COMMONWEALTH vs. DAVID C. CARITA & others.

REARDON, J. The defendants, David C. Carita, Sabatino A. Fondanova, Francis B. Lynch and Paul J. Wise, appeal under G. L. c. 278, Sections 33A-33G, as amended, their convictions on indictments charging them with murder in the first degree and armed robbery. The jury having in each case recommended that the death sentence be not imposed on the murder indictments, the defendants were sentenced to life imprisonment. On the indictments for armed robbery, sentences for terms of years were imposed to be served concurrently with the several sentences on the convictions for murder. The cases are before us on a summary of the record, a transcript of the evidence and assignments of error.

There was evidence that at approximately 10:20 P.M. on February 3, 1966, Morris J. Yanes, a clerk employed by Sandler's liquor store on Columbia Road in Dorchester, was discovered in a snowbank outside that establishment. He was removed to the Boston City Hospital where a quarter of an hour later he was pronounced dead. An autopsy report subsequently determined that he met his death as a

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result of a gunshot would in the chest causing massive hemorrhaging.

The four defendants, who knew each other, spent the evening of February 2, 1966, in a cocktail bar, leaving about 1 A.M. on February 3, in the company of four girls with whom they went to the defendant Carita's apartment where they proceeded to drink beer and take pills containing narcotics. This party lasted until 8 A.M. At 3:30 P.M. the defendants had come together at the apartment of one Rita Howlett where Carita announced he had a "score." He further stated, "I can get the car; I can go like a teacher or, if I have to, I can go fast like hell." On this occasion guns were in the hands of three of the defendants; Fondanova had a forty-five calibre weapon while Carita had a thirty-two calibre weapon and Wise a twenty-two calibre weapon. Carita left the apartment about 7 P.M. and returned in an hour. One D'Ambrosia had parked a 1965 maroon Pontiac on Stoughton Street, near Harrison Avenue, Boston, on that evening and when he returned an hour and a half later the car was gone. The defendants left the Howlett apartment together at 9:15 P.M. in a maroon Pontiac with Carita driving and returned at 11:15 P.M.

Two witnesses who had just completed a purchase at Sandler's liquor store were a few minutes later walking down a nearby street when they heard shots. Both saw a maroon Pontiac headed south on Columbia Road with a man running alongside. One of these witnesses testified that the running man resembled Fondanova. The second witness returned to the snowbank where Yanes was lying, turned him over, and observed blood coming from his chest. He found in the snowbank a fifth of Scotch whiskey and $11 in bills which he later turned over to the police. A third witness also heard the shots and saw the maroon Pontiac pulling away with a man looking like Fondanova running beside the car.

A woman and her young son, who lived across the street from the liquor store, likewise heard the shots and from their window saw two men run from the liquor store and exchange shots. The son saw one of the men grab his chest

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and fall. His mother recognized the victim as Yanes. Both saw the maroon Pontiac leave the scene with three occupants inside and a man running beside the car. Both identified pictures of the stolen Pontiac as resembling the car which they saw depart the scene. Police arriving at the store took into custody the $11 in bills, the bottle of Scotch whiskey, a twenty-five calibre revolver belonging to Yanes from which four rounds had been fired, and a fully loaded thirty-eight calibre weapon in a holster strapped around the victim's waist which had not been fired. Several hours later the police found the stolen Pontiac sedan a half mile from the liquor store with several shattered windows and containing two thirty-two calibre casings and one spent twenty-two calibre bullet. A second clerk at Sandler's liquor store found on an inventory the following morning that $11 and one bottle of Cutty Sark Scotch whiskey were missing.

The several defendants were arrested in various locations during the following month, one in a South Boston closet, one in Princeton, New Jersey, and Carita in Dorchester where he was observed at the time of his arrest to hurl a thirty-two calibre weapon from a bedroom window.

Counsel for the four men took one thousand, six hundred and fourteen exceptions to rulings made by the trial judge during the course of the trial. We concern ourselves with the comparatively few exceptions which form the basis for the assignments of error and treat with additional evidence adduced and not previously referred to as may be necessary in our disposition of those assignments.

1. Prior to a discussion of a number of assignments of error we treat with the claim of the defendant Wise that it was error to deny his motion for a directed verdict of not guilty on the murder indictment brought against him. His argument is premised on the consideration that evidence was lacking to prove that he participated in the robbery or attempted robbery. Notwithstanding that he alleged no assignment of error in this regard, he has argued the motion at length in the defendants' brief and we consider it. In

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sum, there was evidence that he was in the company of his fellow defendants for the greater part of two days, that he was present when Carita proclaimed he had a "score," that at that time he was in possession of a twenty-two calibre gun, that he left the Howlett apartment in company with the other defendants prior to the time the crime was committed, and that in addition to other evidence to which reference has been made he engaged in flight and was ultimately arrested in New Jersey where he was employed under an assumed name. The evidence against him was substantial enough to warrant the denial of his motion.

2. Carita's assignments 19, 20 and 21, Fondanova's assignments 2 and 30, Lynch's assignments 1, 22, 23 and 24, and Wise's assignment 45 raise the question of possible error by the court in denying the defendants' motions to sever. The defendants argue that the Commonwealth was aware of, and the attention of the trial judge was called to, the possibility that admissions and confessions might during the course of trial be offered against one defendant which would have the effect of incriminating one or more of his fellow defendants. They further argue cases of individual prejudice in that being called to take the stand by certain of their codefendants their refusal to testify amounted to prejudicial comment which created for each of them a "serious dilemma." They claim that "they had a right under one constitutional provision to cross-examine regarding evidence which came into the trial against them and at the same time were possessed of a countervailing constitutional right not to take the witness stand or in any other way be compelled to incriminate themselves."

We deal first with the evidence which is under attack. This consists of two alleged admissions or confessions. The first one was introduced through the witness MacAskill, a friend of Lynch and Fondanova, who testified, "I asked Lynch if he had stuck up the liquor store on Columbia Road the night before." In response to the question, "What did he say?" he replied, "He said, `Yes, we did,' and he said, `But there's no worry about getting caught, because we got

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rid of the guns and the car, and there were no witnesses.' He then said that they didn't get anything, because they fell on the street coming out of the store and dropped the money. He said that the owner had come out and fired shots at them, and that they fired shots back and killed him."

The second was elicited through the witness, Joyce O'Brien, who testified as follows. "He [the defendant, Fondanova] told me that there was a holdup and that it got fouled up." THE COURT: "He told you there was a holdup and that it got fouled up? What else did he tell you, if anything?" THE WITNESS: "He told me that Carita went into the store." THE COURT: "He told you that Carita went into the store?" THE WITNESS: "And that he came running out, Carita came running out of the store and there was a man running after him shooting at him. And he said -- he said Carita shot the man." THE COURT: "He said Carita shot the man?" THE WITNESS: "Yah. And I asked him, I said, What did you do? And he said --" THE COURT: "You asked him `What did you do' and he said what?" THE WITNESS: "He said he didn't know what to do, so he ran for the car. And that the car was leaving without him and he almost didn't make it." THE COURT: "The car was leaving without him and he almost did not make it?" THE WITNESS: "Yah. And he said he thought that the man was dead, and he was sorry he got mixed up in it." The defendants contend that the vice inherent in the admission of this material was not cured by the limitations relative to it imposed by the trial judge contemporaneously or by similar limitations appearing in his charge.

The Commonwealth notes in its brief that the answer of the witness Joyce O'Brien implicating Carita as the person who shot the victim took it by complete surprise.

The case was tried through most of the month of July, 1966. Bruton v. United States, 391 U.S. 123, came down on May 20, 1968, and was followed by Roberts v. Russell, 392 U.S. 293, on June 10, 1968, which gave the Bruton case retroactive application to State and Federal prosecutions to crime.

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The Bruton case, which binds us, set aside the conviction of a defendant at a joint trial although the jury were instructed that a codefendant's confession inculpating the defendant was to be disregarded by the jury in their determination of the defendant's guilt or innocence. The Bruton opinion compels us to hold that the admission of the statements of Fondanova relating to Carita's participation in the crime was reversible error. We must order that he be given a new trial. This disposition illustrates the complexities caused by the Bruton case which now attend the prosecution of those allied in a criminal enterprise and the burdens which it imposes on courts and prosecuting authorities alike.

We are not of the same mind, however, about the first of the two confessions, that of the defendant Lynch. Here, references were to "we," "they," and "them," without further identification. These are not sufficient to bring the effect of the witnesses' testimony within the Bruton doctrine and we decline to so expand it. In a similar situation, in United States v. Lipowitz, 407 F. 2d 597, 600, 602 (3d Cir.), a conviction was affirmed where there had been admitted at the trial evidence of a statement of a codefendant which did not designate the defendant by name but which referred to "other fellows" involved in the crime. A review of the transcript of evidence provides no further indication to us that the Bruton rule affects other parts of the record.

The second main contention of the defendants relative to severance is based on the call of three defendants to the stand by fellow defendants and their refusal to testify on the basis of Fifth Amendment rights under the Constitution of the United States. They now claim that the necessity of invoking the privilege placed an unconstitutional burden on the privilege. To accede to their argument on this point would be to afford to defendants tried jointly a readily available ground for manufacturing error. We do not accept the argument.

Finally, on the question of severance, we do not accept the argument of the defendants that invocation of the Fifth Amendment by the several defendants deprived their fellows

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of the right to put in vital testimony. The refusal to testify could be asserted whether the defendants were tried separately or, as in this instance, together. There is nothing in the argument.

Although we view the Bruton case as requiring a new trial for Carita, we wish to comment on his assignment 9 dealing with testimony by a police lieutenant who described his journeys to a number of locations in search of Carita after the commission of the crime. Carita argues that there was no evidence tending to connect him with these locations or intimating that it was possible that he would be found at one of them. It is well settled that evidence of flight may be introduced to show consciousness of guilt. Commonwealth v. Green, 302 Mass. 547, 553. Commonwealth v. Cataldo, 326 Mass. 373, 376. Commonwealth v. Corcoran, 332 Mass. 615, 619. In Commonwealth v. Geagan, 339 Mass. 487, cert. den. 361 U.S. 895, we held at pages 511-512 that absence from home or place of a customary vocation is admissible as evidence of flight. However, we do not view absences from places not shown to be locations where an individual may customarily resort as properly admissible in evidence. The cumulative effect of such evidence to support consciousness of guilt is capable of an effect as injurious as it is invalid.

3. Carita's assignment 1 and Lynch's assignment 2 allege error in the denial by the trial judge of their motions to inspect grand jury minutes prior to trial. The two defendants have engaged in argument in their brief that they should have been allowed general access to the minutes based on considerations treated in Dennis v. United States, 384 U.S. 855, and particularly on the language appearing at pages 873-874, wherein it was stated, "In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant facts." Barring further elaboration of this proposition, we are not inclined to depart from our present rule, which the defendants acknowledge, that grand jury minutes will not be made available in the absence of the showing of a "particularized need." Commonwealth v.

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Ladetto, 349 Mass. 237, 244-245. Commonwealth v. Balliro, 349 Mass. 505, 518. Commonwealth v. Cook, 351 Mass. 231, 233. The motions of the defendants did not meet the test of our decisional law in this respect and we see no abuse of discretion in the action of the trial judge.

Linked to these assignments were Lynch's assignment 8, Wise's assignment 30, and Carita's assignment 7 alleging error in denial of motions by the respective defence counsel that they be furnished with the grand jury testimony of witness Barbara Liska.

These motions were generated during the course of trial when on direct examination she testified that on February 3, 1966, she saw a gun in the hand of the defendant Lynch and described it in great detail. On cross-examination she admitted that she had not disclosed this information to any police officer until February 15, 1966, after the indictments against the defendants had been handed down. She had previously testified before the grand jury prior to the return of the indictments. It could have been inferred that her expanded testimony at the time of trial resulted from threat of criminal prosecution unless she gave a more complete story.

The argument of the defence is that this sequence of events established the necessary "particularized need" to warrant opening up for perusal by the defence the Liska testimony before the grand jury. We agree. We have frequently stated that the extension of permission to examine grand jury minutes rests in the discretion of the judge. Commonwealth v. Giacomazza, 311 Mass. 456, 462. Commonwealth v. Galvin, 323 Mass. 205, 211. Commonwealth v. Balliro, 349 Mass. 505, 518. Commonwealth v. Doherty, 353 Mass. 197, 210. In this instance, apparent inconsistency on important details was shown in the Liska testimony at the trial and her testimony before the grand jury. We have had occasion to comment that in such a circumstance it is a commendable practice for the trial judge to read the grand jury minutes to determine if there is an inconsistency, Commonwealth v. Kiernan, 348 Mass. 29, 36, and if it be found to exist to

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permit the defendant's counsel to examine the grand jury testimony. Commonwealth v. Ladetto, 349 Mass. 237, 245. Commonwealth v. Abbott Engr. Inc. 351 Mass. 568, 578-579. Here the defendants could properly maintain that the witness's expansion of her story at the trial set up a "particularized need" and constituted a possible contradiction of important fact of sufficient moment to show prejudicial error in the denial of their several motions. Commonwealth v. Mead, 12 Gray, 167. Commonwealth v. Harris, 231 Mass. 584, 586. Commonwealth v. Homer, 235 Mass. 526, 532-533.

4. Since the foregoing discussion and disposition of the defendants' assignments will require a new trial or trials, we mention certain remaining assignments which present issues likely to recur.

(a) Lynch, in assignment 3, and Wise in assignment 1 complain at the denial of their motions to be allowed to interview the witness Joyce O'Brien at a time when she was in custody in Suffolk County Jail. Counsel for Lynch and Wise had gone to the jail to see the witness and were refused permission by a jail officer on the basis of a telephonic communication from some individual who stated that the witness did not desire to see them. During a pre-trial hearing it was represented to the court by the assistant district attorney that she did not wish to be interviewed by any counsel for the defence except Mr. Cinamon, counsel for Fondanova, whom she did in fact see. We have had recent occasion to consider situations where the defence alleged it was denied the right to interview witnesses in the preparation of the case.

In Commonwealth v. Balliro, 349 Mass. 505, 515-518, there is a full discussion of the right of counsel for a defendant to interview prospective witnesses for the Commonwealth held in custody.

It should be clear from the Balliro case that counsel for a defendant is entitled to interview prospective witnesses held in the custody of the Commonwealth. That right is not satisfied in this case by an indirect communication to counsel that the witness did not wish to see them. In practice, in such situations counsel for the defence should within an appropriate

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time file a motion to be allowed to interview the witness. The witness should thereafter be brought to court and instructed on his or her rights to consent or not to consent to an interview. A record should be kept of the proceedings. The answer of the witness will then determine whether an interview is to take place. If the answer is in the affirmative, a transcript of such interview may be taken in the discretion of the judge. See Commonwealth v. Doherty, 353 Mass. 197, 210-211.

(b) Fondanova's assignment 1 and Lynch's assignment 4 allege error in the failure of the court to grant their motions for a continuance because of a publication in the Boston Herald five days before trial mentioning their records as criminals. On voir dire the trial judge added to the statutory questions asked each prospective juror the question, "[D]id you read the article that appeared last week in the Boston Herald about this case?" There was no affirmative answer to that question by any juror who sat on the case that he or she had read the article or was in any way affected by it. No prejudice is shown. In fact, the trial judge followed the suggestion contained in Commonwealth v. Crehan, 345 Mass. 609, wherein we said at page 615 relative to alleged prejudicial publicity, "A proper course would have been to examine the jurors forthwith." See Taylor v. Creeley, 257 Mass. 21, 26; Commonwealth v. Barker, 311 Mass. 82, 87-88; Commonwealth v. Bonomi, 335 Mass. 327, 332-335; Commonwealth v. Ries, 337 Mass. 565, 568-569. Since no demonstrable prejudice stemmed from the badly timed article, and since therefore Worcester Telegram & Gazette, Inc. v. Commonwealth, 354 Mass. 578, is not apposite, as contended by the defendants, we see no merit in these assignments.

(c) Carita's assignment 2 and Lynch's assignment 5 allege error in exclusions from the jury of persons who tended to be opposed to capital punishment. However, as we said in Commonwealth v. Francis, 355 Mass. 108, 111, "this case does not come within the constitutional rule of Witherspoon v. Illinois, 391 U.S. 510, because the death penalty

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was not imposed. Bumper v. North Carolina, 391 U.S. 543, 545. Commonwealth v. Nassar, 354 Mass. 249, 257. Commonwealth v. Sullivan, 354 Mass. 598, 608." We are not disposed to extend the Witherspoon and Bumper holdings.

5. In view of the preceding discussion and of certain other assignments of error which we do not discuss, we are of opinion that justice requires a new trial for the defendant Fondanova also. G. L. c. 278, Section 33E.

Judgments reversed and verdicts set aside.