Com. v. Kane

• Decision Date: 27 February 1985
• Citation: 19 Mass.App.Ct. 129,472 N.E.2d 1343
• Parties: COMMONWEALTH v. Michael J. KANE.
• Court: Appeals Court of Massachusetts

Page 1343

472 N.E.2d 1343

19 Mass.App.Ct. 129

COMMONWEALTH v. Michael J. KANE.

Appeals Court of Massachusetts Plymouth.

Argued Oct. 4, 1984.

Decided Dec. 31, 1984.

Further Appellate Review Denied Feb. 27, 1985.

Bernard M. Grossberg, Boston, for defendant.

Mary Ellen O'Sullivan, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, KAPLAN and FINE, JJ.

KAPLAN, Justice.

The defendant, Michael J. Kane, was tried on January 3-5, 1978, upon an indictment returned on October 28, 1976, for the crimes of breaking and entering in the nighttime with intent to commit a felony (G.L. c. 266, § 16) and larceny from a building (G.L. c. 266, § 20), allegedly committed on September 11, 1976. We rest reversal of the defendant's conviction of these offenses mainly on the material errors of the trial judge in instructing the jury. The instructions we hold erroneous were not objected to at the time, but in the special circumstances of the case are saved for appellate review by a motion for a new trial, made by successor defense counsel, which the judge mistakenly denied. ¹

1. Summary of the Trial. We first give an impression of the substance of the trial. During the morning session of the first trial day, January 3, 1978, the Commonwealth's case stood thus. Lenora Rugman, owner with her husband of land, house, and barn in a rural part of Hanover, testified that having shut (but probably not locked) the doors of the barn on September 10, 1976, she awoke the following morning to find that various pieces of mechanical and other equipment, known by her to have been in the barn, were missing.

The Commonwealth called Dennis Gibson, who was under indictment for the same offenses and currently an inmate of the house of correction at Deer Island after convictions on unrelated charges. He said he had known the defendant for two and a half years and was staying with him in Marshfield on September 10. A few days earlier he had accompanied the defendant to a car rental company where the defendant hired a 1976 Ford LTD automobile. In that car, he and the defendant drove to the Rugman place, arriving there about 12:30 A.M., September 11; another person (suggesting Paul Blanchard) was present with a van. The defendant and Blanchard, passing through a cornfield, went to the barn, opened the shut door, entered, removed pieces of equipment and carried them some one hundred feet to the van. Gibson said he assisted at the van, but otherwise was acting as a lookout. About 3:30 A.M. the men drove off.

Cross-examination of Gibson commenced with questions inquiring in detail when and where he had given information to the police about this and other breaks; then the examination veered to the subject of any promises made to him by the police to induce him to inform or to reward him for doing so. At this point in the cross-examination the luncheon recess was called.

When the court reconvened about 2:00 P.M. the defendant, who had attended the morning session, and had not been under restraint, was absent. The judge temporized with the situation by indicating to the jury that one of the attorneys was ill; he said trial would be suspended until the next morning. With the jury still in their seats, the prosecutor drew attention to the fact that the defendant was not present. Defendant's counsel asked whether that matter could not wait until the jury were gone. The jury were then excused.

At the bench, counsel said he had asked the defendant to go home (a short distance from the courthouse) and bring in his wife by two o'clock; she might be needed as a witness. At 2:45 P.M. the prosecutor noted the time and asked for an arrest warrant. The warrant issued. The defendant remained absent from the courtroom and was not apprehended until after the period of the trial.

Trial resumed on January 4, with further, detailed cross-examination of Gibson. It consisted of proof of Gibson's criminal convictions and inquiry into his meetings and interviews with police officers and assistant district attorneys, as well as talks with his own attorney at the time, directed to the question of promises or other inducements held out to him to procure his cooperation. Gibson indicated that he expected he would be rewarded in some way, at least by a favorable statement from the prosecution to the judge at sentencing on the Rugman break and on the numerous other charges as to which he had admitted his guilt to the officers. However, except for an answer, "I was told maybe, yes," in response to a question whether an assistant district attorney had promised him long probation, ² Gibson resisted any concession in his testimony that he had been given specific promises. Defendant's counsel sought to present enough evidence to raise an inference that Gibson could reasonably have understood that he was being assured a long suspended sentence or long probation covering all the charges. On redirect, Gibson attributed his cooperation with the Commonwealth to a conscientious change of heart. ³

When Gibson stepped down, the Commonwealth called Robert Gay, manager of the car rental place, who said a rental contract of a 1976 LTD wagon was written with a "Michael S. Kane" on September 8, 1976. Gay asserted that he knew the defendant but had not handled this contract and had not seen the customer at the time. Over objection by the defense, the prosecutor, in the form of showing the witness' "identification" of the defendant at a prior car transaction, got in references to the defendant's absence from the courtroom.

The Commonwealth's last witness was Paul Hayes, a Hanover police officer. He had appeared at the Rugmans' house on the morning of September 11, and made certain observations: footprints leading from the barn in the direction of the putative location of the van; tracks consistent with the use of a van, etc. Hayes testified to interviews with Gibson and the cross-examination again stressed the question of inducements offered to Gibson.

On the third day of trial, after short continued cross-examination of Hayes, the prosecutor, taking him on redirect, started with the question, "Officer Hayes, you see Mr. Kane in the courtroom today?" At bench conference, counsel moved for a mistrial. He argued that the prosecutor's question compounded the damage done by him earlier in calling attention to the defendant's absence. The judge asked counsel whether he wanted to offer evidence about the defendant's whereabouts. Counsel said he could not do so. The wife, he added, now was saying that the defendant in fact had taken her to a hospital. The prosecutor contributed the information that police, armed with the warrant, had gone to the defendant's home, but failed to locate him there; counsel said the wife had called the defendant's friends without result. It was noted that the defendant's car was still in its place. Mistrial was denied.

Resuming the redirect examination of Hayes, the prosecutor pressed home with questions eliciting, over objection, the answers that the defendant had been absent from the court since the first morning recess. The Commonwealth rested and a motion for a required finding of not guilty was denied.

The defense called Robert Fernandez, a State police officer assigned to the district attorney's office in Plymouth County. He had taken part in conversations with Gibson. The questioning went to any special treatment of Gibson calculated to loosen his tongue and assist the Commonwealth.

Next came John Doherty, an assistant district attorney. Defendant's counsel attempted to question Doherty about a November 15, 1977, hearing on the indictments arising from the Rugman theft, and in particular what Gibson, who was present at the hearing, might infer from his attorney's statement to the court about any expectation of a lenient sentence. The prosecutor's objection, apparently on hearsay grounds, was sustained, and little was elicited from the witness.

Earlier on that day of trial the defense made known that it wanted to call Gibson's attorney as a witness. The attorney had received a summons to appear and was in the courthouse on the first trial day. Evidently there had been some acrimony in an exchange between the attorney and defense counsel about his reluctance to remain available and return to court to testify. Counsel asked that the attorney be required by bench warrant to attend or, alternatively, that a transcript of the November 15, 1977, hearing be admitted in evidence. When the prosecutor complained that the defense had waited to the eleventh hour to call this witness, the judge denied the request. The matter of bringing the attorney into court was renewed after Doherty's testimony, but without result. The defense rested. ⁴

The judge's instructions are considered at point 2 below.

2. Errors Claimed on Motion for New Trial. We deal with the matters raised on the motion for a new trial filed by successor counsel on June 22, 1982 (but not passed on until September 9, 1983).

(a) Treatment of defendant's "flight." Rule 18 of our Rules of Criminal Procedure, after stating that a defendant is entitled to be present at all critical stages of the proceedings, provides in clause (a)(1), 378 Mass. (1979), that "[i]f a defendant is present at the beginning of a trial and thereafter absents himself without cause ... the trial may proceed to a conclusion" except for the imposition of sentence. As a note of the Reporter indicates, "without cause" translates as "voluntarily." Mass.Ann.Laws, Rules of Criminal Procedure, at 366 (Law.Co-op.1979). The rule does not enter upon the details of determining whether an absence is voluntary but all acknowledge that the Sixth Amendment right of confrontation of a defendant should not be exalted to the point of putting the orderly conduct of a trial at the mercy of his possible disinclination to face the prosecution. See Commonwealth v. McCarthy, 163 Mass. 458, 459-460, 40 N.E. 766 (1895); Government of the Virgin...