Com. v. Tanso

• Decision Date: 05 November 1991
• Citation: 583 N.E.2d 1247,411 Mass. 640
• Parties: COMMONWEALTH v. Paul TANSO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1247

583 N.E.2d 1247

411 Mass. 640

COMMONWEALTH v. Paul TANSO.

Supreme Judicial Court of Massachusetts,

Suffolk.

Nov. 5, 1991.

Decided Jan. 14, 1992.

F. Lee Bailey, Boston, (Kenneth J. Fishman & Peter Charles Horstmann, with him) for defendant.

Jane A. Sullivan, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

The defendant, Paul Tanso, appeals from two convictions of murder in the first degree. ¹ The main issue on appeal is the trial judge's admission in evidence, over objection, of the deposition testimony of an unavailable witness who had not been cross-examined. For the reasons stated in this opinion, we conclude that the defendant did not waive his right to cross-examine the witness. Therefore, the admission of the deposition testimony violated the defendant's right to confrontation under the Sixth Amendment to the United States Constitution. ² Accordingly, the defendant is entitled to a new trial. ³ We also comment briefly on some of the issues likely to recur at retrial.

On February 19, 1986, at approximately 9:30 P.M., a double homicide occurred in a park in Boston's North End. The defendant was arrested on February 23, 1986, and arraigned the next day on complaints charging him and two codefendants with the February 19 murders. At trial, the Commonwealth's proof indicated that the defendant, along with codefendants Frank DiBenedetto and Louis Costa, killed John Bottari and Frank Angelo Chiuchiolo by firing weapons repeatedly into their bodies at close range. Two witnesses identified the defendant as one of the assailants. One, Joseph Schindler, testified that he observed part of the incident from his apartment window.

The other witness, Richard Storella, knew the defendants as well as the men who were killed. In a deposition before the Boston Municipal Court judge, Storella said that the victims had planned to rob DiBenedetto. Storella said that he drove with the two victims to the park and observed the killings while standing outside of the park.

At a pretrial hearing on Monday, March 3, 1986, in the Municipal Court, ⁴ the defendant waived his rights to a probable cause hearing, and the Commonwealth moved to depose Schindler and Storella pursuant to Mass.R.Crim.P. 35, 378 Mass. 906 (1979). ⁵ In support of its motion, the Commonwealth presented evidence that weapons and ammunition had been seized from the homes of both the defendant and his codefendant, and that Schindler and Storella feared for their safety. The judge allowed the motion. At that point, Schindler was sworn and gave direct testimony before the judge, including an in-court identification of the defendant. At the close of Schindler's testimony, defense counsel stated that he was not prepared for cross-examination. The judge continued the proceedings until the next day, and said that he would order defense counsel "either to take cross-examination at that time or to waive it."

The next day Storella gave direct testimony in a deposition before the Municipal Court judge. Defense counsel said that he still was not prepared to cross-examine. Defense counsel stated that he believed that any cross-examination that he might conduct at that time would constitute ineffective assistance of counsel in violation of his client's Sixth Amendment rights. The Commonwealth countered that the defendant did, in fact, have the opportunity to conduct an effective cross-examination on that day, and that, if the defendant refused to do so, "it is only for the purpose of tactics ... so that [the defendants] will be in a position, should the witness be executed, to say, 'We did not have effective cross examination; you cannot use that testimony.' "

The defendant moved to hold Schindler and Storella, the Commonwealth's rule 35 witnesses, in protective custody as material witnesses until such time as the defense had an opportunity to cross-examine them. The defendant also asked for full discovery. ⁶ The judge denied both defense requests, and continued the proceedings until that Friday, March 7.

On Friday, defense counsel once again indicated to the judge that he was not prepared to cross-examine, and asked for a continuance. The Commonwealth opposed the continuance, representing that it had provided all discovery in its possession to defense counsel at 5 P.M. on the previous Tuesday, March 4. The Commonwealth asked the judge to rule that, in declining to cross-examine on that day, the defendant had waived his right to cross-examine Storella. Defense counsel expressly stated that they did not waive cross-examination of Storella. Although earlier the judge had indicated that he would order the defendant to cross-examine the witnesses or waive the right to cross-examination if he did not avail himself of the opportunity, the judge instead declined to rule on both the defendant's and the Commonwealth's requests. Saying that he would "leave [the defendants] to whatever remedies may exist," he bound the case over to the grand jury.

The indictments were returned on May 21, 1986. The defendant filed a motion on October 17, 1986, in the Superior Court requesting permission to complete the rule 35 depositions through cross-examination. At that hearing, the Commonwealth argued that the defendant had waived his cross-examination rights by failing to avail himself of his earlier opportunity (in the Municipal Court) to cross-examine the witnesses. The Superior Court motion judge allowed the defendant's motion. He ordered that the subsequent deposition consist of cross- and redirect examination only, and that it be completed by December 5, 1986. Schindler was cross-examined on December 2, but Storella never was cross-examined because the Commonwealth asserted that it was unable to locate him. When Storella still had not been located by March, 1987, a capias was issued for his arrest.

On January 21, 1988, the defendant moved to exclude Storella's testimony. On February 8, 1988, the Commonwealth moved to have Storella declared unavailable and for permission to use his rule 35 deposition at trial against the defendant. A second Superior Court judge, without holding an evidentiary hearing, allowed the Commonwealth's motion and denied the defendant's motion. He determined that the defendant had been "provided with an adequate opportunity to effectively cross-examine" Storella and that Storella's testimony was "sufficiently reliable."

The trial judge, in a hearing regarding Storella's availability and the admissibility of his rule 35 testimony, found that Storella was unavailable and that the defendant had waived his right to cross-examine Storella. The judge admitted Storella's rule 35 testimony.

1. The rule 35 deposition testimony and waiver. The defendant argues that, as soon as he waived the probable cause hearing, the case no longer was within the jurisdiction of the Municipal Court and, therefore, the Municipal Court judge was without authority to allow the Commonwealth leave to take rule 35 depositions. This argument is without merit. The case remains within the court's jurisdiction until an indictment is returned. Any other rule would place cases outside of the jurisdiction of any court between the time when a probable cause hearing is waived or held in the District or Municipal Court and the indictment is returned in the Superior Court. The Municipal Court judge had jurisdiction and discretionary authority to allow the motion to depose the witnesses.

The defendant next argues that the Municipal Court judge erred in allowing the Commonwealth's motion to depose witnesses pursuant to rule 35 because, the defendant claims, the Commonwealth did not set forth sufficient grounds for allowing the depositions. This argument, too, is without merit. Rule 35 of the Massachusetts Rules of Criminal Procedure was written in substantial conformity with Fed.R.Crim.P. 15. See Reporters' Notes to Mass.R.Crim.P. 35, Mass.Gen.Laws Ann., Rules of Criminal Procedure at 633 (West 1980). Both rules allow the testimony of prospective witnesses to be taken prior to trial in "exceptional circumstances" when "the interest of justice" so requires. See note 5, supra. "[P]hysical unavailability [is] but one factor in determining whether 'exceptional circumstances in the interests of justice' exist." United States v. Johnson, 752 F.2d 206, 209 (6th Cir.1985). The Commonwealth presented evidence that: (1) both Schindler and Storella feared for their safety; (2) weapons and ammunition had been seized from the homes of two of the defendants; (3) Schindler lived in the defendants' neighborhood; and (4) Storella was acquainted with the defendants and played a role, albeit a supporting one, in the crime. In these circumstances, the Municipal Court judge could conclude that the Commonwealth legitimately was concerned that the witnesses might be unwilling or unable to testify at trial, and that this concern could be alleviated by allowing the Commonwealth's rule 35 motion. Cf. id. (taking of deposition was proper where defendant refused to testify at trial due to fear for his own and his family's safety).

The standard for reviewing a trial court judge's ruling on a rule 35 motion is abuse of discretion. United States v. Keithan, 751 F.2d 9, 12 (1st Cir.1984). The judge did not abuse his discretion in allowing the Commonwealth's rule 35 motion. Even if the Commonwealth's evidence had been less compelling, we likely would find no abuse of discretion because, "[w]hen the question is close[,] a court may allow a deposition in order to preserve a witness' testimony, leaving until trial the question of whether the deposition will be admitted as evidence." United States v. Mann, 590 F.2d 361, 366 (1st Cir.1978). Indeed, ordering the deposition and requiring the cross-examination may well insure the safety of witnesses.

The defendant argues that the trial judge erred in admitting the uncross-examined deposition testimony in...