he had followed and that the victim's murder was one such story. Butler also reiterated that he did not connect Marotta's name to the incident until he read the Boston Herald article of January 14, 1988. Butler admitted, however, that he was a "regular reader" of that newspaper.

Based on this background, the prosecutor confronted Butler with a news article in the Boston Herald of Friday, January 30, 1987, which contained virtually the same information as the article printed about one year later. Butler was asked to read the article to himself. Objection was made at sidebar to any use of the article on the ground that proper foundation required preliminary acknowledgement by Butler that he had read the 1987 article prior to trial. The judge permitted the examination to continue in view of the "prominen[ce]" of the article and Butler's testimony that "he [had] followed this case in the newspaper," but she instructed the prosecutor to "lay more of a foundation." The prosecutor continued his cross-examination, pointing out that the article before Butler identified Louis Marotta and the defense claim that Marotta, not the defendant, had been the shooter. Further objections as to foundation were made and overruled. Butler, however, indicated in response to a question by the prosecutor about his failure to come forward sooner with his information about Marotta: "No. I didn't read that [the January 30, 1987] article. Reading the newspaper is not a religion. I just pick it up and follow Larry Bird's career." Shortly after this answer, the prosecutor suspended inquiry on the 1987 article.

The defendant argues that cross-examination of Butler about the 1987 news article should not have been permitted without a statement by Butler that he had read the article. In the defendant's view, the questioning that occurred was unfair and prejudicial. We do not agree.

The prosecutor was obviously entitled to suggest that Butler's direct testimony was recently contrived and that Butler, in fact, had known of the information about Marotta much earlier. See Commonwealth v. Nickerson, 386 Mass. 54, 57-58, 434 N.E.2d 992 (1982); Commonwealth v. Brown, 11 Mass.App.Ct. 288, 295-296, 416 N.E.2d 218 (1981). The inquiry about the 1987 article was set against a background of admissions by Butler that he was a regular reader of the Boston Herald and that he had followed news of this particular case in the media. The judge appears to have allowed the questioning about the article de bene, in the expectation that the prosecutor would eventually establish that it would have been natural for Butler to have come forward earlier with his exculpatory information. That expectation was never fulfilled, but Butler did eventually state that he had not read the 1987 article which introduced no new information into the case. Examination on the article stopped with Butler's denial of knowledge about its contents. There was no motion to strike any part of the cross-examination.

The jury could not have been left with any misimpression. They had before them (i) Butler's testimony that the 1988 article had awakened him to the possible significance of Marotta's alleged remarks; (ii) the existence of a 1987 article in the same newspaper containing information about Marotta similar to...