Com. v. Grammo

• Decision Date: 18 October 1979
• Parties: COMMONWEALTH v. Paul Vincent GRAMMO.
• Court: Appeals Court of Massachusetts

Page 476

395 N.E.2d 476

8 Mass.App.Ct. 447

COMMONWEALTH v. Paul Vincent GRAMMO.

Appeals Court of Massachusetts, Hampden.

Argued Sept. 10, 1979.

Decided Oct. 18, 1979.

William T. Walsh, Jr., Asst. Dist. Atty., for the commonwealth.

Beth H. Saltzman, Boston, for defendant, submitted a brief.

Before HALE, C. J., and ARMSTRONG and GREANEY, JJ.

GREANEY, Justice.

Paul Vincent Grammo appeals two convictions by a jury of arson of a dwelling house (G.L. c. 266, § 1) stemming from incidents on the nights of October 19 and 23, 1977, at the same multiple family building situated at 379 Birnie Avenue in Springfield. We affirm the convictions.

Grammo argues several assignments of error on appeal. Specifically, he asserts that (1) the motion judge erred in declining to suppress inculpatory admissions given by him to the police after his arrest; (2) the trial judge erred in several evidentiary rulings made in the course of the trial; and (3) the prosecutor's final argument was so egregious as to require reversal. The evidence relevant to a resolution of the various assignments will be summarized in the course of the discussion.

1. The motion to suppress. Grammo was arrested at his home by Officers Dowd and Milligan of the bomb-arson squad of the Springfield police department on November 3, 1977, under the authority of a warrant issued by a clerk of the Springfield District Court. While being transported to the station by the officers, Grammo stated, "All right, I set the fire on Birnie Avenue, my house, and when I get to the station, I'll give you a statement and I'll sign it and I'll tell you everything." Later that day, after being charged and booked, Grammo added to the previous admissions by informing the booking sergeant at the police station, "How can there be two warrants? I only lit one fire." ¹ Prior to trial, his counsel filed a motion to suppress these admissions on the basis that the police lacked probable cause to arrest Grammo and, as a result, that the admissions were the fruits of an illegal arrest subject to exclusion under the principles of Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and its progeny.

A voir dire was held on the motion directed to the question of probable cause. The evidence established that when Officer Dowd appeared before the clerk, he had knowledge that the building, a three-family tenement, had been the subject of two incendiary fires within days of each other. The fire on October 19, 1977, had originated in the cellar and had been confined to that area. The fire on October 23, 1977, also had originated in the cellar and had caused extensive damage to the first and second floors of the building. ² The officer possessed photographs which presumably depicted the damage caused by the fires. He also knew that Grammo lived in the second floor apartment with his mother and a cousin, Lawrence Suprenant, who had moved in approximately two weeks prior to the first fire. There had been discussion between Dowd and another officer indicating that Grammo was observed outside the building during the response to the second fire.

Grammo's prior conviction for arson had been unearthed in the course of the investigation. The principal material bearing on Grammo's involvement was contained in a written statement given to the police by Suprenant on November 2, 1977. The material contents of that statement indicated that, in the approximate two weeks Suprenant had resided with Grammo, the latter had awakened him at night on at least four occasions and asked him if he had smelled smoke. This pattern was repeated on the nights of October 19 and 23, when Grammo again disturbed his sleep, inquiring if he smelled smoke. The statement also indicated that, within two weeks prior to the fires, Grammo had told Suprenant that he was the best "torch" man in the city, that he set fires, and that he had set fire to his Uncle Walter's apartment a few years earlier and had been questioned by the police with regard to that fire but had avoided detection. All this information was given to the clerk as the basis for the warrant, with the possible exception of the fact of Grammo's prior arson conviction. ³ The defendant now focuses his argument solely on Suprenant's written statement and maintains that it contained hearsay information which fails the authenticating two-pronged test for such information formulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (as later refined in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971)). See Commonwealth v. Stevens, 362 Mass. 24, 26-27, 283 N.E.2d 673 (1972) (applying the Aguilar formation to the existence of probable cause to arrest). Specifically, the defendant argues that there had been no showing of Suprenant's reliability and no showing of circumstances linking Grammo to the crimes.

We are obliged to appraise all of the information, including the contents of the statement, in a commonsense fashion, avoiding a hypertechnical, strained, or grudging analysis (Commonwealth v. Martin, 6 Mass.App. ---, --- - --- ^A, 381 N.E.2d 1114 (1978); Commonwealth v. Norris, --- Mass.App. ---, --- - --- ^B, 383 N.E.2d 534 (1978)), under the standard that a finding of probable cause, while demanding more than mere suspicion, requires a lesser showing than that which is necessary to justify a conviction. Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Commonwealth v. Snow, 363 Mass. 778, 784, 298 N.E.2d 804 (1973). The information is to be evaluated as a whole, and it is permissible to draw reasonable inferences therefrom. Commonwealth v. Stewart, 358 Mass. 747, 750-752, 267 N.E.2d 213 (1971), and cases cited. While it may not be easy to determine when the police have supplied enough facts to justify an arrest in a particular case, the resolution of doubtful or marginal cases should be determined largely by the preference to be accorded to warrants (Commonwealth v. Blye, 5 Mass.App. --- ^C, 362 N.E.2d 240 (1977), and cases cited), particularly since a warrant is ordinarily required when the arrest is to be made in a dwelling. Commonwealth v. Forde, 367 Mass. 798, 804-806, 329 N.E.2d 717 (1975) (plurality opinion).

Applying these standards, we conclude that even with the exclusion of the prior arson conviction at the time the warrant was sought, a showing of probable cause had been made. There was solid evidence that the fires were incendiary in character. The temporal proximity of the two acts of arson in the basement of the small building suggested that one of the residents was responsible. Grammo was observed at the scene on the night of the second fire. His frequent badgering of Suprenant over a two-week period about smelling smoke demonstrated an uncommon concern about fires which, in the context of the circumstances, permitted inferences that the defendant knew about the fires before anyone else, ⁴ that he may have wanted to alert his relatives to their existence, and that he may have attempted to burn the building prior to October 19, 1977. Some emphasis could legitimately be placed on the defendant's actions on the night of each fire when viewed in light of his statements that he set fires, that he was the best torch man in the city, and that he had burned a relative's apartment without detection. These statements under the circumstances were highly probative. Contrary to the defendant's assertion, the hearsay received by the investigating officer from Suprenant was not of the type received from a nameless informant. Suprenant's status as the supplier of incriminating information was fully disclosed, and his information was buttressed by a commitment to repeat its admissible portions under oath to a jury. ⁵ Furthermore, although Suprenant was not a true victim of the crime, he was a victim in a sense, and the clerk in considering his information could also consider this fact as relevant. Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1972), cert. denied, 412 U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1003 (1973). Gauging the reliability of information supplied by an intended victim of the crime requires less stringent inquiry than that applied to the information given by an unknown informant. See 1 LaFave, Search and Seizure § 3.4 (1978). "The crucial link between the unsolved arson and the defendant was provided by informants whose reliability was ensured by their status as victims of the offense." Commonwealth v. Cruz, 373 Mass. 676, --- - --- ^D, 369 N.E.2d 996 (1977). In balancing the probabilities, there was a showing made before the clerk rising above a bare suspicion that the defendant was the person involved in setting the fires. Because of the existence of probable cause when the warrant was issued, the incriminating statements made by Grammo flowed as the aftermath of a lawful arrest, and the defendant's contention that the statements should have been suppressed as the fruits of an illegal arrest was properly rejected.

2. Evidentiary rulings. The second series of exceptions concerns rulings made by the trial judge which dealt with expert opinions as to the origin of the fires, questions by the prosecutor of Commonwealth witnesses which it is claimed tended to reveal the defendant's prior criminal record, and evidence produced in rebuttal tending to show Suprenant's good character.

( A ) Opinion testimony. As part of its case in chief, the Commonwealth presented evidence through Edward J. Franz, Jr., and Fred Tyburski, a district fire chief and a captain, respectively, of the Springfield fire department, that the fires in issue were intentional or incendiary in origin. It is argued on appeal that the judge's failure to exclude this testimony was error because the opinions impermissibly invaded the jury's consideration of an ultimate issue in the case...