Commonwealth v. Sullivan, SJC-07222

• Decision Date: 30 January 2002
• Docket Number: SJC-07222
• Citation: Commonwealth v. Sullivan (Mass. 2002)
• Court: Supreme Judicial Court of Massachusetts
• Parties: COMMONWEALTH vs. GERALD SULLIVAN, JR. Docket No.:MASSACHUSETTS SUPREME COURT County: Middlesex

COMMONWEALTH vs GERALD SULLIVAN, JR.

Docket No.: SJC-07222

MASSACHUSETTS SUPREME COURT

County: Middlesex

November 9, 2001.

January 30, 2002

Summary: Witness, Immunity.Practice, Criminal, Immunity from prosecution, Argument by prosecutor, Cross-examination by prosecutor, Comment by prosecutor, New trial, Capital case.

Indictments found and returned in the Superior Court Department on June 23, 1994.

The cases were tried before Paul A. Chernoff, J., and a motion for a new trial, filed on November 19, 1997, was heard by him.

Myles D. Jacobson for the defendant.

David W. Cunis, Assistant District Attorney, for the Commonwealth.

Present: Marshall, C.J., Greaney, Ireland, Spina, & Cowin, JJ.

COWIN, J.

The defendant was convicted by a jury of murder in the first degree based on a theory of extreme atrocity or cruelty.He was also convicted of larceny from the person, a lesser offense of the charge of armed robbery for which he had been indicted.Represented by new counsel, the defendant filed a motion for a new trial, which the trial judge denied.We have consolidated the defendant's appeals from his convictions and from the denial of his motion for a new trial.The defendant claims that (1)the prosecutor improperly portrayed the role of the Supreme Judicial Court in granting immunity to a witness and vouched for that immunized witness's credibility; (2)the defendant's right to confrontation and cross-examination were violated by the judge's limitation on cross-examination regarding conversations between the immunized witness and his attorney; (3) information was improperly admitted concerning the trial of a codefendant; and (4) on his motion for a new trial, the judge erred by denying him an evidentiary hearing to determine whether the Commonwealth had an understanding with the immunized witness that the witness would cooperate in return for immunity.¹The defendant also requests that we exercise our extraordinary power under G. L. c. 278, § 33E, to order a new trial.We affirm the convictions and the order denying the motion for a new trial and decline to exercise our power under G. L. c. 278, § 33E.

Facts.The jury were warranted in finding the following facts.The Commonwealth's primary witness at trial was Christopher Rogovich, who had been granted immunity by a single justice of this court.SeeG. L. c. 233, § 20D.Rogovich testified as follows.On April 27, 1994, Rogovich spent the afternoon at a park playing basketball and drinking beer with several friends including the defendant, Jeffrey Hardy, Richard Allison, and Thomas Moran(victim).The defendant and Hardy left the park at one point and returned with what appeared to be "PCP," or "angel dust."Several of the group smoked some of the drug.The effects of the drug were rather weak and as a result, the victim stated that the drug was fake.The victim teased the defendant and Hardy in front of the others and said they had "got beat," and were "idiots" and "chumps."The victim continued to make similar comments throughout the day, apparently upsetting the defendant and Hardy.While the group was at a friend's house later that evening, the defendant and Hardy left for approximately twenty minutes; when they returned, Hardy showed Rogovich a gun tucked in his pants.

The group later went to a bar, and after approximately one hour, Hardy told Rogovich that he wanted to leave the bar, but without the victim.Hardy, Rogovich, Allison, and the defendant left, but the victim caught up with them before they reached Hardy's car.All five men got into the car and Hardy dropped off Rogovich and the victim a short distance from a Dunkin' Donuts shop.Hardy whispered to Rogovich to try to lose the victim, and then to meet him and the others at the Dunkin' Donuts.The whole group, however, including the victim, eventually returned to Hardy's car.Hardy repeatedly asked the victim if he was going home, causing the victim to ask Hardy if he was trying to get rid of him.Hardy drove to the victim's girl friend's house.The victim got out of the car and yelled, "[Hardy], you're nothing but a fuckin' punk.You're a punk."The victim also called the others "punks" and "fake gangsters."Hardy yelled back to the victim, "[Y]ou want to come?Get in the fucking car."The victim got back into the car.

After driving for a while, Hardy parked the car.Hardy, Allison, and the defendant walked to a grassy area, where they talked for approximately five minutes.When they returned, Hardy announced that they were going to meet a drug dealer.Hardy drove to a nearby park, where everyone got out of the car and walked to a baseball field.Hardy then stated that the dealers were coming from a certain direction and told each person where to stand.When Rogovich turned around, the defendant was holding a gun to the victim's head.Rogovich heard several clicks from the gun and then saw Hardy take the gun from the defendant.As Rogovich's back was turned, he heard a gunshot and when he turned back around he saw the victim cover his mouth and heard him say, "Hardy, you shot me in the mouth."Hardy responded, "Now you shut your fuckin' mouth."When Rogovich turned around again, the victim was on the ground and Hardy, Allison and the defendant were repeatedly stabbing him.The defendant said, "Get his wallet.Get his money."Rogovich had returned to Hardy's car when he heard another gunshot.Shortly thereafter, the defendant arrived at the car with a bloody knife.Rogovich and the defendant got into the car and drove off.Rogovich did not know how Hardy and Allison left the park.

In addition to Rogovich, the Commonwealth's other chief witness was Steven Murphy.Murphy testified that on the night of the murder, between 9:30 and 10 P.M., Hardy and the defendant came to his house to retrieve a gun, which Murphy had kept for Hardy.Murphy showed Hardy and the defendant how to use the gun, then wiped his fingerprints from it.Approximately two hours later, Allison arrived at Murphy's house and told Murphy that he needed to talk.Allison told Murphy, "We just did [the victim]...Me, Jeff [Hardy], Jerry [Sullivan, the defendant], and Rogie [Rogovich]."Allison took out the gun that Murphy had given to the defendant and Hardy earlier that evening and placed it onto Murphy's bed.A short time later, the defendant and Hardy arrived at Murphy's house.The defendant asked Allison how much money the victim had, Allison counted the money, divided it among himself, Hardy and the defendant, and left Murphy's house.

The defendant, then alone with Murphy, admitted that he tried to shoot the victim and the gun jammed.The defendant also told Murphy that "we just jumped on him, started sticking him, stabbing him."The defendant also made other inculpatory statements to Murphy.

The victim's body was discovered the next morning, with seventy-nine stab wounds to the head, face, neck, chest, arms, legs, and back, as well as a gunshot wound to the face.

At trial the defendant maintained that he did not, either as principal or joint venturer, shoot, stab, or rob Moran.His defense was that Rogovich, the immunized witness, and Hardy, his codefendant, were the ones who did so. (Hardy had been tried and convicted in an earlier separate trial.Commonwealth v. Hardy, 431 Mass. 387[2000].)The defendant did not testify at trial.He relied on the testimony of friends and John Hardy, the brother of codefendant Jeffrey Hardy, to support his theory and to impeach the testimony of the two key Commonwealth witnesses, Rogovich and Murphy.

1.Comments in opening statement and closing argument regarding immunized witness.In his opening statement, the prosecutor said:

"Rogovich was forced to testify by the Supreme Judicial Court.The Supreme Judicial Courtgranted him immunity and held that he testify or be held in contempt and go to jail himself."

The defendant argues that these sentences were improper because they state that Rogovich was forced to testify under a grant of immunity whereas Rogovich was actually eager to obtain immunity in order to shift the blame from himself to others.There was no objection to this statement; thus, we review to determine whether any error created a substantial likelihood of a miscarriage of justice.Commonwealth v. O'Brien, 432 Mass. 578, 590-591(2000).There was no error.The statement is an accurate description of what immunity means.Pursuant to the statute governing immunity in effect at the time of trial, an order granting immunity entered by a single justice of this court forced the witness to testify.G. L. c. 233, § 20E, inserted by St. 1970, c. 408.SeeMatter of a John Doe Grand Jury Investigation, 405 Mass. 125, 129(1989).²The statement was not improper.

At trial, Rogovich provided damning eyewitness testimony against the defendant.Rogovich also verified the fact that he was testifying pursuant to a grant of immunity.The prosecutor returned in his closing to the theme of Rogovich's immunity:

"Christopher Rogovich was granted immunity by the Supreme Judicial Court and he was forced to testify.'Now Chris [Rogovich], you're not gonna get by so easily as not being involved and not testifying against your friends.You are going to testify.And the only way you can get in trouble is if you lie.'"

No objection was made to this reference to immunity in the closing argument, but the judge resurrected the issue by fully considering it in ruling on the defendant's motion for a new trial.Thus, we review the issue as if properly preserved.SeeCommonwealth v. Hallet, 427 Mass. 552, 554(1998).

The defense argument apparently is that the statements regarding immunity communicated to the jury unfairly that Rogovich's testimony was reliable either because of an admonition by a Supreme Judicial Court Justice or because the prosecutor possessed some independent knowledge that Rogovich's testimony was truthful.But a fair reading of the argument does not support...