Citation Numbers: 17 Mass. App. Ct. 1011, 460 N.E.2d 203, 1984 Mass. App. LEXIS 1393
Filed Date: 2/27/1984
Status: Precedential
Modified Date: 10/18/2024
Ianelli was indicted, together with two codefendants, for arson of a building at 4-8 Cambridge Street, Cambridge. He individually was indicted for burning a building with intent to defraud an insurer. The judge ordered required findings of not guilty for the two codefendants, but denied Ianelli’s motion for such a finding. Ianelli was found guilty on both indictments. These appeals are from his convictions and from the denial of his motions for a new trial.
2. The trial judge justifiably refused to immunize the two codefendants under G. L. c. 233, § 20F, after required findings of not guilty had been entered for them. Commonwealth v. Curtis, 388 Mass. 637, 642-646 (1983). See Commonwealth v. Upton, 390 Mass. 562, 575-577 (1983). See also part 3, infra. Under the proviso to § 20F, he himself had no statutory authority for such action. There then remained pending indictments for conspiracy against them, prosecution of which would not have been barred by the required findings on the substantive offenses. See Commonwealth v. Benson, 389 Mass. 473, 479-480, cert. denied, 464 U.S. 915 (1983).
3. There was no reversible error in the judge’s refusal to grant Ianelli, upon his motions for a new trial, an evidentiary hearing based upon the testimony which his former codefendants might then give. It was uncertain (a) whether they would testify if not immunized even though each of the conspiracy indictments by then had been dealt with by a nolle prosequi, and (b) whether they, as defense witnesses, would be immunized by any court. The trial judge reasonably could have expected the evidence, as then disclosed to him, to be essentially cumulative and corroborative of Ianelli’s own testimony at trial. The transcript of the hearing on the motions shows that the trial judge was informed, although not by affidavits, of the substance of the probable evidence. In his discretion, he warrant-ably could conclude that no evidentiary hearing was necessary. See Commonwealth v. Stewart, 383 Mass. 253, 257 (1981); Commonwealth v.
4. The trial judge was not required to grant a new trial because of the prosecutor’s closing arguments to the jury.
(a) No objection at trial was made to the following aspects of a somewhat emotional peroration in the prosecutor’s argument and submission to the jury. This proceeded in part: “I submit to you that this defendant started that fire .... I submit to you that this man . . . owes a debt to every fireman who risked his life to put that fire out. . .” (emphasis supplied). The word “submit” is a traditional equivalent of “contend” or “argue” and should not be taken to imply any expression of the speaker’s own opinion. See Commonwealth v. Stone, 366 Mass. 506, 516 n.4 (1974); Commonwealth v. Daigle, 379 Mass. 541, 550 (1980); Black’s Law Dictionary 1278 (5th ed. 1979). Certainly, in most cases of arson as a matter of common knowledge, fire fighters (who are not “victims” of the fire in any usual sense) and other members of the public may be caused to assume risks. The remark involved no inaccurate statement of evidence. If left unsaid, it would have avoided argument as to its possible impropriety. It falls short of remarks discussed in Commonwealth v. Fitzgerald, 376 Mass. 402, 423-424 (1978). Compare Commonwealth v. Smith, 387 Mass. 900, 909-910 (1983). The judge’s general instructions were adequate to counteract this argument if excessive.
(b) Comments (viewed as a whole) of the prosecutor on Ianelli’s failure to call other members of his family as witnesses to contradict adverse testimony (about the presence of Ianelli’s automobile in a parking lot near the time and scene of the fire) were permissible. Commonwealth v. Niziolek, 380 Mass. 513, 517-519 (1980). See Commonwealth v. Happnie, 3 Mass. App. Ct. 193, 194-198 (1975). The judge gave correct instructions which appropriately dealt with the prosecutor’s inquiry and comment.
5. There was no error in admitting evidence of Ianelli’s tax returns through his accountant. Couch v. United States, 409 U.S. 322, 335-336 (1973). See and compare Finance Commn. of Boston v. McGrath, 343 Mass. 754, 766-768 (1962), and authorities there cited. See also discussion in Opinions of the Justices, 328 Mass. 663, 665-667 (1952), and Commonwealth v. Garabedian, 8 Mass. App. Ct. 442, 446 (1979). General Laws c. 62C, § 74, inserted by St. 1976, c. 415, § 22, specifically authorizes a court to order production of tax information in the manner here employed. Section 74 was derived from G. L. c. 62, § 58A, inserted by St. 1972, c. 453, and is in much the same language. Section 58A was repealed by St. 1976, c. 415, § 100. Ianelli cannot contend reasonably that § 74 was designed by the Legislature to offset the Couch case, decided in 1973. Contrast the legislative history of another statute discussed in Commonwealth v. Toole, 389 Mass. 159, 160-162 (1983). See Commonwealth v. Wilson, 389 Mass. 115, 118-119 (1983).
Further cross-examination of Stubbs proceeded for a considerable time without apparent further effort by counsel to lay a foundation for additional inquiry about Michaelson’s instructions to Stubbs or about the alleged conversation. The record and any offer of proof are far too confused and indefinite to show (even after examination of the whole of Stubbs’ testimony) any inappropriate impediment by the judge to proper cross-examination of Stubbs, sufficient to meet Ianelli’s burden of establishing that the judge abused his discretion to control cross-examination reasonably. See Commonwealth v. Underwood, 358 Mass. 506, 513 (1970); Commonwealth v. Jones, 9 Mass. App. Ct. 103, 116-117 (1980), rev’d on other grounds, 382 Mass. 387 (1981), and cases cited.
7. The charge (to which there was no objection at trial relevant to any point now pressed), viewed as a whole, was thorough and reasonably avoided confusion of the civil burden of proof with proof beyond a reasonable doubt. The concept of “reasonable doubt” was explained in the
8. There was substantial confusion attendant upon whether the trial judge seasonably filed his findings and rulings in connection with the denial of a new trial. We do not strike them from the appendix to the Commonwealth’s brief. This opinion, however, does not rely upon them in order to avoid unnecessary and time consuming consideration of further questions of procedure.
9. The judgments and the denial of the motions for a new trial are affirmed. In view of the decision in Commonwealth v. Shuman, supra at 449-452, decided January 27, 1984, the trial judge, upon suitable motion, may revise (but not increase) the sentences imposed to avoid any impropriety based upon the duplicitous character of charges under G. L. c. 266, § 2 and § 10, respectively, mentioned in the Shuman case.
So ordered.