Com. v. Seminara

• Decision Date: 23 September 1985
• Citation: 20 Mass.App.Ct. 789,483 N.E.2d 92
• Parties: COMMONWEALTH v. James M. SEMINARA (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 92

483 N.E.2d 92

20 Mass.App.Ct. 789

COMMONWEALTH v. James M. SEMINARA (and a companion case ¹ ).

Appeals Court of Massachusetts Berkshire.

Argued June 3, 1985.

Decided Sept. 23, 1985.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston, for James M. Seminara.

Francis X. Spina, Boston, for Glenn C. Haynes, Jr.

Daniel A. Ford, Asst. Dist. Atty., for the Com.

Before BROWN, KASS and WARNER, JJ.

KASS, Justice.

Upon jury verdicts, the defendants were convicted of armed robbery of a pharmacy--Seminara as the hold-up man and Haynes as the driver of the get-away car. There was evidence enabling the jury to find as follows.

On August 18, 1983, a man approached a clerk, Cindy Houghtling, said softly to her, "This is a holdup," and pointed to a gun handle protruding from his belt or the waistband of his dungarees. Houghtling bent down behind the counter, as she was told by the robber. She heard the sound of money being taken from the cash register, and when she heard the man run out she got up and was able to watch him head away on foot.

Houghtling alerted the pharmacy owner, Kenneth Camyre, who made it to the door in time to see a man run across the street and enter the passenger side of a car he took to be a gold Camaro with a black vinyl top and New York registration plates. A neighbor, Phyllis Croshier, who lived four houses down from the pharmacy, had seen the same car (she described it similarly, except that she did not identify the make) draw up and park opposite her house, facing in the wrong direction. The driver remained in the car. A second man, who wore a baseball cap, came hurriedly downhill from the pharmacy and climbed into the car, which immediately took off. The man who robbed the pharmacy and the man who entered the car possessed certain common features: each stood about five feet eight inches tall, wore wire-rimmed glasses, and had a moustache and a stubbly beard--as if needing a shave.

Officer White, of the Pittsfield police, alerted by Houghtling and Camyre, spotted and began to follow a gold Barracuda with a black vinyl top and New York plates. As soon as White and his marked cruiser were noticed by the occupants of the gold-colored car, that car abruptly accelerated. A chase well above the speed limit ensued; the gold-colored car headed towards the New York State line. The gold car missed a turn and crashed into a telephone pole. Both driver and passenger were promptly arrested, the driver after a last hapless effort to hurdle a hedge ended in a pratfall. The passenger, the defendant Seminara, ² had a moustache and two or three days growth of beard. In the car, police found what appeared to be a revolver (it turned out to be a toy) wrapped in a baseball cap, and about fifty-four dollars lying between the two front seats. The handle of the revolver resembled what Houghtling had seen protruding from the robber's jeans. Police found a pair of wire frame glasses when they made an inventory of the contents of the car the day after the arrest. Between them, the defendants raise six issues on appeal.

1. Integrity of the grand jury proceedings. The grand jury heard descriptions of the robber, his gun, and the get-away car from Houghtling, Camyre, and Croshier, and testimony from two police officers about the defendants' flight, their appearance when apprehended, and the items found in the car. Before the grand jury, Croshier's testimony was more inculpatory than at trial because she described the get-away car as parked with its engine running. Towards the end of the testimony of the fifth witness, Detective Collias, a grand juror asked whether any attempt had been made to have a line-up. To answer that question the Commonwealth called William A. Rota, the assistant district attorney who had previously been assigned to the case.

Mr. Rota testified that he had moved for a line-up as to Seminara while the case was in the District Court. In the course of explaining the District Court's loss of jurisdiction before that motion had been acted upon, Mr. Rota told the grand jury: "Seminara and ... Haynes elected to proceed without a bindover hearing. ³ They elected to admit that there was probable cause at that point in time at the District Court and in that case there was enough evidence that the case could at least go to the Grand Jury." Of course, the defendants had not admitted to probable cause; they had waived a bindover hearing. The presenting assistant district attorney, somewhat half-heartedly, undertook to rescue Mr. Rota from his gaffe. Her next question was: "And as a result of them giving up their right to have a probable cause hearing at which they would be present and the witnesses would be present what position did they take about your line-up motion ...?" An express correction that the defendants had not admitted to probable cause would have been more effective. In any event, Mr. Rota declined to be saved. "Once they had admitted probable cause," he replied, "the case was no longer in the District Court."

The defendants moved to dismiss the indictments on the ground that Mr. Rota's inept remarks had impaired the integrity of the grand jury proceeding. See Commonwealth v. O'Dell, 392 Mass. 445, 446-447, 466 N.E.2d 828 (1984); Commonwealth v. McGahee, 393 Mass. 743, 746-748, 473 N.E.2d 1077 (1985). The judge denied the motion to dismiss, concluding that "in the context of the proceedings, I find it unlikely that the [g]rand [j]urors were of such a mind that it made any difference or was prejudicial to the [d]efendants." We are of like opinion.

Courts and commentators have been alert to manipulation of evidence and proceedings before a grand jury. Prosecutors have an obligation to refrain from "words or conduct that will invade the province of the grand jury or tend to induce action other than that which the jurors in their uninfluenced judgment deem warranted on the evidence fairly presented before them." Commonwealth v. Favulli, 352 Mass. 95, 106, 224 N.E.2d 422 (1967). Abuse of subpoena, immunity, and contempt powers to conduct fishing expeditions and to coerce persons who choose to remain silent are among the areas of concern. See Arenella, Reforming the State Grand Jury System: A Model Grand Jury Act, 13 Rutgers L.J. 1, 9 (1981). Selective presentation of evidence in a manner which distorts it is another example of conduct which taints the integrity of the process. Commonwealth v. O'Dell, 392 Mass. at 446-447, 466 N.E.2d 828. Commonwealth v. Connor, 392 Mass. 838, 854, 467 N.E.2d 1340 (1984). Compare Commonwealth v. McGahee, 393 Mass. at 746-748, 473 N.E.2d 1077.

No such conscious manipulation of the grand jury here occurred. To be sure, a blunder can inflict as much damage as a malevolent thrust, but the damage from Mr. Rota's ill-spoken remarks was surely slight. It was held in Morrissette v. Commonwealth, 380 Mass. 197, 200, 402 N.E.2d 492 (1980), for example, that testimony that a District Court judge had found probable cause did not invade the province of the grand jury, "so long as the grand jurors are instructed that such a finding must not interfere with their independent evaluation of the facts." Ibid. As in Morrissette, in the absence of facts requiring another conclusion, we may assume that the grand jury received instructions to use their independent judgment.

Arguably, Mr. Rota's unhappy choice of words, i.e., that the defendants had admitted probable cause, had the vice of suggesting, incorrectly, an admission by the defendants of the very issue to be decided by the grand jury. See Commonwealth v. O'Dell, 392 Mass. at 449, 466 N.E.2d 828. Such suggestion was unlikely. Mr. Rota's remarks were bracketed with procedural lingo. The general impact of what he said was that the defendants had elected to opt out of District Court proceedings and submit themselves to the grand jury. Surely there was no point in that step if the defendants had conceded the very question which the grand jury had to answer: Was there probable cause to believe that a crime had been committed? Lataille v. District Court of Eastern Hampden, 366 Mass. 525, 532, 320 N.E.2d 877 (1974). Ms. Fournoy, the assistant district attorney who was presenting the government's evidence, emphasized the procedural nature of the steps taken by the defendants.

Above all, the timing of Mr. Rota's remarks rendered them harmless beyond a reasonable doubt. By the time he testified, the jury had heard five witnesses speak to the events of the robbery, the description of the get-away car, the appearance and dress of the robber, the chase, the apprehension of the defendants, and what was found in the car. In contrast to O'Dell, in which the case rested heavily on a statement O'Dell had made to the police, the case against the defendants rested on the testimony of eyewitnesses, from whom the grand jury had heard before Mr. Rota was called. Their evidence was enough to support the indictment. Compare Commonwealth v. O'Dell, 392 Mass. at 447-451, 466 N.E.2d 828; Commonwealth v. McGahee, 393 Mass. at 746-747, 473 N.E.2d 1077; Commonwealth v. McGuire, 19 Mass.App. 1013, 1014, 476 N.E.2d 632 (1985).

The defendants also object that Mr. Rota should not have been permitted to testify that Seminara's lawyer had opposed a line-up. There was no error. A defendant has no constitutional right to avoid appearing in a line-up or to refuse to alter his appearance beforehand. Commonwealth v. Cinelli, 389 Mass. 197, 206-207, 449 N.E.2d 1207 (1983), and cases cited. The government's response to a juror's question was not barred by the rule which proscribes comment about the exercise by a defendant of a constitutional right. Cf. Commonwealth v. Sazama, 339 Mass. 154, 157-159, 158 N.E.2d 313 (1959). In any event, it must be borne in mind that it is inevitable that a grand jury "will frequently be exposed to information that would be excluded at trial." Commonwealth v. Brien, 19 Mass.App. 914, 471 N.E.2d...