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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth v. Tanso, 411
Supreme Judicial Court of Massachusetts,
Decided
F. Lee Bailey,
Jane A.
Sullivan, Asst. Dist. Atty., for the Com.
Before [411
ABRAMS, Justice.
The
defendant, Paul Tanso, appeals from two convictions of murder in the first
degree. (FN1) The main issue on appeal is the trial judge's
admission in evidence, over objection, of the deposition testimony of an
unavailable witness who had not been cross‑examined. For the reasons stated in this opinion, we
conclude that the defendant did not waive his right to cross‑examine the
witness. Therefore, the admission of the
deposition testimony violated the defendant's right to confrontation under the
Sixth Amendment to the United [411
On
The other
witness, Richard Storella, knew the defendants as well as the men who were
killed. In a deposition before the
Boston Municipal Court judge, Storella said that the victims had planned to rob
DiBenedetto. Storella said that he drove
with the two victims to the park and observed the killings while standing
outside of the park.
At a
pretrial hearing on Monday, March 3, 1986, in the Municipal Court, (FN4) the
defendant waived his rights to a probable cause hearing, and the Commonwealth
moved to depose Schindler and Storella pursuant to Mass.R.Crim.P. 35, 378 Mass.
906 (1979). (FN5) In support of its motion, the Commonwealth[411 Mass. 643] presented evidence that
weapons and ammunition had been seized from the homes of both the defendant and
his codefendant, and that Schindler and Storella feared for their safety. The judge allowed the motion. At that point, Schindler was sworn and gave
direct testimony before the judge, including an in‑court identification
of the defendant. At the close of
Schindler's testimony, defense counsel stated that he was not prepared for
cross‑examination. The judge
continued the proceedings until the next day, and said that he would order
defense counsel "either to take cross‑examination at that time or to
waive it."
The next
day Storella gave direct testimony in a deposition before the Municipal Court judge.
Defense counsel said that he still was not prepared to cross‑examine. Defense counsel stated that he believed that
any cross‑examination that he might conduct at that time would constitute
ineffective assistance of counsel in violation of his client's Sixth Amendment
rights. The Commonwealth countered that
the defendant did, in fact, have the opportunity to conduct an effective cross‑examination
on that day, and that, if the defendant refused to do so, "it is only for
the purpose of tactics ... so that [the defendants] will be in a position,
should the witness be executed, to say, 'We did not have effective cross
examination; you cannot use that
testimony.' "
The
defendant moved to hold Schindler and Storella, the Commonwealth's rule 35
witnesses, in protective custody as material witnesses until such time as the
defense had an opportunity to cross‑examine them. The defendant also asked for full
discovery. (FN6) The judge denied both defense requests, and
continued the proceedings until that Friday, March 7.
On Friday,
defense counsel once again indicated to the judge that he was not prepared to
cross‑examine, and asked [411
Mass. 644] for a continuance. The Commonwealth opposed the continuance,
representing that it had provided all discovery in its possession to defense
counsel at 5 P.M. on the previous Tuesday, March 4. The Commonwealth asked the judge to rule
that, in declining to cross‑examine on that day, the defendant had waived
his right to cross‑examine Storella.
Defense counsel expressly stated that they did not waive cross‑examination
of Storella. Although earlier the judge
had indicated that he would order the defendant to cross‑examine the
witnesses or waive the right to cross‑examination if he did not avail
himself of the opportunity, the judge instead declined to rule on both the
defendant's and the Commonwealth's requests.
Saying that he would "leave [the defendants] to whatever remedies
may exist," he bound the case over to the grand jury.
The
indictments were returned on May 21, 1986.
The defendant filed a motion on October 17, 1986, in the Superior Court
requesting permission to complete the rule 35 depositions through cross‑examination. At that hearing, the Commonwealth argued that
the defendant had waived his cross‑examination rights by failing to avail
himself of his earlier opportunity (in the Municipal Court) to cross‑examine
the witnesses. The Superior Court motion
judge allowed the defendant's motion. He
ordered that the subsequent deposition consist of cross‑ and redirect
examination only, and that it be completed by December 5, 1986. Schindler was cross‑examined on
December 2, but Storella never was cross‑examined because the
Commonwealth asserted that it was unable to locate him. When Storella still had not been located by
March, 1987, a capias was issued for his arrest.
On January
21, 1988, the defendant moved to exclude Storella's testimony. On February 8, 1988, the Commonwealth moved
to have Storella declared unavailable and for permission to use his rule 35
deposition at trial against the defendant.
A second Superior Court judge, without holding an evidentiary hearing,
allowed the Commonwealth's motion and denied the defendant's motion. He determined that the defendant had been
"provided with an adequate opportunity
[411 Mass. 645] to effectively
cross‑examine" Storella and that Storella's testimony was
"sufficiently reliable."
The trial
judge, in a hearing regarding Storella's availability and the admissibility of
his rule 35 testimony, found that Storella was unavailable and that the
defendant had waived his right to cross‑examine Storella. The judge admitted Storella's rule 35
testimony.
[1][2] 1. The
rule 35 deposition testimony and waiver.
The defendant argues that, as soon as he waived the probable cause
hearing, the case no longer was within the jurisdiction of the Municipal Court
and, therefore, the Municipal Court judge was without authority to allow the
Commonwealth leave to take rule 35 depositions.
This argument is without merit.
The case remains within the court's jurisdiction until an indictment is
returned. Any other rule would place
cases outside of the jurisdiction of any court between the time when a probable
cause hearing is waived or held in the District or Municipal Court and the
indictment is returned in the Superior Court.
The Municipal Court judge had jurisdiction and discretionary authority
to allow the motion to depose the witnesses.
[3] The
defendant next argues that the Municipal Court judge erred in allowing the
Commonwealth's motion to depose witnesses pursuant to rule 35 because, the
defendant claims, the Commonwealth did not set forth sufficient grounds for
allowing the depositions. This argument,
too, is without merit. Rule 35 of the
Massachusetts Rules of Criminal Procedure was written in substantial conformity
with Fed.R.Crim.P. 15. See Reporters'
Notes to Mass.R.Crim.P. 35, Mass.Gen.Laws Ann., Rules of Criminal Procedure at
633 (West 1980). Both rules allow the
testimony of prospective witnesses to be taken prior to trial in
"exceptional circumstances" when "the interest of justice"
so requires. See note 5, supra.
"[P]hysical unavailability [is] but one factor in determining
whether 'exceptional circumstances in the interests of justice' exist."
United States v. Johnson, 752 F.2d 206, 209 (6th Cir.1985). The Commonwealth presented evidence
that: (1) both Schindler and Storella
feared for their safety; [411 Mass. 646] 2) weapons and ammunition had been seized from the homes of two
of the defendants; (3) Schindler lived
in the defendants' neighborhood; and (4)
Storella was acquainted with the defendants and played a role, albeit a
supporting one, in the crime. In these
circumstances, the Municipal Court judge could conclude that the Commonwealth
legitimately was concerned that the witnesses might be unwilling or unable to
testify at trial, and that this concern could be alleviated by allowing the
Commonwealth's rule 35 motion. Cf. id.
(taking of deposition was proper where defendant refused to testify at
trial due to fear for his own and his family's safety).
[4] The
standard for reviewing a trial court judge's ruling on a rule 35 motion is
abuse of discretion. United States v. Keithan, 751 F.2d 9, 12
(1st Cir.1984). The judge did not abuse
his discretion in allowing the Commonwealth's rule 35 motion. Even if the Commonwealth's evidence had been
less compelling, we likely would find no abuse of discretion because,
"[w]hen the question is close[,] a court may allow a deposition in order
to preserve a witness' testimony, leaving until trial the question of whether
the deposition will be admitted as evidence." United States v. Mann, 590
F.2d 361, 366 (1st Cir.1978). Indeed,
ordering the deposition and requiring the cross‑examination may well
insure the safety of witnesses.
[5] The
defendant argues that the trial judge erred in admitting the uncross‑examined
deposition testimony in violation of the defendant's confrontation rights. We agree.
Prior recorded testimony, if it meets certain conditions, may be
admitted at trial. In order not to run
afoul of the defendant's confrontation rights under the Sixth Amendment, it
should be admitted only if it has been established that (1) the witness is
unavailable to testify, (FN7) and (2) the prior testimony [411 Mass. 647] bears
sufficient indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 65‑66,
100 S.Ct. 2531, 2538‑39, 65 L.Ed.2d 597 (1980). Accord
Commonwealth v. Siegfriedt, 402 Mass. 424, 427, 522 N.E.2d 970 (1988); Commonwealth v. Trigones,
397 Mass. 633, 637, 492 N.E.2d 1146 (1986); Commonwealth v. Bohannon, 385 Mass. 733,
741, 434 N.E.2d 163 (1982).
[6][7] A
witness's prior recorded testimony bears adequate indicia of reliability for
confrontation clause purposes if opposing counsel had an adequate opportunity
to cross‑examine the witness and availed himself or herself of that
opportunity at the prior hearing. Ohio v. Roberts, supra 448 U.S. at 73,
100 S.Ct. at 2542‑43. Accord Bohannon, supra 385 Mass. at 747, 434
N.E.2d 163. However, actual cross‑examination,
while usually sufficient, is not necessary to satisfy the reliability
component. A reasonable opportunity to
cross‑examine also may render the testimony admissible. See
United States v. Zurosky, 614 F.2d 779, 793 (1st Cir.1979) cert. denied,
446 U.S. 967 (1980) (defense counsel had meaningful opportunity to question
witness, but made tactical decision not to do so; therefore, his confrontation rights were not
denied);
Phillips v. Wyrick, 558 F.2d 489, 496 (8th Cir.1977), cert. denied,
434 U.S. 1088, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978) ("Once the opportunity
to cross‑examine has been accorded, the confrontation requirement is
fulfilled.... The actual use then made
of the opportunity becomes a matter of defense strategy, and deliberate trial
tactics do not ordinarily exact constitutional protection" [citations
omitted] ). Our cases discussing the
right to cross‑examination under the Sixth Amendment to the United States
Constitution are in accord. See Commonwealth v. Ortiz, 393 Mass. 523,
532, 471 N.E.2d 1321 (1984) ("The prior testimony of the currently
unavailable witness must have been given 'in a proceeding addressed to
substantially the same issues as in the current proceeding, with reasonable opportunity and similar
motivation on the prior occasion for cross‑examination of the
declarant by the party against whom the testimony is now being offered' "
[emphasis added], quoting Commonwealth v. Meech, 380 Mass. 490,
494, 403 N.E.2d 1174 [1980]; Commonwealth v. Martinez, 384 Mass. 377,
381, 425 N.E.2d 300 (1981) (one of the elements necessary to make grand jury
testimony of unavailable witness admissible is "opportunity for cross‑examination[411 Mass. 648] of the witness at the prior hearing by a
person against whom the testimony is being offered" [emphasis added] );
Commonwealth v. Canon, 373 Mass. 494, 501, 368 N.E.2d 1181 (1977),
cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978) ("We do not
think the [Supreme] Court intended to lay down an absolute requirement of
actual cross‑examination as well as adequate opportunity for cross‑examination
for cases like the present in which there was no problem of ineffective
assistance of counsel"); Andrews, petitioner, 368 Mass. 468, 476‑477,
334 N.E.2d 15 (1975) (admission of prior testimony does not violate Sixth
Amendment confrontation clause where defense counsel declined opportunity to
examine witness at prior hearing).
[8] The
central purpose of rule 35 is to "preserve evidence.... While it is true that it is far more
desirable to secure the actual presence of a potential witness in criminal
cases, there are situations in which the use of depositions is required in
order to assure that the ends of justice are met, e.g., when a witness'
attendance cannot be secured...."
Reporters' Notes to rule 35(a).
Thus, the defendants are not entitled to delay cross‑examination
until such time as, in their view, they have a "reasonable opportunity to
cross‑examine." Such an
interpretation would vitiate rule 35.
The question whether there was a "reasonable opportunity to cross‑examine"
is for the court. Cross‑examination,
to pass muster under the confrontation clause, does not have to be a perfect
cross‑examination. See Delaware v. Fensterer, 474 U.S. 15, 20,
106 S.Ct. 292, 294‑95, 88 L.Ed.2d 15 (1985) ( "Generally speaking,
the Confrontation Clause guarantees anopportunity
for effective cross‑examination, not cross‑examination that is
effective in whatever way, and to whatever extent, the defense might wish" [emphasis in original] );
Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045‑46,
35 L.Ed.2d 297 (1973) (the right to cross‑examine "is not absolute
and may, in appropriate cases, bow to accommodate other legitimate interests in
the criminal process"). Our cases
are in accord. See Commonwealth v. Siegfriedt, supra 402 Mass. at 429, 522 N.E.2d 970
("fact that there may have been a more extensive cross‑examination
... does not undermine the reliability of the otherwise trustworthy, previously
recorded testimony so as to preclude its admission"); [411 Mass. 649]
Commonwealth v. Trigones, 397 Mass. 633, 639, 492 N.E.2d 1146 (1986) (prior
testimony is sufficiently reliable even though defendant did not adequately
pursue opportunity to cross‑examine witness on bias); Commonwealth v. Mustone,
353 Mass. 490, 494, 233 N.E.2d 1 (1968) ("If [the defendants] failed to
cross‑examine any witness fully at the probable cause hearing, they
necessarily assumed the risk that the witness would die or become unavailable
before trial, so that his initial testimony could be admitted at trial");
Commonwealth v. DiPietro, 4 Mass.App.Ct. 845, 356 N.E.2d 269 (1976), S.C., 373 Mass. 369, 367 N.E.2d 811
(1977) ("It is immaterial that for tactical reasons the defendant did not
cross‑examine his girl friend in greater depth at [the earlier
hearing]. The constitutional requirement
is satisfied if the defendant is afforded the opportunity of cross‑examination"
[footnote omitted] ). Once the judge
sets a reasonable deadline for the defendant to cross‑examine the
witness, the defendant cannot delay cross‑examination by arguing that his
cross‑examination would be better if he were given more time to prepare,
for this will always be so.
[9] The
Municipal Court judge could have and should have set a deadline by which the
defendant had to cross‑examine the witness or waive his right to do
so. However, he did not. That failure is fatal to the Commonwealth's
claim of waiver. The Municipal Court
judge did not hold a hearing on the time needed for a "reasonable
opportunity to cross‑examine."
He did not rule that the defendant had had a reasonable opportunity to
cross‑examine. He did not give any
notice to the defendant that failure to cross‑examine by a certain date
could be or would be viewed as a waiver of the right to cross‑examine the
witness. The judge should have resolved
the dispute and set a date for cross‑examination; (FN8) instead, he merely left the parties to their
own remedies.
[411 Mass. 650] "[T]he decisions of [the United States Supreme Court] and
other courts throughout the years have constantly emphasized the necessity for
cross‑examination as a protection for defendants in criminal
cases.... There are few subjects,
perhaps, upon which [the Supreme] Court and other courts have been more nearly
unanimous than in their expressions of belief that the right of confrontation
and cross‑examination is an essential and fundamental requirement for the
kind of fair trial which is this country's constitutional goal."
Pointer v. Texas, 380 U.S. 400, 404‑405, 85 S.Ct. 1065, 1068,
13 L.Ed.2d 923 (1965).
The
proceedings in the Municipal Court were in early March. The indictments were returned in May,
1986. After the Municipal Court
proceedings, the Commonwealth never moved to complete the deposition. It was only after the defendant filed a
motion to complete the deposition in October, 1986, that the issue was again
raised in the Superior Court. By the
time a Superior Court motion judge finally set a deadline for completion of the
depositions, Storella could not be found. (FN9)
In view of Storella's importance to the Commonwealth's case, the
Commonwealth's position that, in these circumstances, the defendant had been
afforded a fair opportunity to cross‑examine is untenable. The defendant was not given any notice that
failure to cross‑examine Storella by a certain date would result in a
waiver of the right to cross‑examine.
The
defendant at no time expressly waived his right to cross‑examine; on the contrary, he objected each time the
Commonwealth argued that his actions constituted a waiver. Absent a direct order to complete or forgo
cross‑examination, there was no basis for the subsequent determination that
the defendant had waived cross‑examination. Therefore, it was error to admit Storella's
uncross‑examined deposition testimony.
[411 Mass. 651] 2. Issues that may arise at
retrial. We discuss the following
claims of error raised by the defendant because they may arise at retrial.
[10] a. Polygraph evidence. The defendant filed a motion for a polygraph
examination and to have the results admitted in evidence. The defendant's request was denied. The defendant argues that the motion judge
erred in denying his motion for a court‑ordered polygraph
examination. This argument is disposed
of by our holding in Commonwealth v.
Mendes, 406 Mass. 201, 202, 547 N.E.2d 35 (1989) (polygraph evidence
inadmissible either to prove innocence or guilt or to impeach or corroborate
testimony).
b. Schindler's in‑court and out‑of‑court
identifications of the defendant.
The defendant participated in one of three separate videotaped lineups
conducted on February 28, 1986, pursuant to an order of a judge of the Municipal
Court. Schindler watched the lineups
through a one‑way mirror.
Schindler was then escorted out of the viewing area to make his
identifications. Defense counsel,
although present at the lineups, (FN10) did not ask to be present when
Schindler made the identifications.
Subsequently, during his rule 35 deposition, Schindler identified the
defendant from among those seated in the spectators' section of the courtroom
as one of the perpetrators. The
defendant argues that, because (1) Schindler was a former Middlesex County
assistant district attorney, presumably familiar with lineups; (2) the murders occurred in the North End,
"the renowned hub of Boston's Italian American community"; (3) no other participants with Italian
looking features or last names allegedly were included in the lineup; (4) the defendant's dark hair, eyes and
complexion allegedly identify him as being of Italian lineage; (5) all the other participants in the lineup
were over five feet, six inches tall, and Schindler had described one of the
individuals he viewed on the night of the shooting as having a height as [411 Mass. 652] short as five feet, four inches;
and (6) the defendant's long hair and slight build allegedly
distinguished him from the other participants in the lineup, the out‑of‑court
lineup was unnecessarily suggestive. He
also argues that Schindler's observations were unreliable, and that he had a
right to have counsel present when Schindler identified the defendant at his
postlineup interview. As a result, he
argues, due process mandates the suppression of both identifications.
[11]
"The burden is on the defendant to establish by a preponderance of the
evidence that impermissibly suggestive procedures were used at the
lineup." Commonwealth v. Simmonds, 386 Mass. 234,
239, 434 N.E.2d 1270 (1982), citing
Commonwealth v. Botelho, 369 Mass. 860, 867, 343 N.E.2d 876 (1976). The fact that each person in the lineup may
not have closely resembled the defendant does not render
the lineup impermissibly suggestive. Cf. Commonwealth v. Melvin, 399 Mass. 201,
207, 503 N.E.2d 649 (1987) (fact that defendant was only person in photographic
array wearing a sling held not to constitute unnecessary suggestiveness, even
though witness had seen defendant injuring his shoulder during commission of
the crime); Simmonds, supra 386 Mass. at 240, 434
N.E.2d 1270 (no unnecessary suggestiveness found where defendant was one of
only three members of seven‑person lineup without a moustache, and
several of lineup members wore standard, police‑issued pants). Absent error on the part of the judge, his
factual findings stand. Commonwealth v. Correia, 381 Mass. 65,
76, 407 N.E.2d 1216 (1980). However,
"[o]ur appellate function requires that we make our own independent
determination on the correctness of the judge's 'application of constitutional
principles to the facts as found.' " Commonwealth v. Jackson, 377 Mass. 319,
325, 386 N.E.2d 15 (1979), quoting
Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977). Because the out‑of‑court lineup
was not unnecessarily suggestive, it did not "taint" the in‑court
identification. Botelho, supra 369 Mass. at 865, 343
N.E.2d 876.
[12] The
judge who denied the motion to suppress the identification testimony, after
reviewing the videotape, found that (1) the majority of the lineup participants
were young white males all of whom had one or more dark features; (2) at least five other members of the lineup
were similar in height [411 Mass.
653] to the defendant; and (3) at least two other members had hair
of the same length as the defendant's.
The judge properly rejected the defendant's argument that Schindler's
experience as a former assistant district attorney gave him special knowledge
of lineup procedures that would cause him to single out the defendant. There is no evidence in the record to support
that argument. After reviewing the
videotape, we conclude that the judge's findings are supported by the evidence. The lineup procedure was not unnecessarily
suggestive. Because the out‑of‑court
lineup was not unnecessarily suggestive, it did not "taint" the in‑court
identification. Botelho, supra at 865, 343 N.E.2d 876.
[13]
Because we conclude that the identification was not unnecessarily suggestive,
it is unnecessary for us to reach the question whether Schindler's
identification meets the "reliability test." See
Commonwealth v. Venios, 378 Mass. 24, 25, 389 N.E.2d 395 (1979). We note, nevertheless, that a review of the
record also supports the judge's findings that Schindler's observations were
reliable. From his apartment overlooking
the park where the murders occurred, at a distance of approximately fifty feet,
Schindler observed the defendant descend a stairwell which was illuminated by a
lamp at its top. The defendant was
moving toward Schindler at the time.
Schindler paid close attention to the events he observed in the park,
and was able to describe the defendants' clothing and hair color to the
police. The lineup took place nine days
after the incident.
[14] In Commonwealth v. Charles, 397 Mass. 1,
5, 489 N.E.2d 679 (1986), without deciding whether we would adopt the rule
ourselves, we noted that the rationale behind decisions which have held that a
defendant has a right to have counsel present at a postlineup interview is to
enable defense counsel to "ensure that the procedure does not suggest who
the prosecutor believes committed the crime." The short answer to defendant's argument
that he has been deprived of his due process rights because counsel was not
present during Schindler's postlineup interview is apparent from viewing the
videotape of the lineup proceedings. The
defendant's counsel, who was present at the lineup and could have asked to be
present at [411 Mass. 654] the interview, did not request to be
present and did not seek a court order allowing him to be present. (FN11)
Moreover, the defendant is unable to show that Schindler's identification was a product
of any suggestion, urging, or questioning on the part of the prosecutor.
The
majority of Federal courts that have considered whether the defendant has a
right to counsel at a postlineup interview of a witness have found that no such
right exists. See Hallmark v. Cartwright, 742 F.2d 584, 585 (10th Cir.1980);
United States v. White, 617 F.2d 1131, 1135 (5th Cir.1980);
United States v. Bierey, 588 F.2d 620, 624‑625 (8th Cir.1978),
cert. denied, 440 U.S. 927, 99 S.Ct. 1260, 59 L.Ed.2d 482 (1979);
United States v. Tolliver, 569 F.2d 724, 728 (2d Cir.1978);
United States v. Parker, 549 F.2d 1217, 1223 (9th Cir.), cert.
denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977); United States v. Cunningham,
423 F.2d 1269, 1274‑1275 (4th Cir.1970).
See also Graham v. United States,
377 A.2d 1138, 1140 (App.D.C.1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 748,
54 L.Ed.2d 770 (1978). In Commonwealth v. Charles, supra 397
Mass. at 6, 489 N.E.2d 679, we noted that, although it was unnecessary for us
to decide the issue, these cases "holding that defense counsel does not
have a right to be present at a post‑lineup interview would appear to
represent the better reasoned view."
We will not consider a different rule for Massachusetts in the absence
of any objection, request to the court for an order, or other evidence in the
record that such a request was made prior to the lineup.
[15] At
the hearing on the defendant's motion to suppress the in‑court and out‑of‑court
identifications, defense counsel sought to question one of the investigating
police officers about the lighting conditions at the crime scene and
Schindler's[411 Mass. 655]
view of the area on the night of the murders. The defendant sought to pose these questions
in order to cast doubt on the reliability of Schindler's observations. The judge ruled that these were questions of
fact for the jury and ordered the defendant's counsel to restrict his questions
to the issue of the identification procedure.
The defendant argues that the motion judge erred in so limiting his
cross‑examination. The reliability
of Schindler's observations is an issue in a motion to suppress only if the
identification procedure is found to be unduly suggestive‑‑which is
not the case here. See Venios, supra 378 Mass. at 25, 389
N.E.2d 395. There was no error.
[16] c. The
defendant's motion to dismiss the indictments. The defendant argues that the motion judge
erred in failing to dismiss the grand jury indictments against him. The basis of this argument is that the grand
jury should have been apprised of certain allegedly exculpatory evidence. One item of allegedly exculpatory evidence
consisted of the defendant's polygraph results.
As to this piece of evidence, the defendant's argument is disposed of by
our holding in Mendes, supra. The other allegedly exculpatory evidence
consisted of a prior, allegedly inconsistent statement made by Storella (FN12) and a statement made by another
witness that contradicted one aspect (not directly related to the murders) of
Storella's testimony. (FN13)
The
Commonwealth "is not required to present all possibly exculpatory evidence
to a grand jury." Commonwealth v. Connor, 392 Mass. 838,
854, 467 N.E.2d 1340 (1984). The
Commonwealth, however, is required to alert the grand jury to "exculpatory evidence that would greatly undermine
the credibility of an important witness." Commonwealth v. Mayfield,
398 Mass. 615, 620‑621, 500 N.E.2d 774 (1986), citing Connor, supra 392 Mass. at 854, 467 N.E.2d 1340. While there is no doubt that Storella was an
important witness, the allegedly exculpatory evidence was not of that
nature. Furthermore,the [411 Mass. 656] grand jury was informed that Storella was testifying in exchange
for immunity from prosecution for conspiracy to commit robbery. There was no error.
The
judgments are reversed, the verdicts set aside, and this case is remanded to
the Superior Court for a new trial.
So ordered.
(FN1.) Tanso was also convicted of unlawful
possession of a handgun.
(FN2.)
Because our conclusion is based on the Sixth Amendment to the Constitution of
the United States, we do not discuss art. 12 of the Massachusetts Declaration
of Rights.
(FN3.)
The defendant's motions for new trial based on Storella's reappearance and
availability were denied. The
defendant's sentences were stayed pending appeal of the denial of his motions
for new trial and his convictions.
(FN4.)
Counsel for the defendant and a codefendant were both present at all the
pretrial hearings discussed in this section;
the third defendant was tried separately as a juvenile.
(FN5.)
Rule 35 of the Massachusetts Rules of Criminal Procedure states, in relevant
part, "[w]henever due to exceptional circumstances, and after a showing of
materiality and relevance, it is deemed to be in the interest of justice that
the testimony of a prospective witness of the defendant or the Commonwealth be
taken and preserved, the judge may at any time after the filing of a complaint
or return of an indictment, upon his own motion or the motion of either party
with notice to all interested persons, order that the testimony of the witness
be taken by deposition...."
(FN6.)
At that time, defense counsel had received as discovery a redacted search
warrant, an incident report from the police, and a statement alleged to be a
transcript of a tape recorded interview of Schindler.
(FN7.)
In the absence of either cross‑examination or a judicial order to cross‑examine
the witness or forgo the cross‑examination, there is no foundation on
which to base the defendant's waiver of his right to cross‑examine. Therefore, we do not reach or discuss whether
the witness was unavailable. The facts
are conflicting, and we, of course, do not resolve factual disputes.
(FN8.)
The defendant asserts that he did not want to cross‑examine the witness
to preserve his argument that the Municipal Court lacked jurisdiction once the
defendant waived the probable cause hearing.
The judge still should have ordered cross‑examination by a date
certain. The defendant could have cross‑examined
the witness while preserving his objection or forgone the opportunity to cross‑examine
and relied on his jurisdictional argument.
(FN9.)
Although the defendant contests this fact, we accept the Commonwealth's version
of the events for the purposes of deciding this issue. See note 7, supra.
(FN10.) At the time of the lineup, defense
counsel asked that his client be allowed to change places with another
participant in the lineup. The
Commonwealth agreed to this request.
(FN11.) We note that counsel for the defendant
did raise other unrelated objections to the lineup on that occasion. Earlier that day the defendant petitioned,
pursuant to G.L. c. 211, § 3, a single justice of this court for relief from
the Municipal Court judge's order that a lineup be conducted. The defendant objected to (1) the lack of a
pre‑lineup evidentiary hearing; (2)
the fact that the identity of the witnesses would not be disclosed at the
lineup; and (3) the lack of notice to
the defendant. Relief was denied. Counsel for the defendant renewed his
objections following the lineup, but did not request to be present at the
postlineup interview.
(FN12.) Storella initially denied any
involvement whatsoever in the murders.
(FN13.) Michael Pittore, an acquaintance of
Storella, denied Storella's allegation that they had had a conversation with
one of the victims concerning whether DiBenedetto still sold cocaine.