Com. v. St. Germain

Citation408 N.E.2d 1358,381 Mass. 256
PartiesCOMMONWEALTH v. Carroll K. ST. GERMAIN.
Decision Date05 August 1980
CourtUnited States State Supreme Judicial Court of Massachusetts

John C. McBride, Everett, for defendant.

Pamela L. Hunt, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

On December 28, 1976, William Herbits, eighty-four, and his wife Julia, seventy-two, were viciously 1 slain at their home in Newton. After trial by jury, Carroll K. St. Germain was convicted on two counts of murder in the first degree, one count of armed assault in a dwelling house, and two counts of assault and battery by means of a dangerous weapon. 2 The defendant now appeals. G.L. c. 278, §§ 33A-33G St. Germain argues that the judge (1) improperly denied his motion for a mistrial based on the delayed disclosure of one of the pretrial statements of the chief government witness; (2) erred in allowing jurors to take notes during the trial; and (3) abused his discretion both in admitting certain evidence of motive and in permitting the prosecutor to mention this evidence in his opening. We find neither error nor any basis for an exercise of our power under G.L. c. 278, § 33E, and therefore affirm the convictions.

At trial, the chief witness against St. Germain was one Kevin LaMier, a former employee of the defendant at Ashmont Lumber and Supply, Inc. 3 LaMier lived near the lumber company, and began working there in July, 1976. LaMier, who turned sixteen in November, 1976, worked full-time during the summer and part-time after the start of school.

On December 28, 1976, LaMier testified, he was awakened by a neighborhood youth, and told to report for work at Ashmont Lumber. 4 LaMier walked to the company's office and observed St. Germain talking on the telephone. Shortly thereafter, St. Germain picked up a clipboard, locked the door, and directed LaMier to a red pickup truck which St. Germain regularly drove.

St. Germain told LaMier that they were going to collect a bill, and after half an hour he stopped the truck in front of a gray house at 249 Commonwealth Avenue, Newton. St. Germain handed LaMier an Ashmont Lumber and Supply bill which had the name Herbits on it as well as a description of some lumber. LaMier was told to "go up and collect the money." St. Germain added, according to LaMier, that he would collect the bill himself but the Herbitses would not let him into their home.

LaMier took the bill and went to the front door of the house. He rang the bell and, after a brief conversation with the elderly woman who answered the door, handed her the bill. After LaMier was invited inside, the man in the house told LaMier that the couple did not owe the money. The property on which the work had been performed had been sold either three weeks or three months earlier. The man asked to keep the bill, and LaMier assented. LaMier then left. LaMier returned to the truck and told St. Germain what had been said. St. Germain said, "Bastards. The fucking Jewish bastards have all the money in the world and they don't want to pay." The two then drove away.

After driving for fifteen or twenty minutes, St. Germain parked the truck and went into a bar. LaMier remained in the truck. According to LaMier, after an hour or an hour and a half, St. Germain returned to the truck. The two drove for a short while and then stopped for lunch. After lunch, St. Germain told LaMier he wanted LaMier to go back to the Herbits house and deliver a second bill. After driving to the house, St. Germain took a bill out of his pocket and handed it to LaMier. LaMier went up to the house, rang the bell, and, when Mrs. Herbits answered the door, he handed her the second bill. Suddenly, St. Germain brushed by LaMier, pushed the front door open and grabbed Julia Herbits by the neck with his right hand. LaMier saw a small gun in St. Germain's left hand. He then heard St. Germain ask, "Where is the old man?" He saw St. Germain push Julia Herbits so hard that she fell to the floor. He saw St. Germain put the gun to William Herbits' face and say "Get the fuck on the floor." St. Germain ordered LaMier to "stand over" Herbits. According to LaMier, William Herbits said, "Don't hurt my wife. Let her go, and she will get you the money." St. Germain replied, "You'll fucking pay now, won't you."

St. Germain told LaMier to move the pickup truck further down the street and LaMier left the house. After moving the truck and waiting for five or ten minutes, LaMier went back to the house. He looked through the window next to the front door and saw that William Herbits' hands were tied. St. Germain was kneeling over Julia Herbits. LaMier could see that her feet were tied. LaMier went back to the truck and waited for St. Germain. Fifteen minutes later St. Germain came out of the house, then turned around and went back in the house for another ten minutes. St. Germain came out of the house again and started toward the pickup truck. As St. Germain reached the end of the Herbitses' walkway he turned around, walked back to the house and put his hand through a window to the right of the front door.

When St. Germain returned to the truck, he was out of breath. He said, "That's what some people need is a good smack in the head to make them pay what they owe." LaMier saw blood on St. Germain's shirt, gloves, and wrists. On returning to Ashmont Lumber St. Germain went inside. LaMier followed after stopping briefly to talk with a friend. St. Germain gave LaMier $30. LaMier noticed St. Germain had changed his shirt and was washing his hands.

LaMier then left the lumber company and arrived home about 3 P.M. His mother testified that when LaMier returned home he did not act as he usually did and that he appeared nervous and upset. After the six o'clock news reported the slayings, LaMier talked with his mother about the Herbitses' deaths. As he spoke with his mother, LaMier began to cry and then went to his room.

That night LaMier talked with his parents. Two or three days later he went back to work after being called by another employee of St. Germain. LaMier worked for St. Germain until August 10, 1977, when the defendant requested LaMier help him with work at the edge of a roof. When LaMier saw the defendant send the other workers to another area, he became fearful and therefore went home. LaMier viewed this incident as a threat, and two days later he went to the police.

Various details of LaMier's testimony concerning events other than those transpiring at the Herbits home were confirmed by other witnesses. In addition, the Commonwealth offered evidence that approximately two weeks before the crimes St. Germain had asked one of his employees if the employee wanted to go on a "hit" with St. Germain to a house in Newton where an old man in his eighties lived with an old lady in her seventies. The employee asked St. Germain how he planned to subdue the elderly couple. St. Germain said he was "going to kill them." The employee declined to go on the "hit" because he wasn't "into murder." St. Germain replied, "Well, someone else will take it if you don't." The employee saw the defendant take a small gun from his left pocket and say, "1, 2, 3, Bang, bang."

Cross-examination brought out inconsistencies in LaMier's direct testimony and inconsistencies between LaMier's direct testimony and his testimony before the grand jury and at a probable cause hearing. The cross-examination was thorough, searching and fully explored all the weaknesses in LaMier's testimony. The defense offered witnesses who claimed to have seen St. Germain at various times on December 28, as well as a witness who said that due to an incident at work, LaMier had threatened to get even with St. Germain. Several witnesses impeached LaMier's description of the pickup truck, and an expert said that the bill from Ashmont Lumber found in the Herbits home was not in the defendant's handwriting.

Delayed disclosure of exculpatory evidence. On the eighth day of trial, during the cross-examination of LaMier, the Commonwealth voluntarily disclosed the existence of a tape recorded interview of LaMier conducted by Newton police eleven months prior to trial. 5

St. Germain claims that the tape recording represents "exculpatory" evidence, 6 "material" to the defense, 7 which was "suppressed" by the Commonwealth, 8 and whose delayed disclosure so prejudiced the defendant's right to a fair trial that the judge was required to grant a mistrial, and we, therefore, are obligated to reverse his convictions. We disagree.

Even if we were to assume that the interview became material in the constitutional sense 9 prior to the time its existence was disclosed by the Commonwealth 10 it would not follow that the judge was therefore automatically required to declare a mistrial. This is not a case where exculpatory evidence has been suppressed until after trial. Compare Commonwealth v. Ellison, --- Mass. --- a, 379 N.E.2d 560 (1978); United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). "Where evidence meeting the constitutional standards for materiality is initially suppressed, but then disclosed, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant 'to make effective use of the evidence in preparing and presenting his case.' " Commonwealth v. Wilson, --- Mass. ---, --- b, 407 N.E.2d 1229, ---- (1980), quoting from Commonwealth v. Adrey, --- Mass. ---, --- c, 383 N.E.2d 1110 (1978). Declaration of a mistrial was therefore required only if "given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed." Commonwealth v. Wilson, supra. St....

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