Com. v. Sullivan

• Decision Date: 01 July 1991
• Parties: COMMONWEALTH v. Michael J. SULLIVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 966

574 N.E.2d 966

410 Mass. 521

COMMONWEALTH v. Michael J. SULLIVAN.

Supreme Judicial Court of Massachusetts Middlesex.

Argued May 9, 1991.

Decided July 1, 1991.

Steven J. Rappaport, Boston, for defendant.

Rosemary D. Mellor, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

Michael J. Sullivan appeals from his convictions of armed robbery and murder in the first degree. At trial, the Commonwealth presented evidence, chiefly through the testimony of Gary Grace, from which the jury could find the following facts. In the early hours of March 7, 1986, the victim, Wilfred McGrath, accompanied the defendant's sister, Kathy Ann Sullivan, to the Somerville apartment which Kathy, at that time, shared with the defendant. McGrath apparently was in possession of a large amount of cash and several grams of cocaine. The defendant and the victim left the apartment, and arrived at Gary Grace's apartment in the company of two other men, Emil Petrla and Steve Angio around 7:30 A.M.

While Grace was washing up in the bathroom and the victim was seated at the kitchen table, the defendant approached Grace and stated that they were planning to rob the victim. Grace told the defendant not to do so in his apartment. Despite this request, Emil Petrla struck the victim from behind with enough force to knock him to the ground. The defendant, then began to kick the victim. The defendant persisted in stomping on the victim's head and body. The defendant threatened Grace with a knife when Grace attempted to stop the beating.

The defendant, Petrla, and Angio then stole money, jewelry and cocaine from the victim. Thereafter, Grace, Petrla, Angio and the defendant deposited the body behind an abandoned grocery store, where it was discovered late that night. The medical examiner testified that the victim had lived approximately one hour after being left behind the store. The cause of death was severe trauma to the brain caused by blows with a blunt object, along with extensive blood loss.

Emil Petrla testified for the defense. His version of the evening's events diverged sharply from that of Grace. Petrla testified that he and Grace were alone in Grace's apartment with the victim. The victim supplied Grace with some cocaine, which Grace used. Petrla testified that Grace then claimed that the cocaine had been poor quality and started to fight with the victim. When the victim began to overpower Grace, Petrla stepped into the fray, knocking the victim to the ground and kicking him a few times. Grace, enraged, then began to stomp and kick the victim. When Grace was finally pulled away by Petrla, the victim looked dead. Petrla and Grace hid the body where it was later found.

The jury convicted the defendant of both armed robbery and murder in the first degree. He raises several issues here on appeal, none of which persuades us either to order a new trial or to reduce the conviction.

1. Grace's plea agreement. Sullivan first argues that he was unfairly prejudiced by the introduction in evidence of a plea agreement between the Commonwealth and the chief prosecution witness, Gary Grace. That plea agreement provided that, in exchange for truthful testimony and full cooperation, the Commonwealth would seek an indictment for being an accessory after the fact, to which Grace would plead guilty. The Commonwealth promised to recommend a sentence of six to seven years for that crime. Under the agreement, the Commonwealth would also dismiss the two indictments, one each for murder and armed robbery, which were then pending against Grace. The agreement was to be void if "at the conclusion of the co-defendants' trials, the Commonwealth feels that [Grace] has not truthfully cooperated." Grace's attorney signed a statement at the end of the agreement to the effect that he had reviewed the agreement with Grace and that he was of opinion that Grace understood the agreement and had entered into it voluntarily.

Although Sullivan made no objection to the introduction of the agreement at the time of trial, he now contends that parts of the agreement constitute impermissible prosecutorial vouching for the witness's testimony. Sullivan also contends that the inclusion of the attorney's signed statement in the agreement constituted impermissible hearsay testimony. Because no objection was raised at trial, we review this claim only to determine whether there is a substantial likelihood of a miscarriage of justice due to any error the trial court may have made. See Commonwealth v. Rosado, 408 Mass. 561, 563-564, 562 N.E.2d 790 (1990); Commonwealth v. Colon, 408 Mass. 419, 444, 558 N.E.2d 974 (1990); Commonwealth v. Colon-Cruz, 408 Mass. 533, 552-553, 562 N.E.2d 797 (1990). G.L. c. 278, § 33E (1988 ed.). In each of these cases, we concluded that the admission in evidence of a plea agreement did not warrant relief under G.L. c. 278, § 33E.

We addressed a similar problem in Commonwealth v. Ciampa, 406 Mass. 257, 547 N.E.2d 314 (1989), and determined that the introduction in that case of a plea agreement which contained several inappropriate provisions necessitated a new trial. We stated in Ciampa that "[s]uch an agreement does ... present the possibility that the jury will believe that the witness is telling the truth, thinking that, because of the agreement's truthfulness requirement, the Commonwealth knows or can discover whether the witness is telling the truth." Id. at 260, 547 N.E.2d 314. In reference to the attorney's hearsay statement in that case, which was substantially the same as that at issue here, we noted that the statement "indicated that [the attorney] believed [the witness] was telling him the truth, thus justifying his advice to [the witness] to plead guilty and to testify against the defendants." Id. at 262-263, 547 N.E.2d 314.

There were several factors in Ciampa, however, which distinguish it from the present case. First, the court's review in Ciampa was not limited solely to a consideration whether there was a substantial likelihood of a miscarriage of justice. Second, the plea agreement in Ciampa stated that it was contingent upon the truth of the witness's assertion that he did not shoot the victim. That statement, we said, could be interpreted by the jury "as asserting the Commonwealth's reasoned conclusion that [the witness's] representation was correct." Id. at 262, 547 N.E.2d 314. No such statement appears in Grace's plea agreement. Third, the agreement which went to the jury in Ciampa contained references to the government's commitment to place the witness in a program designed to protect his life and safety, which we held improper because it implied that the government believed that the witness had something to fear from the defendants. Id. In this case, the portion of the agreement which referred to the government's obligation to protect the witness was removed and never seen by the jury.

On motion by defense counsel, the trial judge should have deleted the statement signed by Grace's attorney, and should have reduced the number of times the agreement referred to the witness's obligation to tell the truth. Ciampa, supra at 262, 547 N.E.2d 314. However, in the circumstances of this case, the presentation of the agreement to the jury, in the absence of an objection by the defendant, did not create a substantial likelihood of a miscarriage of justice. Commonwealth v. Rosado, supra.

2. Right to confront absent witness. Sullivan next claims that his right to confront his accusers under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights was violated. ¹ The defendant's sister, Kathy Ann Sullivan, asserted a privilege not to testify and the court declined to order her to do so. ² Gary Grace testified that he heard the defendant tell Kathy that if anyone asked about the victim, to simply say that he left Kathy's apartment in a taxicab. One of the investigating officers testified at trial that Kathy told him that the victim left her apartment in a taxicab. The same officer testified that he checked with a number of taxicab companies, and that none of them had a record of any fares which would be consistent with the victim's being picked up at Kathy's apartment.

Sullivan claims that the statement attributed to Kathy was impermissible hearsay. We disagree. "[H]earsay is an extrajudicial statement offered to prove the truth of the matter asserted." Commonwealth v. Keizer, 377 Mass. 264, 269 n. 4, 385 N.E.2d 1001 (1979). Commonwealth v. DelValle, 351 Mass. 489, 491, 221 N.E.2d 922 (1966). In this instance, the Commonwealth offered the statement not for its truth but rather to show that the statement was made. The fact that Kathy made that statement to the police officer tends to support Grace's testimony that Sullivan told Kathy to make such a statement. A statement by Sullivan to his sister that she ought to tell anyone who asked that the victim left in a taxicab, when that was not in fact the case, is evidence that he was conscious of his guilt and was attempting to cover up evidence of the crime. Such evidence is admissible against a criminal defendant. See Commonwealth v. Kerrigan, 345 Mass. 508, 513, 188 N.E.2d 484 (1963). Because the statement was not offered to prove the truth of the matter it asserted, but rather only for the fact that it was made, it was not hearsay.

For the same reason, Kathy Ann Sullivan was not a witness against her brother and he had no constitutional right to subject her to cross-examination. The officer who testified was fully competent to testify as to whether Kathy Sullivan ever uttered the statement at issue. He was available for and subject to cross-examination. There was no error in allowing the officer to testify concerning the statement. See Anderson v. United States, 417 U.S. 211, 219-220, 94 S.Ct. 2253, 2260-2261, 41 L.Ed.2d 20 (1974) (where statement is...