State v. Cugliata

• Decision Date: 20 April 1977
• Citation: 372 A.2d 1019
• Parties: STATE of Maine v. Frank A. CUGLIATA and John Moraites.
• Court: Maine Supreme Court

Page 1019

372 A.2d 1019

STATE of Maine v. Frank A. CUGLIATA and John Moraites.

Supreme Judicial Court of Maine.

April 20, 1977.

John R. Atwood, Fernand R. LaRochelle, Asst. Attys. Gen., Augusta, for plaintiff.

Fitzgerald, Donovan & Conley by Daniel R. Donovan, Duane D. Fitzgerald, Fitzgerald, Donovan & Conley, Bath, Manuel Katz, Gerald Alch, Boston, Mass., for defendants.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

WERNICK, Justice.

In a consolidated trial in the Superior Court (Lincoln County) the jury, on March 15, 1975, found defendant Frank Cugliata and defendant John Moraites guilty, as charged by indictment, of felonious homicide punishable as murder (17 M.R.S.A. § 2651). Each defendant has appealed from the judgment of conviction entered against him.

We deny the appeals.

I

The nature of the points raised on appeal requires an extensive statement of the factual findings warranted by the evidence.

On Thursday morning August 15, 1974, at approximately 6:00 a. m., the dead body of Vincent Serra of Medford, Massachusetts was discovered in the easterly vicinity of the northbound lane of Route 1 in Nobleboro. Multiple wounds inflicted by shotgun pellets and nine millimeter bullets fired by two different firearms had caused the death which had occurred sometime between 11:00 p. m. August 14 and 3:00 a. m. August 15.

On August 14, in the morning, Serra had driven Albert Wilson, a long-time next-door neighbor and friend, to the Medford Savings Bank. There, Wilson withdrew $1,200 and gave it to Serra to assist Serra in a project to purchase, with two other persons, 10 pounds of hashish at a location approximately an hour and a half, by automobile, from Medford. Returning to Wilson's home, Serra drove along Boston Avenue in Medford and looked twice at a building bearing number 305 where defendant Moraites lived. Sometime the same day Serra withdrew $800 from the Medford Savings Bank. During the afternoon Serra was at the home of defendant Moraites. At 6:20 in the evening Wilson stopped by Serra's house and there wished Serra luck on his upcoming trip. Shortly before midnight Wilson again drove by the Serra residence and observed that Serra's car was parked nearby.

At approximately 1:30 a. m. August 15 Clifford Colson was driving a tractor-trailer south on Route 1 in Nobleboro, Maine. He observed a car parked on the shoulder of the northbound lane, facing north, with its high beam lights on. Colson dimmed his own headlights, but the operator of the parked vehicle did not reciprocate. After he had passed the parked vehicle, Colson looked in his rear view mirror. He saw the silhouettes of two people and four rapid flashes of light resembling gunshots.

A few minutes later a car passed Colson's truck from behind. Believing the passing vehicle to be the one he had just seen parked on the shoulder of the road and thinking that what he had seen in his rear view mirror was night hunting, Colson wrote down on a scratch pad the license plate number of the vehicle, 37H360. He also noted that the number appeared as red figures on a white background. The incident witnessed by Colson occurred at a location matching that at which Serra's body was found a few hours later.

On August 16, 1974 Colson reported the license plate number to the Maine State Police. The police traced it to a vehicle registered to defendant Frank Cugliata. On Sunday, August 18, State Police Detective Dale Ames and a Lincoln County Sheriff went to Massachusetts to conduct a further investigation. Accompanied by Sergeant Joseph Littlewood of the Malden Police Department, they first went to Cugliata's home in Malden where they observed a parked green Mercury Cougar bearing a white Massachusetts license plate with the red number 37H360. Cugliata invited the officers into the house. When Sgt. Littlewood showed Cugliata a photograph of Serra and asked if he knew the person in the picture, Cugliata said that it was 'Vince Serra', adding that while he hardly knew Serra, John Moraites knew him better and possibly could be of more assistance.

Questioned about the green Mercury Cougar, Cugliata stated that it was his, it had not been stolen recently, and since the summer of 1973 it had not been in Maine. Cugliata authorized the officers to search the Cougar. In the back seat area the police found a road atlas containing a map of Maine marked by two red lines-one from Kittery to Houlton via Interstate 95 and the other from Kittery to Calais via Route 1.

Later that same day Ames and various Massachusetts police officers made contact with defendant John Moraites. They spoke with him and his parents at the Medford police station. Moraites identified the person in the photograph as Vincent Serra. Moraites' mother stated that her son had gone out on the night of Wednesday, August 14 and had not returned until between 4:00 and 4:30 a. m. the following morning. Moraites himself claimed that he had ridden in defendant Cugliata's green Mercury Cougar to Cugliata's house in Malden and there played cards and watched television until long past midnight.

Defendants Cugliata and Moraites met during the interval between the time the police talked with Cugliata and their later interview with the Moraites family. At their meeting, as Moraites subsequently told both Detective Ames and Sgt. Littlewood, no mention was made by either Cugliata or Moraites about Serra's death or the police visit to the Cugliata residence. At another time, however, Moraites contradicted this by admitting to Littlewood that Cugliata had mentioned Serra's death.

On August 20, Serra's car, reported stolen, was recovered by the Somerville, Massachusetts Police Department. Examining the car in Somerville, Massachusetts State Police Officer Robert Bidder found a note on the driver's seat in Serra's handwriting. The note (more fully discussed infra) mentioned the names of defendants, misspelling each name in a manner matching the spelling used by Serra in entries made in Serra's handwriting in his personal address book.

On August 24, defendant Moraites attended a large party on George's Island in Boston Harbor. Also present were Paul Costa and Joseph Melle, friends of Serra and both defendants. In the presence of several bystanders Costa accused Moraites of murdering Serra, and this angered Moraites. Attempting to ameliorate the situation, Melle took Costa and Moraites away from the group. Moraites then complained that Costa should not have accused him in front of other people and added a statement which was either, 'You don't know what happened', or 'If you don't know what happened.' Costa apologized for having made the statement in the presence of others, but he refused to 'take back what . . . (he had) said.' Costa and Moraites then shook hands and returned to the party.

Defendants were last seen in Massachusetts on August 14 at 9:00 p. m. when they were at the Medford residence of Cugliata's mother. They were then in a hurry, having stopped so that Cugliata could use his mother's bathroom. Defendants were not again seen in Massachusetts until after 3:00 a. m., August 15.

At approximately 10:45 the night of August 14, Robert Scarpaci, Cugliata's upstairs neighbor and landlord, drove up to their Malden residence. He noticed the absence of Cugliata's green Mercury Cougar. Responding to a friend's telephone call, at approximately 2:45 a. m., Scarpaci went down to the front porch and again observed the absence of Cugliata's car. At about 3:15 or 3:30 a female friend of Scarpaci drove up. Scarpaci talked to her in front of the house, and at this time he observed Cugliata's car drive by with two people in it. Moraites arrived at his own home in Medford between 4:00 and 4:30 a. m.

II

One of defendants' contentions on appeal is that they were erroneously denied access to the transcript of proceedings before the Grand Jury.

On December 19, 1974 defendants had moved, pursuant to Rule 6(d) M.R.Crim.P., that the Grand Jury proceedings be transcribed by an official court reporter. The presiding Justice granted the motion, ordering that the resulting transcript be impounded subject to future order of disclosure. After return of indictments against both defendants on December 20, 1974, defendant Moraites filed, on December 27, 1974, a motion for 'Leave to Inspect Grand Jury Minutes Prior to Trial.' Moraites further moved, separately, for discovery under Rule 16(a) M.R.Crim.P. and Cugliata moved, likewise pursuant to Rule 16(a), for discovery of several items allegedly within the custody of the State, including the Grand Jury transcript.

Granting all motions for discovery, the presiding Jutice refused to allow defendants wholesale inspection, before trial, of the Grand Jury testimony. He ruled, instead, that the transcript would continue impounded pending specific requests concerning testimony at trial but, upon such a request as to a particular witness, the Justice would himself inspect the relevant Grand Jury testimony and, should he discover inconsistent statements, he would then release it to defense counsel. On one occasion (involving witness Robert Scarpaci) this procedure apparently resulted in defense access to the Grand Jury transcript. On another (as to witness Clifford Colson), it did not.

Defendants maintain that the presiding Justice committed error (1) by denying inspection of the entire transcript before trial without a showing of 'particularized need', and (2) by refusing to permit defendants access during trial to the specific testimony of Clifford Colson.

We note, to pass beyond, a procedural argument of the State:-that by resort to motions for discovery pursuant to Rule 16(a) M.R.Crim.P., defendants were not entitled to obtain access to an impounded transcript not 'within the possession, custody, or control of the State.' State v. Burnham, Me., 350 A.2d 577 (1976); State v. Emery, Me., 304 A.2d 908 (1973). This contention misses the mark...