Com. v. Taylor

• Decision Date: 03 September 1992
• Docket Number: Nos. 89-P-492,90-P-1122,s. 89-P-492
• Citation: 591 N.E.2d 1108,32 Mass.App.Ct. 570
• Parties: COMMONWEALTH v. Charles TAYLOR.
• Court: Appeals Court of Massachusetts

Page 1108

591 N.E.2d 1108

32 Mass.App.Ct. 570

COMMONWEALTH v. Charles TAYLOR.

Nos. 89-P-492, 90-P-1122.

Appeals Court of Massachusetts,

Middlesex.

Argued March 20, 1992.

Decided May 22, 1992.

Further Appellate Review Granted Sept. 3, 1992.

Anthony M. Fredella, Somerville, for defendant.

Howard A. Wise, Asst. Dist. Atty., for Com.

Before ARMSTRONG, PORADA and LAURENCE, JJ.

PORADA, Justice.

From his conviction of murder in the second degree (G.L. c. 265, § 1) and the denial of his motion for a new trial, the defendant appeals. He claims that the trial judge erred (1) in admitting in evidence the prior testimony of a Commonwealth witness given at a probable cause hearing in which the defendant's right of cross-examination was limited and in allowing a transcript of that testimony to be read to the jury, rather than introduced as an exhibit; (2) in informing the jury during its empanelment that this witness had died in an unrelated automobile accident; (3) in admitting in evidence threats made by the defendant to two of the Commonwealth witnesses; (4) in failing to charge the jury on self-defense and manslaughter; (5) in refusing to allow the jury's request for a transcript; and (6) in refusing to allow a postverdict inquiry of a juror to determine if extraneous material was introduced in the jury room during the jury's deliberations. The defendant also claims that the grand jury proceedings were impaired by the withholding of known, relevant exculpatory evidence. We affirm the conviction and denial of the motion for a new trial.

The Commonwealth presented to the jury the probable cause testimony of Donna Pierni, who had died before the trial began. She had testified as follows. On the evening that the victim (Robert Zinnani, Jr.) was killed, she accompanied him to 14 Sergeant Street in Somerville to talk to the defendant. Before going there, the victim had made several stops to sell cocaine or to collect money owed him. Upon their arrival, the victim entered the building alone and told her to remain in the car. He then returned to the car and said they would have to wait. While they sat in the car, a woman identified as Marion Scolles came out of the building on several occasions to talk to the victim. After each of these conversations, Scolles would return to the house. Finally on about her fourth trip to the car, she told them that the defendant had said that they could enter the house. All three entered the basement of the building and found the defendant with two men in the back room. This room had only one entrance. The defendant asked the two men to leave, and they complied. He then gave Pierni and Scolles some cocaine and told the two women to leave, because he had some business to discuss with the victim. The women left the room but remained in the basement. Shortly thereafter, Pierni heard a "loud pop" which came from this back room. The defendant then came out of the room. When Pierni asked for the victim, the defendant said he had gone out the window. Since the victim had Pierni's car keys, she went outside to look for him. When she couldn't find him, she returned to the basement and saw the defendant with her car keys. She then insisted that the victim must still be in the side room. The defendant told her that she "wouldn't like what [she would] see." When Pierni entered the room, she saw the victim sitting on the couch, with his hands on his lap, and blood coming down his face and on the wall behind his head. She also saw a shotgun on a workbench three to four feet away from the victim. The defendant told Pierni that she would "have to keep [her] mouth shut, that [she] knew too much" and that she "had to help or [she would] lay next to Bobby [the victim]." Being frightened, Pierni helped the defendant and Scolles clean up the back room, wrap the victim's body in a blanket, and put it in the trunk of her car. While cleaning the back room, she saw the defendant wipe the shotgun with a paper towel and place it in a bag. In response to her inquiry about what happened in that room, the defendant had told her that the victim "said that he was going to kill Marion and [the defendant]. And that's why Bobby's gone." Accompanied by Scolles, she transported the body to an address in Billerica which the defendant gave them. The address was the home of Patricia Tassi.

Patricia Tassi testified that Pierni and Scolles arrived at her house in the early morning hours of April 25, 1986. They gave her a shotgun in a bag which she hid under the couch. The defendant arrived sometime later. He told Tassi that "he had just killed somebody and there was a body in the trunk." He told her that he wanted to put the body in her back yard. Tassi objected because she lived there with her three children. The defendant said he had no other place to put it. The defendant, Pierni, and Scolles then proceeded to dispose of the body in the swamp behind Tassi's house as Tassi watched from inside the house. After disposing of the body, the defendant told Tassi to clean the gun. He then asked Tassi where he could hide the gun. Tassi told him that she knew of a place in Tewksbury where he could dispose of the gun. The two of them drove there, and Tassi hid the gun. The defendant told Tassi that if she testified he would hurt her. A couple of days later, Tassi went to the Billerica police and told them what had occurred at her house on the morning of April 25 and where both the body and the gun were located.

The police uncovered the body and found the gun. There were no fingerprints on the gun. An autopsy revealed that the victim had died from a shotgun blast to the head and that the gun was held less than one foot from the head of the victim.

The defendant testified that he was present when the victim arrived with Scolles and Pierni. Shortly thereafter two men whom he did not know appeared and asked for the victim. The two men asked the victim to locate a third person, and the victim said that he would try. The two men then left and the victim asked Pierni and Scolles to leave. Soon thereafter, the two men reappeared and asked if the victim had located the person requested but the victim replied that he had tried without success. The men left. The victim then became agitated and broke a freebase pipe by slamming it against the floor. Appearing very upset, the victim pulled a revolver from the back of his shirt. The defendant tried to calm him down and found an excuse to leave the room. Before leaving, the victim told him to tell Pierni that he left by the window. When the defendant was outside the building, he heard a loud noise. Upon returning to the cellar, he found the victim sitting on the couch, with a lit cigarette in his mouth, blood coming from his mouth, a revolver between the cushions next to him, and a shotgun on the floor. After observing this scene, he told Pierni that he had no idea what had happened but that if they were not careful they were liable to be lying beside the victim. He then left. After receiving a phone call at about 3:00 A.M., he went to Patricia Tassi's house in Billerica. There he agreed to help dispose of the body. After doing so, Tassi asked the defendant to clean the shotgun which she produced from beneath a couch cushion. He refused but told her how to clean it. He then agreed to accompany her to Tewksbury to dispose of the gun.

1. Prior reported testimony. In the Somerville District Court, the defendant was charged with murder of the victim. Donna Pierni testified under oath at his probable cause hearing. She was subject to extensive cross-examination, not only by the defendant's counsel but also by defense counsel for Marion Scolles, who was charged with being an accessory after the fact. Donna Pierni died in an unrelated automobile accident after the probable cause hearing. Prior to trial, cross-motions were filed by the parties for the use and exclusion of Pierni's probable cause testimony. After a hearing, the judge permitted the Commonwealth to use Pierni's testimony at trial and to allow one assistant district attorney to read the questions and another to read the answers of both the direct and cross-examination.

The defendant asserts that the judge erred in allowing the testimony. He claims that it lacked the indicia of reliability because his right of cross-examination had been improperly limited in the probable cause hearing. One of the prerequisites for the admission of prior reported testimony is proof that it bears sufficient " 'indicia of reliability' to furnish the jury with an adequate basis to evaluate the truth of the former statements." Commonwealth v. Ortiz, 393 Mass. 523, 531, 471 N.E.2d 1321 (1984). Commonwealth v. Siegfriedt, 402 Mass. 424, 429, 522 N.E.2d 970 (1988). In order to establish reliability, "[t]he prior testimony of the currently unavailable witness must have been given 'in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is ... offered.' " Commonwealth v. Ortiz, 393 Mass. at 532, 471 N.E.2d 1321, quoting from Commonwealth v. Meech, 380 Mass. 490, 494, 403 N.E.2d 1174 (1980). At a probable cause hearing, a defendant's opportunity and motive to cross-examine a witness are similar to those he has at trial, and these factors give that prior testimony sufficient reliability. Commonwealth v. Mustone, 353 Mass. 490, 492, 233 N.E.2d 1 (1968). Commonwealth v. Ortiz, 393 Mass. at 535, 471 N.E.2d 1321. A defendant at a probable cause hearing must, however, have the opportunity to cross-examine adverse witnesses to the extent available at trial. Myers v. Commonwealth, 363 Mass. 843, 855-856, 298 N.E.2d 819 (1973).

In this case, the defendant argues that on three occasions he was denied that right. We find that only one has merit. ¹ On that occasion, the judge sustained...