Com. v. Graziano

• Decision Date: 28 December 1976
• Citation: 358 N.E.2d 776,371 Mass. 596
• Parties: COMMONWEALTH v. Eugene GRAZIANO (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 776

358 N.E.2d 776

371 Mass. 596

COMMONWEALTH

v. Eugene GRAZIANO (and a companion case ¹).

Supreme Judicial Court of Massachusetts.

Argued Oct. 5, 1976.

Decided Dec. 28, 1976.

Jay M. Forgotson, Springfield, for defendant Eugene Graziano.

John T. McDonough, Springfield, for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

REARDON, Justice.

A judge of the Superior Court, pursuant to G.L. c. 278, § 30A, reported to the Appeals Court for decision before trial certain questions of law and we transferred the case for hearing here. G.L. c. 211A, § 10(A).

The defendants were indicted in September, 1972, for murder and armed robbery, and were found guilty on February 2, 1973, of murder in the second degree and armed robbery. They both appealed and we reversed the convictions and ordered a new trial 'because of error in restricting the defendants' cross-examination of the principal prosecution witness.' COMMONWEALTH V. GRAZIANO, --- MASS. --- , 331 N.E.2D 808 (1975)^A. Following some delay a second trial was scheduled to commence on February 3, 1976, and several weeks prior thereto the defendant Graziano filed a motion that he be permitted to submit to a polygraph examination. A hearing on the motion was held on January 26, 1976, at which, following an intensive examination, he voluntarily waived his rights under the Fifth and Sixth Amendments to the United States Constitution and the assistance of an interpreter. Thereupon the judge reported the questions of law set out in the margin. ²

In our opinion, appellate consideration of the issues presented by questions Nos. 5 through 10 is not presently warranted. Commonwealth v. A Juvenile, 365 Mass. 421, 435--436, 313 N.E.2d 120 (1974) stresses the role of trial judges in developing and administering standards for employment of polygraph tests. 'For many generations the trial judges have provided the cutting edge for much of the law's progression. From their decisions, together with the overview of the appellate courts and the process of trial and error, the common law has evolved and progressed. In the main, this practice should be followed . . .. Thus, if in the first instance, an experienced and courageous trial judge makes the decision to admit polygraph evidence, it would be best to let him exercise his judgment, subject to our review for possible error.' It seems to us that question Nos. 5 through 10 have reference to the reliability of polygraph results in this particular case and should be resolved in the first instance by the trial judge. We therefore rule that the report of these questions is premature. This holding is in no way to be construed as minimizing the concerns which the questions raise. Careful resolution of such issues is an essential prerequisite to the accurate utilization of lie detectors in criminal proceedings. The voir dire process elaborated in Commonwealth v. A Juvenile, supra at 429--430, ^b 313 N.E.2d 120, will provide an opportunity for the judge to consider expert opinion prior to ruling on the admissibility of polygraph results. ³ Without the benefit of such testimony we cannot form a judgment on the appropriate answer to questions Nos. 5 through 10.

We must decline also to pass at this time on questions Nos. 1 through 4. They relate largely to the effect which admission of Graziano's polygraph results might have on the rights of the codefendant, Facente, from whose counsel we received no brief although, as counsel, he joined in a statement of agreed facts and a statement of issues before the trial judge. Report of these questions is premature, for on remand the trial judge may decline to permit the polygraph test or, if such a test is given, may subsequently exclude its results from use at the trial. It is not beyond possibility that the test might prove exculpatory to both defendants. In short, we cannot deal with hypotheses in this area and on these questions in the present posture of the cases.

The cases are remanded for further proceedings in accordance with this opinion.

So ordered.

1 Commonwealth v. Anthony Facente.

a. Mass.Adv.Sh. (1975) 2282.

2 '1. If the trial judge in this criminal prosecution (in the proper exercise of his discretion and in accordance with the procedure set forth in Commonwealth v. A Juvenile, 1974 Mass. A.S. 907 (313 N.E.2d 120)) admits at trial the results of a polygraph test taken by the co-defendant Graziano as direct proof against Graziano of the crimes alleged and the co-defendant Graziano does not testify, and those polygraph test results inculpate the defendant Facente, does the admission of the polygraph test results violate the defendant Facente's right to confront witnesses against him secured to him by the Sixth and Fourteenth Amendments to the United States Constitution entitling him to a separate trial under the doctrine of U.S. v. Bruton, 391 U.S. 123 (88 S.Ct. 1620, 20 L.Ed.2d 476) (1968)?

'2. If the trial judge in this criminal prosecution (in the proper exercise of his discretion and in accordance with the...