Com. v. Patten

• Decision Date: 08 October 1987
• Citation: 401 Mass. 20,513 N.E.2d 689
• Parties: COMMONWEALTH v. Aaron Louis PATTEN, Third.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 689

513 N.E.2d 689

401 Mass. 20

COMMONWEALTH v. Aaron Louis PATTEN, Third.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 9, 1987.

Decided Oct. 8, 1987.

Michael R. Pinta, Boston, for defendant.

Natalea Skvir, Asst. Dist. Atty., Boston, for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

On December 20, 1972, Edward J. Donovan, manager of the cocktail lounge in the Holiday Inn on Massachusetts Avenue in Cambridge, was shot and killed in the course of an attempted armed robbery. One George E. Clark was identified as one of the two men who participated in the crimes. In 1977 Clark was convicted of the murder in the first degree of Donovan. ¹ The other participant was not then identified. In 1983, in anticipation of a recommendation that his sentence be reduced, Clark identified the defendant as the other participant and agreed to cooperate at his trial. The defendant was indicted on March 22, 1983. He was tried and convicted in April, 1984, of murder in the first degree.

The case against the defendant was strong. There was evidence that his fingerprints were found on an empty beer bottle and on top of the bar in the lounge. He has scars which are consistent with bullet wounds for which a man was treated at the Chelsea Naval Hospital later on the night of the murder. A ballistics expert identified a bullet removed from that patient as having been fired from the victim's gun. We need not recite the evidence in greater detail in order to present and resolve the issues in this case.

The defendant argues that (1) there was prejudicial preindictment delay; (2) his pretrial motion to dismiss on grounds of double jeopardy should have been allowed; (3) he was denied his right to a fair trial when the judge delayed in dismissing a juror who, during the trial, volunteered that he knew a witness; and (4) the judge's rulings on certain issues denied the defendant due process of law and entitle him to relief under G.L. c. 278, § 33E. We reject all these arguments and affirm the conviction.

1. The judge properly denied the defendant's motion to dismiss the indictment. To meet his burden of showing that preindictment delay denied him due process of law under the State or Federal Constitutions a defendant must prove both that the delay prejudiced his case and that the government intentionally or recklessly caused that delay. Commonwealth v. Best, 381 Mass. 472, 484, 411 N.E.2d 442 (1980). Commonwealth v. Imbruglia, 377 Mass. 682, 688, 691, 387 N.E.2d 559 (1979). See United States v. Lovasco, 431 U.S. 783, 795-796 & n. 17, 97 S.Ct. 2044, 2051-52 & n. 17, 52 L.Ed.2d 752 (1977); United States v. Marler, 756 F.2d 206, 213 (1st Cir.1985). The defendant made no adequate showing in support of his claim that the Commonwealth recklessly caused prejudicial delay.

This case involves a substantial interval of slightly more than ten years between the murder and the indictment. It involves, however, neither demonstrated prejudice to the defendant's position arising from that delay nor demonstrated reckless governmental conduct causing the delay. The defendant asserts that he was prejudiced because the prosecution could not produce certain items of possible significance: two glasses from which the robbers drank beer while in the lounge; x-rays of the man who was treated on that night at the Chelsea Naval Hospital; a composite drawing of the man who shot Donovan, made with the assistance of the bartender; and arrays of photographs used by certain eyewitnesses to identify certain characteristics of the robbers. None of the eyewitnesses who testified identified the defendant.

On the record before the judge, the missing evidence was as likely to have been inculpatory as exculpatory. A defendant must show, on concrete evidence, and not simply by a fertile imagination, a reasonable possibility that access to the lost items would have produced evidence favorable to his cause. See Commonwealth v. Willie, 400 Mass. 427, 433, 510 N.E.2d 258 (1987). See also United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1976); Commonwealth v. Charles, 397 Mass. 1, 14, 489 N.E.2d 679 (1986). The defendant has made no such showing. ²

The defendant was indicted promptly after Clark revealed his name. There is no evidence or claim that the Commonwealth intentionally delayed the defendant's indictment. Nor is there any support for the claim that the Commonwealth was reckless in not discovering the defendant's involvement sooner.

2. The defendant's double jeopardy claim fails for want of factual support. The argument is grounded on a claim that the prosecutor intentionally presented improper information in his opening jury argument for the purpose of forcing the defendant to move for a mistrial (as he did). The defendant reasons that the prosecutor was uncertain whether Clark (who had been wavering) would testify against the defendant and that the prosecutor sought more time to bolster his case by goading the defendant into moving for a mistrial.

The prosecutor's opening made reference to an incriminatory statement the defendant had made at the time of his arrest. The defendant argued that that statement had not been seasonably disclosed as it should have been. The prosecutor could not show that disclosure had been made in writing but thought it had been made orally. The defendant's other objections to the opening were not substantial and, as a careful examination of the transcript shows, the prosecutor's representations concerning anticipated evidence in these respects were substantially borne out. The judge stated that he did not think a mistrial was needed, but agreed to declare one specifically because the defendant was asking for one. After doing so, he promptly empanelled a new jury before whom Clark testified.

As a general rule, double jeopardy is not a bar to retrial of a defendant who has been granted a mistrial on his own motion. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982). Commonwealth v. Lam Hue To, 391 Mass. 301, 310-311, 461 N.E.2d 776 (1984). The defendant, however, seeks to bring his case within the exception to this rule, articulated by the Supreme Court in Oregon v. Kennedy, supra 456 U.S. at 676, 102 S.Ct. at 2089, and recognized by this court in Lam Hue To, supra 391 Mass. at 311, 461 N.E.2d 776, that applies when the mistrial is granted in response to governmental misconduct that was intended to goad the defendant into moving for a mistrial. See Commonwealth v. Murchison, 392 Mass. 273, 276, 465 N.E.2d 256 (1984).

The judge's findings dispose of this argument. He found that "the prosecutor's conduct was not deliberate, was not in any way intended to harass or to cause a mistrial." It was "unfortunate" but not "deliberately done, quite the contrary." These findings were fully warranted on the record.

The judge did not err in not dismissing earlier than he did a juror who promptly came forward in the course of trial to say that he was acquainted with a prosecution witness.

On the fourth day of trial, a juror advised the judge that he knew one of the witnesses who had testified that day, a former...