Com. v. White

• Decision Date: 16 May 1974
• Citation: 311 N.E.2d 81,2 Mass.App.Ct. 258
• Parties: COMMONWEALTH v. David WHITE (and five compainion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 81

311 N.E.2d 81

2 Mass.App.Ct. 258

COMMONWEALTH v. David WHITE (and five compainion cases ¹).

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 15, 1973.

Decided May 16, 1974.

Joseph James Balliro, Boston (Henry D. Katz, Boston, with him), for defendant John O'Master.

Alfred E. Nugent, Boston, for defendant David White.

John T. Gaffney, Asst. Dist. Atty. (Thomas E. Dwyer, Jr., Asst. Dist. Atty., with him), for the Commonwealth.

Before ROSE, KEVILLE and GOODMAN, JJ.

KEVILLE, Justice.

In a jury trial made subject to G.L. c. 278, §§ 33A--33G, as amended, the defendants were convicted on separate indictments by charging each of them with mayhem, assault and battery by means of a dangerous weapon and armed assault with intent to commit murder. They assign as error the trial judge's denial of their motions to inspect the minutes of the grand jury, his allowing the prosecutor to put leading questions to two of the Commonwealth's witnesses, his denial of their motions for mistrial based on the questioning of three witnesses and his overruling of defense objections to the Commonwealth's closing argument.

There was evidence from which the jury could have found that at approximately 3:00 A.M. on September 23, 1972, Richard Paaso, the victim, with two acquaintances, Donald Maley and Dana Leahy, accompanied by a German shepherd dog belonging to a friend of Paaso, drove to a bar adjacent to the Charles River Motel on Soldiers' Field Road in Brighton. Leaving their car, which also belonged to Paaso's friend, in the parking lot nearby, they entered the bar and there saw the defendant John O'Master. Paaso indicated that he wished to talk to O'Master. The latter led him to a table where he sat between O'Master and the defendant David White. Leahy and Maley remained a few yards away; and the dog wandered among the tables of the bar. Paaso had known White for about ten years. During this period he had also become acquainted with O'Master. Paaso told the defendants that he had come to thank them for helping his friend Leahy. O'Master asked him why he was interested and if any of is money was involved. Paaso replied: 'No.' Whereupon O'Master said to him, 'Are you some type of tough guy?' and, 'We are the power around here.' Then, without warning, O'Master reached over and 'grabbed' Paaso's ear. Paaso reached up and felt blood rushing down his face. He stood up and both defendants closed in on him. He felt 'quick thrusts' in his stomach coming from White's direction. He panicked, overturned a chair, ran from the lounge and hid in a ditch. As he was running, he noticed that O'Master struck the dog. He remained in the ditch for several minutes, and then sought assistance from Boston police in a patrol wagon which has stopped nearby. The police drove him to a hospital. He had sustained serious injuries including cuts on his stomach, chest, face and neck. His left ear was nearly severed.

Later on September 23, the mutilated body of the dog was found in the parking lot by a motel maintenance man, Bucelwicz, who, at the suggestion and with the assistance of the defendant White, removed the body of the dog to a nearby field. There it was later discovered by the dog's owner whose car was also found in the parking lot.

1. In their joint brief the defendants argue that it was error for the judge to deny their motion to inspect the minutes of the grand jury. ² At the close of the direct examination of Paaso, the defendants moved to obtain the grand jury minutes alleging that Paaso had previously told a story inconsistent with his testimony at trial, viz., that he had been attacked by an unknown assailant while walking the dog. After reading the minutes, the judge informed counsel that he found Paaso's testimony before the grand jury to be 'completely consistent' with his testimony at trial. There was no error in the denial of the motion. The effect of the recent ruling of the Supreme Judicial Court in Commonwealth v. Stewart, --- Mass. ---, 309 N.E.2d 470 (1974), conferring a right of access to grand jury testimony of Commonwealth witnesses relating to the subject matter of their testimony at trial without a showing of a 'particularized need', is prospective only. Commonwealth v. Lamatina, --- Mass.App. --- n. 3, 310 N.E.2d 136 (1974).

We therefore consider the defendants' argument in light of the law prior to the Stewart case. Prior thereto, a defendant was not entitled to examine grand jury minutes as matter of right. Commonwealth v. Giacomazza, 311 Mass. 456, 462, 42 N.E.2d 506 (1942). A motion to permit inspection of such minutes was addressed to the discretion of the judge. Commonwealth v. Balliro, 349 Mass. 505, 518, 209 N.E.2d 308 (1965). It was deemed appropriate for the judge to review the minutes to determine whether an inconsistency existed between the witness' testimony at trial and that given before the grand jury. Commonwealth v. Doherty, 353 Mass. 197, 209--210, 229 N.E.2d 267 (1967), cert. den. 390 U.S. 982, 88 S.Ct. 1106, 19 L.Ed.2d 1280 (1968), overruled on other grounds in CONNOR V. COMMONWEALTH, --- MASS. ---, 296 N.E.2D 172 (1973)^A. The presence of inconsistency would constitute a 'particularized need' for the minutes (Commonwealth v. Carita, 356 Mass. 132, 141--142, 249 N.E.2d 5 (1969); COMMONWEALTH V. DE CHRISTOFORO, --- MASS. ---, 277 N.E.2D 100 (1971)^B; COMMONWEALTH V. DOMINICO, --- MASS.APP. ---, 306 N.E.2D 835 (1974)^C), warranting their examination by defense counsel. Commonwealth v. Ladetto, 349 Mass. 237, 244--245, 207 N.E.2d 536 (1965); Commonwealth v. Abbott Engr. Inc., 351 Mass. 568, 578--579, 222 N.E.2d 862 (1967).

Where, as here, the judge found no inconsistency between Paaso's testimony before the grand jury and his testimony at trial, no 'particularized need' for access to the minutes was shown. Commonwealth v. Kiernan, 348 Mass. 29, 36, 201 N.E.2d 504 (1964), cert. den. sub nom. Gordon v. Massachusetts, 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800 (1965); Commonwealth v. Dominico, supra. In addition, counsel for the defendants thoroughly explored in extensive cross-examination of Paaso and other witnesses Paaso's initial statement, which he admitted having made, that he had been attacked by an unknown assailant. The jury's attention was emphatically directed to the credibility of Paaso on this point. Coupled with the judge's ruling that Paaso's testimony at trial was 'completely consistent' with that given before the grand jury, no injustice resulted to the defendants from the denial of the motion.

2. The defendants next contend that the prosecutor's examination of the witness Dana Leahy was improper and that the judge erred in denying their motions for mistrial based on the alleged improper questioning of this witness. ³ At a bench conference before Leahy took the stand, the prosecutor informed the judge that he expected that Leahy would lie during his testimony. During the early portion of Leahy's testimony, when he denied participating in certain activities with Paaso on the evening in question, the prosecutor put to him a series of leading questions over the objections of the defendants.

Although the judge did not formally declare Leahy to be a hostile witness until well along in the prosecutor's examination, it was in his discretion to allow leading questions up to that point and thereafter. Commonwealth v. Coshnear, 289 Mass. 516, 527, 194 N.E. 900 (1935); Commonwealth v. Jones, 319 Mass. 228, 229--230, 65 N.E.2d 422 (1946); COMMONWEALTH V. LAFRANCE, --- MASS. ---, 278 N.E.2D 394 (1972)^D. In COMMONWEALTH V. FLYNN, --- MASS. ---, 287 N.E.2D 420, 430 (1972)^E, the court reiterated the language of Guiffre v. Carapezza, 298 Mass. 458, 460, 11 N.E.2d 433, 434 (1937), viz., '(W)e are aware of no decision in this Commonwealth in which exceptions have been sustained because of the allowance of leading questions.'

We find no merit in the further argument of the defendants that the examination by the prosecutor violated the provisions of G.L. c. 233, § 23, in attempting to impeach Leahy's credibility by evidence of 'bad character.' A review of the testimony makes it apparent that the objective of this questioning was not to elicit evidence of Leahy's criminal activities, but rather to have him testify to his whereabouts during and after the assault upon Paaso including his alleged return to Paaso's apartment later that morning, and to contradict his testimony that he was in bed at home at the time of the incident. Evidence material to prove an issue in a case is not incompetent simply because it reveals criminal activity on the part of a witness. Commonwealth v. Dominico, supra, at ---, ^f 306 N.E.2d 835; Commonwealth v. West, 312 Mass. 438, 441, 45 N.E.2d 260 (1942).

3. The defendants raise similar objections to the use of leading questions and the denial of their motions for a mistrial in the examination by the prosecutor of the witness Bucelwicz. ⁴ The questions centered on whether Bucelwicz, prior to the trial, had had a conversation with the defendants about the events of September 23 and on whether the witness had been put in fear by the defendants. The witness' response to each of these questions was in the negative. The prosecutor was permitted to attempt to refresh the memory of the witness by referring to an alleged prior conversation with the prosecutor in the presence of a third person through the use of leading questions. As stated previously, the judge was within the bounds of discretion in allowing leading questions in these circumstances. Commonwealth v. Fiore, --- Mass. ---, 308 N.E.2d 902 (1974), and cases cited.

The judge forestalled the possibility of prejudice, which might have resulted from this line of questioning, by repeatedly instructing the jury that questions to which negative answers were given were not to be considered by them. it is our rule that jurors may normally be expected to follow instructions to disregard matters withdrawn from their...