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September 19, 1977


Worcester. Indictments found and returned in the Superior Court on January 17, 1975. The cases were tried before Ronan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.


Constitutional Law, Confrontation of witnesses. Evidence, Previous testimony of unavailable witnesses, Transcript of testimony. Practice, Criminal, Mistrial, Exceptions: failure to save exception. Witness, Unavailability, Privilege. Words, "Unavailable."

The opinion of the court was delivered by: Quirico

At the trial of indictments in the Superior Court, returned following a probable cause hearing in a District Court at which the defendant's girl friend was a reluctant prosecution witness and was fully cross-examined, where it appeared that she had married the defendant four days before being called as a witness at the trial and was present and exercised her privilege under G. L. c. 233, § 20, Second, and refused to testify against the defendant, the admission in evidence of the transcript of the testimony of the witness at the probable cause hearing did not violate any rights of the defendant under the confrontation clauses of either the United States or the Massachusetts Constitutions [375-380]; the circumstances by reason of which the witness's testimony was "unavailable" to the Commonwealth at the trial entitled it to introduce the transcript of her prior testimony as an exception to the hearsay rule [380-386].

The defendant's motion for a mistrial in a criminal case, presented on the morning after a witness took the stand and a procedure was adopted to which the defendant made no objection and took no exception and which was followed by the testimony of two other witnesses, was not seasonably filed, and the appeal from the denial of the motion brought nothing to this court for review. [386-388]

The procedure followed at the trial of indictments, after the prosecutor was informed that his principal witness at the probable cause hearing, then the girl friend of the defendant, had married him and would, if called to the stand, exercise her privilege under G. L. c. 233, § 20, Second, not to testify against him, did not violate any rights of the defendant where it appeared that upon the prosecutor's calling the witness to the stand there was a bench conference, that on a voir dire in the absence of the jury and later in the presence of the jury the witness stated that she did not want to testify against the defendant, that the Judge ruled that she did not have to do so, that no further attempt was made to question the witness, and that the Judge instructed the jury that a wife could not be compelled to testify against her husband. [388-391]

At the trial of indictments before the 1975 amendments to G. L. c. 221, § 91B, and c. 233, § 80, the complete and accurate transcript of testimony at a probable cause hearing of a witness, then the girl friend of the defendant, prepared by a stenographer provided by him at his own expense was properly admitted in evidence where, although the transcript did not qualify for admission under c. 233, § 30, it appeared that after the hearing the witness had married the defendant and at the trial exercised her privilege not to testify against him [391-394]; without foundation in the record and without merit were the defendant's contentions that he was denied a fair trial by reason of the stenographer's testimony before the jury that she had mailed her stenographic notes to the defendant's counsel, and that the notes were inadmissible as "a work product" [394-395].

Where it appeared at the trial of indictments that a stenographer's notes of the testimony of a witness at the probable cause hearing were admissible in evidence but that the stenographer had turned them over to the defendant's counsel, it was not error for the Judge to order the notes produced in the presence of the jury after giving the defendant ample opportunity to do so without an order, and his declining. [395-396]

The defendant was indicted for the unarmed robbery and first degree murder of Harold F. Lowell. The two indictments were tried together before a jury which returned verdicts of guilty of robbery and of manslaughter. The defendant appealed to the Appeals Court under G. L. c. 278, §§ 33A-33G, and that court confirmed the conviction on each indictment. Commonwealth v. DiPietro, 4 Mass. App. Ct. 845 (1976). The defendant then applied to this court for further review on four specific issues which are set out in the margin, and we allowed the application. *fn1 G. L. c. 211A, § 11.

The four issues on which the defendant requested, and we granted, further appellate review relate solely to the trial Judge's admission in evidence of a transcript of testimony which had been given at a probable cause hearing in a District Court on two complaints charging the same crimes later charged in the indictments on which the defendant was convicted. The witness was Marianne Belanger who had married the defendant four days before she was called as a witness at the trial of the indictments in the Superior Court, and exercising her privilege under G. L. c. 233, § 20, Second, refused to testify against her husband.

Although the defendant's application for further appellate review by this court was limited to the four issues in fn. 1 of this opinion, the brief filed in this court purports to argue nineteen separate issues. The reason for this is that he filed the same briefs in this court which he had filed in the Appeals Court. Notwithstanding the brief, we shall consider only those four issues on which we granted further appellate review. Where there is such a wide difference between the issues argued in the Appeals Court and those on which this court has granted further appellate review, the parties should modify or limit their briefs accordingly.

We have examined the four issues presented to us for further appellate review and conclude that there was no error by the Judge in his rulings thereon.

The evidence offered by the Commonwealth, in so far as pertinent to the issues before us, is summarized as follows. Harold F. Lowell (Lowell), who was seventy years old, operated a dairy plant or dairy bar in the town of Mendon. The defendant had worked there for about three months in 1970. On the evening of October 25, 1974, Paul Julian drove the defendant to the dairy bar and on the way the defendant told him, "We're going to rob Lowell's." Seeing no lights on in the building when they arrived, they left without trying to enter. At about 9 or 9:30 P.M. on October 26, 1974, the defendant, his then girlfriend, Marianne Belanger, and another man identified only as "Toota" drove to Lowell's dairy bar in Toota's car, arriving there at about 10 P.M. On the way both men said something about "robbing Lowell's." When they arrived at the dairy bar the defendant left the car. Marianne and Toota remained in the car, with the headlights turned off. The defendant returned to the car in about fifteen minutes or a half hour and said that he "just robbed . . . hit Mr. Lowell . . . he was alive . . . [and that] he was okay." They then left the scene, switched to the defendant's car, and did other things not material to the limited issues before us.

About 10:25 that same evening Lowell called the Mendon police dispatcher and said, "I have been held up and robbed. Send the cruiser." The dispatcher broadcast a radio call which brought a police officer to the dairy bar. Lowell's son, Linwood E. Lowell, also heard the broadcast and went to the scene. He and the police officer noticed that a telephone had been pulled from the wall and was lying on the floor, and that the door of the office safe was open. It was concluded from an audit made later that the sum of $1,040.44, representing principally the net receipts from the business of October 25 and 26, 1974, and which should have been in the safe, was missing.

Lowell's son and the police officer also noticed that Lowell was bleeding from injuries to his face. The injuries were later described by a medical witness substantially as follows: a bruise, contusion and abrasion a little over an inch in diameter below the right eye, both eyelids were blue and swollen, an abrasion an inch in length on the lower eyelid, an abrasion on the right temporal area, a laceration a little less than half an inch long on the right of the chin, a laceration and multiple contusions to the mouth and several other small abrasions.

A few minutes after arriving, the police officer left with the cruiser to take Lowell to a hospital, but Lowell apparently died on the way and was pronounced dead on arrival. The Commonwealth's medical expert testified that in his opinion Lowell came to his death as the result of coronary arteriosclerosis with acute heart failure, that the injuries which he observed on the body precipitated Lowell's acute heart failure or heart attack, and that any injury, physical or emotional, can bring about a heart attack and death of a person, especially one who has an established heart condition or heart disease. Lowell had been examined by his doctor on about eight occasions between August, 1973, and October 24, 1974, giving a history which, with the examination and tests, indicated that he had a heart problem or irregularity, but he continued to work and conduct his business as he had always done.

On October 29, 1974, Paul Julian had a conversation with the defendant at Mendon, in the presence of Marianne. Julian asked the defendant for some money and the defendant said he had none. They talked about the fact that Lowell had died, and the defendant said that "it was an accident." Thereafter, Julian, in response to a newspaper item offering a reward of five hundred dollars for information on Lowell's death, went to the police with the information he had, and ultimately he received the reward.

Marianne Belanger was called as a witness by the prosecutor at a hearing held in the District Court on November 25, 1974, on the complaints charging the defendant with robbery and murder of Lowell. She was then the defendant's girlfriend, and was obviously a reluctant and uncooperative witness. With much effort the prosecutor obtained testimony from her to the effect that she was with the defendant and Toota on the evening of October 26, 1974, when they drove to Lowell's dairy bar, that there was conversation between the two men about robbing Lowell, that when they arrived there she and Toota waited in the car while the defendant left the car and that when he returned after a period of time he said something to the effect that he had robbed and hit Lowell, but that Lowell was "okay."

The defendant was represented at the District Court hearing by Mr. George Yagjian, a lawyer of many years of experience in the trial of criminal cases. He was permitted to cross-examine the witness Marianne to the extent that he desired to do so on all matters relating to the crimes charged against the defendant, and did cross-examine her. Myers v. Commonwealth, 363 Mass. 843 (1973). See Corey v. Commonwealth, 364 Mass. 137 (1973). The cross-examination, measured in terms of transcript pages, was about half as long as the direct examination of the witness. In the particular circumstances of this case it can reasonably be expected that the defendant's cross-examination of a witness sympathetic to his cause might be less extended than that of a hostile witness.

A stenographer engaged by Mr. Yagjian recorded the testimony of the witness on a stenograph machine and then made two copies of the transcript of the testimony. She turned the transcripts over to Mr. Alfred B. Cenedella, III, another of the defendant's counsel, who paid for them, but who also requested and received the stenographer's original notes.

The prosecutor contended that under an agreement with Mr. Yagjian he was entitled to receive a copy of the transcript on certain terms, but before he was able to do so Mr. Yagjian had withdrawn from the case. Successor counsel disputed the claimed agreement and refused to permit the prosecutor to see or obtain a copy of the transcript. In our view of the case we need not try to resolve ...

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