Com. v. St. Pierre

• Decision Date: 30 March 1979
• Citation: 377 Mass. 650,387 N.E.2d 1135
• Parties: COMMONWEALTH v. Ronald ST. PIERRE (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1135

387 N.E.2d 1135

377 Mass. 650

COMMONWEALTH v. Ronald ST. PIERRE (and three companion cases ¹).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 4, 1978.

Decided March 30, 1979.

Robert L. Sheketoff, Boston (Bernard M. Grossberg and Joyce Perkit Zalkind, Boston, with him), for defendants.

Louis Sabadini, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

KAPLAN, Justice.

The defendants St. Pierre and Kines, inmates held in block 10 (the segregation unit) of the Massachusetts Correctional Institution at Walpole, after joint trial to a Norfolk County jury were convicted of the crimes of mayhem and assault and battery by means of a dangerous weapon, committed by them while incarcerated. Each was sentenced to concurrent three-to-ten year terms to be served at Walpole after sentences previously imposed. On their present appeals pursuant to G.L. c. 278, §§ 33A-33G, the defendants press three principal alleged errors: failure to dismiss the indictments as having been based entirely on hearsay; failure to remedy an improper admonition by an investigating police officer to five corrections officers, potential witnesses, not to talk to defense counsel; and failure to order the Commonwealth to "elect" between indictments. In addition, error is claimed in four rulings responsive to particular issues arising during the trial. For the reasons to be stated we affirm the convictions.

Shortly before 2 P.M. on August 24, 1976, William Reilly, occupying one of the fifteen cells on tier 1 of block 10, suffered severe injury when the open solid steel outer door of his cell was slammed against his left arm extended through the locked inner grille door. Reilly was taken to Norwood Hospital, then transferred to Lemuel Shattuck Hospital where he underwent an operation. Two days later, August 26, he gave a written statement (dated August 25) to the investigating officer, State Trooper John P. Nasuti, which, combined with his photographic identifications made on August 25, ² pointed to the defendants two of the three inmates out of their cells and in the corridor at the critical time as the men who had assaulted him by means of the door.

Trooper Nasuti prepared a report based on the information he received from Reilly and several corrections officers who had been on duty on the day of the injury, as well as on his examination of the scene and of official documents at the prison. (Statements of the officers were not reduced to writing in discoverable form.)

In presenting evidence to the grand jury on November 23, 1976 (there was no probable cause hearing), the prosecutor offered only State Trooper Francis McDermott, who testified by referring to Trooper Nasuti's report; there was no direct testimony. Indictments were returned on November 24 and were attacked pretrial, unsuccessfully, on the hearsay ground mentioned.

When defense counsel attempted to interview the five corrections officers who were potential witnesses in the case Thomas Geiss, Thomas St. Pierre (not related to the defendant), Frank Millet, John Sullivan, and John McGrath counsel learned that Trooper Nasuti had instructed the officers to refuse any conversation. ³ Counsel thereupon moved pretrial to dismiss the indictments. Denying the motion, the judge instructed the prosecutor to inform the guards, on the judge's authority, of their "right to talk to defense counsel as they wish or not wish." The prosecutor later reported that he had given the instruction. But the corrections officers still declined to speak with counsel. Counsel then moved "for an Order requesting the Commonwealth to tell them to speak to us." The judge denied this motion also, stating that he saw "no need of taking further action."

At trial lasting seven days between July 21 and August 1, 1977, the prosecution called eight witnesses: the five corrections officers, the victim Reilly, a medical expert, and Trooper Nasuti. Only Reilly identified Kines and St. Pierre as his assailants. He testified that Kines on the day, between 1 and 1:45 P.M., had come to his cell three times to talk to him. (Other testimony suggested that Kines was in the corridor for exercise and shower.) Kines asked to see a watch or a scar on Reilly's left hand. (Reilly was not clear what, precisely, Kines asked). As Reilly put his hand through the grille, Kines seized it and pulled Reilly's arm out full length. Immediately St. Pierre who, according to Reilly, had been leaning against the opposite wall of the corridor (he was in the corridor to do a painting job), took and slammed the outer door on the arm four times, breaking both bones of the forearm.

The prosecution's theory was that Reilly was punished by Kines and St. Pierre for being a stool pigeon. This gained inferential support from testimony by Reilly that as he was assaulted about 1:45 P.M. the volume of the TVs and radios on the corridor increased (two of the guards, Geiss and St. Pierre, heard such a noise), which suggested a plan by the defendants, joined in by others, to drown out the victim's cries.

The defense presented nine witnesses eight inmates and one corrections officer (the latter, not assigned to block 10, was called to impeach Reilly's testimony that he had not known St. Pierre before the episode). The last inmate witness, Gordon O'Brien, had been a "runner" on the corridor (out of cell to perform certain duties) on the day of the crime. The defense tried to show circumstantially that O'Brien, at Reilly's request, had slammed the door on his arm so that Reilly could get out of the segregation unit. Alternatively the defense tried to suggest that Reilly had inflicted the injury on himself for the same purpose by pulling with his right hand on a length of cloth attached to the steel door and shutting the door on his left arm.

At the close of the evidence the defense, renewing a motion made and reserved pretrial, asked for an order requiring the Commonwealth to choose between the mayhem and assault and battery charges on the ground that they were harassingly similar or duplicative. The motion was denied. Motions for directed verdicts were renewed and denied but the relevant assignments of error have been abandoned and the sufficiency of the evidence to support the verdicts is not questioned.

We take up now the three errors adumbrated in the foregoing summary statement, adding further facts as they appear pertinent to each of these matters.

1. Indictments based on hearsay. Trooper McDermott, the witness heard by the grand jury, had, as far as appears, no personal connection with the case, not even as an investigator. He was a conduit for a police report itself composed of hearsay. The jurors could not usefully have put questions to McDermott, as they might have done to Trooper Nasuti if he had testified. ⁴ This court has held, however, that it is not enough to justify dismissal of an indictment that the jurors received hearsay or hearsay exclusively, and this is so even when better testimony was available for presentation to the grand jury. See Commonwealth v. Robinson, --- Mass. ---, --- ^A, 368 N.E.2d 1210 (1977); Commonwealth v. Walsh, 255 Mass. 317, 319, 151 N.E. 300 (1926); Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). The cases have not suggested a distinction between the hearsay offered by a witness in the position of McDermott, and the milder hearsay offered by one closer to the scene like Trooper Nasuti.

However, there is agreement that an indictment should be dismissed on a showing that "the integrity of grand jury proceedings has been impaired" (see Commonwealth v. Gibson, 368 Mass. 518, 525, 333 N.E.2d 400, 405 (1975), quoting from United States v. Cruz, 478 F.2d 408, 411 (5th Cir.), cert. denied sub nom. Aleman v. United States, 414 U.S. 910, 94 S.Ct. 259, 38 L.Ed.2d 148 (1973)). The defendants invite our attention to United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972), which suggests that an indictment based on hearsay should be dismissed where the prosecutor "deceive(d) grand jurors as to 'the shoddy merchandise they (were) getting' " (quoting from United States v. Payton, 363 F.2d 996, 1000 (2d Cir.), cert. denied, 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 (1966) (Friendly, J., dissenting)). That would be a case where the integrity of the grand jury was impaired. But in the present case there is no intimation that the prosecution claimed for McDermott's testimony anything more than it was remote hearsay.

We do not depart from the view that an indictment may stand which is based in part or altogether on hearsay. This proposition is adopted by Mass.R.Crim.P. 4(c) (to go into effect on July 1, 1979). ⁵ We have, however, heretofore stressed our position and do so again that sound policy dictates a preference for the use of direct testimony before grand juries. See Commonwealth v. Lincoln, 368 Mass. 281, 285 n.2, 331 N.E.2d 533 (1975). We have also indicated that dependence on hearsay testimony might in "extraordinary circumstances" render an indictment vulnerable. Commonwealth v. Comins, 371 Mass. 222, 224, 356 N.E.2d 241 (1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). We raise the question whether that point is not reached when the testimony fails to attain to the level of the "probable cause" needed to support an arrest or search warrant (see Commonwealth v. Stevens, 362 Mass. 24, 26, 283 N.E.2d 673 (1972)). ⁶ Although it is not an objection to a warrant merely that it has issued on the basis of hearsay, the credit reasonably attaching to particular hearsay may fall so low as to invalidate a warrant (see 1 W.R. LaFave, Search and Seizure § 3.2 at 469-470 (1978)). Similar reasoning could be applied to indictments. ⁷ We raise, but do not answer the question posed, because in the present case, on examination of the grand jury testimony of Trooper McDermott, we think it does meet, in...