Com. v. Salvati

• Decision Date: 12 June 1995
• Citation: 650 N.E.2d 782,420 Mass. 499
• Parties: COMMONWEALTH v. Joseph L. SALVATI (and two companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 782

650 N.E.2d 782

420 Mass. 499

COMMONWEALTH v. Joseph L. SALVATI (and two companion cases ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 7, 1995.

Decided June 12, 1995.

Victor J. Garo, Medford (Anthony R. Pelusi, Jr., Cambridge, with him) for Joseph Salvati.

John Cavicchi, Boston, for Louis Grieco.

Oscar B. Goodman, Las Vegas, NV (Robert L. Sheketoff, Boston, with him) for Peter Joseph Limone.

Robert McKenna, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

On July 31, 1968, a jury found Joseph L. Salvati and Peter J. Limone guilty as accessories before the fact in the murder of Edward Deegan, and of conspiracy to murder Edward Deegan and Anthony J. Stathopoulos. The same jury found Louis Grieco guilty of murder in the first degree and of two counts of conspiracy to murder. A complete summary of the evidence is contained in Commonwealth v. French, 357 Mass. 356, 259 N.E.2d 195 (1970), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2846, 33 L.Ed.2d 754 (1972), where this court affirmed those convictions. There was evidence from which the jury could have concluded that Limone agreed to pay for the killing of Deegan and Stathopoulos, Salvati participated in the planning of the murder, and Grieco was one of the shooters. Each of the defendants' subsequent motions for a new trial were denied. The defendants then filed petitions in the county court, pursuant to G.L. c. 278, § 33E (1992 ed.), for leave to appeal the denial of their motions for a new trial. These petitions were allowed, "but only with respect to the alleged failure of the Commonwealth to disclose before trial the existence of [a police report] (and the alleged existence of an informant) and the significance, if any, of such failure," and consolidated for briefing and oral argument before the full court. Therefore, our opinion only addresses this limited issue.

In instances where, as here, a judge hearing a motion for new trial was not the trial judge, "we regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). Moreover, when a new trial claim is constitutionally based, as in the instant cases, "this court will exercise its own judgment on the ultimate factual as well as legal conclusions." Commonwealth v. Tucceri, 412 Mass. 401, 409, 589 N.E.2d 1216 (1992). We conclude that there was no error.

The defendants contend that, before trial, the Commonwealth suppressed a police report which contained statements made by an informant concerning events observed by the informant on the night of Deegan's murder. ² All three defendants argue that the denial of their motions for a new trial was erroneous because the Commonwealth "suppressed" this police report in violation of their due process rights under the Fourteenth Amendment to the United States Constitution, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). ³ Salvati also argues that the denial was erroneous because the Commonwealth failed to provide the defendants with the informant's identity and the contents of the informant's statement before trial as required by Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

1. Brady claims. In Brady, supra, the Supreme Court held that "suppression by [a] prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196. ⁴ The Court's holding, read literally, applies only to specific evidence that a defendant has asked the prosecutor to disclose. Case law, existing at the time of the defendants' trial, was inconclusive as to whether a defense request is essential to the operation of the Brady rule, and if so, what type of request is required. See Giles v. Maryland, 386 U.S. 66, 73, 87 S.Ct. 793, 796, 17 L.Ed.2d 737 (1967) (remanding for new trial despite absence of pretrial request by defendant of suppressed evidence); Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 845-846 (4th Cir.1964) (refusing to focus on astuteness of counsel, but rather on essential fairness of procedure). In this case, the defendants filed requests for exculpatory evidence, ⁵ and so we focus our discussion on the concepts of suppression, favorability, and materiality. To constitute "suppression," the government must at one time have possessed the evidence in question or at least had access to the evidence. See Commonwealth v. Earl, 362 Mass. 11, 15-17, 283 N.E.2d 677 (1972); Barbee v. Warden, Md. Penitentiary, supra at 846. Here, although it is clear from the record that the police report did exist at the time of trial, it is unclear whether the prosecutor actually had the police report. ⁶ See Commonwealth v. Earl, supra at 14-16, 283 N.E.2d 677 (evidence not unconstitutionally withheld under Brady ). However, even assuming that the prosecutor did "suppress" the police report, suppression by itself does not mandate a new trial.

As of 1968, the Supreme Court had explicitly declined to resolve "whether the prosecution's constitutional duty to disclose extend[ed] to all evidence admissible and useful to the defense, and the degree of prejudice which must be shown to make necessary a new trial." Giles v. Maryland, supra at 74, 87 S.Ct. at 797. Therefore, at the time of the defendants' trial, the Supreme Court had yet to provide substantial guidance for applying the materiality concept required by Brady.

In 1971 this court stated that a prosecutor's duty to disclose under Brady "must be measured by the directness of the materiality of the item of evidence in question to the defence taken together with the sheer volume of all the evidence in the hands of the prosecution." Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 318, 275 N.E.2d 33 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683, and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689 (1972). Although this court has conceded that it was obviously improper to suppress "significant and material evidence favorable to a criminal defendant, where a defence request reasonably directs the prosecution's attention to it," it stated that "[m]uch, however, depends on the particular circumstances and the nature, importance, and relevance of the allegedly suppressed evidence." Commonwealth v. Cassesso, 360 Mass. 570, 578 n. 5, 276 N.E.2d 698 (1971). Cassesso involved an appeal from the denial of a motion for a new trial of one of the other defendants whose conviction arose from the Deegan murder. There the court, in commenting on the duty of the Commonwealth to disclose another police report, noted that the trial transcript contained 7,555 pages. Id. at 577, 276 N.E.2d 698. In Commonwealth v. French, 357 Mass. 356, 399 A-2, 259 N.E.2d 195 (1970), the court concluded that the trial judge was not required to grant motions for inspection of exculpatory evidence in the absence of greater specification of the areas of the desired inquiry.

Measured against this background and the standards of the day, any failure of the prosecution to disclose the report does not require that we grant a new trial. The defendants suggested at trial that Joseph Baron, the Commonwealth's key witness, had implicated certain individuals, including the defendants, instead of the true perpetrators of the crimes. Therefore, the defendants argue that the informant's statements support this substitution defense because the informant did not name any of the defendants as being men who had left and returned to the Ebb Tide with Baron. The defendants contend that the information contained in the report is consistent with this theory, and therefore, favorable to the defendants. Even if this is so, the information in the police report is also consistent with the Commonwealth's case. For example, there was no evidence introduced that either Limone or Grieco were ever at the Ebb Tide on the night of the murder. Limone's primary criminal act was soliciting "the hit" on Deegan and Grieco was not at the Ebb Tide with Baron, but rather in an alley waiting for Deegan. Moreover, Baron testified that, when he left the Ebb Tide, Salvati was tending to an automobile in the Ebb Tide parking lot. Therefore, under either version of the events the informant would not have seen Salvati, Limone, or Grieco leave the Ebb Tide with Baron. Furthermore, as found by the motion judge, the fact that the informant saw Baron leave the Ebb Tide at the same time as six other individuals does not "conclusively establish a common destination or scheme" between those individuals given the possibility that Baron left with some individuals who did not participate in the crimes. This is especially so when it is taken into consideration that approximately 500 people were in the Ebb Tide that night. Moreover, the fact that the informant did not see Salvati return to the Ebb Tide with Baron is consistent with Baron's testimony that Salvati was hiding "the stuff" in a nearby field at that time. Therefore, the informant's statements are not inherently inconsistent with Baron's testimony. Additionally the information in the report is cumulative of evidence presented at trial. For example, the police report indicates that the informant alleged that seven men had left and returned to the Ebb Tide with Baron. During direct examination, Baron independently named two of these seven men as being with him at the Ebb Tide on the night of the murder and as being participants in the crime. However, during cross-examination, Baron was specifically questioned about four other men named by the informant in the police report. We conclude, therefore, that the information contained in...