Commonwealth v. O'NEIL

• Citation: 51 Mass. App. Ct. 170,744 NE 2d 86
• Decision Date: 05 October 2000
• Docket Number: No. 99-P-592.,99-P-592.
• Parties: COMMONWEALTH v. DEBORAH O'NEIL & another.
• Court: Appeals Court of Massachusetts

51 Mass. App. Ct. 170

744 NE 2d 86

COMMONWEALTH v. DEBORAH O'NEIL & another.¹

No. 99-P-592.

Court of Appeals of Massachusetts, Essex.

October 5, 2000.

March 16, 2001.

Present: LAURENCE, DREBEN, & GELINAS, JJ.

Douglas J. Beaton for Steven O'Neil.

Larry J. Colby for Deborah O'Neil.

Elin H. Graydon, Assistant District Attorney, for the Commonwealth.

LAURENCE, J.

Deborah O'Neil and her son, Steven O'Neil, were indicted and convicted as joint venturers in the arson of a Lawrence residence. The arson was actually committed by another son, Michael O'Neil, and his best friend, Charles Rosinski. Steven O'Neil here challenges the denial of his pretrial motion to dismiss the indictment against him, asserting that the grand jury heard insufficient evidence to establish probable cause to arrest him for the crime charged. Deborah O'Neil contends primarily that her counsel was ineffective in cross-examining Rosinski, the Commonwealth's only percipient witness against her. She also accuses the prosecutor of knowingly presenting false evidence through Rosinski and of failing to disclose, until midtrial, inculpatory statements attributed to her by another witness, Steven Windle; she attacks the trial judge's admission of those statements over her objection; and she argues that the cumulative effect of the assigned errors denied her a fair trial. We affirm Steven's conviction but reverse Deborah's. Her receipt of prejudicially ineffective assistance of counsel is manifest on the record before us.

The arson was the irrational culmination of an effort to exact vengeance for the beating of Michael O'Neil by one Joe Spinney. According to the Commonwealth's evidence, two days after the beating, Michael, Rosinski, Steven, and several others (including Deborah, according to Rosinski's testimony) inflamed by alcohol and drugs, drove to a triple-decker apartment building occupied in part by Spinney's family. Members of the group first issued physical challenges to the occupants, then threw stones at the windows. When no one emerged, unspecified members of the group proceeded to obtain a milk jug full of gasoline, which Michael and Rosinski used to set fire to the building's porch and stairs. Everyone involved then fled. Less than two months later, Michael and Rosinski were indicted for the arson as youthful offenders. The same grand jury also indicted Steven and Deborah.

1. As to Steven. The Commonwealth had the burden to present to the grand jury evidence sufficient to establish probable cause that Steven (1) was present at the scene of the crime, (2) with intent to commit a crime or with knowledge that another intended to commit a crime, and (3) by express or implicit agreement was willing and available to assist that other in effecting his criminal purpose. Commonwealth v. Bianco, 388 Mass. 358, 366 (1983). Commonwealth v. Longo, 402 Mass. 482, 486 (1988). The required mental state that the prosecution had to show Steven possessed was a wilful and malicious intent. G. L. c. 266, § 1. Commonwealth v. Mandile, 403 Mass. 93, 100 (1988). Commonwealth v. Stewart, 30 Mass. App. Ct. 569, 573, S.C., 411 Mass. 345 (1991). Such intent is rarely shown by direct evidence, but can be drawn from reasonable and possible inferences deduced from the circumstances. Longo, supra at 487.

Steven argues that the evidence before the grand jury revealed his mere presence in the car seen leaving the scene of the arson. We agree with the trial judge's finding, however, that the grand jury heard sufficient evidence from witnesses Rosinski and Windle regarding Steven's enthusiastic participation in all phases of the criminal enterprise to sustain a probable cause showing that he had the necessary knowledge and intent to commit or assist in the arson under a joint venture theory.² Steven's reiterated reliance on Commonwealth v. McCarthy, 385 Mass. 160 (1982), does him no good, because in that case, unlike this one, there was no evidence of participatory criminality on the defendant's part.

2. As to Deborah. a. Background. Six months prior to trial, Deborah moved for disclosure of any and all information regarding "promises, inducements, or rewards of any kind or nature made directly or indirectly to any Commonwealth witness." Two weeks before trial, on March 9, 1998, the Commonwealth responded with a document entitled "Commonwealth's Notice of Promises Rewards [or] Inducements" (Notice), signed for the Commonwealth by Assistant District Attorney Milton E. Cranney, Jr., who was the prosecutor at Deborah's trial.

The Notice stated, in pertinent part, as follows:

"Co-defendant Chuck Rosinski is expected to testify in the Commonwealth's case in chief that Steven O'Neil and Debbie O'Neil were joint venturers along with Mike O'Neil, Chuck Rosinski and John Luciano in the burning of [Spinney's house] .... The substance of Mr. Rosinski's testimony is ... [t]hat he along with his coventurers were at Debbie O'Neil's house ... drinking beer provided to them by Ms. O'Neil. The group decided to go and beat the boys who had fought with Mike O'Neil earlier. They went to the [boys'] house, (Debbie drove) and threw rocks at the windows. When no one inside would come out, ... Debbie O'Neil drove to a gas station and bought some gasoline. She put the gas in a milk jug. Debbie drove back to the house [and] ... told Mikey to hurry up and do it. Mike O'Neil and Chuck Rosinski [then] ... poured the gasoline and lit the building on fire. They ran back to the car and Debbie took off. They went back to Debbie's and she told them not to say anything to anyone about what had happened. It is anticipated that this defendant will offer a change of plea on an indictment before the Essex County Juvenile Court on this matter and receive a sentence of probation." (Emphasis supplied.³)

Presumably relying on this Notice, Deborah's trial counsel began her opening by alerting the jury to the critical nature of Rosinski's testimony:

"The Commonwealth's entire case rests on the credibility of two people, Charles Rosinski and John Luciano[,] ... the only two people who have personal knowledge — [and] [w]ho the Commonwealth is going to call to testify — about what happened that night in that house. They are also the only two witnesses who were charged, with respect to this arson themselves, and are presently defendants with arson charges pending, and who the Commonwealth has given a deal to in exchange for their testimony. And you will hear both of them tell you that... after they are done testifying here, they expect that the charges against them will result in them being free, in one way or another, either by probation or some other situation such as that."⁴

Counsel did not, however, direct the jury's attention to the Notice and its apparent corroboration of her assertion in her opening.

Rosinski testified for the prosecution, incriminating Deborah as indicated in note 3, supra. Deborah's counsel then brought out on cross-examination that Rosinski had been drinking heavily (and illegally) the night of the fire, as well as smoking a large amount of marijuana; that he was "under the influence" of those substances that night; that his memory of the event was "somewhat shaky"; that he was "somewhat confused that night"; that he had "blacked out" a few times that evening; that he had provided two false and inconsistent statements to the authorities not mentioning any involvement by Deborah before making a third statement implicating her; that he had been on probation at the time of the incident and was aware of the consequences of being found in violation of probation; that he had a "complete memory" of his own actions on the night in question but not of anybody else's; and that he did not know where the gasoline used in the arson came from or who procured it. Counsel then moved on to what she must have contemplated would be the decisive blow to Rosinski credibility, the Commonwealth's Notice, but proceeded to flounder badly.

When she asked Rosinski if he had seen the document before, he responded, "No, I have not." Her request that he read it was met by a prosecution objection, which was sustained by the judge with the observation that Rosinski did not "claim a lack of memory, so there is nothing to refresh." The prosecutor at side bar then told the judge — questionably, in our view — that he himself had sent the document (which he described as a "letter") to the defendants' counsel but that it "is not even [Rosinski's] statement ... [but rather] a representation of the substance [of his expected testimony] made by his attorney, who was present at this subsequent interview that took place." Defense counsel did not ask the judge to examine the Notice and made no protestation against the prosecutor's description of it.⁵

The judge reiterated her refusal to let Rosinski read the document "until [counsel had demonstrated] ... an exhaustion of [the witness's] memory." In response to Deborah's counsel denying she was trying to refresh Rosinski's memory with the document, the judge asked, "[w]hat were you trying to do?" Counsel again made no effort to apprise the judge of the material nature of the Notice but rather replied obscurely that she wanted Rosinski "to read his purported statements ... [and] to tell whether he had said things, or not said things." The judge thrice told counsel to "move on" in light of Rosinski's claim never to have seen the document before.

Deborah's counsel then asked Rosinski if he knew the potential penalty should he be convicted in his scheduled trial of committing the arson. After Rosinski acknowledged that his lawyer told him it could be five to eight years in State prison, the following exchange (in relevant part) occurred:

COUNSEL: "And is it fair to say that you don't expect to have a trial in this case. Is that right?" ROSINSKI: "No." COUNSEL: "Well, don't you have an agreement with the government to get probation in this case?" ROSINSKI: "No." COUN...