Com. v. Trigones

• Decision Date: 22 May 1986
• Citation: 492 N.E.2d 1146,397 Mass. 633
• Parties: COMMONWEALTH v. Theodore J. TRIGONES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1146

492 N.E.2d 1146

397 Mass. 633

COMMONWEALTH v. Theodore J. TRIGONES.

Supreme Judicial Court of Massachusetts Middlesex.

Argued March 3, 1986.

Decided May 22, 1986.

John H. Cunha, Jr., Boston, for defendant.

Fredric Lee Ellis, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

The defendant's appeal from his conviction of murder in the first degree presents various claims of error, all but one of which concern the admission of evidence that was the subject of pretrial motions. There was no error, and the defendant is entitled to no relief under G.L. c. 278, § 33E (1984 ed.). We affirm the conviction.

The jury could have found the following facts which establish the context of the issues in this appeal. The victim, a thirteen-year-old baby sitter, died of multiple stab wounds on July 1, 1983, in the living room of a residence in Lowell where she had been taking care of two young children. Her body was found that day lying face down on the floor between a couch and a coffee table. The father, Leo Trzcinski, Jr., did not then live in the residence where the victim was killed. He had separated from his wife a few weeks earlier and was living with his sister and the defendant elsewhere in Lowell.

The jury heard evidence of the separate wanderings of the defendant and Trzcinski during the evening before the killing. The defendant spent much of that night looking for Trzcinski. Sometime after 1:30 A.M. on July 1, the defendant arrived at his mother's house in Lowell. He was wearing no shirt. His pants and sandals were stained. The palm of one hand was cut and bleeding. About 5:30 A.M., the defendant, his brother, and their stepfather, Roland Weed, left the house to hide the defendant's motor vehicle. During that trip, while his brother was inside a coffee shop, the defendant made incriminating statements to Weed. Later that morning Weed drove the defendant to a Lowell hospital for treatment of an apparent drug overdose.

About 4:30 A.M. on July 1, Trzcinski entered the residence where his wife and children lived. He had tried unsuccessfully to reach the house by telephone and had driven there looking for his wife. The baby sitter appeared to be asleep on the floor in front of the couch. Trzcinski found his two children asleep upstairs in one bed. His wife was not home. He made coffee, used the telephone in an effort to find his wife, and then sat in the living room to await her return. As dawn advanced and the room became lighter, Trzcinski noticed blood on the victim's hand and realized that the couch was stained with blood. He concluded that the baby-sitter was not asleep and summoned assistance.

The defendant accused Trzcinski of stabbing the victim. He testified that he went to the Trzcinski residence that night and saw Trzcinski sitting near the dead girl. As he tried to take a knife away from Trzcinski, the defendant was cut on the palm. There was evidence that Trzcinski was jealous of his wife, that he took their bed away when he left the family residence, and that his wife, therefore, slept on the living room couch. The defendant sought to establish the inference that a jealous Trzcinski had discovered the baby sitter on the couch and, mistaking her for his wife, stabbed her repeatedly.

1. The jury heard significant testimony that in the morning after the killing the defendant made incriminating statements to his stepfather, Roland Weed. That testimony came not directly from Weed but through the reading of a transcript of what Weed had said at a pretrial hearing in this case. During the trial, Weed successfully asserted on Fifth Amendment grounds that he could not be compelled to testify (see Commonwealth v. Weed, 17 Mass.App.Ct. 463, 459 N.E.2d 144 [1984] ), and the judge declared him unavailable as a witness. In portions of his transcribed testimony admitted in evidence, Weed stated that in the early daylight hours of July 1, 1983, the defendant had told him that he had done "something terrible," that he had "killed someone," that there was "a lot of hate" in him, and he guessed that "if it wasn't her, it would have been somebody else." If this evidence was not admissible, quite obviously its admission constituted reversible error.

The pretrial hearing at which Weed testified was held in response to the defendant's motion in limine to suppress his July 1 statements on the grounds that they were not the product of a rational intellect and were not voluntary. The judge heard witnesses and, in a ruling not challenged on appeal, denied the motion. Weed testified at this pretrial hearing under oath; his testimony was transcribed by an official stenographer; and the defendant was present and was represented by counsel.

Although defense counsel cross-examined Weed, the defendant argues that the judge restricted his questioning so that the admission of Weed's testimony denied the defendant his constitutional right to confront witnesses against him. ¹ We shall (a) assess the extent of the asserted restriction of cross-examination, (b) discuss Sixth Amendment principles governing the admission of Weed's recorded testimony, and finally (c) consider whether, in the circumstances in which the judge admitted that testimony, the constitutional standard was satisfied.

a. The defendant sought to demonstrate through cross-examination that Weed was biased in favor of the Commonwealth because Weed and his wife, the defendant's mother, wanted to avoid the threat of prosecution as accessories after the fact to murder. On direct examination Weed admitted that the information he first gave to the police after the killing was not true. Each time the Commonwealth sought to establish on direct examination that the Weeds had helped the defendant conceal evidence of the killing, the judge sustained the defendant's objection. On cross-examination Weed testified that an assistant district attorney had told him on July 12, 1983, that Mrs. Weed was in trouble because she had helped her son after the alleged crime. When defense counsel asked Weed whether the assistant district attorney also had told him that a mother could not be prosecuted for helping her son, the judge asked defense counsel to explain the relevance of the question to the voluntariness of the defendant's admissions. Perhaps for tactical reasons, defense counsel did not do so; he acquiesced in the judge's suggestion of irrelevance and abandoned that line of questioning. ²

Weed's bias was, of course, a relevant issue at the pretrial hearing. If Weed had been improperly pressured to testify falsely in favor of the Commonwealth, that fact might have detracted substantially from the credibility due Weed's description of the defendant's mental and physical condition at the time he allegedly made damaging admissions to Weed (as well as perhaps raising doubt as to whether the defendant made the admissions at all).

b. To meet Sixth Amendment requirements, the Commonwealth was obliged to show not only that Weed was unavailable as a witness (a point not in contention), but also that his transcribed testimony bore "adequate 'indicia of reliability.' " Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980) (preliminary hearing testimony admissible). The Supreme Court has concluded that in such a case the underlying purpose of the confrontation clause may be met if the hearsay is marked with appropriate "trustworthiness." Id. See Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972) (prior trial testimony admissible); California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 1938, 26 L.Ed.2d 489 (1970) (preliminary hearing testimony admissible). "[H]earsay rules and the Confrontation Clause are generally designed to protect similar values." Id. at 155, 90 S.Ct. at 1933. "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Ohio v. Roberts, supra 448 U.S. at 66, 100 S.Ct. at 2539. In other situations, the evidence is admissible only if the prosecution makes "a showing of particularized guarantees of trustworthiness." Id. Cf. California v. Green, supra 399 U.S. at 155-156, 90 S.Ct. at 1933-34 (Confrontation clause and hearsay rules do not completely overlap).

The defendant did not claim below, nor does he here, even as part of an argument under G.L. c. 278, § 33E, that Weed's prior recorded testimony was inadmissible as a matter of this State's law of evidence. The elements of the prior recorded testimony exception to the hearsay rule and constitutional considerations bearing on the indicia of reliability of prior recorded testimony have certain common features. See, e.g., Commonwealth v. Ortiz, 393 Mass. 523, 531-532, 471 N.E.2d 1321 (1984); Commonwealth v. Bohannon, 385 Mass. 733, 740-749, 434 N.E.2d 163 (1982); Commonwealth v. Canon, 373 Mass. 494, 500-501, 368 N.E.2d 1181 (1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978). The exception to the hearsay rule permits the admission of prior recorded testimony "where the prior testimony was given by a person, now unavailable, 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 now being offered." Commonwealth v. Meech, 380 Mass. 490, 494, 403 N.E.2d 1174 (1980). See Commonwealth v. Martinez, 384 Mass. 377, 381, 425 N.E.2d 300 (1981). The Supreme Court of the United States has left open the question whether the opportunity to cross-examine alone will satisfy the "indicia of reliability" requirement. Ohio v. Roberts, 448 U.S. at 61-62, 70, 100 S.Ct. at 2536-37, 2541. We need not decide the admissibility of Weed's testimony as prior recorded testimony under our common law rule. If the standards of the confrontation...