Flemmi v. Gunter

• Decision Date: 04 March 1976
• Docket Number: Civ. A. No. 74-5178-T.
• Parties: Vincent J. FLEMMI, Petitioner, v. Frank O. GUNTER, Superintendent, Massachusetts Correctional Institution Walpole, Massachusetts, Respondent.
• Court: U.S. District Court — District of Massachusetts

410 F. Supp. 1361

Vincent J. FLEMMI, Petitioner, v. Frank O. GUNTER, Superintendent, Massachusetts Correctional Institution Walpole, Massachusetts, Respondent.

Civ. A. No. 74-5178-T.

United States District Court, D. Massachusetts.

January 19, 1976.

On Motion for Reconsideration March 4, 1976.

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Oteri & Weinberg, Martin G. Weinberg, Boston, Mass., for petitioner.

Barbara A. H. Smith, Asst. Atty. Gen., Boston, Mass., for respondent.

OPINION

TAURO, District Judge.

Vincent J. Flemmi is currently confined at M.C.I. Walpole following his conviction in March 1970 on a charge of assault with intent to murder and related offenses. He brings this action for a writ of habeas corpus, claiming that various evidentiary rulings made during the course of his trial in Suffolk Superior Court deprived him of his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments.

The issues raised in the instant petition formed the basis of petitioner's second motion for a new trial brought in Suffolk Superior Court some months after his right of direct appeal had expired.¹ Mass.Gen.Laws ch. 278, § 29. The motion was denied on the merits, after a hearing, and the Massachusetts Appeals Court affirmed in a lengthy opinion. Commonwealth v. Flemmi, 1974 Mass. App.Adv.Sh. 867, 316 N.E.2d 740. The Supreme Judicial Court denied petitioner's Request for Further Appellate Review.²

I

At petitioner's trial, the Commonwealth sought to prove the following facts.

In late 1969, the petitioner was rumored to have accused one Abboud of "talking to the cops." When Abboud learned of these allegations, he sought out the petitioner to discuss the matter and, on December 26, 1969, found him at a restaurant. The petitioner pressured Abboud to give him a ride and the two men left the restaurant in an automobile driven by a friend of Abboud, who apparently knew both men. Abboud sat on the passenger's side of the front seat, but was turned toward the petitioner, who was seated in the rear. Abboud, already fearful of an attempt on his life, saw the petitioner draw a pistol and point it in his direction. Thereupon, Abboud threw himself in the rear of the automobile in order to take the gun away from the petitioner. As he did, the driver of the moving vehicle fled. A struggle between the petitioner and Abboud ensued, in the course of which the gun fired and the petitioner was wounded. The driverless car crashed into a parked car. Abboud fled.

Shortly after the incident, the petitioner received a telephone call at his home from one Richard O'Neil. O'Neil told the petitioner to call Abboud at a Somerville telephone number. The petitioner did so and Abboud answered the phone. Unbeknownst to the petitioner, the conversation was instituted at the request of the police while they had Abboud in custody, and was tape recorded by them. The parties apparently do not dispute, and the Appeals Court found, that Abboud consented to this procedure. 1974 Mass.App.Adv.Sh. at 872, 316 N.E.2d at 743. No warrant or other judicial sanction was obtained prior to the recording of the conversation.

The petitioner was eventually incarcerated on charges stemming from this incident in the Suffolk County Jail. At that time, he purportedly had a conversation with one Carita, the contents of which will be more fully described below.

II

The evidence of the shooting, and of Abboud's subsequent conversation with the petitioner was elicited during Abboud's direct testimony at the petitioner's trial. Partway during his examination, the assistant district attorney asked Abboud to relate the contents of the taped conversation. Defense counsel promptly requested a voir dire, and an unrecorded bench conference ensued.

According to the petitioner, the assistant district attorney informed the judge at the bench that he had a typewritten memorandum of the conversation. The prosecutor allegedly also indicated that he intended to ask Abboud if the petitioner had said to him "Why did you shoot me?" and that he expected the answer to be, "Why did I try to shoot you? You tried to shoot me." Upon learning that the prosecutor expected to elicit this testimony from Abboud, defense counsel agreed to drop his request for a voir dire, believing that the testimony would be favorable to the petitioner's case.

When the examination resumed, Abboud testified about the conversation, omitting that portion which the prosecutor had supposedly indicated Abboud would relate. During this testimony, the District Attorney refreshed the witness' recollection with a document. The record does not clearly reveal either the nature or contents of that document.

At the conclusion of Abboud's direct testimony, defense counsel requested a second, recorded, bench conference. At this time he moved to "be furnished with all statements in the possession of the District Attorney's Office, given by this witness, having to do with the circumstances that took place that night." In the course of that bench conference the following colloquy took place:

Defendant's Counsel: . . . I . . . point out, Your Honor, at the bench here, with regard to my previous motion for a voir dire, . . . the Assistant District Attorney indicated at the first bench conference that this witness was going to testify with regard to the telephone conversation that the petitioner said, "Why did you try to shoot me?" And he has not so testified during the course of that conversation.

The Prosecutor: Get it on cross-examination. It's as simple as that.

The discussion then shifted to other matters and the judge called a recess without ruling on the defendant's motion. When court reconvened, the colloquy continued.

Defendant's Counsel: May I . . have my motion for statements . . that he furnished law enforcement officers?

The Judge: Well, what do you say about that?

The Prosecutor: Well, Your Honor, I know of no law in this Commonwealth where statements by witnesses must be furnished to defense counsel.

The Judge: "I'll deny that motion and save your rights."³

1974 Mass.App.Adv.Sh. at 871, 316 N.E.2d at 743.

Abboud was then cross-examined for some time before defense counsel reached the subject of the telephone conversation. At that point he learned for the first time that the police had recorded the conversation and Abboud had consented to their doing so. When asked whether during that conversation the defendant had said, "Why did you shoot me?", Abboud said no. That answer was immediately followed by another colloquy.

Defendant's Counsel: I'll renew my motion, if Your Honor please, to produce.

The Judge: What?

Defendant's Counsel: Any statement.

The Judge: No. I'll exclude it and save your rights. We have been over that already and I have already excluded it.

1974 Mass.App.Adv.Sh. at 872, 316 N.E.2d at 743.

The petitioner's counsel then moved "that the defense be furnished the tape recording of this conversation." Id. He argued that he needed the tape to establish the fact that the defendant had asked Abboud "Why did you shoot me?"

The judge denied the motion, and the petitioner's counsel excepted. The subject was ended (and never again raised at the trial) by the following exchange:

The Judge: I am referring specifically to the tape recorder (sic).

Defendant's Counsel: Yes.

The Judge: Not the conversation as related from the witness stand by this witness or any other witness.

Defendant's Counsel: Yes, Your Honor.

No effort was made by the prosecutor at any time to introduce the tape recording into evidence.

1974 Mass.App.Adv.Sh. at 872, 316 N.E.2d at 743-44.

The petitioner now argues that he was constitutionally prejudiced by:

1. The introduction of Abboud's testimony about the telephone conversation with the defendant;

2. The refusal of the trial judge to permit the defendant to inspect the documents used by the prosecutor to refresh Abboud's recollection;

3. The refusal of the trial judge to provide the defendant a copy of the tape recording itself.

III

The petitioner's first argument is that the Commonwealth's failure to provide him with a transcript of his conversation with Abboud, or a statement of the evidence heard as a result of the transmission, renders the evidence "illegally obtained" under Massachusetts law. Accordingly, the petitioner appears to argue that the refusal of the trial court to exclude Abboud's testimony about that conversation, in the face of a Massachusetts statute which allegedly required the court to do so under the circumstances, constituted a violation of his constitutional rights, presumably of due process. Moreover, the petitioner argues that, regardless of the statute, the court's permitting Abboud to testify about a surreptitiously recorded conversation, without any prior warning to the petitioner of the prosecutor's intentions, resulted in a violation of petitioner's rights under the Fourth Amendment.

A.

Petitioner's first claim is clearly without merit. Mass.Gen.Laws ch. 272, § 99(O) prohibits the introduction of evidence at state criminal proceedings based on clandestine "interceptions" without compliance with a panoply of procedures, including notice, outlined by the statute. Yet the definition of "interception" for purposes of § 99(O), does not include conversations which one party has given police authorization to record, Mass.Gen.Laws, ch. 272, § 99 (B)(4),⁴ nor does § 99(O) appear to allow the exclusion of the testimony of a participant about a recorded conversation which is based solely upon the participant's independent recollection. Moreover, even if § 99(O) did in some way preclude the introduction of Abboud's testimony, the Massachusetts Appeals Court held in the instant case that Flemmi's failure to properly object to the introduction of the testimony constituted a waiver of his rights under the statute. Commonwealth v. Flemmi 1974 Mass.App.Adv.Sh. at 873, 316 N.E.2d at 744 (1974). Because this ruling...