|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Grammo, 8 Mass.App.Ct. 447 (1979)
Appeals Court of Massachusetts, Hampden.
Argued
Decided
William T. Walsh, Jr., Asst. Dist. Atty., for the
commonwealth.
[8 Mass.App.Ct. 448] Beth H. Saltzman,
Before [8
Mass.App.Ct. 447] HALE, C. J., and
ARMSTRONG and GREANEY, JJ.
[8
Mass.App.Ct. 448] GREANEY, Justice.
Paul
Vincent Grammo appeals two convictions by a jury of arson of a dwelling house
(G.L. c. 266, s 1) stemming from incidents on the nights of October 19 and 23,
1977, at the same multiple family building
situated at 379 Birnie Avenue in Springfield. We affirm the convictions.
Grammo
argues several assignments of error on appeal.
Specifically, he asserts that (1) the motion judge erred in declining to
suppress inculpatory admissions given by him to the police after his arrest;
(2) the trial judge erred in several evidentiary rulings made in the course of
the trial; and (3) the prosecutor's final argument was so egregious as to
require reversal. The evidence relevant
to a resolution of the various assignments will be summarized in the course of
the discussion.
1. The
motion to suppress. Grammo was arrested
at his home by Officers Dowd and Milligan of the bomb‑arson squad of the
[8 Mass.App.Ct. 449] A voir dire was held on the motion directed to the question of
probable cause. The evidence established
that when Officer Dowd appeared before the clerk, he had knowledge that the
building, a three‑family tenement, had been the subject of two incendiary
fires within days of each other. The
fire on October 19, 1977, had originated in the cellar and had been confined to
that area. The fire on October 23, 1977,
also had originated in the cellar and had caused extensive damage to the first
and second floors of the building.
(FN2) The officer possessed
photographs which presumably depicted the damage caused by the fires. He also knew that Grammo lived in the second
floor apartment with his mother and a cousin, Lawrence Suprenant, who had moved
in approximately two weeks prior to the first fire. There had been discussion between Dowd and
another officer indicating that Grammo was observed outside the building during
the response to the second fire.
Grammo's
prior conviction for arson had been unearthed in the course of the
investigation. The principal material
bearing on Grammo's involvement was contained in a written statement given to
the police by Suprenant on November 2, 1977.
The material contents of that statement indicated that, in the approximate
two weeks Suprenant had resided with Grammo, the latter had awakened him at
night on at least four occasions and asked him if he had smelled smoke. This pattern was repeated on the nights of
October 19 and 23, when Grammo again disturbed his sleep, inquiring if he
smelled smoke. The statement also
indicated that, within two [8
Mass.App.Ct. 450] weeks prior to the
fires, Grammo had told Suprenant that he was the best "torch" man in
the city, that he set fires, and that he had set fire to his Uncle Walter's
apartment a few years earlier and had been questioned by the police with regard
to that fire but had avoided detection.
All this information was given to the clerk as the basis for the
warrant, with the possible exception of the fact of Grammo's prior arson
conviction. (FN3) The defendant now focuses his argument solely
on Suprenant's written statement and maintains that it contained hearsay
information which fails the authenticating two‑pronged test for such
information formulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d
723 (1964) (as later refined in Spinelli v. United States, 393 U.S. 410, 89
S.Ct. 584, 21 L.Ed.2d 637 (1969), and United States v. Harris, 403 U.S. 573, 91
S.Ct. 2075, 29 L.Ed.2d 723 (1971)). See
Commonwealth v. Stevens, 362 Mass. 24, 26‑27, 283 N.E.2d 673 (1972)
(applying the Aguilar formation to the existence of probable cause to
arrest). Specifically, the defendant
argues that there had been no showing of Suprenant's reliability and no showing
of circumstances linking Grammo to the crimes.
[1] [2]
[3] [4] [5] We are obliged to appraise all of the information, including the
contents of the statement, in a commonsense fashion, avoiding a hypertechnical,
strained, or grudging analysis (Commonwealth v. Martin, 6 Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNA), 381 N.E.2d 1114
(1978); Commonwealth v. Norris, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNB), 383 N.E.2d 534
(1978)), under the standard that a finding of probable cause, while demanding
more than mere suspicion, requires a lesser showing than that which is
necessary to justify a conviction.
Draper v. United States, 358 U.S. 307, 311‑312, 79 S.Ct. 329, 3
L.Ed.2d 327 (1959). Commonwealth v.
Snow, 363 Mass. 778, 784, 298 N.E.2d 804 (1973). The information is to be evaluated as a
whole, and it is permissible to draw reasonable inferences therefrom. Commonwealth v. Stewart, 358 Mass. 747, 750‑752, 267 N.E.2d 213
(1971), and cases cited. While it may
not be easy to determine when the police have supplied enough [8 Mass.App.Ct. 451] facts to justify an arrest in a
particular case, the resolution of doubtful or marginal cases should be
determined largely by the preference to be accorded to warrants (Commonwealth
v. Blye, 5 Mass.App. ‑‑‑ (FNC), 362 N.E.2d 240 (1977), and
cases cited), particularly since a warrant is ordinarily required when the
arrest is to be made in a dwelling.
Commonwealth v. Forde, 367 Mass. 798, 804‑806, 329 N.E.2d 717
(1975) (plurality opinion).
[6] [7]
[8] [9] Applying these standards, we conclude that even with the exclusion of
the prior arson conviction at the time the warrant was sought, a showing of
probable cause had been made. There was
solid evidence that the fires were incendiary in character. The temporal proximity of the two acts of
arson in the basement of the small building suggested that one of the residents
was responsible. Grammo was observed at
the scene on the night of the second fire.
His frequent badgering of Suprenant over a two‑week period about
smelling smoke demonstrated an uncommon concern about fires which, in the
context of the circumstances, permitted inferences that the defendant knew
about the fires before anyone else, (FN4) that he may have wanted to alert his
relatives to their existence, and that he may have attempted to burn the
building prior to October 19, 1977. Some
emphasis could legitimately be placed on the defendant's actions on the night
of each fire when viewed in light of his statements that he set fires, that he
was the best torch man in the city, and that he had burned a relative's
apartment without detection. These
statements under the circumstances were highly probative. Contrary to the defendant's assertion, the
hearsay received by the investigating officer from Suprenant was not of the
type received from a nameless informant.
Suprenant's status as the supplier of incriminating information was
fully disclosed, and his information was
[8 Mass.App.Ct. 452] buttressed
by a commitment to repeat its admissible portions under oath to a jury. (FN5)
Furthermore, although Suprenant was not a true victim of the crime, he
was a victim in a sense, and the clerk in considering his information could
also consider this fact as relevant.
Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1972), cert. denied, 412
U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1003 (1973). Gauging the reliability of information
supplied by an intended victim of the crime requires less stringent inquiry
than that applied to the information given by an unknown informant. See 1 LaFave, Search and Seizure s 3.4
(1978). "The crucial link between
the unsolved arson and the defendant was provided by informants whose
reliability was ensured by their status as victims of the offense." Commonwealth v. Cruz, 373 Mass. 676, ‑‑‑
‑ ‑‑‑ (FND), 369 N.E.2d 996 (1977). In balancing the probabilities, there was a
showing made before the clerk rising above a bare suspicion that the defendant
was the person involved in setting the fires.
Because of the existence of probable cause when the warrant was issued,
the incriminating statements made by Grammo flowed as the aftermath of a lawful
arrest, and the defendant's contention that the statements should have been
suppressed as the fruits of an illegal arrest was properly rejected.
2.
Evidentiary rulings. The second series
of exceptions concerns rulings made by the trial judge which dealt with expert
opinions as to the origin of the fires, questions by the prosecutor of
Commonwealth witnesses which it is claimed tended to reveal the defendant's
prior criminal record, and evidence produced in rebuttal tending to show
Suprenant's good character.
[10] [11](
A ) Opinion testimony. As part of its
case in chief, the Commonwealth presented evidence through Edward J. Franz,
Jr., and Fred Tyburski, a district fire chief and a [8 Mass.App.Ct. 453]
captain, respectively, of the Springfield fire department, that the fires in
issue were intentional or incendiary in origin.
It is argued on appeal that the judge's failure to exclude this
testimony was error because the opinions impermissibly invaded the jury's
consideration of an ultimate issue in the case whether the fires had been
willfully set. We need not consider this
argument because it was not made before the trial judge and is made for the
first time on appeal. Trustees of
Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565,
341 N.E.2d 662 (1976). Corman Realty,
Inc. v. Rothstein, 4 Mass.App. 777, 341 N.E.2d 695 (1976). The only basis of objection provided to the
trial judge was that the witnesses lacked qualifications to express the type of
opinion elicited. The judge was supplied
with sufficient evidence on the foundation requirements regarding the
experience and expertise of the officers, and his decision to admit the
evidence reveals no abuse of discretion or error of law on his part. Perkins v. Stickney, 132 Mass. 217, 218
(1882); Rubin v. Town of Arlington, 327 Mass. 382, 384, 99 N.E.2d 30 (1951);
Matsushita Elec. Corp. of America v. Sonus Corp., 362 Mass. 246, 264, 284
N.E.2d 880 (1972). As to the merits of
the defendant's argument, see Commonwealth v. Harris, 1 Mass.App. 265, 268‑272,
295 N.E.2d 687 (1973), which held that it was not improper to admit expert
testimony that a fire was incending in nature, and Commonwealth v. Siano, 4
Mass.App. 245, 248‑249, 344 N.E.2d 920 (1976), which held that there was
no error in the admission of expert testimony concerning the nature of the
remains of a fire.
(B )
Defendant's prior record. In the course
of examining Suprenant, the prosecutor elicited testimony that on a prior
occasion Grammo had told Suprenant that he was once the best torch man in the
city. Upon defense objection, the judge
struck the answer and instructed the jury to disregard the response. Later in the same examination, Suprenant, in
response to a question by the prosecutor, testified that Grammo "told me that
he had burned my Uncle Walter's place."
Defense counsel objected, moved to strike the answer, and moved for a
mistrial. The motion[8 Mass.App.Ct. 454] to strike was allowed, the motion for a
mistrial denied, and the judge carefully instructed the jury that the response
was not to be considered by them and that they were to confine their attention
solely to the charges set forth in the indictments. Later in the trial, Officer Dowd, in
describing the defendant's arrest, testified that the defendant "stated
that he had served time in . . . ."
The answer was halted by an objection before it was completed. The abbreviated response was struck, a motion
for mistrial was denied, and the jury instructed to disregard the comment. The defendant argues that the judge committed
reversible error in the manner in which he dealt with the assorted objections
and motions for mistrial.
[12] [13]
[14] [15] Of course, evidence of other crimes and prior misconduct by the
defendant may not be received because it "forces the defendant to answer
accusations not set forth in the indictment, confuses his defense, diverts the
attention of the jury, and may create undue prejudice against him." Commonwealth v. Clifford, 374 Mass. ‑‑‑,
‑‑‑ (FNE), 372 N.E.2d 1267 (1978). See also Commonwealth v. Stone, 321 Mass.
471, 473 (1947); Commonwealth v. Banuchi, 335 Mass. 649, 654, 141 N.E.2d 835
(1957); Commonwealth v. Nassar, 351 Mass. 37, 42‑43, 218 N.E.2d 72
(1966). But the harmful effect of such
evidence can be dispelled by a judge's careful warning to the jury. Here the impropriety in the answers was
immediately cured on two occasions by the judge's instructions that the jury
disregard the remarks, and on the third occasion, by the warning that the jury
confine their attention only to the crimes charged in the indictments. Still later in the trial, the judge again
expressly told the jury that any material which had been struck was to be
disregarded, and the same cautions were repeated in the final instructions. The judge's prompt attention to the
objections and his explicit instructions erased any potential for error. We adhere "to a practical view which
does 'not assume that jurors will slight strong and precise instructions of the
trial judge to disregard the matters which have been withdrawn from their
consideration.' " Commonwealth v. [8 Mass.App.Ct. 455] Clifford, 374 Mass. at ‑‑‑
‑ ‑‑‑ (FNF), 372 N.E.2d at 1272, quoting from
Commonwealth v. Gordon, 356 Mass. 598, 604, 254 N.E.2d 901 (1970). See Commonwealth v. Stone, 366 Mass. 506,
513, 320 N.E.2d 888 (1974).
(C )
Character evidence. The defendant's
mother testified that on the night of the second fire the defendant was in her
presence, and that on that same night Suprenant was in the basement,
intoxicated, during the period the fire might have started. It was hoped by this evidence that the jury
would find that the defendant did not start the fire, that Suprenant was the
arsonist, and that the Commonwealth had not met its burden of establishing the
defendant's guilt. In rebuttal, the
prosecutor recalled Suprenant, who testified, over defense counsel's objection,
to his record of distinguished military service, which included the receipt of
several medals and "a certificate of appreciation from President
Nixon." He also testified that a
local company gave him a security clearance to handle guns. He concluded his rebuttal by denying that he
had entered the cellar on the night of October 23, 1977. The defendant argues that the judge committed
reversible error by admitting evidence of Suprenant's good character when
evidence of his bad character had not been offered and where his character had
not been otherwise discredited.
Commonwealth v. Ingraham, 7 Gray 46, 48‑49 (1856); Commonwealth v.
Beal, 314 Mass. 210, 229‑230, 50 N.E.2d 14 (1943).
[16] [17]
[18] Ordinarily, evidence of a witness' good character for veracity cannot be
put in evidence unless his character for veracity has been directly
attacked. Leach & Liacos,
Massachusetts Evidence 130‑131 (4th ed. 1967). A witness' testimony which has
been discredited may be corroborated by other competent evidence of material
facts which tends to make the witness' testimony more credible. Allin v. Whittemore, 171 Mass. 259, 261‑262,
50 N.E. 618 (1898). Evidence pertaining
to the witness' military service has generally been held irrelevant as proof of
character. See Commonwealth v.
Binkiewicz, 342 Mass. 740, 755‑756, 175 N.E.2d 251 (1961); Commonwealth
v. Spare, 353 Mass. 263, 266‑267, 230 N.E.2d 798 [8 Mass.App.Ct. 456]
(1967). Any evidence admitted for the
purpose of bolstering credibility must have logical relevance to the material
issues in the case. See McCormick,
Evidence 103 (2d ed. 1972) ("The wall, attacked at one point, nay not be fortified
at another and distinct point").
[19] In
this case, the evidence pertaining to Suprenant's military record and
employment status had no logical relevance to answer the defendant's implied
accusation that Suprenant had set one fire, and thus, this evidence should have
been excluded. However, in the context
of the entire case, particularly in light of the compelling evidence of guilt
stemming from the defendant's admissions, we think the effect of the evidence
was insubstantial and did not enhance the Commonwealth's case, or detract from
the defendant's, in any material respect.
Commonwealth v. Hanger, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNG), 386 N.E.2d 1262
(1979).
3. The
prosecutor's closing argument. The
defendant complains of three instances in which the prosecutor's closing
argument was improper to a degree sufficient to compel reversal. In the argument, the prosecutor commented
that the police had eliminated the other tenants as responsible for the fires. He also argued, over the defendant's objection,
that Officer Dowd believed the defendant was guilty. (FN6)
Finally, he argued that the job of defense counsel was "to confuse
you so as to affect the burden of proof of the Commonwealth." Subsequent to two of the objections, the
judge held side‑bar conferences in which he indicated to both counsel
that he would correct any impropriety in his instructions to the jury. In those instructions the judge praised both
counsel for their conduct and ability in the trial, which he depicted as
conforming to the "highest standards of tradition of the [8 Mass.App.Ct. 457] trial bar." (FN7)
The instructions also emphasized that anything said by counsel in
argument was not evidence and that the jury's recollection of the evidence
controlled. The judge dealt with the
belief of the defendant's guilt attributed to Dowd as noted in the margin. (FN8)
At the close of the instructions, defense counsel renewed only a request
for a further instruction on the comment concerning the defense counsel's
function. The judge declined to instruct
further on the topic.
[20] [21]
[22] We believe that the judge's handling of the matters at sidebar called for
renewal of the objections at the close of the charge. Defense counsel's failure to request further
instructions, except as to the remarks denigrating from the defense function,
indicates to us that the other complaints had been corrected to his
satisfaction. As to the downgrading of
the defense function, we conclude that the judge's instructions were sufficient
in the circumstances to dispel any harm that might have occurred. See Commonwealth v. Borodine, 371 Mass. 1, 11‑12,
353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d
765 (1977); Commonwealth v. Charles, 4 Mass.App. 853, 854, 357 N.E.2d 26
(1976). We emphasize again, however,
that the prosecutor has a special obligation to present a fair argument to the
jury and that extemporized arguments only serve to increase the burdens on the
trial judge and to provide grist for the appellate mill. As was said in the Borodine case,
"(c)areful preparation of the prosecutor's closing argument, for which
there was ample time available, probably would have eliminated[8 Mass.App.Ct. 458] the errors which are now
admitted on appeal and would have produced a better organized, more persuasive,
and fairer summation." 371 Mass. at
12, 353 N.E.2d at 656. See Commonwealth
v. Cepulonis, ‑‑‑ Mass.App. ‑‑‑, ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNH), 389 N.E.2d 1008
(1979). See also Supreme Judicial Court
Rule 3:22A, Prosecution Function 13(a) and 14, ‑‑‑ Mass. ‑‑‑
& ‑‑‑ (effective March 1, 1979). (FN9)
We continue to hope that well‑aimed volleys will replace
misdirected barrages.
Judgments
affirmed.
FN1. The
defendant later withdrew his offer to provide a signed statement which would
describe all of the details of the arsons.
FN2. Evidence at trial established that the
October 19, 1977, fire consisted of three separate fires approximately ten feet
apart and involved burning in two piles of newspapers and the combustion of
materials three feet above the oil storage tank. There were no "related trailers"
linking the fires, and structural members in the cellar were charred. The fire on October 23, 1977, originated in
the remains of a dresser or bureau in the cellar, caused extensive damage to
the basement, and extended through the first and second floors of the building.
FN3. At the voir dire, Officer Dowd could not
recall whether he had informed the clerk of Grammo's prior record.
FNa.
Mass.App.Ct.Adv.Sh. (1978) 1005, 1007‑1008.
FNb.
Mass.App.Ct.Adv.Sh. (1978) 1234, 1235‑1236.
FNc.
Mass.App.Ct.Adv.Sh. (1977) 478.
FN4. Suprenant stated that on October 23,
1977, he initially assumed that he was smelling the damage from the prior fire
when Grammo awakened him.
FN5. The statement indicated that anything in
it could be used against Suprenant "in the event I am prosecuted in any
court of law" and ended with a commitment to testify to the facts
contained in it and a statement that its contents were "true to the best
of my knowledge and belief."
FNd.
Mass.Adv.Sh. (1977) 2395, 2403‑2404.
FNe.
Mass.Adv.Sh. (1978) 214, 220.
FNf.
Mass.Adv.Sh. (1978) at 220‑221.
FNg.
Mass.Adv.Sh. (1979) 647, 656‑660.
FN6. This argument was in apparent response
to defense counsel's argument which indicated that Dowd would like a conviction
because he took out the complaint. We
need not decide whether the first thrust by the defense in its closing invited
a counterattack by the prosecution. See
Commonwealth v. McColl, 375 Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ (Mass.Adv.Sh.
(1978) 1398, 1410‑1411), 376 N.E.2d 562, 568 (1978) giving
"limited tolerance to the principle of 'fight(ing) fire with fire.' "
FN7. In addition to this bestowal of praise,
the judge later informed the jury that "both attorneys acted properly and
according to the highest principles of trial advocacy."
FN8. "(I)f the attorneys in their
appropriate workings and doings of their duty recite to you or suggest to you
an opinion of themselves or of any other witnesses in the case as to the guilt
or innocence of this defendant or as to what a fact is, then you are to totally
disregard that because that's only your function . . . so anyone else's suggestion to you of what
their belief is or what anyone else's belief is, is not to be considered by
you."
FNh.
Mass.App.Ct.Adv.Sh. (1979) 1050, 1054‑1055.
FN9. These rules provide in pertinent part:
PF 13(a)
"The prosecutor may argue all reasonable inferences from the evidence in
the record. It is unprofessional conduct
for the prosecutor intentionally to misstate the evidence."
PF
14 "It is unprofessional conduct for the prosecutor intentionally at trial
to refer to or argue on the basis of facts outside the record. . . ."