Com. v. Lamattina

• Decision Date: 30 April 1974
• Parties: COMMONWEALTH v. Rocco LAMATTINA (and three companion cases).
• Court: Appeals Court of Massachusetts

Page 136

310 N.E.2d 136

2 Mass.App.Ct. 203

COMMONWEALTH v. Rocco LAMATTINA (and three companion cases).

Appeals Court of Massachusetts, Middlesex.

Argued March 11, 1974.

Decided April 30, 1974.

Daniel F. Toomey, Boston, for defendant DeStefano and others.

Chester C. Paris, Boston, for defendant Lamattina.

Barbara A. H. Smith, Asst. Atty. Gen., for the Commonwealth.

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

HALE, Chief Justice.

At a jury trial held subject to the provisions of G.L. c. 278, §§ 33A--33G, the four defendants (Rocco Lamattina, John Cefalo, William DeStefano, and Alfred Sarno) were convicted on separate indictments charging conspiracy to commit arson. The defendants Cefalo, DeStefano, and Sarno have briefed and argued several assignments of error concerning: (1) the denial of certain pre-trial motions and the nonexistence of a transcript of the pretrial proceedings; (2) the ruling by the trial judge limiting their access to portions of the grand jury testimony of certain Commonwealth witnesses; and (3) the judge's ruling, made without affording them the opportunity to present opposing arguments, that sufficient evidence of a conspiracy had been introduced to warrant the jury's consideration of the acts and declarations of each alleged coconspirator against each of the others. The defendant Lamattina is here on a single assignment of error as to the denial of his motion for a directed verdict.

We summarize the evidence. The gist of the Commonwealth's case was that the four defendants, and a fifth coconspirator who was not indicted, conspired to have a furniture store in Woburn, in which at least some of the five had a financial interest, destroyed by fire. Pursuant to the alleged conspiracy they arranged to have much of the store's inventory removed from the premises before the fire so as to minimize the actual loss and to maximize the gain realized from insurance proceeds.

The furniture business in question was organized in May, 1970, when John Giardini, the unindicted coconspirator, met with the defendants Lamattina and Sarno. A corporation, Woburn Furniture Sales, Inc., was formed; its officers included one Poulos, who was asked by Giardini to serve as president; one Braccia, who was Sarno's daughter; and one Waldmyer, who was Lamattina's daughter. Giardini arranged for the renting of premises for the store in Woburn; premises were leased to the corporation in the names of Poulos and one DeVito. Giardini testified that 'John DeVito' was an alias used by him. Later in 1970 the corporation was re-formed as J. Tanner's Furniture, Inc. (Tanner's). One Carifio became treasurer at Sarno's request, and a new lease for the same premises was negotiated. At Sarno's request Carifio signed as lessee.

Carifio testified that as treasurer of Tanner's he gave the defendant Lamattina mortgages totaling $67,000; that money to finance the store came from the R.J.D. Realty Trust, of which Lamattina was the trustee; that $13,000 was put into the store's bank account; and that he had no knowledge of whether $67,000 was ever advanced to the corporation.

One Nesson testified that he had been hired by Sarno to manage the store. Nesson testified that Lamattina came to the store regularly, and that Lamattina informed him 'that he (Lamattina) was the boss,' and that Nesson should listen only to him. He related a conversation in which Lamattina and Sarno had said 'that whenever the store went bankrupt or had a fire or anything, I (Nesson) would share in the profits.' He testified that about one week after that conversation Sarno and Lamattina asked him to order large quantities of merchandise for the store and that he did so. Nesson also related the substance of two other conversations which occurred in the presence of Sarno, Lamattina, and Giardini, in which Nesson was again told he would share in the profits 'when we had a fire or went bankrupt.'

Giardini testified in detail as to the business activities of the store. He opened a checking account for the store using the name of 'John DeVito.' He testified that he and Sarno ordered furniture for the store, using aliases. Most of the merchandise was purchased on credit. He further testified that late in 1970 he expressed his concern to Sarno that he was 'going to wind up with nothing,' to which Sarno responded, 'Don't worry. At the end, you will be taken care of.' He stated that Sarno had told him that Lamattina had been removing quantities of merchandise from the store. Giardini testified that the defendants Cefalo and DeStefano were coming to the store regularly in late 1970. Shortly before Christmas, 1970, Giardini again expressed his concern to Sarno about the future of the business; Sarno told Giardini to '(t)ry to stall the salesmen and everybody and wait until after Christmas, and whatever we sell, we will pay.'

Giardini then related a subsequent conversation in which Sarno told Giardini that '(t)he place has come to an end. Mr. Lamattina is hollering . . . he wants the place burned.' Giardini further testified that on Saturday, January 9, 1971, while he was at Tanner's, he overheard Sarno tell Cafalo and DeStefano, 'We are ready to let the place go up next week.' Giardini testified that they replied, 'We are all ready.' Giardini stated that on Tuesday, January 12, 1971, Sarno instructed him to go to the store the next day to activate the alarm system and to '(s)tay there ten, fifteen minutes, and don't stay no longer.' Giardini testified that he followed those instructions. Upon arriving at the store, Giardini observed that 'there wasn't much stuff left' in the store at that time; he also smelled an odor 'like gasoline or something' at the rear of the store.

Giardini further testified that he telephoned an F.B.I. agent and informed him that 'the place was going to be burned that night.' The F.B.I. agent corroborated that testimony. The Commonwealth introduced evidence of the occurrence of a fire at the premises on January 13, 1971; the Woburn fire chief testified that in his opinion the fire had been purposely set although it could have been caused by accident. Giardini also testified that he met with Lamattina and Sarno after the fire, at which time Sarno remarked, 'Everything went all right,' and Lamattina stated, 'When everything is settled, you will be well taken care of.'

The Commonwealth introduced testimony that Tanner's was delinquent in paying its heating bills. One Carino, an executive of the company which supplied heating oil to Tanner's, testified that on one occasion shortly before the fire (he was unable to recall the exact day), he went to the premises to see about getting paid. He testified that 'the place was locked up' but that the defendants Cefalo and DeStefano could be seen inside the store. They asked Carino to leave some oil, but Carino refused to do so. Sarno arrived shortly thereafter, and Carino testified that he and Sarno 'exchanged words about the place was supposed to have been changing hands, (and Sarno asked Carino) to come the next morning and get a check, and could I leave some oil.' Carino again refused to leave any oil 'until I got some money.'

The Commonwealth also introduced evidence that the premises had been insured for $185,000; that the loss payee was the R.J.D. Realty Trust; that on several occasions, including the day of the fire and the two previous days, furniture had been removed from the store and that at least some of this furniture had been transported to a warehouse at Lamattina's request; and that no rent for the premises had been paid during October, November, or December of 1970.

1. A hearing on the defendants' pre-trial motions was held before a judge other than the trial judge on October 21, 1971. It does not appear that any witnesses were called to testify at the hearing. Following the hearing certain motions were denied; the defendants DeStefano, Cefalo, and Sarno have assigned those denials as error. As a threshold argument, however, these defendants maintain that the nonexistence of a transcript of the pre-trial hearing operates as a denial of their right to appellate review of the actions taken on the motions. Under the circumstances disclosed by the record before us, we fail to see the logic in the defendants' argument.

The docket entries disclose that the motions to have the trial and pre-trial proceedings made subject to G.L. c. 278, §§ 33A--33G, were referred to the trial judge, who subsequently allowed the motions. On April 7, 1972, some five months after trial, one Richard Ross ¹ was appointed stenographer 'as of October 21, 1971' to take the evidence on the pre-trial motions. Ross later became ill, and a second stenographer was appointed. On March 22, 1973, the judge who presided at the pre-trial hearing filed a 'Certification of Court as to Transcript' wherein he stated that Ross was no longer a court reporter and that a search of Ross' notes had failed to yield a transcript of the October 1971 hearing. The judge further stated: 'I did not allow any motion to take such proceedings under c. 278 . . . there is no transcript of any such hearing, at which no testimony was taken in any event' (emphasis supplied).

From these circumstances it appears to us that this is not a situation in which stenographic notes that once existed were later lost or destroyed but, rather, one in which no such notes ever existed. Commonwealth v Avery, Mass. (1974), 309 N.E.2d 497. Compare Brooks v. National Shawmut Bank, 323 Mass. 677, 680--683, 84 N.E.2d 318 (1949). It cannot be said here that the failure to have the pretrial proceedings transcribed amounted to a violation of the defendants' basic rights to secure appellate review pursuant to G.L. c. 278, § 31. The defendants were free to present arguments to this court concerning the denial of the motions and have availed themselves of that opportunity. The nonexistence of notes of the pre-trial hearing, at which no witnesses were...