Commw. v. Bacigalupo

• Decision Date: 10 March 1999
• Docket Number: P-1754
• Citation: Commw. v. Bacigalupo, 731 N.E.2d 559, 49 Mass. App. Ct. 629 (Mass. App. 1999)
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH, vs. RICARDO BACIGALUPO. No.: 97- Argued:
• Court: Appeals Court of Massachusetts

Page 559

731 N.E.2d 559 (Mass.App.Ct. 2000)

COMMONWEALTH, vs. RICARDO BACIGALUPO.

No.: 97-P-1754

Massachusetts Court of Appeals, Hampden

Argued: March 10, 1999.

Decided: July 12, 2000.

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John M. Thompson for the defendant.

Brett J. Vottero, Assistant District Attorney, for the Commonwealth.

Present: Warner, C.J., Smith, & Gillerman, JJ.¹

SMITH, J.

On December 29, 1995, a Hampden County grand jury returned an indictment charging the defendant with murder in the first degree.After a jury trial on September 11, 1996, he was convicted of murder in the second degree.

On appeal, the defendant claims that the judge committed error by (1) answering a question from the deliberating jury out of the presence of counsel and the defendant and without consulting counsel before responding; (2) ordering a transcript of a witness's testimony read back to the jury; (3) coercing a jury verdict by sending the jury out twice to deliberate after they reported they were deadlocked; (4) instructing the deadlocked jury incorrectly; and (5) denying the defendant's motion to supplement the record.

We summarize the Commonwealth's evidence.On November 27, 1995, at about 1:00 P.M., the victim, an eighty-two year old man, was found on the floor of his home brutally beaten but still alive.He was rushed to a hospital where he died seven days later of blunt trauma injuries to his head and neck.

The defendant had rented a room on the second floor of the victim's house.On the morning of the 27th, at about 9:00 A.M., the victim and the defendant went to the Hampden Savings Bank.The victim cashed a check payable to the defendant in the amount of $800.00.At about 10:00 A.M., the victim's automobile was observed backing out of the victim's driveway; it was later found abandoned at Bradley International Airport in Connecticut.Some time after 10:00 A.M., the defendant appeared at the American Airlines counter at the airport to purchase a ticket for Puerto Rico; he took the 1:30 P.M. flight.He had in his possession, some of the victim's credit cards.

One of the defendant's employers, Angel Guzman, testified at trial that in late November, 1995, he had several telephone conversations with the defendant concerning "an old man" who was harassing him.On November 23d, four days before the victim's body was discovered, the defendant telephoned Guzman and told him, "I'm leaving my job because this old man is 'harassing me,'[he] called me a 'Spic.'"

Sometime during the day that the victim's body was discovered, the defendant telephoned Guzman and told him, "I'm at the bank.I'm taking out some money, but this old man keeps following me."The defendant later called Guzman at some unspecified time and said, "I did something to the old man.I think I -- I pushed him, and I think I killed him."

The Springfield police learned that the defendant had used several of the victim's credit cards while on route and after his arrival in Puerto Rico.As a result, they requested assistance from the police in Puerto Rico to locate the defendant.After he was found, the police questioned him about the use of the victim's credit cards.Shortly thereafter, they received a communication from the Springfield police requesting that they arrest the defendant for murder.

The police in Puerto Rico took the defendant into custody and advised him of his Miranda rights.He thereafter admitted using the victim's credit cards to buy gold worth $1,795.He denied killing the victim, but admitted he was in the house when two other individuals, a Jamaican and a Puerto Rican, strangled the victim.

We now discuss the issues raised by the defendant.

1.The judge's actions concerning the note from the jury.After receiving the judge's final instructions, the jury deliberated for a short time before adjourning for the day.The next day, at some point during deliberations, the jury sent a note to the judge asking, "Could we have a copy of Angel Guzman's testimony?"Without the lawyers or the defendant being present the judge wrote to the jury as follows: "We will be happy to read the testimony back; however, this will occur at 2:00 P.M."

After the judge had made her written response to the jury's question, counsel for both sides and the defendant appeared in the courtroom, apparently after being summoned by the judge.She informed them that she had received a note from the jury approximately ten minutes before their arrival, and she told them of its contents and her written response.The judge then asked the lawyers if they had any concerns regarding her answer to the jury's query.Defense counsel objected to the judge's answer, arguing that the jury should not have Guzman's testimony read back to them but rather should be informed that they must rely on their collective memory of Guzman's testimony.The judge overruled the objection.There was no objection pertaining to the judge's actions in responding to the note in the absence of the defendant and his counsel.Shortly tereafter, Guzman's testimony was read back to the jury.The lawyers and the defendant were present at that time.

On appeal, the defendant contends that the judge committed reversible error when she answered the jury's question in the absence of the defendant and his counsel.

A defendant has a constitutional right to be present at all critical stages of criminal proceedings.Commonwealth v L'Abbe, 421 Mass. 262, 268(1995).That right "derives from the confrontation guarantees of the Sixth Amendment to the United States Constitution, the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution, andart. 12 of the Massachusetts Declaration of Rights."Id.Further, a defendant is also entitled to have the assistance of counsel(unless it was otherwise waived), at critical stages of the proceedings.Johnson v. Zerbst, 304 U.S. 458, 462(1938).SeeCommonwealth v. Curtis, 417 Mass. 619, 635(1994).A critical stage in criminal proceedings includes those occasions when a judge is called upon to respond to a deliberating jury's communication which is of legal significance.Commonwealth v. Floyd P., 415 Mass. 826, 833(1993);Commonwealth v. DeJesus, 44 Mass. App. Ct. 349, 350-351(1998).

Here, the jury's note was of legal significance because it required the judge to exercise her discretion whether (1) to permit the jury to receive a copy of the transcript, Commonwealth v. Stockwell, 426 Mass. 17, 24(1997);(2) to have the court reporter read the witness's testimony to the jury, Commonwealth v. Mandeville, 386 Mass. 393, 405(1982); or (3) to deny the request entirely, Commonwealth v. Bianco, 388 Mass. 358, 370(1983).Here, the judge exercised her discretion, but did so without consulting with, and in the absence of, the defendant and is counsel.²

The constitutional right to the assistance of counsel is of particular importance when a judge receives a communication of legal significance from a deliberating jury.The assistance of counsel at that stage requires the judge, before he or she responds to such a communication, to afford counsel the opportunity to assist in framing an appropriate answer and to place on record any objections they might have to the course chosen by the judge.Commonwealth v. Floyd P., supra at 833.SeeThames v. Commonwealth, 365 Mass. 477, 478 n.2(1974)("[W]here possible, any messages or questions from the jury to the judge should be in writing; . . . they should be shown to counsel and immediately placed on record; and . . . any reply thereto by the judge to the jury should also be placed on record in the presence of counsel, if available").³

The Commonwealth argues that the judge did indeed provide counsel with the opportunity to frame an appropriate response when she notified him of the jury's communication, advised him of her decision to allow Guzman's testimony to be read back and afforded counsel an opportunity to be heard on the request before she brought the jury into the courtroom to hear the testimony.

We reject the Commonwealth's argument.The judge had already decided to allow the jury to hear the testimony and so notified the jurors before she told counsel of the request.The law requires a judge to allow counsel a meaningful opportunity to assist in the framing of the response to a jury's communication before an answer is given to the jury.Commonwealth v. Floyd P., supra.

Because the judge by her actions violated the defendant's constitutional rights to be present and to have the assistance of counsel, the defendant claims that he is entitled to a new trial without any showing of prejudice, citing United States v. Cronic, 466 U.S. 648, 659(1984), in support of his argument.⁴In Cronic, the court stated, among other things, that the actual or constructive denial of counsel at a critical stage of a criminal trial constitutes prejudice per se and therefore, amounts to an automatic reversal.SeeCurtis v. Duval, 124 F. 3d 1, 4-5(1st Cir.1997), where the First Circuit, relying on Cronic, ruled that automatic reversal is required when a judge, sua sponte, gives a jury instruction without consulting with, and in the absence of, the defendant and counsel.

We reject the defendant's argument and hold that because of the circumstances here, Cronic and its progeny do not control this matter.Although it was error for the judge to communicate her decision to the jury without consulting defense counsel(and also in his absence), she nevertheless gave him the opportunity to be heard on her decision before the read-back of the testimony occurred.Thus, there was no complete denial of the assistance of counsel.ContrastCurtis v. Duval, supra.

Regardless, the defendant was denied the assistance of counsel at least for a short time.We therefore, examine that error in light of the standard employed when there is a violation of a constitutional right; i.e., reversal is...