Com. v. LaFontaine

• Decision Date: 29 June 1992
• Docket Number: No. 91-P-242,91-P-242
• Parties: COMMONWEALTH v. Albert F. LaFONTAINE (and five companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 1103

591 N.E.2d 1103

32 Mass.App.Ct. 529

COMMONWEALTH v. Albert F. LaFONTAINE (and five companion cases ¹).

No. 91-P-242.

Appeals Court of Massachusetts Suffolk.

Argued Dec. 10, 1991.

Decided May 15, 1992.

Further Appellate Review Denied

June 29, 1992.

Willie J. Davis, Boston, for Albert F. LaFontaine.

Frances L. Robinson, Boston, for Jose R. Pomales.

Robert J. McKenna, Jr., Asst. Dist. Atty., for the Commonwealth.

Before ARMSTRONG, JACOBS and GILLERMAN, JJ.

JACOBS, Justice.

After trial before a Superior Court jury, the defendants were found guilty on indictments charging them with larceny of $3,980 and of using and threatening to use their powers as Boston police officers to extort money. ² On appeal, the defendants claim the judge erred by: (1) denying their motions for required findings of not guilty; (2) advising a prosecution witness, in the presence of the jury and during cross-examination, of his right not to incriminate himself; (3) ordering the jury to return verdicts before the completion of deliberations; and, (4) improperly instructing the jury. The defendants also claim that the prosecutor's argument was improper and that the trial errors, when considered collectively, dictate that their convictions be reversed. We reject the defendants' claims and affirm the convictions.

1. Sufficiency of the Evidence.

Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979), there was substantial evidence of the defendants' guilt. The cumulative testimony of six of the approximately nine persons who were in a Dorchester apartment established that the defendants entered the apartment at 11:45 P.M. on January 17, 1989, announcing they were police officers; with guns drawn, they handcuffed Joseph Taylor and Howard Taylor and conducted a search of the apartment and its occupants which resulted in a seizure of, among other things, forty-two grams of cocaine, various drug paraphernalia and approximately $4,000 in cash; while the money was being seized, the defendant LaFontaine said to Joseph Taylor, "This is hardly enough," and told Howard Taylor that he wanted $5,000 from him and $5,000 from Joseph Taylor; when Howard Taylor indicated he could get money from a friend, his sister was permitted to leave for the purpose of obtaining that money; after she returned with $960, LaFontaine took the money and told Joseph Taylor that $5,000 was not enough to let two people go; and, the defendants arrested Joseph Taylor but removed the handcuffs from Howard Taylor and released him. Other evidence indicated that the defendants were in the four-room apartment for approximately two hours and forty minutes and the defendant Pomales, in his official incident report, stated that the defendants turned $400 over to the Boston police department along with the seized drugs and paraphernalia.

While there was no testimony that Pomales spoke words of extortion, there was ample evidence of his actions, from which the jury could infer that he was aware of LaFontaine's extortionate efforts, shared with him the intent to extort and actively assisted in the crime. See Commonwealth v. Pope, 406 Mass. 581, 585, 549 N.E.2d 1120 (1990). There was also evidence that Pomales, apart from, and prior to, any extortion, took $3,020 ³ in currency from Howard Taylor with intent to steal it and that LaFontaine knew of this theft and was a joint venturer in the larceny.

2. Invocation of Fifth Amendment Privilege in Presence of Jury.

Counsel for the defendants vigorously cross-examined Howard Taylor in an attempt to discredit his testimony, verified by two other witnesses, that he had $3,000 in currency on his person when the defendants entered the apartment. In the course of responding to questions concerning the sources of his income, Howard Taylor testified that he performed computer programming work for an attorney for which he received "under the table compensation." After repeating that characterization, and testifying that he was paid for the work, he was asked by counsel, "And how much did he pay you?" At that point the judge stated:

"It's my duty to inform you that you are now under oath and you may be making a statement which, with respect to the Internal Revenue Code and the cognate State statutes, may place you in criminal jeopardy."

The witness then inquired whether he was required to answer, and the judge responded:

"You are entitled to assert your right not to incriminate yourself under both the Federal and State constitution[s]."

The witness then stated that he refused to answer. No objection or motion was made by defense counsel, who continued to examine concerning other claimed sources of income. On the next day, after completion of Howard Taylor's testimony, defense counsel moved to strike his testimony. The motion was denied.

When the judge, without the urging of counsel, intervened in the examination of the witness to advise him of his constitutional right not to incriminate himself, he acted well within his discretion and in accordance with a "commendable practice." See Commonwealth v. Slaney, 345 Mass. 135, 141-142, 185 N.E.2d 919 (1962); Taylor v. Commonwealth, 369 Mass. 183, 192, 338 N.E.2d 823 (1975); Commonwealth v. Crawford, 12 Mass.App.Ct. 776, 779, 429 N.E.2d 54 (1981), and cases cited. "[T]he Judge is present as the embodiment of the Constitution, charged with the firm duty to see that the rights of all are upheld--the defendants, the witnesses and the public. Whether and to whatever extent it may be the duty of the trial judge to caution a witness about his Fifth Amendment rights, a careful one never hesitates." United States v. Wilcox, 450 F.2d 1131, 1139 (5th Cir.1971), cert. denied, 405 U.S. 917, 92 S.Ct. 941, 30 L.Ed.2d 787 (1972).

The question, therefore, is not the propriety of the judge's intervention, but whether he erred, in the circumstances, in making his cautionary remarks and permitting Howard Taylor to exercise his privilege in the presence of the jury. As a general proposition, it is the better practice to excuse the jurors and to dispense the constitutional advice out of their hearing. See United States v. Agee, 597 F.2d 350, 362 (3d Cir.), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979); McCormick, Evidence § 137 at 513-515 (4th ed. 1992). Thus, the risk of impermissible inference by the jury is greatly reduced. "Nevertheless, as has been observed, convictions are not vulnerable to reversal in all cases where witnesses assert Fifth Amendment privileges in the face of a jury." Commonwealth v. Martin, 372 Mass. 412, 414, 362 N.E.2d 507 (1977). Compare Commonwealth v. Penta, 32 Mass.App.Ct. 36, 46 n. 5, 586 N.E.2d 996 (1992). It has even been held to be error to refuse to force a prosecution witness to assert his Fifth Amendment privilege before the jury. United States v. Kaplan, 832 F.2d 676, 684 (1st Cir.1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988). See McCormick, Evidence § 137 at 512 n. 13 (4th ed. 1992). The test, in cases other than those involving questions of prosecutorial misconduct, is whether the "witness's demurral is thought to add the 'critical weight' that brings about the verdict of guilty." Commonwealth v. Martin, supra 372 Mass. at 414, 362 N.E.2d 507, quoting from Namet v. United States, 373 U.S. 179, 187, 83 S.Ct. 1151, 1155, 10 L.Ed.2d 278 (1963).

While the exercise by a witness of his Fifth Amendment rights has the potential of significant effect upon a jury, Commonwealth v. Hesketh, 386 Mass. 153, 157, 434 N.E.2d 1238 (1982), we discern no adverse impact upon the defendants here. Given the evidence of Howard Taylor's involvement in illegal drug activity, and his admitting to numerous defaults as a criminal defendant, any weakening of his credibility which might derive from his resting on his rights would be both minimal and collateral. His testimony that he possessed $3,000 in currency was thoroughly attacked during extensive cross-examination addressed to his sources of income and the benefits he may have received from the Commonwealth in exchange for his testimony. Moreover, he had not claimed that the $3,000 in question represented earnings. He testified that the money had been paid to him by his former wife as a part of a real estate transaction.

The defendants suggest that the judge, by openly describing his intervention as a "duty," somehow vouched for the witness and implied to the jury that he believed that Howard Taylor had received substantial "under the table" compensation. The fact that experienced defense counsel did not perceive the judge's intervention or remarks as being sufficiently critical to warrant an immediate objection diminishes the force of the argument. See Commonwealth v. Grace, 381 Mass. 753, 760, 412 N.E.2d 354 (1980). In any event, the witness minimized any effect of his claim of privilege by shortly thereafter testifying that he made "a couple of dollars" on another computer programming job. The absence of significant prejudice to the defendants arising from Howard Taylor's reliance on his Fifth Amendment rights undermines their further claim that the exercise of those rights by a prosecution witness violated their rights of confrontation under the Sixth Amendment to the United States Constitution. See Commonwealth v. Turner, 393 Mass. 685, 690, 473 N.E.2d 679 (1985).

3. Ordering Jury to Return Partial Verdicts.

The judge had instructed the jurors prior to their deliberations that they had the option of reporting when they had reached a verdict on any indictment and that he was reserving to himself "the option of asking you at any particular point have you reached a verdict on any indictment and then asking you to come in and return a verdict as to that indictment...." After the jurors had deliberated for approximately four hours, they asked to be reinstructed on the concept of joint venture. The judge, after...