COMMONWEALTH vs. CARROLL K. ST. GERMAIN.

ABRAMS, J. On December 28, 1976, William Herbits, eighty-four, and his wife Julia, seventy-two, were viciously [Note 1]

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slain at their home in Newton. After trial by jury, Carroll K. St. Germain was convicted on two counts of murder in the first degree, one count of armed assault in a dwelling house, and two counts of assault and battery by means of a dangerous weapon. [Note 2] The defendant now appeals. G. L. c. 278, Sections 33A-33G.

St. Germain argues that the judge (1) improperly denied his motion for a mistrial based on the delayed disclosure of one of the pretrial statements of the chief government witness; (2) erred in allowing jurors to take notes during the trial; and (3) abused his discretion both in admitting certain evidence of motive and in permitting the prosecutor to mention this evidence in his opening. We find neither error nor any basis for an exercise of our power under G. L. c. 278, Section 33E, and therefore affirm the convictions.

At trial, the chief witness against St. Germain was one Kevin LaMier, a former employee of the defendant at Ashmont Lumber and Supply, Inc. [Note 3] LaMier lived near the lumber company, and began working there in July, 1976. LaMier, who turned sixteen in November, 1976, worked full time during the summer and part time after the start of school.

On December 28, 1976, LaMier testified, he was awakened by a neighborhood youth, and told to report for

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work at Ashmont Lumber. [Note 4] LaMier walked to the company's office and observed St. Germain talking on the telephone. Shortly thereafter, St. Germain picked up a clipboard, locked the door, and directed LaMier to a red pickup truck which St. Germain regularly drove.

St. Germain told LaMier that they were going to collect a bill, and after half an hour he stopped the truck in front of a gray house at 249 Commonwealth Avenue, Newton. St. Germain handed LaMier an Ashmont Lumber and Supply bill which had the name herbits on it as well as a description of some lumber. LaMier was told to "go up and collect the money." St. Germain added, according to LaMier, that he would collect the bill himself but the Herbitses would not let him into their home.

LaMier took the bill and went to the front door of the house. He rang the bell and, after a brief conversation with the elderly woman who answered the door, handed her the bill. After LaMier was invited inside, the man in the house told LaMier that the couple did not owe the money. The property on which the work had been performed had been sold either three weeks or three months earlier. The man asked to keep the bill, and LaMier assented. LaMier then left. LaMier returned to the truck and told St. Germain what had been said. St. Germain said, "Bastards. The fucking Jewish bastards have all the money in the world and they don't want to pay." The two then drove away.

After driving for fifteen or twenty minutes, St. Germain parked the truck and went into a bar. LaMier remained in the truck. According to LaMier, after an hour or an hour and a half, St. Germain returned to the truck. The two drove for a short while and then stopped for lunch. After lunch, St. Germain told LaMier he wanted LaMier to go back to the Herbits house and deliver a second bill. After driving to the house, St. Germain took a bill out of his pocket and handed it to LaMier. LaMier went up to the

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house, rang the bell, and, when Mrs. Herbits answered the door, he handed her the second bill. Suddenly, St. Germain brushed by LaMier, pushed the front door open and grabbed Julia Herbits by the neck with his right hand. LaMier saw a small gun in St. Germain's left hand. He then heard St. Germain ask, "Where is the old man?" He saw St. Germain push Julia Herbits so hard that she fell to the floor. He saw St. Germain put the gun to William Herbits' face and say "Get the fuck on the floor." St. Germain ordered LaMier to "stand over" Herbits. According to LaMier, William Herbits said, "Don't hurt my wife. Let her go, and she will get you the money." St. Germain replied, "You'll fucking pay now, won't you."

St. Germain told LaMier to move the pickup truck farther down the street and LaMier left the house. After moving the truck and waiting for five or ten minutes, LaMier went back to the house. He looked through the window next to the front door and saw that William Herbits' hands were tied. St. Germain was kneeling over Julia Herbits. LaMier could see that her feet were tied. LaMier went back to the truck and waited for St. Germain. Fifteen minutes later St. Germain came out of the house, then turned around and went back in the house for another ten minutes. St. Germain came out of the house again and started toward the pickup truck. As St. Germain reached the end of the Herbitses' walkway he turned around, walked back to the house and put his hand through a window to the right of the front door.

When St. Germain returned to the truck, he was out of breath. He said, "That's what some people need is a good smack in the head to make them pay what they owe." LaMier saw blood on St. Germain's shirt, gloves, and wrists. On returning to Ashmont Lumber St. Germain went inside. LaMier followed after stopping briefly to talk with a friend. St. Germain gave LaMier $30. LaMier noticed St. Germain had changed his shirt and was washing his hands.

LaMier then left the lumber company and arrived home about 3 P.M. His mother testified that when LaMier returned

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home he did not act as he usually did and that he appeared nervous and upset. After the six o'clock news reported the slayings, LaMier talked with his mother about the Herbitses' deaths. As he spoke with his mother, LaMier began to cry and then went to his room.

That night LaMier talked with his parents. Two or three days later he went back to work after being called by another employee of St. Germain. LaMier worked for St. Germain until August 10, 1977, when the defendant requested LaMier help him with work at the edge of a roof. When LaMier saw the defendant send the other workers to another area, he became fearful and therefore went home. LaMier viewed this incident as a threat, and two days later he went to the police.

Various details of LaMier's testimony concerning events other than those transpiring at the Herbits home were confirmed by other witnesses. In addition, the Commonwealth offered evidence that approximately two weeks before the crimes St. Germain had asked one of his employees if the employee wanted to go on a "hit" with St. Germain to a house in Newton where an old man in his eighties lived with an old lady in her seventies. The employee asked St. Germain how he planned to subdue the elderly couple. St. Germain said he was "going to kill them." The employee declined to go on the "hit" because he wasn't "into murder." St. Germain replied, "Well, someone else will take it if you don't." The employee saw the defendant take a small gun from his left pocket and say, "1, 2, 3, Bang, bang."

Cross-examination brought out inconsistencies in LaMier's direct testimony and inconsistencies between LaMier's direct testimony and his testimony before the grand jury and at a probable cause hearing. The cross-examination was thorough, searching and fully explored all the weaknesses in LaMier's testimony. The defense offered witnesses who claimed to have seen St. Germain at various times on December 28, as well as a witness who said that due to an incident at work, LaMier had threatened to get even with St. Germain. Several witnesses impeached LaMier's description

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of the pickup truck, and an expert said that the bill from Ashmont Lumber found in the Herbits home was not in the defendant's handwriting.

Delayed disclosure of exculpatory evidence. On the eighth day of trial, during the cross-examination of LaMier, the Commonwealth voluntarily disclosed the existence of a tape recorded interview of LaMier conducted by Newton police eleven months prior to trial. [Note 5]

St. Germain claims that the tape recording represents "exculpatory" evidence, [Note 6] "material" to the defense, [Note 7] which was "suppressed" by the Commonwealth, [Note 8] and whose delayed disclosure so prejudiced the defendant's right to a fair trial that the judge was required to grant a mistrial, and we, therefore, are obligated to reverse his convictions. We disagree.

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Even if we were to assume that the interview became material in the constitutional sense [Note 9] prior to the time its existence was disclosed by the Commonwealth [Note 10] it would not

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follow that the judge was therefore automatically required to declare a mistrial. This is not a case where exculpatory evidence has been suppressed until after trial. Compare Commonwealth v. Ellison, 376 Mass. 1 (1978); United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). "Where evidence meeting the constitutional standards for materiality is initially suppressed, but then disclosed, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant `to make effective use of the evidence in preparing and presenting his case.'" Commonwealth v. Wilson, ante 90, 114 (1980), quoting from Commonwealth v. Adrey, 376 Mass. 747, 775 (1978). Declaration of a mistrial was therefore required only if, "given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed." Commonwealth v. Wilson, supra. St. Germain argues that the delayed disclosure of the existence of the tape recording prevented him from effectively exploiting what are said to be thirteen discrepancies between LaMier's testimony and his recorded statement. The short and sufficient answer to this argument is that, beyond advancing it, St. Germain offers no indication of how he would have restructured his cross-examination of LaMier or otherwise altered his preparation and presentation so as to take better advantage of the alleged discrepancies.

In addition to being wholly speculative, St. Germain's argument ignores the fact that he calculatedly chose not to cross-examine LaMier on the basis of the interview. At the time the Commonwealth disclosed the existence of the tape recording, the judge suggested to defense counsel that he

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listen to the tapes, but counsel chose not to do so. Two days later, after the tape recording had been transcribed, the judge granted a continuance for counsel to consider whether he would recall LaMier or the police officer who conducted the interview for further cross-examination, or call any of the other persons present at the interview. After having thus had ample opportunity to consider carefully his course of action, [Note 11] defense counsel chose not to recall LaMier. [Note 12]

Tactical considerations plainly supported a decision not to further cross-examine LaMier on the basis of the recorded interview. As the trial judge found, LaMier's "credibility had [already] been extensively challenged on the basis of his testimony at the probable cause hearing, his Grand Jury testimony, and other discrepancies, among them his failure to come to the police for nearly eight months." Nothing in the interview was completely devastating to LaMier's trial testimony, and most of the statement was consistent as to the important facts and did not modify the basic and vital parts of LaMier's total testimony. [Note 13]

Furthermore, although LaMier was not recalled, the police officer who conducted the interview was. Through the testimony of this officer, St. Germain placed before the jury all but one [Note 14] of the thirteen discrepancies he now claims

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exist between the recorded statement and LaMier's testimony. None of these discrepancies contradicted LaMier's essential testimony that St. Germain handed him the bills, entered the Herbits house and emerged with blood on his hands and shirt. Similarly, there was no omission from the statement of any of the central facts testified to by LaMier. Defense counsel also made extensive use of the statement during his summation. "In this situation, there is no justification for granting a new trial so that a different jury might hear the same evidence." United States v. Kaplan, 554 F.2d 577, 580 (3d Cir. 1977).

In sum, we can see no basis for the defendant's claim that earlier disclosure of the statement would have created a reasonable doubt that would not otherwise have existed, or "that the delayed receipt of the evidence `affected the outcome of the trial.'" Commonwealth v. Wilson, ante 90, 115 (1980), quoting from United States v. Agurs, 427 U.S. 97, 104 (1976). See Commonwealth v. Mains, 374 Mass. 733, 736-738 (1978).

Note-taking by jurors. The judge, pursuant to Rule 8A of the Superior Court (1974), as amended, [Note 15] permitted the jurors to take notes throughout the presentation of evidence, the opening [Note 16] and closing arguments of counsel and the

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judge's charge. St. Germain argues that this note-taking constituted "prejudicial error" and deprived him of his "constitutional right to a fair trial." We disagree and hold, as a matter of Massachusetts practice, [Note 17] that there was no error. The judge carefully explained that no juror was required to take notes, indicating that some persons "remember things more accurately by listening." The judge cautioned the jurors that they "should not attempt to make a complete transcript of the trial," and should keep any notes they might wish to take "brief" so as to be able to assess carefully each witness's credibility by observing the manner in which the witness testified.

Each juror's notes, the judge stressed, were to serve only as "the notes of the individual juror . . . because it is the collective memory of the jury that is going to control when it comes time to deliberate on the case." It would not be proper, the judge added, for "one juror [who] has more training in the taking of notes than the other[s]" to argue, "This is the testimony because it is in my notes."

While the validity of juror note taking initiated by a judge pursuant to Rule 8A of the Superior Court is a question of first impression before this court, we have had previous occasion

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to consider the general issue of juror note-taking. [Note 18] In Commonwealth v. Tucker, 189 Mass. 457 (1905), this court, although leaving open the question whether note-taking by a juror was a "commendable practice," declared that by "the great weight of authority [such note-taking] is not illegal, and as matter of law it does not require the setting aside of the verdict." Id. at 497. The question of note-taking was one properly "left to the discretion of the [trial] court." Id. [Note 19]

The note-taking permitted under rule 8A and the judge's additional instructions, furthermore, also conforms to the "great weight" of current authority. In the Federal courts, note-taking is universally permitted in the discretion of the judge. [Note 20] See Report of the Judicial Conference Committee on the Operation of the Jury System, 26 F.R.D. 409, 424 (1960); E.J. Devitt & C.B. Blackmar, Federal Jury Practice and Instructions, Section 5.08 (3d ed. 1977 & Supp. 1980). [Note 21] Finally

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in the State courts the majority rule also permits note-taking by jurors as a matter of the judge's discretion. See generally Annot., 14 A.L.R.3d 831 (1967 & Supp. 1979). See also Uniform R. Crim. P. 513(e), 10 U.L.A. 266 (Master ed. 1974) ("If note taking by the jurors will likely assist them in their deliberations, the court may permit them to take notes under appropriate conditions and admonitions. The notes may be disclosed only to fellow jurors during deliberations").

St. Germain advances several arguments against the practice of juror note-taking: [Note 22] (1) that "the best note taker

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will invariably dominate the jury"; (2) that "jurors are not trained in the art of note taking . . . and thus will take down trivial matters and overlook vital facts"; (3) that "a dishonest juror may falsify his notes"; (4) that "the notes will receive undue attention during deliberations, often resulting in a debate on whose notes are correct"; and (5) that "note taking will distract the jurors from watching the witnesses' behavior or may result in the jurors missing other testimony." Each of these claims rests in speculation rather than on empirical data. In the absence of such data, we are inclined to permit the issue of juror note-taking to be a matter of judicial discretion.

In approving note-taking by jurors in this case, we nonetheless recognize that experience or empirical data may suggest a need to modify or eliminate the procedures now specified in rule 8A. As more information becomes available, it should be used to determine whether results in cases in which notes are taken are somehow impermissibly skewed. Such information would also be essential, for example, in evaluating the desirability of permitting those jurors who wish to do so to take notes as a matter of right in all cases, a practice now in effect in several States, [Note 23] and advocated by the American Bar Association. [Note 24] We add that just as confidence

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is placed in a jury's ability to decide fairly a criminal or civil case on the evidence presented at trial, confidence can also be placed in the ability of a jury to take and use notes without losing sight of their obligations and the gravity of their responsibilities.

Trial rulings. There was evidence that the Herbitses saw St. Germain on December 22, 1976, in the South Boston District Court. The Herbitses were pressing a criminal complaint against an attorney concerning insurance checks arising out of a fire at 42 Binford Street. St. Germain was a potential witness for the attorney and was expected to testify that he had seen William Herbits at the Binford Street property, and that he (St. Germain) had made some repairs to the building. Herbits, the testimony indicated, claimed he had never seen St. Germain before the date of the hearing. [Note 25]

In his opening statement the prosecutor told the jury that his opening was not evidence; that he anticipated offering evidence concerning the December 22 hearing; and that this evidence was limited to the issue of motive. The defendant moved for a mistrial on the ground that the evidence was not admissible, and that the evidence was "inflammatory because it is making the jury think that all my client is doing is moving around with fellows of bad character." The motion was denied. At the conclusion of the Commonwealth's opening, the judge fully instructed the jury on the limited function of an opening. The defendant took no exception to these instructions.

At trial, evidence of the encounter between William Herbits and the defendant was admitted over St. Germain's objections and exception. St. Germain now claims that the

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judge abused his discretion both by permitting the prosecutor to mention this evidence in his opening and by admitting the evidence at trial. The probative value of this evidence is said to have been outweighed by the fact that the evidence was prejudicial, collateral to the main issue at trial and too time consuming. The defendant also claims that since motive was not "clearly shown" from the testimony, it should not have been admitted. We disagree.

"[I]f there is evidence of motive, that evidence is admissible." Commonwealth v. Borodine, 371 Mass. 1, 8, cert. denied, 429 U.S. 1049 (1976). Determination of the weight of such evidence is for the jury, and evidence which merely suggests rather than "clearly shows" a motive for the crime may still be ruled admissible. There is no requirement that evidence be conclusive in order to be admissible. As is the case with any evidence, resolution of the question whether evidence of motive is more probative than prejudicial lies within the sound discretion of the trial judge. We find no error in the admission of this evidence.

Since evidence of the December 22 hearing was properly admitted, there was no error in denying the defendant's motion for mistrial based on the prosecutor's mention of the evidence in his opening statements. [Note 26] " As a general rule, counsel is free to state in his opening anything that he expects to be able to prove by evidence.' Commonwealth v. Clark, 292 Mass. 409 at 410 [1935]. It sometimes happens that witnesses, either from lack of memory or otherwise, do not fulfill the expectations of counsel. [Absent an] indication . . . that the statements in the opening were made in bad faith . . . it will not be presumed." Commonwealth v. Hartford, 346 Mass. 482, 486 (1963). See Commonwealth v. Fazio, 375 Mass. 451, 454-455 (1978). Commonwealth v. Martin, 372 Mass. 412 (1977). There is no basis in the record which suggests bad faith on the part of the prosecutor, and the defendant does not so argue.

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Relief pursuant to G. L. c. 278, Section 33E. St. Germain grounds his request for relief pursuant to G. L. c. 278, Section 33E, on the disclosure at trial of LaMier's tape recorded interview. The defendant's arguments, however, "do no more than repeat the arguments which we have already addressed." Commonwealth v. Haywood, 377 Mass. 755, 771 (1979).

We have reviewed the entire case for consideration of the law and the evidence. We find no reason to order a new trial or to direct the entry of verdicts of a lesser degree of guilt.

Judgments affirmed.