Com. v. Reynolds

Decision Date15 April 1999
Citation708 N.E.2d 658,429 Mass. 388
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Max D. Stern, Boston (Patricia L. Garin with him) for the defendant.

Eric Neyman, Assistant District Attorney, for the Commonwealth.

Matthew H. Feinberg & Matthew A. Kamholtz, Boston, for National Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.



A jury found the defendant, John Reynolds, guilty of murder in the first degree on the theories of extreme atrocity or cruelty and premeditation, G.L. c. 265, § 1, and of wilfully and maliciously burning a motor vehicle, G.L. c. 266, § 5. The defendant appeals. The defendant claims the trial judge erred in restricting his cross-examination of the chief police investigator on deficiencies in the police investigation, and in denying him the right to call a police witness on that issue. We agree. We conclude a new trial is required.

We set forth the background facts, which we will supplement in our discussion. The victim, Robert Lancione, a known drug dealer, was found murdered, "hog-tied" to two cinder blocks, and lying in the mudflats of the Dorchester Bay. The investigation focused on one Jon Golden, a small-scale drug dealer and customer of the victim. Golden was arrested for arson of the vehicle used in the murder. He implicated the defendant in statements to the police and in his testimony.

The Commonwealth's case depended on the testimony of Golden and a jailhouse informant. Golden said that he, the victim, and the defendant had been at a pub in the South Boston section of Boston on the night of the murder. After consuming a large amount of alcohol, Golden, who was in possession of a van he regularly drove, agreed to drive the victim and the defendant to their homes. The victim sat in the front seat and the defendant sat behind him. Golden testified that, at some point during the ride, the victim's feet suddenly hit the windshield and dashboard, and the victim fell to the floor. Golden saw a black rubber object around the victim's neck. The defendant then announced that the victim was "gone." Golden determined that the victim was dead. He then helped the defendant dispose of the body and burn the van. According to Golden, he did not hear the conversation between the defendant and the victim in the van. Further, Golden said that he was under duress when he helped the defendant dispose of the body.

While the defendant was awaiting trial, he met the informant in jail. The informant said that the defendant admitted his guilt to him, disclosing the details of the murder and the subsequent burning of the van. According to the informant, the defendant asked for the informant's assistance in hiring someone to kill Golden to prevent him from testifying. The witness said that the defendant murdered the victim to "impress" some "wise guys."

The defendant's theory of the case was that Golden acted in conjunction with others over a drug deal. The defendant claims that two confidential informants told the police that two "lieutenants" of the James "Whitey" Bulger crime organization had argued with the victim concerning drug money that the victim refused to pay to them. According to the defendant's theory, the informants believed that the Bulger lieutenants either killed the victim or had him killed because of that dispute. The defendant claims that he was precluded from probing the adequacy of the police investigation into the involvement of others at trial. We turn now to the defendant's claims.

1. Cross-examination. The defendant complains that the judge erred by excluding evidence that the police had inadequately investigated the murder. The defendant sought to elicit the evidence through his cross-examination of the primary police witness, Sergeant Detective Paul Barnicle, and by calling Sergeant Detective Francis Dewan of the organized crime unit. Shortly after the murder in 1992, Sergeant Barnicle visited Sergeant Dewan at the organized crime unit at Boston police headquarters. Sergeant Dewan provided background information on two Bulger lieutenants who were present at the pub the night the victim was murdered. Dewan testified at a pretrial hearing that he subsequently told Barnicle that two informants reported that the victim had been fighting with Bulger's organization about money, and that the victim recently had had a violent argument with Bulger's lieutenants.

The defendant sought to show that the police failed to pursue the leads provided by the tipsters. The Commonwealth moved to limit cross-examination of Barnicle on the issue of deficiencies in the police investigation, arguing that the defendant was attempting to assassinate Barnicle's character and to introduce hearsay evidence through the "back door." Defense counsel offered to redact the information, so the jury would learn only that Dewan heard from two informants that someone else committed the crimes. The Commonwealth further argued that Barnicle did pursue the organized crime leads so that there is no evidence that the investigation was inadequate. The judge excluded the line of questioning and the testimony of Dewan.

We agree with the defendant that he should have been allowed to elicit the redacted form of the tipsters' leads on his cross-examination of Barnicle, and to call Dewan as a witness to show that the police investigation was deficient. "[T]he scope of cross-examination ... rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry." Commonwealth v. Repoza, 382 Mass. 119, 125, 414 N.E.2d 591 (1980), S. C., 400 Mass. 516, 510 N.E.2d 755, cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987).

It is well settled that a defendant has a right to expose inadequacies of police investigation. See Commonwealth v. Person, 400 Mass. 136, 140, 508 N.E.2d 88 (1987); Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980); Commonwealth v. Rodriguez, 378 Mass. 296, 308, 391 N.E.2d 889 (1979); Commonwealth v. Pettie, 363 Mass. 836, 840-841, 298 N.E.2d 836 (1973). "[A defendant] may argue to the jury that, had the police done certain aspects of their investigation differently, it would have supported his defense." Person, supra. "The fact that ... certain police procedures [were] not followed could raise a reasonable doubt as to the defendant's guilt in the minds of the jurors. The judge should not have removed this evidence from the jury's consideration, and in so doing invade the province of the jury to decide what inferences to draw from certain evidence." 1 Bowden, supra at 486, 399 N.E.2d 482, citing Commonwealth v. Cote, 5 Mass.App.Ct. 365, 370, 363 N.E.2d 276 (1977).

The Commonwealth's assertion that the evidence properly was excluded because it constituted inadmissible totem pole hearsay misses the mark. The defendant did not offer the substance of the informants' tips for the truth of the matter asserted. Rather, the defendant offered the fact that the tips occurred and were not investigated. The adequacy of the investigation was a question for the jury, and the cross-examination sought to reveal facts pertinent to their inquiry. The defendant should not have been precluded from eliciting evidence on the question simply because the Commonwealth asserted that the investigation was adequate. 2 The defendant was entitled to show that the investigation was deficient. See Person, supra. 3

2. Testimony of the jailhouse informant. Before trial, the defendant moved to suppress the testimony of the jailhouse informant, arguing that the contents of his testimony were obtained in violation of the defendant's rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. 4 The defendant also moved for an evidentiary hearing. The motion to suppress and the request for an evidentiary hearing were denied.

The jailhouse informant testified that, while the defendant and he were incarcerated, the defendant disclosed details of his participation in the murder and inquired whether the witness knew of anyone who could kill Jon Golden. The witness also testified that the defendant confessed to burning the van. The defendant renewed his objection when the witness was called, and, after the witness testified, the defendant moved to strike the testimony and renewed his request for an evidentiary hearing to determine whether the witness was an agent of the Commonwealth at the time he obtained incriminating evidence. The defendant argued that, because it was unclear when the conversations between the witness and the defendant took place, the evidence should have been excluded or at least a hearing held to determine when the information was obtained. We agree. 5

Under the Sixth Amendment, the Commonwealth may not "deliberately elicit" statements from the defendant in the absence of his counsel, once formal adversary proceedings have commenced. See Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Any evidence deliberately elicited in violation of that rule must be suppressed. See Maine v. Moulton, 474 U.S. 159, 172-176, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). This prohibition applies equally to overt interrogation by police officers and informants acting as government agents. See Commonwealth v. Harmon, 410 Mass. 425, 428, 573 N.E.2d 490 (1991). A judge must determine whether a witness was an agent of the government and, if so, whether evidence was "deliberately elicited" after the agency relationship was formed.

An informant "who has not entered into any agreement with the government, and who reports incriminating evidence to police out of conscience or even 'an unencouraged hope to curry favor' is not acting as a...

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