Delle Chiaie v. Com.

• Citation: 367 Mass. 527,327 N.E.2d 696
• Parties: Vincent P. DELLE CHIAIE v. COMMONWEALTH.
• Decision Date: 29 April 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 696

327 N.E.2d 696

367 Mass. 527

Vincent P. DELLE CHIAIE v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Essex.

Argued Jan. 6, 1975.

Decided April 29, 1975.

Gordon A. Martin, Jr., Boston, for petitioner.

Wade M. Welch, Asst. Atty. Gen., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO and WILKINS, JJ.

TAURO, Chief Justice.

This proceeding on writ of error is before us on the petitioner's exceptions to the findings, rulings and order of a single justice of this court affirming the judgment of the Superior Court.

The petitioner was tried in 1947 for the murder of a seven-year old girl. ¹ He was found guilty of murder in the first degree and sentenced to death. The petitioner appealed that conviction pursuant to G.L. c. 278, §§ 33A--33G, as amended by St.1939, c. 341, and we affirmed. Commonwealth v. Delle Chiaie, 323 Mass. 615, 84 N.E.2d 7 (1949). Thereafter, the Governor commuted the petitioner's sentence to life imprisonment.

The petitioner filed a petition for writ of error in 1966. The petition was dismissed by a single justice and we affirmed in a rescript opinion, stating that the petitioner 'fell far short of presenting the minimum material necessary for a proper consideration of such issues.' Delle Chiaie v. Commonwealth, 353 Mass. 771, 772, 233 N.E.2d 914, 915 (1968). Both the parties and the single justice agree that this was not a dismissal on the merits.

The petitioner then filed for a writ of habeas corpus in the United States District Court. The petition was dismissed, and the dismissal was affirmed on the ground that the petitioner had not exhausted his available State remedies. The court noted that an evidentiary hearing should be held, but indicated that it would be more appropriately conducted in the courts of the Commonwealth. Delle Chiaie v. Picard, 445 F.2d 804 (1st Cir. 1971).

In order to pursue his State remedies, the petitioner then filed a petition for writ of error in this court. The writ issued and a hearing was held before a single justice in October, 1972. The petition, as ultimately amended, assigned the following errors which assertedly deprived the petitioner of his constitutional rights both before and during his trial: (1) he was unrepresented by counsel at his District Court arraignment, (2) he was prejudiced by extensive pre-trial publicity, (3) a coerced confession was introduced at trial over his objection and exception, and (4) he was denied the effective assistance of counsel.

At the hearing, the single justice had before him the transcript of the Superior Court trial, various newspaper clippings appearing near the time of the murder, and the testimony of the petitioner. Both the Commonwealth and the petitioner were given an opportunity to present additional witnesses, but neither chose to do so. Based on the evidence before him, the single justice found that no constitutional error had been established and affirmed the judgment below. There was no error.

1. Before proceeding to analyze each exception taken by the petitioner to the order of the single justice, we are faced with the question whether a writ of error is the appropriate vehicle for the petitioner to use in raising his claims. Cortellesso v. Commonwealth, 354 Mass. 514, 517--518, 238 N.E.2d 516 (1968). The Commonwealth argued before the single justice that a motion for a new trial would be the proper procedure. While it is true that a writ of error is appropriate to raise only those factual issues which the petitioner had 'no legally sufficient opportunity to litigate . . . at the trial,' Aronson v. Commonwealth, 331 Mass. 599, 602, 121 N.E.2d 669, 671 (1954), we have held that a challenge to the effectiveness of trial counsel is such an issue. Newton v. Commonwealth, 333 Mass. 523, 131 N.E.2d 749 (1956). See Lamoureux v. Commonwealth, 353 Mass. 556, 233 N.E.2d 741 (1968).

To the extent that the petitioner raises factual issues, the Commonwealth is correct that ordinarily these issues should be dealt with on a motion for a new trial. Earl v. Commonwealth, 356 Mass. 181, 248 N.E.2d 498 (1969). See Thibodeau v. Commonwealth,--- Mass. ---, ---, fn. 2 ^a, 319 N.E.2d 712 (1974). However, there are a number of factors in this case which compel us to depart from the general rule and to allow the petitioner to raise his claims by writ of error. First, the trial in this case was held almost twenty-eight years ago. Both defense counsel and the trial judge have since died. This is the petitioner's second attempt at collateral review, the first having failed on technical grounds. Delle Chiaie v. Commonwealth, 353 Mass. 771, 233 N.E.2d 914 (1968). Finally, the petitioner is here after having been denied habeas corpus review in the Federal courts, where the Commonwealth made representations to the effect that it would not oppose an evidentiary hearing in the courts of the Commonwealth. In these special circumstances, we believe the interests of justice will best be served by allowing the petitioner to proceed by writ of error.

2. There was no error in the single justice's finding that the petitioner suffered no prejudice from the lack of counsel at his arraignment. We held in Chin Kee v. Commonwealth, 354 Mass. 156, 163--164, 235 N.E.2d 787 (1968), that Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), did not impose a 'rule of thumb' requiring automatic reversal in every case where a defendant was without counsel at arraignment. We said instead that we would look at the circumstances as reflected in the record to determine whether the lack of counsel was harmless beyond a reasonable doubt. Our holding there was not altered in light of the United States Supreme Court decisions in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), and Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). See Commonwealth v. Lussier, 359 Mass. 393, 398, 269 N.E.2d 647 (1971). See also Chin Kee v. Commonwealth, 407 F.2d 10 (1st Cir. 1969), cert. den., 395 U.S. 982, 89 S.Ct. 2143, 23 L.Ed.2d 770 (1969). Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Thus, our inquiry properly turns to whether the absence of counsel in this case was harmless beyond a reasonable doubt.

The single justice found that, although the petitioner attempted to plead guilty at the District Court arraignment, 'the proffered plea . . . was not offered or admitted at the subsequent jury trial.' Our review of the record confirms this fact. Furthermore, there is no allegation that the petitioner lost any substantive rights as a result of his plea, which was not accepted by the court. In light of these facts, we believe the single justice's finding was correct, and we hold that any error was harmless beyond a reasonable doubt.

3. The single justice did not err in finding that the petitioner had not shown that pre-trial publicity deprived him of a fair trial by an impartial jury. The mere existence of pre-trial publicity itself is not sufficient to require reversal of a conviction. Sheppard v. Maxwell, 384 U.S. 333, 354--355, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). It constitutes a denial of due process only where the petitioner can show that such publicity deprived him of his right to a fair trial. See Commonwealth v. McLaughlin,352 Mass. 218, 225, 224 N.E.2d 444, 449 (1967), cert. den., 389 U.S. 916, 88 S.Ct. 250, 19 L.Ed.2d 268 (1967). See also COMMONWEALTH V. STANLEY, --- MASS. --- , 292 N.E.2D 694 (1973)^B.

The record discloses that the publicity which the petitioner contends biased the jury was concentrated in headlines and news stories within a six-day period following the homicide. The last article appeared approximately nine weeks prior to the beginning of the trial, and there was no adverse publicity from that time up through the trial. While it is true that many of the articles might well have been prejudicial if read and remembered by members of the jury, the petitioner has failed to establish this to be a fact.

A review of the voir dire indicates that the judge asked the statutory questions then applicable in capital cases, G.L. c. 234, § 28, and c. 278, § 3. He explained the meaning of the questions, and made particular inquiry regarding the prior publicity on a number of occasions. As a result, two jurors were excused at least in part due to newspaper prejudice. Furthermore, the petitioner did not use up all his peremptory challenges. On the whole, after a thorough examination of the transcript, 'we find no indication that . . . (the petitioner) was tried before a prejudiced jury.' Commonwealth v. McLaughlin, supra. Accordingly, there was no error in the finding of the single justice.

4. As to the confession which was allegedly coerced by the presence of an angry crowd around the building to which the petitioner was taken for questioning, the single justice found that no such coercion had been shown. The petitioner's trial took place many years before the decisions in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), neither of which has been given retroactive effect. Johnson v. New Jersey, 384 U.S. 719, 726--735, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The admissibility of the petitioner's confession 'as a constitutional matter . . . (must be) governed, therefore, by the contemporary case law elaborating the due process standard of voluntariness.' Procunier v. Atchley,400 U.S. 446, 453, 91 S.Ct. 485, 489, 27 L.Ed.2d 524 (1971). Thus, the question is whether the will of the petitioner had been overborne to the extent that his confession was not a free and voluntary act, and this is 'to be resolved in light of the totality of the circumstances.' Ibid.

The homicide in this case occurred on Sunday evening. Immediately after the killing, the petitioner went home, changed clothes and began a journey north which eventually ended...