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06/20/78 COMMONWEALTH v. VINCENT P. FAZIO (AND SIX

June 20, 1978

COMMONWEALTH
v.
VINCENT P. FAZIO (AND SIX COMPANION CASES)



Suffolk. Indictments found and returned in the Superior Court on December 5, 1975. The cases were tried before McGuire, J. The Supreme Judicial Court granted a request for direct appellate review.

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

SYLLABUS BY THE COURT

Practice Criminal, Opening statement by prosecutor, Charge to jury, Witness, Conduct of prosecutor. Witness, Self-incrimination.

The opinion of the court was delivered by: Liacos

Despite the fact that an attorney for a witness in a criminal case advised the Judge at a hearing prior to trial that the witness intended to invoke his Fifth Amendment privilege against self-incrimination as to the events in question, the Judge did not err in permitting the prosecutor to refer in his opening statement to the evidence he expected to introduce through the witness. [453-457]

The Judge's instructions to the jury at a criminal trial on the limited purpose and effect of the prosecutor's opening statement were sufficient to remedy any possible prejudice from the prosecutor's reference to evidence expected from a witness who failed to testify. [457-458]

A Judge's decision to allow a prosecutor at a criminal trial to call the alleged victim as a witness after he had been held in contempt for refusing to answer questions during a voir dire hearing did not constitute reversible error where there was no improper purpose on the part of the prosecutor and where the defendants were not prejudiced by the prosecutor's action. [458-462]

Three defendants were tried in the Suffolk Superior Court on indictments charging each with kidnapping, with intent to extort money (G. L. c. 265, § 26), making threats with intent to extort money (G. L. c. 265, § 25), assault and battery to collect a loan (G. L. c. 265, § 13C), and assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A). Defendant Charles L. Costa was also charged with knowingly transporting illegal alcoholic beverages (G. L. c. 138, § 22). On the defendants' motions at the close of the Commonwealth's case, the trial Judge directed verdicts of not guilty as to so much of the kidnapping indictments as charged extortion, on the indictments charging threats to extort, and on the indictments charging assault and battery to collect a loan. The jury found the defendants guilty of kidnapping and assault and battery with a dangerous weapon. Additionally, Costa was found guilty of illegal transportation of alcoholic beverages. The defendants claimed an appeal pursuant to G. L. c. 278, §§ 33A-33G. We allowed the defendants' application for direct appellate review.

The defendants claim three grounds on which they believe reversal of their convictions is required. First, they argue that the prosecutor was guilty of prejudicial misconduct by including in his opening statement a summary of the testimony that he expected to elicit from the alleged victim. The basis for this allegation of misconduct is the fact that the alleged victim had, through his counsel, announced in court prior to the prosecutor's opening statement that he would invoke the constitutional privilege not to incriminate himself and consequently would refuse to testify. Second, the defendants argue that the Judge failed adequately to instruct the jury so as to protect the defendants from the prejudicial effect of the prosecutor's opening statement. Third, the defendants assert that the prosecutor's action in calling the alleged victim to the stand and compelling him to claim the privilege in the presence of the jury was prejudicial and grounds for reversal.

We find no error, and thus affirm the judgments of the Superior Court.

1. The prosecutor's opening statement. The alleged victim, and prospectively the Commonwealth's chief witness, was one Owen J. Roberts, III. Roberts had been in the protective custody of the district attorney's office from the time of his appearance before the grand jury on December 3, 1975, until April 20, 1976, when he was ordered held on $100,000 bail with double surety as a material witness. During that period he apparently had been fully cooperative with law enforcement officials. On April 21, at a hearing on a motion by Roberts's counsel to reduce bail, Roberts's counsel informed the Judge, the prosecutor, and the defense attorneys that his client had decided to "invoke his privilege against self-incrimination as to any events which are alleged to have occurred on November 30, [1975,] which forms the crux of this case." The prosecutor indicated to the Judge that, until that moment, he had believed Roberts "fully intended to cooperate and testify in this case."

On the first day of the trial, April 26, immediately after the jury had been empanelled, the Judge held a hearing out of the presence of the jury. The purpose of the hearing, requested by the attorneys for the defendants, was to inquire (a) whether the prosecutor intended to refer in his opening statement to testimony expected to be elicited from Roberts, and (b) the effect that should be given to the announcement by Roberts's counsel that his client would invoke the Fifth Amendment to the United States Constitution. The following information was presented to the Judge during the course of that hearing. First, the prosecutor stated that he would tell the jury that they would hear certain testimony tending to establish the guilt of the defendants. The content of that expected testimony would in fact be based to a significant degree on the testimony of Roberts before the grand jury, although the jury would not be told that Roberts was the prospective witness, nor told how the prosecutor knew what that witness would testify. Second, counsel for the defendants brought to the attention of the Judge Roberts's stated intention to invoke the Fifth Amendment with regard to the events on the night in question. Third, counsel for the defendants argued that to allow the prosecutor to describe Roberts's expected testimony would allow prejudicial information to reach the jury. They argued that this would create the impression that Roberts had been threatened and was afraid to testify, an impression that would be strengthened when Roberts actually took the stand and invoked his Fifth Amendment privilege.

After hearing the argument of counsel, the Judge refused to grant a motion by the defendants that the prosecutor be ordered not to refer in his opening to the testimony he hoped to elicit from Roberts. The Judge did instruct the prosecutor generally that he could include in his opening only such facts as he could "reasonably anticipate" would be admitted in evidence. Counsel for the defendants took exception to the Judge's refusal to grant their motion.

The issue raised by the preceding facts is before us on two assignments of error. One assignment of error cites the Judge's actions in allowing the prosecutor to refer in his opening statement to the evidence he expected to introduce through Roberts's testimony (although he did not identify the testimony as coming from Roberts either by name or as the alleged victim). The other assignment claims error in the Judge's denial of the defendants' motion for mistrial, made after the defendants rested, ...


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