Com. v. McLeod

Decision Date08 May 1985
Citation477 N.E.2d 972,394 Mass. 727
PartiesCOMMONWEALTH v. John W. McLEOD (and thirteen companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Gerald Alch, Boston, for Richard P. Aiello.

Frank J. McGee, Jr., Marshfield (Steven M. Guiney, Marshfield, with him), for John W. McLeod.

Anthony M. Cardinale, Boston, for John T. Macauda.

Daniel C. Mullane, Asst. Dist. Atty. (David B. Mark, Asst. Dist. Atty., with him), for the Com.


In the early hours of July 23, 1982, an altercation took place at the King Arthur's Motel in Chelsea between police officers from Everett and Chelsea and a group of civilians. One civilian, Vincent J. Bordonaro, died of injuries he received during that incident. At a trial of several police officers for murder in the first degree, a jury found John W. McLeod and Richard P. Aiello guilty of murder in the second degree and John T. Macauda guilty of manslaughter. The defendants were also found guilty on several other indictments, including assault and battery, assault and battery by means of dangerous weapons, and civil rights violations. 2 They now challenge their convictions on several grounds. We transferred their appeals to this court on our own motion, and we affirm the judgments of conviction. 3

The defendants join in arguing three reasons their convictions should be reversed. First, they argue that the judge abused his discretion by failing to conduct an inquiry into the possibility of prejudice during the grand jury proceedings, engendered by extensive preindictment publicity. Second, they contend that the judge's instruction to the jury on causation was incorrect. Third, they maintain that the judge should have ordered a mistrial because of alleged improprieties in the Commonwealth's closing argument. McLeod and Aiello also contend that the judge's manslaughter instruction impermissibly shifted to the defendants the burden of proving mitigating circumstances. Macauda individually poses three additional challenges. First, he claims that the judge should have allowed him to conduct a voir dire examination of witnesses who changed portions of their testimony at trial or should have allowed his motion for a mistrial on this ground. Second, he contends that the judge should have given a requested instruction on intervening, independent cause. Finally, he argues that there was insufficient evidence proving that his actions were a proximate cause of Bordonaro's death, and that therefore his motion for a required finding of not guilty at the close of the Commonwealth's case should have been granted. We reject each of these arguments and affirm the judgments of the Superior Court.

There was evidence from which the jury could have found the following facts. At approximately 11:30 P.M. on July 22, 1982, McLeod, an off-duty Everett police officer, arrived at the Village Pub, a Chelsea bar, where he consumed four alcoholic drinks. When the Village Pub closed, McLeod and others went to the "men's bar," a room on the first floor of King Arthur's Motel in Chelsea where alcohol was served after legal closing hours. McLeod arrived at King Arthur's at approximately 1:45 A.M., and consumed two or three more drinks. Between 3 A.M. and 4 A.M., a fight erupted between McLeod and several other patrons at the bar, including Alfred Mattuchio, Charles Cella, Charles Dimino, and Anthony Dimino. McLeod was badly beaten and thrown out of the bar, but he was able to reach a guard booth outside a nearby building, where he instructed the guard to telephone the Everett police.

Officers Aiello and Macauda responded to the call, picked up McLeod, and Aiello radioed the Chelsea and Everett police for assistance. They then drove the short distance to King Arthur's, where they were subsequently joined by about ten other Everett and Chelsea police officers. Seeing Mattuchio in the front doorway, the officers approached and announced that he was under arrest, but Mattuchio retreated inside the building and locked the door. The manager of King Arthur's, Anthony Dimino, then directed the persons still in the bar to go to room 209 on the second floor of the motel. Earlier, Helen Bozzi had helped Bordonaro, who was drunk, to room 209. The occupants of the room locked the door and barricaded it with furniture. After initially entering the building by a fire escape, the police informed the room's occupants that they were under arrest, and ordered them to open the door. The police also directed a variety of threats to those inside the room. When the door was not opened, the police began breaking it down. 4

After ten to twenty minutes, the police managed to break down the door, using nightsticks, a tire iron, and an axe. 5 Several officers, including Aiello and Macauda then made the "first entry" into the room, and a general melee ensued. During the first entry, Aiello and Macauda each struck several persons with heavy, blunt instruments (e.g., nightsticks, tire irons, baseball bats, axe handles, nunchaku). 6 Helen Bozzi testified that Macauda struck Bordonaro, who was lying on the bed, with a tire iron. Charles Cella saw Macauda hit Bordonaro with nunchaku or a black, hooked instrument. Charles Tardivo testified that Aiello hit Bordonaro at least twice and that Macauda delivered "three solid whacks on the head" to Bordonaro with a nightstick.

At some point, the police left the room and Macauda returned to his cruiser. Bordonaro was by this time unconscious. Aiello was seen carrying a baseball bat while walking down the hall to McLeod, who had not participated in the first entry. 7 After McLeod and Aiello walked back to the room, McLeod took the bat from Aiello. 8 During this "second entry," McLeod struck both Bordonaro and Mattuchio. 9 With each of the several hits, witnesses reported that McLeod yelled, "My name is John McLeod and don't you forget it." Bordonaro was hit several times and he rolled off the bed onto the floor. Shortly after the incident, he regained consciousness for a brief time but he later became unconscious and died at a hospital on July 30, 1982.

1. Grand jury prejudice. The defendants argue that the judge should have conducted an inquiry to determine whether the grand jury were prejudiced by preindictment publicity. The defendants claim that they made a prima facie showing of prejudice, and urge us to modify the rule that bias or prejudice is no basis for challenging indictments returned by a grand jury. See Commonwealth v. Monahan, 349 Mass. 139, 156, 207 N.E.2d 29 (1965). They contend that the judge should have inquired further or dismissed the indictments. We disagree.

First we reject the defendants' arguments that the Fifth and Fourteenth Amendments to the United States Constitution require that indictments be returned only by an unprejudiced grand jury. It is true that such a requirement has been imposed in Federal grand jury proceedings. See United States v. Hyder, 732 F.2d 841, 842 (11th Cir.1984); United States v. Burke, 700 F.2d 70, 82 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983). Nevertheless, the Supreme Court has refused to "remotely intimate any view" on whether this requirement is applicable to State grand jury proceedings (Beck v. Washington, 369 U.S. 541, 546, 82 S.Ct. 955, 958, 8 L.Ed.2d 98 [1962] ), and this court has not applied it to our own grand juries. Commonwealth v. Monahan, supra.

Moreover, we see no reason to create such a rule in this Commonwealth. This court has long recognized that "[t]he grand jury is an investigatory and accusatory body only. It cannot and does not determine guilt." Brunson v. Commonwealth, 369 Mass. 106, 120, 337 N.E.2d 895 (1975). See Commonwealth v. Woodward, 157 Mass. 516, 517, 32 N.E. 939 (1893). Because of the historical and practical nature of the grand jury, and the availability of an unprejudiced petit jury at trial, the safeguards deemed necessary to protect an accused before a petit jury are not implicated to the same degree in grand jury proceedings. Thus, this court has held that, unlike petit jurors, grand jurors may act on their own personal knowledge and need not be free from all bias or prejudice. Commonwealth v. Monahan, supra 349 Mass. at 155-156, 207 N.E.2d 29. Commonwealth v. Woodward, supra 157 Mass. at 518-519, 32 N.E. 939. See Commonwealth v. Lewis, 12 Mass.App. 562, 564, 427 N.E.2d 934 (1981).

In addition, however, the grand jury perform the important task of determining whether there is probable cause to indict an accused. Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984). In this way, the grand jury act as a shield against unfounded criminal prosecutions. See Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982); Lataille v. District Court of E. Hampden, 366 Mass. 525, 532, 320 N.E.2d 877 (1974); Branzburg v. Hayes, 408 U.S. 665, 668, 92 S.Ct. 2646, 2650, 33 L.Ed.2d 626 (1972), aff'g Matter of Pappas, 358 Mass. 604, 613-614, 266 N.E.2d 297 (1971). This court has already held that where the integrity of the grand jury process is seriously impaired, dismissal of an indictment may be appropriate. See Commonwealth v. O'Dell, 392 Mass. 445, 447, 466 N.E.2d 828 (1984) ("unfair and misleading presentation" of evidence): Commonwealth v. Salman, 387 Mass. 160, 166, 439 N.E.2d 245 (1982) (use of "knowingly false testimony"). See also Commonwealth v. St. Pierre, 377 Mass. 650, 656, 387 N.E.2d 1135 (1979) (excessive reliance on hearsay). It is clear that a grand jury must act in a matter consistent with their oath. 10 Commonwealth v. Geagan, 339 Mass. 487, 497-498, 159 N.E.2d 870, cert. denied, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959), and cases cited. It is equally true that further inquiry may be warranted where a defendant makes a prima facie showing of bias or prejudice so egregious as to result in an...

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