Com. v. Papadinis

• Citation: 23 Mass.App.Ct. 570,503 N.E.2d 1334
• Parties: COMMONWEALTH v. James M. PAPADINIS.
• Decision Date: 27 February 1987
• Court: Appeals Court of Massachusetts

Page 1334

503 N.E.2d 1334

23 Mass.App.Ct. 570

COMMONWEALTH v. James M. PAPADINIS.

Appeals Court of Massachusetts Essex.

Argued Dec. 5, 1986.

Decided Feb. 27, 1987.

Albert L. Hutton, Jr., Boston, for defendant.

Elin H. Graydon, Asst. Dist. Atty. (Robert H. Weiner, Asst. Dist. Atty., with her) for Com.

Before GRANT, PERRETTA and KASS, JJ.

KASS, Justice.

There is an initial question whether evidence offered as bearing on the defendant's state of mind was wrongly excluded. We decide that it was and inquire next whether, considering the theory of the defense and the jury's verdict, the error was harmless.

The case is a grim and tragic one.

On June 18, 1985, at about 2:30 A.M., Harold Vitale, a Saugus police officer, stopped for minor traffic violations a car carrying four young men. There was also some suspicion that the four had been involved in illicit setting off of fire works earlier that night. Officer Vitale approached the car and asked the driver, the defendant Papadinis, for his license and the car's registration. From his police cruiser, Officer Vitale made the usual checks--validity of license and registration, any outstanding violations or arrest warrants. He returned to the stopped car to request the names and addresses of the passengers. More conversation followed between Officer Vitale, who was back in his cruiser, and Saugus police headquarters. Papadinis had a police scanner (a radio which received police radio broadcasts) over which he and his friends listened to the radio traffic between Officer Vitale and headquarters. What they overheard discomfited Papadinis (there was an outstanding warrant for his arrest), who expressed to his companions (such, at least, was the testimony most favorable to the Commonwealth) an intent to "take off."

When Officer Vitale came back to the defendant's car for a third time, he asked the defendant to step out of the car. Papadinis did not, demanding to know the reason for the officer's request. Officer Vitale reached into the partially open window to unlock the door to the left of the driver's seat, whereupon Papadinis put the car in drive and stepped on the gas, dragging Officer Vitale with him. The police officer begged Papadinis to stop the car. Instead, Papadinis accelerated and ultimately dashed Officer Vitale against a sign post. Officer Vitale died of resulting multiple traumatic injuries to skull, brain, pelvis, and spinal cord.

Upon an indictment against Papadinis for murder in the first degree (G.L. c. 265, § 1), the jury returned a verdict of guilty of the lesser included offense of involuntary manslaughter.

1. Exclusion of certain evidence offered to explain the defendant's conduct. To prove first degree murder, the Commonwealth undertook to show that Papadinis acted with deliberate premeditation and extreme atrocity or cruelty. See G.L. c. 265, § 1. His intent when he drove off was a central element in the case. In support of its position, the Commonwealth adduced evidence from the three passengers tending to prove that Papadinis intended to bolt, rolled up his window to trap the police officer's arm, ignored his pleas to stop, and ignored the exhortation of his companions to stop and let the policeman go. There was further testimony that Papadinis was anxious about being arrested and irate about remarks by the police about him which he had overheard on his scanner.

Papadinis framed as his defense that he was frightened of Officer Vitale, that he did not realize the officer had an arm inside the car, that he drove off in fear and panic, and that it was all a terrible accident. In support of that position Papadinis sought to testify that he was afraid of Officer Vitale because he realized that Vitale was the same policeman who had shot and wounded a young man in the course of a motor vehicle stop eight years earlier. The incident had been widely reported in the media. That explanation for Papadinis's terror and panic was excluded. He was permitted to testify only that he was afraid of Officer Vitale because the officer placed a hand on his gun when he ordered Papadinis out of his car.

In the face of evidence that portrayed his conduct as calculatedly vicious, Papadinis had a right to explain his intention in driving off. The principle is settled that a defendant may explain conduct which on its face is incriminating. Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 2146-2147, 90 L.Ed.2d 636 (1986) (explanation of why the defendant had confessed to the crime charged). Commonwealth v. Goldberg, 212 Mass. 88, 91, 98 N.E. 692 (1912) (explanation of why the defendants had left the jurisdiction). Commonwealth v. Britland, 300 Mass. 492, 498, 15 N.E.2d 657 (1938) (why the defendant had thrown away a gun). Commonwealth v. Fatalo, 345 Mass. 85, 86-87, 185 N.E.2d 754 (1962) (failure to mention at arrest a witness who later corroborated an alibi). Commonwealth v. Hicks, 375 Mass. 274, 277-278, 376 N.E.2d 558 (1978) (why the defendant had a knotted woman's stocking in his possession). Commonwealth v. Mandeville, 386 Mass. 393, 399-400, 436 N.E.2d 912 (1982) (explanation of damaging testimony elicited on cross-examination). Commonwealth v. Helfant, 398 Mass. 214, 222, 496 N.E.2d 433 (1986) (also explanation of damaging testimony elicited on cross-examination). Commonwealth v. Huffman, 11 Mass.App.Ct. 185, 190, 414 N.E.2d 1032 (1981), S.C., 385 Mass. 122, 123 n. 3 (1982) (intended use of drugs). Wigmore, Evidence §§ 581 & 1965 (3d ed. 1940). As several of these authorities have put it, the defendant is permitted to testify what was in his mind and, thus, elucidate the state of his mind. Papadinis should have been allowed to testify that he was afraid because of what he had read, seen, or heard about Officer Vitale. That the incident had been bruited about Saugus some years before and that Papadinis had not shown he knew what Officer Vitale looked like were points that went to weight, not admissibility.

It is perhaps useful to review what the proffered evidence was not, because there was some confusion on that score at trial. ¹ The material was not offered for (a) its truth (i.e., that Vitale was dangerous); (b) that Vitale had committed prior bad acts; or (c) that Vitale had a reputation for violence. For the purpose of points (a) and (b) the evidence would not have been admissible in any circumstances, and for point (c) it would have been irrelevant because Papadinis expressly renounced self-defense as a reason for his acts. ²

From the record it is apparent that the judge thought the contested evidence was inadmissible as matter of law and that he was without discretion in ruling on it. If the defense had failed to establish, as it contended, that the 1977 incident had been the subject in 1983 of comment in newspapers or other media operating in the Saugus area, it would have lain within the discretion of the judge to exclude the evidence offered on the ground it was too remote in time. See Commonwealth v. Todd, 394 Mass. 791, 798, 477 N.E.2d 999 (1985); Commonwealth v. Glen, 12 Mass.App.Ct. 317, 321-322, 423 N.E.2d 1048 (1981); Commonwealth v. Jacobson, 19 Mass.App.Ct. 666, 678, 477 N.E.2d 158 (1985). Failing to recognize a discretionary right to make a ruling and, therefore, not exercising that right is error as matter of law. Commonwealth v. Knight, 392 Mass. 192, 194, 465 N.E.2d 771 (1984). Commonwealth v. Edgerly, 13 Mass.App.Ct. 562, 571, 435 N.E.2d 641 (1982).

2. Harmfulness of the error. In order to convict Papadinis of involuntary manslaughter the jury must have rejected that he had formed an intent to kill and must have concluded that he had acted in a wanton and reckless manner. That phrase implies that the defendant knew, or must have known, that his action posed grave danger to another and chose, nevertheless, to run the risk rather than refrain from the act which caused harm. See Commonwealth v. Welansky, 316 Mass. 383, 398-401, 55 N.E.2d 902 (1944), in which the legal characteristics of involuntary manslaughter are extensively discussed. See also Commonwealth v. Vanderpool, 367 Mass. 743, 747, 328 N.E.2d 833 (1975); Commonwealth v. Godin, 374 Mass. 120, 125-127, 371 N.E.2d 438 (1977); Commonwealth v. Michaud, 389 Mass. 491, 495-496, 451 N.E.2d 396 (1983); Commonwealth v. Sullivan, 20 Mass.App.Ct. 802, 808-809, 482 N.E.2d 1198 (1985).

As was said in Welansky, ...