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05/10/78 COMMONWEALTH v. PAUL L. FRANCIS

May 10, 1978

COMMONWEALTH
v.
PAUL L. FRANCIS



Suffolk. Indictment found and returned in the Superior Court on May 14, 1976. The case was tried before Tamburello, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

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

SYLLABUS BY THE COURT

Constitutional Law, Self-incrimination. Witness, Self-incrimination.

The opinion of the court was delivered by: Hennessey

A witness at a criminal trial properly invoked his Fifth Amendment privilege against self-incrimination even though he had previously pleaded guilty to the same offense for which the defendant was being tried where his answers to questions posed by the defense counsel could have incriminated him in other separate offenses, and he did not waive his Fifth Amendment rights by answering some questions where those answers were already implicit in his guilty plea. [214-217]

On May 14, 1976, a grand jury for the county of Suffolk indicted the defendant Paul L. Francis and one George A. Sarro, Jr., for the crime of breaking and entering in the nighttime with intent to commit a felony, to wit, larceny. Sarro pleaded guilty to the offense and received a sentence of nine to twelve years at the Massachusetts Correctional Institution at Walpole. The defendant pleaded not guilty, and so proceeded to trial. At trial, the defense called Sarro as its only witness. As to the majority of questions posed by the defense, however, Sarro invoked his Fifth Amendment privilege against self-incrimination. The jury found the defendant guilty and the Judge sentenced him to a six-year term at the Massachusetts Correctional Institution at Concord.

The defendant appeals pursuant to G. L. c. 278, §§ 33A-33G, claiming that, by sustaining Sarro's refusal to testify on Fifth Amendment grounds, the Judge deprived him of a fair trial. We transferred the case here on our own motion. For the reasons discussed below, we affirm.

The pertinent facts are as follows. In the early morning hours of April 14, 1976, an alarm sounded in the home of one John Hagerty, manager of the F. W. Woolworth Co. store (Woolworth) in East Boston. Because the alarm indicated that there might be an intruder in the store, Hagerty went to the police and accompanied two officers to the Woolworth store premises.

When Hagerty and the police officers entered the front door of the store, they observed the aftermath of a break-in. Cases of merchandise had been broken open and were strewn about the store. Toward the rear of the store, a hole measuring approximately six feet in width had been made in the ceiling, and a ladder and rope had been extended through the hole to the floor. Merchandise had been piled into baskets and placed at the base of the ladder. Near these baskets Hagerty also discovered a large, partially melted candle which was not Woolworth merchandise. He observed melted wax near the broken cases of merchandise and at various other locations in the store.

While the officers made a call for additional police assistance, Hagerty observed two individuals escaping from the Woolworth roof by sliding down from the roof of an adjacent store. Police officers en route to the scene also observed two men in the vicinity of the store, one of whom was pulling white tags from a green hooded jacket worn by the other. When these officers learned of Hagerty's observations, they returned to the street to try to find the men.

A short time later the officers arrested two individuals subsequently identified as Francis and Sarro. At the time of the arrest, Francis, the defendant, wore a green hooded jacket which Hagerty identified as Woolworth merchandise. On the jackets of both men, the police observed melted wax, which, according to the testimony of a senior criminalist with the Boston police crime laboratory, had a common origin with the wax in the candle discovered in the store.

At the trial, the defense sought to prove through Sarro's testimony that the defendant had not been with Sarro during the initial break-in, but had only joined the witness later, after Sarro discovered that he could not remove all the merchandise alone. It was the defendant's theory that, because he did not aid in the initial breaking, he was not guilty of the crime charged in the indictment.

Independent counsel advised Sarro that he could be charged with conspiracy if his involvement with Francis were established. Sarro thus answered questions concerning his own activity in the break-in, but declined to answer questions with regard to his method of operations, and refused to disclose whether or not the defendant accompanied him. *fn1

In Washington v. Texas, 388 U.S. 14, 19 (1967), the United States Supreme Court stated that "he right to offer the testimony of witnesses, . . . the right to present the defendant's version of the facts," "is in plain terms the right to present a defense . . . ." This right, embodied in the Sixth Amendment and applicable to the States by operation of the Fourteenth Amendment, has long been recognized as "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, 405 (1965). See Chambers v. Mississippi, 410 U.S. 284, 294-295 (1973); Washington v. Texas, supra. As such, "its denial or ...


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