# Appendix — Donnelly v. DeChristoforo

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1974
- **Citation:** 416 U.S. 637

## Text

LIBRARY.
SUPREME COURT, U. &

APPENDIX

In the
Supreme Court of the United States

OctoBER TERM, 1972

ROBERT H. DONNELLY,
PETITIONER,

Vv.

BENJAMIN A. DECHRISTOFORO,
RESPONDENT.

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

Petition for Writ of Certiorari Filed May 23, 1973

Certiorari Granted October 13, 1973

TABLE OF CONTENTS

Page

PROCEEDINGS IN MasSACHUSETTS SUPERIOR CouRT
Docket Entries of the Massachusetts Superior Court... 1
Indictment ©... 0.2. eee 10
Indictment .......0 0.0.00. 11

Excerpts from State Trial Transcript
Testimony of :

Patrick Carr, ................ Direct .......... 13

Cross .......... 25

George Katsas, ............ Direct .......... 33

Cross .......... 41

John P. Brady, .............. Direct .......... 46

Cross .......... 60

Redirect. ...... 61

William Modugno,........... Direct ......... 61

Walter Dello Russo,......._.. Direct .......... 65

Cross .......... 69

Susan Morrison, ............ Direct .......... 70

OPOOR: ices ne 72

William F. Cummings, ...... Direct .......... 73

Cross .......... 84

Joseph A. Sarno,....._....... Direct .......... 85

OPOGS. os six 87

Philip Anthony LaMonaca, ... Direct. ......... 88

| Cross .......... 89
| Walter J. Lindsay, ........... Direct... ..... 91
William Petrigno, ..... venues Direct .......... 96

| gohn. G,. Traut, ...224.%i40005 Direct .......... 97
| Closing Argument of Mr. Smith .................. 99
Closing Argument of Mr. Irwin................... 119
Defendant’s Unsworn Statement ................ 140

Charge to Jury .......................000.0005. 142
Defendant’s Request for Instructions ............... 145

a a a a
Ptres. nm * RRR EOE MET SCENE IE EOE GE CRT EERE

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il Table of Contents

Page
Claim of Appeal ......-.-------:srcerrrr 146
Motion for New Trial .......--------s sc 146
Defendant’s Assignment of Errors ....------) 148

PROCEEDINGS IN THE SUPREME JvpricraL CourT FOR THE
ComMMONWEALTH OF MassaCHUSETTS

Opinion, December 7, sy 6 cc 149
ProceEpINcs IN THE Unitep STATES District CovuRT
Docket Entries .......-------e cc crcct 177
Petition for Writ of Habeas Corpus ...-.--- 178
Retour. . EN Ca POS AO ea a

55

those men answered when he asked what their names were?
A. Yes, I do.

Q. Who answered? A. Mr. Oreto answered and said
his name was Joseph Rego, and that he was from Boston.
[547] Q. Did you hear whether or not Mr. DeChristoforo
answered that question? .

[688] Q. All right. Now, will you tell the jury what stria-
tions you observed on the two test specimens that you
fired from that particular Exhibit 3? A. The striations
found on the recovered bullets — and there were numerous,
many — were then compared against the markings on the
bullet recovered from the head of the decedent; and as a
result of these microscopic examinations, I am of the opi-
nion that this bullet that was recovered from the head of the

decedent was fired from this .38 Smith & Wesson revolver
and no other weapon.

78

Q. So it is your opinion, then, based upon your examina-
tion, that the bullet that was removed from Joseph Lanzi’s
head was fired by Exhibit 3 and no other weapont~ A. That
is right.

o * .
[693] Q. How many other bullets did you get from Dr.
Katsas? A. I received three other bullets.

Q. All right. And did you observe where those were
taken from in the body of Joseph Lanaj? A. In the chest
area, in the stomach.

Q. All right. And what, if anything, did you do with
those particular bullets? A. I conducted the same kind
of an examination on these three bullets. One of them
weighed approximately 83.7 grains. No. 2 weighed ap-
proximately 84 grains. And the third bullet weighed 84.6
grains. As a result of physical examination, I am of the
opinion that they are three spent .32 Smith & Wesson
caliber ammunition.

Q. All right. A. As a result of microscopic examination
of these three. bullets, one against each other, I am — I
was of the opinion on this date that they were fired from
the same weapon, which weapon I did not have in my pos-
session at that time.

Q. But your preliminary tests indicated that the three
.32 caliber bullets that you received from [694] the body
of Joseph Lanzi had been fired from the same weapon?
A. Yes, sir.

Q. And that weapon, as of April 18 or in April, 1967,
was not at that point in your possession, is that right?
A. No, sir, it was not.

Q. All right. Now, at the autopsy did you observe the
body of Joseph Lanzi before the doctor opened the chest
cavity? aeeers o =
” THA TN

92

Q. What was his reputation for honesty? A. Truthful
and honest.

Q. Did you have occasion to learn of his reputation for
violence or nonviolence? A. Non violence. Never knew
him to be a violent man. ...

* * *
[300] A. ... 1 Know where it is.
. Q. You do? a Where the section is, but I don’t know
where this place is.

Q. Do you know the Attic Lounge, or the Four Corners
Lounge? A. No.

Q. Did you know he was the manager down. there?
A. I did not.

Q. You didn’t? A. No, I didn’t.

Q. And, the last time you saw him was in 1966 when
yow retired, is that right? A. In around that time, prob-
ably 65 — or late ’69. -

Q. So, you hadn’t seen him for two years prior to this
murder, is that right? A. That’s right.

Q. So, you don’t know what his reputation was in the
community at the time the murder was committed? A. No,
I don’t, no. But, I frequent there at least once a week
for a haircut, and I do talk to all the people down there,
and there is nobody had any bad word about his reputa-
tion. .
[801] Q. During all that time nobody in the barber shop
ever told you that Benjamin was now the manager of the
Attic Lounge up on — A. No, no, they seemed to be
shocked when this happened.

Q. Were they shocked during the two years from 1966 —

Mr. Smith: I can’t hear you.

The Court: Put your question a little louder, Mr. Irwin.
_ Q. Did you say that you were shocked, or somebody else
was shocked? A. They were shocked — the residents of
the North End.

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Q. When Mr. Lanzi got murdered? A. Shocked that
this fellow was involved in anything like that.

Mr. Irwin: That’s all.

Mr. Smith: Thank you, Mr. Lindsay.

Mr. Balliro: May we approach the bench, your Honor?

The Court: Yes.

(Witness excused.)
* * *
[825] MorninG SESSION
10:20 a.m.
(Lobby conference as follows 3)

The Court: In the trial of the above captioned case,
yesterday, April 28th, Mr. Smith proposed to offer as a
material exhibit and have it marked, the indictment con-
taining all the notations in the case of Commonwealth vs
Oreto — Oreto being one of the persons who the Common-
wealth contends was involved in the venture together with
the two defendants who are presently on trial.

The notations include, by the way, a plea of ‘ guilty,”’
which was accepted by the Court, and the life sentence which
was imposed upon — a plea of ‘‘guilty’’ to the crime of
murder in the second degree, which was accepted by the
Court, and a subsequent life sentence, which was imposed
upon Oreto. |

Mr. Smith offered this yesterday, and it was excluded
by the Court on the grounds of lack of materiality in the
instant cases, and I am marking the document, the indict-.
ment, for identification, Exhibit No. F for identification.
[826] That will constitute Mr. Smith’s offer of proof
since his rights have been saved by the Court in this re-
gard.

Is that adequate?

Mr. Smith: That’s correct.

Exception No. 95

ToL eT ORR QUEEN OF ST gE

94

The Court: Now, in addition, Mr. Smith in this lobby
conference proposes to offer into evidence two documents.

Would you want to describe them for the record.

Mr. Smith: For the record, I offer a photo copy of
the Commonwealth of Massachusetts Probation Department
record of —

The Court: You are offering them as material ex-
hibits?

Mr. Smith: I might as well do it now. — showing the
record of arrests and convictions of the defendant Ben-
jamin DeChristoforo.

It has been agreed that there is no objection to the form
of the document.

The Court: That is true, Mr. Irwin?

Mr. Irwin: Yes, it is, if your Honor please.

[827] The Court: And, I have ruled that such an offer
would be fruitless because it would be excluded by this
Court, again, on the grounds of materiality; and I save
the rights of Mr. Smith in this regard.

And, I will mark this G for identification.

Exception No. 96

That will constitute Mr. Smith’s offer, is that right?

Mr. Smith: Yes, your Honor.

I also will offer a photo copy of a Boston Police De-
partment record furnished in answer to a summons re-
quiring the keeper of records to bring any and all records
showing arrests and/or convictions of the defendant Ben-
jamin A. DeChristoforo.

This document is not objected to as to form.

The Court: That is true, is it not, Mr. Irwin?

Mr. Irwin: That is, if your Honor please.

The Court: In this connection, the mere fact that Mr.
Smith has not offered them [828] formally in the court-
room is of no account, and they may be viewed in the light

_—
95

of the circumstances, if he had offered them in the court-
room they would be excluded on the grounds of lack of
materiality. And, his rights in this regard are saved.

It is agreed that the form of the document is not at all
objected to, but it is merely the substance of it, it’s lack
of materiality — I take it is the basis of your objection?.

Mr. Irwin: Yes, it is.

The Court: Mr. Smith’s rights are saved and that
document may be marked for Identification No. H, and may
constitute Mr. Smith’s offer of proof in this matter.

Is that satisfactory?

Mr. Smith: It is, your Honor.

Exception No. 97

The Clerk: Can I have that original indictment of
Frank Oreto and have the envelope marked instead of the
original indictment?

The Court: Yes. I see no objection to that?

[829] Mr. Smith: No objection to that.
(Original indictment of Oreto marked F for Identi-
fication. )
(Photocopy of Commonwealth of Massachusetts Pro-
bation Dept. record of Benjamin DeChristoforo marked
G for Identification.)
(Photocopy of Boston Police Dept. record of Benja-
min DeChristoforo marked H for Identification.)
(End of lobby conference — 10:30 a.m.)
[830] (The Court came in at 10:40 a.m., Tuesday, April
29, 1969.)
The Court: Poll the jury.
(The jurors were polled and each answered to the
calling of his name.)
(Both defendants were present.)

The Court: All right Mr. Smith.

Mr. Smith: William Petrigno.

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96

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Direct Examination by Mr. Smith:

Q. What is your full name? A. William P. Petrigno.

Q. Where do you live, Mr. Petrigno? A. 34 Crystal Cir-
cle, Burlington, Massachusetts.

Q. Are you married or single? A. Married.

Q. Do you have a family?) A. No family.

Q. What is your occupation? A. I work at the House
of Representatives at the State House, assistant door-
keeper.

Q. How long have you been working up there? A. Ele-
ven years.

[831] Q. Prior to your living in Burlington — is it?
A. Yes.

Q. — where did you live?’ A. The North End. _f

Q. The North End of Boston? A. Yes. a

Q. How long had you lived in the North End of Boston
before moving to Burlington? A. 22 years.

Q. And how long ago did you move to Burlington?
A. Three years ago.

Q. Now do you know Benjamin A. DeChristoforo?
A. Yes, I do.

Q. How long have you known him? A. A long time.

Q. Well approximately how long? A. School days. From
school days.

Q. Since you moved from the North End to Burling-
; ton, did you have occasion to visit in the North End?
; A. Yes. |

Q. How frequently? A. Very frequently. Weekends.

Q. Do your parents still live there? A. Yes, they do,
my mother and my brothers.

[832] Q. Do you know whether or not Benjamin A. De-

Christoforo has a reputation in the community for honesty?
A. Yes, sir.

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97

Q. What is that reputation? A. I have always known
him to be very good and excellent. .

Q. During the time that you worked at the State House
did you observe Benjamin A. DeChristoforo up there?
A. Yes. .

Q. And what was his job up there? A. He was a Page
in the State Senate.

Q. Do you know for how long? A. Approximately seven
or eight years.

Q. And while he was a Page up in the Senate, do you
know whether or not he had a reputation in the State House
community for honesty? A. Yes, sir.

Q. What was that reputation? A. They all — and I
say they all, sir — the Senators, and the Representatives
and the people he worked with, they all admired him and
respected him. *

Q. Do you know whether or not while he was working
up at the State House he had a reputation for [833] being

a violent or a peaceful man? ae

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107

in the left rear of the passenger side of the car. There is
no question that Oreto is sitting to the right on the pas-
senger side of the car. There is no question that Lanzi,
the deceased, was sitting to the right of the driver’s side
of the car. And, I argue to you, that Mr. Gagliardi, or
somebody else, was seated in the driver’s side of the car
at the driver’s wheel. And, it is unimportant for the mo-
ment as to who it was.

You have heard that Gagliardi has pleaded [869] guilty,
but it’s unimportant at this moment.

All I am concerned about is to point out to you the
physical impossibility that DeChristoforo pulled the trig-
ger of any gun or fired a single shot into the body of his
close friend, Joseph Lanzi.

[870] If you will recall, the physical evidence is that
Lanzi was shot in the back of his head, just behind the
right ear.

Let’s take that shot first. The gun that shot the bullet
that went into Lanzi’s head was found where Oreto was
sitting. It was found tucked in, I think, was the language
or near the crease of the back of the passenger side of the
car where Oreto was sitting. The bullet went from the
right side of Lanzi’s head to the left side of his head,
that is, they found the bullet near the left eye.

So that the course of it was that way, coming from the
right. Oreto was wearing gloves. He was identified by the
police officers as wearing particular gloves. The blood on
the gloves was the same group as the blood of Lanzi.

Oreto had blood on his clothing of the same group as
Lanzi. There was blood to the right of Lanzi, towards the
right-hand door away from the driver’s side.

Now, the only way that DeChristoforo could possibly
have shot — strike that for a moment.

[871] The testimony also was that the gun was probably
held at a distance of about 24 inches from the head of

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108

Lanzi. Therefore, it would have to be a shot aimed in
: substantially in this direction (indicating). Whether it’s
4 one inch or two out of the way in pointing out the specific
{ entrance wound is not important. It was held back about
; 24 inches, because, if you remember, there was no powder
j wounds or nitrites on the head. The State ballistics expert
7 or chemist — I don’t recall which one — testified that the |
3 gun was probably held about 24 inches away. That’s two
;

feet.

Now, the only way that DeChristoforo could have fired
that shot would have been to have gotten over beyond
Oreto or sit in Oreto’s lap and fire the shot, and I don’t
think anybody seriously contends, and I don’t think that
: the Government, the Commonwealth, contends, and I doubt
very much if you will hear Mr. Irwin argue that anyone
but Oreto fired that shot. .

But I may be wrong. And if I am wrong, then I want:

you to stop, when you go into your jury room, and ask
i the questions as to — Could [872] it have been anyone
; but Oreto who fired the shot? His gun. The blood on his
: glove. If you remember, I asked him whether or not the
glove appeared to be in the clenched position, and he said:
Yes. The blood spot was right up beyond the knuckle.
: There was blood on his clothing and there was blood in
j the front part of the car.
! So that, obviously, it was Oreto. But even if it isn’t
obvious that it is Oreto, there is no evidence before you
that would warrant you in finding that DeChristoforo
fired that shot. The physical evidence just renders it im-
possible for you to come to that conclusion, I submit.

Now, then, you have three other shots into the body
of Lanzi from a distance of two inches. You have heard
testimony — it’s uncontradicted — that the defendant is
right-handed. You have heard testimony that the top of
the back of the front seat, after there is somebody sitting

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109

on it, is about 23 inches, I think the testimony was. You
have heard testimony that the entrance wounds were some-
where around in this area (pointing), about two and a
half [873] or three inches below the armpit.

Having in mind a body sitting in the front seat of an
automobile, with a man sitting to his left, can you visualize
the probabilities of somebody sitting in the back seat
reaching over with his left hand — because, obviously,
he couldn’t do it with his right hand, couldn’t get it
around like that. And, of course, that would be absurd,
because if DeChristoforo had any intention of killing
Lanzi, there would be no point in reaching over and trying
to get him this way with his left hand. He would shoot
him through the back of the head, just the way Oreto shot
Lanzi.

But to carry it to its end degree, can you visualize the
physical impossibility of anyone reaching over like this,
having in mind that there was testimony that it may have
been that Lanzi had his arm up on the back of the front
seat, because what was interesting was that there were
no, there was no nitrites.

There were no burns on the arm or on the raincoat. So,
obviously, his arm had to be somewhere moved away.
[874] Now, I leave it to you to decide or to think about
that as to whether or not his arm was still there when the
testimony was that if it had been in that position, there
would have been evidence of gunpowder or the nitrite or
the like.

So I say to you: Can you possibly imagine the pro-
bability of DeChristoforo reaching over, probably over
the arm which would even make it harder, but even if
the arm wasn’t over there, reaching over with his left
hand and pulling this trigger three times in order to
shoot Lanzi?

On et eee pt A SER CVA Be DRA RAR RL NP ER SAR ARERR EER TE

110

I submit to you that on the physical evidence, that’s
impossible.

; So that I think it’s fair to say that the Commonwealth
hasn’t demonstrated any evidence that would warrant you
: to even consider the question as to whether or not De-
3 Christoforo actually pulled the trigger.

5 In short, I think that you would almost be compelled
3 to come to the conclusion as reasonable people, that he
wasn’t the killer. He didn’t pull the trigger that put a
bullet [875] or bullets into the body of Lanzi.

So now we come to the next proposition that the Com-
monwealth gives you. They say, ‘‘All right. If you don’t
buy that, let’s try this for size: This was a joint venture.
This was a conspiracy to kill Joe Lanzi, and that De-
Christoforo was a party to that conspiracy.”’

Well, the only evidence that the Commonwealth can
show that at all affects Mr. DeChristoforo, and some of
which undoubtedly have given you some problems in the
course of your sitting here, is that you have testimony
by the police officers that when DeChristoforo comes out
of the automobile, he was asked his name and that he
gave a false name; that he was asked for the name of the
man in the front seat, Joe Lanzi, who was his close per-
‘ sonal friend and whose name, of course, he knew; and that
he gave a false name, the false name expected of him;
that, thirdly, he was asked what happened to Lanzi, and
that he said he was involved in a fight in Revere and that
they were taking him to a hospital; and, fourthly, that he
left the scene and then was [876] in hiding for 18 months.

Now, this is all the Commonwealth has here, by the
way, and some of it is serious and requires serious atten-
tion.

When I say that it’s serious, I think it’s serious only
because I think that it creates doubts in your mind rather
than creates affirmative evidence against him.

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| But let’s deal with those doubts for a while. As I have
| argued, we are under no obligation to prove innocence,
but let’s analyze this for the moment.

| The Government says, ‘‘All right now. There is a con-
spiracy here.’’? Now, as a matter of law, in a murder case
the Commonwealth doesn’t have to show a motive. But in
| engaging in a conspiracy to do something, engaging in a
joint venture to do something, as reasonable people, you
know people just don’t engage in some conspiracy or
joint venture unless there is a reason for it.

I mean, what was the reason to kill Joe Lanzi? Why?
From all the evidence that you have heard, Joseph Lanzi
was a close, dear, personal [877] friend of Butchie De-
Christoforo.

Incidentally, there was a point when this Butch busi-
ness was used, and, in all fairness, I am sure that Mr.
Irwin didn’t intend to have you think that the name,
when he consistently said, ‘‘Butchie’’, was trying to make
him out to be some East Side killer with a tough nick-
name. You have heard that he was known as Butchie as
a baby, and Butchie as a child, and that’s the way it was
all through his life.

But in any event, what has been offered to you to get
you to start thinking along the lines that Butch and
others decided they ought to kill this fellow, this friend
of theirs? Nothing, of course. There has been no evidence
offered of any disputes here, of any fights, of any ill
feeling, of any ill will.

In fact, the pictures that were put into evidence by the
Commonwealth would show Lanzi and DeChristoforo at
some wedding, show them standing side by side and ap-
parently both ushers at a wedding.

Of course, they were close friends. That [878] was the
testimony. There has been — nobody has contradicted

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that. And if there was evidence that they weren’t, you
would have heard some.

So there isn’t anything now that starts you off on a
chain of thought that there must have been something,
some ill will here, some motive of gaining power or wealth,
something involving the domestic situation. Absolutely
nothing.

All you know is that they are all in an automobile.
Now, you have had evidence here that DeChristoforo
worked as a page for the Senate of the Commonwealth
of Massachusetts for about seven years; that his reputa-
tion was good or excellent or very good both for honesty
and for nonviolence or for being a person not engaging
in violence.

Now, when a defendant raises the question of good

character, the Commonwealth has a right to introduce
evidence of bad character. You have had no evidence be-
fore you of bad character. And although my Brother may
argue to you, ‘‘Well, these are people who were friends
of his and they grew up with him’’, well, who else knows
about your reputation?
[879] You had a retired police officer who was on that
beat for over 30-odd years. Would he have any motive to
come in here and tell you that this boy was a boy who
was not a violent boy?

So you have a boy who worked for the Commonwealth
of Massachusetts and then goes to work at this place
called The Attic. I don’t know anything about The Attic,
and there has been no evidence about The Attic except
that some young lady who is a secretary at the Harvard
Graduate School attended there.

Now, whether this makes it reputable or not, I don’t
know. For all I know, it is the most reputable place in
the world.

But the fact is, he worked there as a manager.

113

The testimony from Dello Russo was that he worked
there, taking care of the place, seeing to it that none of
the liquor laws were broken; that up to 2:30 he would
usher people out and the like. He was a workingman.
It is a stormy, rainy night, and he winds up [880] in an
automobile headed for the same direction that he lived in.
Now, you have heard testimony that he lived in Stone-
ham, and you have heard testimony that the car was stop-
ped or found by the police officers on Fifth Street in
Medford. You can draw upon your own knowledge of this
area as to how far Medford is from Stoneham, You can
use your own judgment about that.

I submit to you that yon would have a right to draw
the inference that all he was in there for was to get a
ride home, because there is no evidence that he was in
there for any other purpose.

So there is no evidence for you of any conspiracy here,
of any agreement to do anything. Well, my Brother will
argue: ‘‘That is so. Conspirators work in the dark.”’ That
is true. Conspirators don’t stand out in the public and
say, ‘‘We are going to conspire to overthrow the Govern-
ment”’ or ‘‘we are going to conspire to rob a bank.’’ They
do it privately. That’s so.

But the burden is on the Commonwealth to [881] show
a conspiracy. Now, since they can’t show it by oral state-
ments, the next step is to show it by the acts and conduct
of the parties.

Well, what is there in the testimony here that shows
that the defendant DeChristoforo did this much to foster,
to aid, to abet the killing of his close friend, Joe Lanzi?
Nothing. There is no evidence here.

So it comes down to this, it comes down to the testimony
of the police officers. Well, Officer Carr told you that at
seven o’clock in the morning he sat down, together with
his partner, and he wrote up a report of precisely what

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took place as to his best memory; that he wrote it without
any intention of withholding anything; that he didn’t in-
tend to mislead anybody; that it was intended for his
superior officers.

This was a murder case, a serious case. On cross-
examination, if you recall, he testified that in his report,
written three hours after this incident, he said that the
men got out of [882] the car; he asked the taller of the
two men — no. He asked the men for identification. They
said they had none. He asked them where they were from
and they said Boston. And the taller of the two men then
left, saying he was going over or asking to go over to join
Carmen.

Now, that’s in their report. Later in that report there
is apparently statements which now the Commonwealth
would have you believe took place before the defendant
left. The police officer testifies that before he left, he spent
a couple of seconds talking to him over there, and then
he enlarged it to a few seconds.

Well, let’s assume that it was a few seconds. I ask you,
Mr. Foreman, lady and gentlemen of this jury, to time
how long it would take to stand and talk to a man, and
even if you rushed your words and said to him, ‘‘Do you
have any identification?’’ ‘‘No.’’ ‘‘Where are you from?”’
‘‘Boston.’’ ‘*What is your name?’’ And he gives you a
name. ‘‘Who is the man in the front seat?’’, and he gives
a name. ‘‘What is the matter with him?’’, and he says,
‘“‘There [883] was a fight in Revere and we are taking
him to the hospital.’’

Do you say that only takes two or three seconds? I
submit to you, Mr. Foreman, and members of the jury,
that that report was accurate; that the police officers were
not attempting to mislead anybody at that time and aren’t
attempting to mislead you now.

But memory plays peculiar tricks, because in his testi-

SOLAS He SAP PI ER Pe ot he

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mony in the District Court Mr. Carr, the police officer,
admitted that he said that he testified under oath there
that he had asked Oreto who the man was in the front seat
was, and that Oreto had said that it was Johnny — what-
ever the name is.

Now, I say to you, Mr. Foreman, lady and gentlemen of

the jury, that Mr. Irwin will argue to you that these were
false statements that were made by the defendant and,
therefore, they are admissions and, therefore, you should
construe them as evidence that Mr. DeChristoforo engaged
in a conspiracy to kill his friend, Joe Lanzi, and that he
aided and abetted the others, even though there is no
evidence of it.
[884] I say to you, Mr. Foreman, and members of the
jury, that you are faced with the most serious decision
of your lives. You are faced with a question of finding
this man either guilty or innocent of murder, and I ask
you whether you would hesitate before you would say,
‘Well, I must buy this story of this police officer com-
pletely. I am convinced beyond a reasonable doubt that
in the two or three seconds, that he talked to DeChristo-
foro’’, despite the fact that in the District Court he test-
ified differently, despite the fact that in his handwritten
statement it appears that DeChristoforo had left before
any of these questions were asked. ‘‘I am convinced be-
yond a reasonable doubt to a point of moral certainty,
where I must find that man guilty of murder.”’

I submit to you that there must be a reasonable doubt.
I submit to you, Foreman, and members of the jury,
that you cannot make this serious decision of finding him
guilty to a moral certainty based upon that.

Now, what else is there? He fled. Well, [885] he didn’t
flee from the scene, because I submit to you that the
facts are that he did give a name to the police officers.

It is interesting that they can’t remember even remotely

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what name he gave, but that they know that it wasn’t the
name of ‘‘ DeChristoforo’’.

Well, of course, if you can’t remember what name it is,
I don’t know how you could be so certain that it wasn’t
‘*Benjamin DeChristoforo’’.

I introduced Exhibit 14, and you are going to take this
exhibit into your jury room with you. I point out to you
that if that isn’t a ‘‘B’’, a capital ‘‘B’’, or what appears
to be a capital ‘‘B’’ written down there, then it’s as close
to it as one can find.

I submit to you that when Officer Brady wrote down
Rego and the registration of the car, Hertz, and John
Simone, and then a capital ‘‘B’’, that he was making
notations which later on became of peculiar significance
to him and to Officer Carr.

Why wouldn’t they put in their report, [886] why
wouldn’t they put in their report that Frank Oreto gave
a false name? Why wouldn’t they put in their report that
Benjamin DeChristoforo gave a name that they couldn’t
recall? Why wouldn’t they put in their report, in a murder
ease, in a serious, serious matter, why wouldn’t they
put in their report that it was DeChristoforo who said
that the man in front is John Simone? Why would Carr
testify differently in the District Court?

I submit that there is at least a reasonable doubt. There
is enough here to give you people, as honest, concerned
citizens, enough of a problem here to say to yourself, ‘‘We
can’t be satisfied to a moral certainty that this is so. We
think that the police are mistaken to some extent here.
We think the police did an excellent job to the extent that
they did, but we think they’re mistaken about this detail.”’
[887] As a consequence, I urge you with respect to this
question of flight to consider that they asked him, that
DeChristoforo said to him, ‘‘Is it all right if I go and
join”’ or, ‘Can I go and join Carmen,’’ and that they

‘117

must have said, yes, to him and let him and let him go.

And if you recall, they said they didn’t tell him to

come back, he wasn’t under arrest, they didn’t suspect

him of anything, had no reason to hold him, So he wasn’t

fleeing from any charge or arrest or anything. And al-

though it will be argued to you that flight is conscious-,
ness of guilt, I argue to you that not all flight is con-

sciousness of guilt. Innocent people flee from situations

out of fear for many many reasons.

And I must at this time point out to you, you may say

to yourselves and if you do, it is an improper question —

why didn’t he take the stand? You dare not ask yourself

that question. I submit to you in all sincerity: You dare

not ask yourselves that question, because our constitution
and our form of Government, as the Judge has already
instructed you, and [888] will further instruct you, 80,
you must not even consider that. There may be any num-
ber of reasons for it, but just as there may have been
any. number of reasons why that man ran away from that
place. There was a vicious killing of his friend, and who
is to say that he wouldn’t be next. And I submit to you,
Mr. Foreman and members of the jury, he didn’t go out
and hide out with hoodlums, he didn’t go out and hide out
with racketeers, he went to his grandmother’s house, and
he stayed in his grandmother’s house and he stayed there
— and I submit you have a right to draw inferences that
he stayed there out of fear, not out of fear of prosecu-
tion, but out of fear for other causes.

I submit to you, Mr. Foreman and members of the jury,
that there is a very minute degree of negative evidence
here, and that is, argument that my Brother will make,
that he liedy the argument that he will make that he fied.
I submit to you that that isn’t enough to warrant you
to say: I am satisfied beyond a reasonable doubt that
this man is guilty of murder.

118

[889] And I ask you, Mr. Foreman and members of the
jury, two days before Law Day to make certain that you
adopt the rule of law, that you follow it implicitly in every
instance, that you do not take into consideration his failure
to testify, that you do not take into consideration con-
jecture and surmise and say, well maybe it was so, be-
cause there may well be many many other reasons which
are equally consistent with innocence.

And so I submit to you, Mr. Foreman and members
of the jury, with respect to the indictment of murder
that you find him not guilty.

I will only spend two minutes on the indictment on the
guns. He didn’t own the car, he didn’t drive the car. He
had no gloves on, according to the testimony. His prints
weren’t on that derringer that was in the car. He is not
known as a killer. He is not known as a vicious person.
As to where that came from, it is pure conjecture. But
he didn’t have control over it or possession over it. If
he did, there would be some evidence about it here. There
was no evidence tracing ownership to him, registration to
him. Nobody has ever testified [890] they ever saw him
with a gun. Nobody has ever testified he is that type of
a person. And I submit to you to find him guilty of that
would be based upon pure conjecture and surmise, and
I beg of you do not engage in conjecture and surmise.

If you are going to find him guilty, find him guilty only
when you are satisfied to a moral certainty, you are cer-
tain to a moral degree that if this was the most important
decision you had to make for yourselves that you would
make it. But if there is a doubt in your mind about that,
and I believe there is, I represent and argue to you there
is, | ask you to find him not guilty.

The Court: We will have a very short recess before
the District Attorney argues — three to four minutes.

(Brief recess at 3:40.)

119

(The Court came in 3:50 p.m.)
(Defendant DeChristoforo is present.)

The Court: Mr. District Attorney, you may argue.

Mr. Irwin: May it please the Court, [891] Mr. Smith,
Mr. Foreman, Madam Juror and gentlemen of the jury.
Let me preface my argument by saying that first of all
I am aware that what I say really is an argument be-
cause the word ‘‘argument’’ presupposes that I am pre-
judiced to the cause that I represent, which of course
I am. I think that the very nature of this system being
adversary, pitting one side against the other, naturally
makes you point to those things which you think support
your particular position and to more or less ignore those
things which I suppose detract from it.

I want you to be aware also that I understand com-
pletely that my argument is in no way evidence, all it is
an attempt, I suppose, to point out to you those things
that I think are important in the case with reference to
our responsibility and the burden of proof.

And I realize that my closing argument should be in
no way considered by you as any evidence in the case,
and I am sure that you won’t consider it as that; as I am
sure that my opening statement to you is in no way evi-
dence in the case and won’t be considered [892] by you
as evidence.

I think the important thing for me to say to you right
now with reference to the opening I made to you, with
reference to what we were going to prove: I hope that
if there was anything in that opening that I said to you
that we did not prove, that you will disregard what I
said about it and only make your decision on the evidence
that we presented to you. I represent to you that what-
ever I said in the opening I honestly and honorably in-
tended to prove at the time, and I suggest to you that
for the most part we have done that without any fear of
contradiction.

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Let me say by way of getting into my argument that
I am aware of what our burdens are in the courtroom,
what the Commonwealth’s burdens are, what our re-
sponsibilities are, and I am aware of the fact that be-
cause DeChristoforo has been indicted for the murder
and arrested is no evidence of his guilt and I don’t ask
you to regard it as such. As a matter of fact, you can’t.
And I realize that our burden is to prove to you beyond
any [893] reasonable doubt his guilt.

The only thing I want to point out to you is this, at
the beginning of my argument, that I will let the Judge
instruct you on the law as far as reasonable doubt is
concerned, as far as inferences, as far as burdens of
proof, as far as anything else that has to do with the
law is concerned. The Judge has presided at this trial,
Judge Sullivan, and is fully able and throughly compe-
tent enough to tell you what the law is.

The only thing I am going to ask you to do is, when
you go into that jury room, please bear in mind this:
That when you sit here on the jury, on this particular
case, you are more than people who can divorce them-
selves from the situation and say, look, we are sort of
like umpires and we sit back here and decide who wins and
who loses; because actually, you people are the winners
and the losers when all is said and done — not me. If
we lose I go on to the next case; if Mr. Smith loses, he
goes on to the next case. But the people of this Common-
wealth have a right to expect [894] that you people sitting
here are their trustees; you people are the ones that have
made these laws about murder, or, our fathers before us,
or our families before us, they legislated these things —
not me. And we have a sworn responsibility, it seems to
me, to sit here in this courtroom now and say to our-
selves: We are faced here in our judgment with one of

121

the most savage killings that any jury could ever see
anywhere under any circumstances.

And let me say something to you, too, about motive in
a murder case. I said in my opening, and I repeat again,
the defense seems to make some big issue of motive in
this case in an attempt, I suppose, to have the jury feel,
regardless of what instructions might be given by the
Court that an absence of motive in a killing is something
that is a detriment to the Commonwealth’s case, and there-
fore, you should sort of equate that to reasonable doubt
and the acquit him. |

I said to you at the very beginning, if you recall my
words in the opening, that the Commonwealth in this
type of a killing cannot [895] show you what the motive
was. And if we reason together for a while along that
line, I think we can conclude why: it is the most cold-
blooded, the most sinister, the most clandestined murders
that are incapable of showing a motive; you can’t do it.
Why do three people get together and decide to blast
another man into oblivion? Sure, if they have a fight you
could put evidence of that on that somebody had seen him,
Mr. Lanzi, had a fight with DeChristoforo, or Gagliardi,
or one of them, and he could get up and say: Two days
before the murder they had a fight and supposed he gave
one of them a bad deal. Obviously, at that particular
point you have a motive for killing him. And then you
have to weigh, I suppose, whether or not the previous
beating justified a finding of second-degree murder, be-
cause there was something other than deliberate preme-
ditation, there was anger, passion.

This isn’t a killing of anger and passion. You people
are sitting on this jury because as Mr. Smith pointed
out to you, I let you sit, he let you sit. Why? The Court
let you come here to be selected as jurors, because you
are [896] reasonable, intelligent decent people. But beyond

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that, we hope that you bring to your jury service some-
thing just a little bit more, something just a little bit more
than your integrity, of course, which we expect you have,
we hope you bring with you, common sense — common
sense. Your everyday experiences. These are the important
things.

[897] They try to make some mystery out of the fact
of this particular killing. So, let’s talk about the killing
for a minute, and Jet’s talk about the facts that are es-
tablished and involved. And, let’s talk about reasonable
doubt.

Let’s start out by saying the three of us, DeChristoforo,
Gagliardi, and Frank Oreto, — and again in my words —
for motives best known to themselves, have decided to
deliberately with premeditation and with malice afore-
thought to murder Joseph Lanzi.

Let’s start with that as a basis. And, it seems to me
that that’s a reasonable basis to assert, based on the
evidence that you have heard. What do we do in further-
ance of that preparation? We first of all decide that we
will kill him in an automobile. We secondly decide that
the way to do that is to lure him in some way into the
automobile. That perhaps the best way would be through
a friend, Mr. DeChristoforo, who is known very well to
Mr. Lanzi. And, we also [898] decide that we have to do
this in a clandestined way; you don’t think that they
were looking for witnesses. Obviously not. You don’t think
that they were going to leave that body in that car.

I ask you not to draw that impression. That body was
obviously going to be disposed of and it wasn’t going to
be left in that automobile after it was shot.

But, what do you do? You take a night, and an early
morning hour. You take a night when it’s pouring rain,
when there is apt to be no traffic at 4:00 a.m. on the streets.

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123

And, you then take him, as I say, for a ride. You put him
into the front seat; you arm everybody with a gun.
And, do you have any doubt in your minds now that
Mr. DeChristoforo had that Rohm derringer that night —
that Rohm derringer pistol? It was right in front of his
feet in the position where he got out of that car.

The Commonwealth’s position is, quite obvious, that
this man, DeChristoforo, was in [899] that car with these
people in a concerted action, in a joint effort to kill Joseph
Lanzi.

We don’t say that he shot him, we say that, in our an-
swers, he shot him, himself, or with others — in our
answers to specifications — because that is the legal sig-
nificance of it. It’s the equivalent — and let me point this
out: when you are talking in terms of concerted action,
it’s the obvious equivalent of a person who is charged
with armed robbery — and I think all of you, your ex-
perience is enough to conclude this, you know and I know
and everybody else knows that if you are the driver of a
car that’s used in holding up a bank, although you never
walk into the bank, although you never hold a gun in
your hand, you are guilty of armed robbery if you are
the driver of that car, because you are in a position to
aid and abet the people who are actually in there with
the gun on the teller.

That’s the theory of the Government’s case in the case
of Mr. DeChristoforo — quite obvious.

I don’t contest the fact that the evidence [900] points
to the fact — I think I conceded it — I think the whole
thrust of the Government’s case was that Gagliardi shot
him three times here, and Oreto shot him in the back of
the head, and our friend, DeChristoforo, had a cocked
Rohm derringer ready to administer another shot if that
became necessary.

Is there any doubt about that in your minds? I fail to

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124

see how there possibly could be any doubt about that.

What do they suggest to you with reference to De-
Christoforo’s position in the car? You are supposed to
somehow gather that — and this is what I think they are
suggesting — you are supposed to somehow gather that
Gagliardi and Frank Oreto decided they were going to
kill him, Now, there is not much question about elaborate
preparation as far as they are concerned. Right? Rent a
car; again, the late night, the early morning hours; Oreto
was wearing gloves, gloves with a V-cut out of the back
so they can be easily snapped on and off. Oreto is equipped
with gloves. They are all equipped with guns. [901]
Gagliardi obviously had that Richardson that he carried
away and buried in the back yard on 9 Fourth Street in
the back yard. I don’t think there is any doubt about that.
And, yet, nobody saw him do it. But, the fact is that he
did it. You can say that with all moral certainty that he did
do that.

And, as he backed across the street away from there,
I think you can draw an awesome inference with reference
to that situation with reference to Gagliardi.

But, let’s get back to DeChristoforo. DeChristoforo,
through his counsel, wants you to believe now, or some
way conjecture up in your minds, — talk about conjecture
or surmise — they want you to believe all of a sudden
these two people had some sort of fantastic plan to murder
Lanzi, and then just incidentally invited him along on a
ride home to Stoneham. That’s what he said.

And, I don’t think that’s unfair comment on the argu-
ment that was made to you people. That’s what he is in-
ferring quite clearly: that [902] DeChristoforo just hap-
pened to be in this car going home. So, at that point we

have to conclude that Frank Oreto, I suppose, was car-’

rying two guns, or Gagliardi was carrying two guns. You
and I know that’s a myth. That is, without being overly

125

emotional about it, that is positively absurd. Is it not?
Then, to compound it, he says: How do you know why
he ran away that night; he was probably in fear of his
life.

Right. That Butch DeChristoforo was afraid. He just
happened to be going home, to get a ride home by two
people who planned to kill his good friend who lived in
Boston — and what Lanzi was going to Stoneham for is
beyond me. Have you asked yourselves that? What Frank
Oreto was going to Stoneham for is beyond me. I don’t
know if you asked yourselves that.

But, in any event, apparently DeChristoforo found him-
self in this situation where he was sitting in the car, and
these people shot to death Joseph Lanzi, and then the
police car came upon the scene and he got out, and he
was still afraid, and he didn’t have anything to do with
[903] any guns, and he was scared of his life, and that’s
why he ran away and hid for a year and a half.

Mr. Foreman and madam juror, and gentlemen of the
jury, if you believe that proposition, I suggest to you
that is the most absurd and ridiculous proposition that
you could ever believe in all your life.

He gets out of the car — let’s suppose he was terrified
— there is no evidence of that, you haven’t heard any
evidence to that. That’s some suggestion that is made to
you that you are supposed to adopt; and then you are
supposed to carry that in the jury room and start to
think about this thing and say, maybe he was afraid, and
maybe we should acquit him.

The facts of the matter are, that when he steps out of
the car he is right next to our friend, Mr. Oreto, who he
is supposedly deathly afraid of. But, he knows, or should
know, as he steps out of the car that Mr. Oreto has dumped
his weapon on the seat, DeChristoforo dropped his [904]
on the floor, and they get out this side of the car.

126

Now, at that point — and here is something that de-
fense makes a great deal of — and this is supposed to
be, as far as you are concerned, this is supposed to be
a critical indictment of the testimony of Officer Carr, or
somebody else, and you are supposed to say that he was
trying to, I suppose, bury DeChristoforo in his testimony,
or bury Oreto, or something like that. The fact of the
matter is that the police officer testified to you that De-
Christoforo is the one who told him who the fellow was
in the front seat, and so on and so forth. We will get to
that in a minute.

Let’s talk about the situation where we have his hypo-
thetical defendant out there with no gun on him now, no
gun on Oreto. Gagliardi walked away, the fellow who shot
him under the arm. He is gone. He is gone across the
street. There are two uniformed Medford Police officers.
All right. Oreto has no gun at this point. So, he is no
threat to our friend, Mr. DeChristoforo.

[905] At that time does he say to the police: ‘‘Thank
God you are here, they just shot my good friend, in the
front seat.’’ Of course he doesn’t.

He says to you: he is terrified. Here are two police
officers. He testifies to you — or, he tells you, I should
say, that this is the man who is honorable and non violent,
a wonderful outstanding citizen who worked as a Page in
the State House and so on, who just happens to be the in-
nocent victim of a whole set of circumstances, who would
never hurt anybody in his life, who is terrified, and that’s
the reason he went away for a year and a half, who fled
and hid and concealed himself. And, he did not say to
the police officers at that point: ‘‘My God, they just shot
my good friend, Joe Lanzi.’’ No.

That’s bad enough. What does he do beyond that? He
says, ‘‘I’m going over and join Carmen’? — the cold-

127

blooded murderer of his friend; he is going over and
join him.

Now, doesn’t that really, honestly, truthfully, once and
for all and ever and ever irrevocably destroy that partic-
ular defense? [906] Just on cold analysis, doesn’t that do
it? Of course it does. Of course it does. Is it a premeditated
murder? Can you think of anything any more?

Take that weapon in the jury room with you. Take
both of them. Take both of them, and feel the trigger pull
that’s involved, and how much premeditation and deli-
beration it takes to put a gun into somebody’s side.

Premeditation and deliberation, as the Court is going
to tell you, is not something that runs over a period of
time, it can be performed in an instant. Imagine the time
that it takes to load that gun with five bullets. Imagine
the time that it takes to load the .38 snub-nose with five
bullets. Imagine the time that it takes to load the Rohm
derringer with five bullets. They ask you to. They say:
where did the guns come from? One gun is fifty years
old; there is no record of it, you heard that testimony.
The other gun was manufactured in Germany and ended
up in South Carolina. No record of it there. The snub-
nose revolver that [907] Oreto had was purchased in
New Hampshire in January by somebody giving the name
of Paul Santo, on a street non existent in Methuen.

You people here, again, you draw inferences from facts
that are established. The inference I want you to draw is:
these people are clever enough — is that they don’t have
guns that can ever be traced to them. You know that and
I know it. Inferences from facts. It’s a very simple thing
when you stop and analyze it. .

Let me put it this way to you. Let’s suppose you wake
up in the morning and you see the newspaper on the front
doorstep. That’s a fact that you establish in your own

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mind. The inference that you can draw from that fact of
course, is that the paperboy delivered it.

Now, that sounds like a real over-simplification. But, if
you use that type of logic you can’t go wrong in making
a decision. Nobody saw the paperboy deliver it, you didn’t
see him, I didn’t see him. Mr. Smith would say that that’s
circumstantial evidence, acquit him, that’s reasonable
doubt, maybe the milkman took the [908] paper from the
paperboy and he threw it up on the steps, maybe a neigh-
bor was going to school and said to the paperboy, you are
tired, I’ll throw it up on the steps.

If you start digging in terms of that as a reasonable
doubt, then we should never have started this particular
trial. We should never have started this particular trial.

Mr. Foreman and lady and gentlemen of the jury, as
far as the possession of the guns is concerned in the car,
his Honor will instruct you what the law is on that.

Let me tell you this: that the law only requires that if
they knew the guns were in the car, any one of these de-
fendants, if the guns were in a position where they could
use’them if they had to, if you can infer in any way that
the guns were in a position where they had some sort
of control over them, obviously, they are guilty of having
a firearm under their control in the car whether they are
out of the car or in the car.

[909] Because I think you could agree with me that that
type of law would be thoroughly unenforceable if you had
to show it was in his pocket in the car. All they have to
do when the police approach is throw it on the floor and
jump out of the car and say, ‘‘Here we are.’’ That’s why
it becomes incumbent upon you people when you go to
that jury room, to use your common sense. You listened,
I’m sure long and hard to the arguments that have been
advanced. But, I suggest to you, please, tomorrow morning

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when you have a chance to listen to the instructions that
his Honor will give you, please pay close attention.
[910] I am sure that you will find that you will have no
trouble at all reaching a verdict in this case.

I don’t know what they want you to do by way of a
verdict. They said they hope that you find him not guilty.
I quite frankly think that they hope that you find him
guilty of something a little less than first-degree murder.
Mr. Smith: I object to that.

The Court: I don’t think —

Mr. Smith: That is not fair argument.

The Court: No.

Mr. Smith: That isn’t so.

Mr. Irwin: Let’s talk about murder in the first degree.
And then another thing that you are ;soing to have to
decide is the question of clemency. You are going to be
instructed by the Judge that murder in the first degree
is murder done with premeditation, deliberaiion, and with
malice aforethought.

If that isn’t the murder that we have here, then you
will never see one, I suggest to you respectfully, that is
premeditated and deliberate.

[911] And then when you find your verdict on -that
matter and on the gun matter, you are then to be asked
to make a decision with reference to clemency in this case,
whether or not you should recommend to the Court that
this man be shown clemency or whether or not the death
penalty should be imposed on him.

When you come to that point of your deliberations,
I would assume that the answers that you gave here on the
witness stand were honorable and honest answers with
reference to the two questions along those lines. I have
no reason to think that they weren’t.

All of you or each of you said that you would be pre-
pared to return a verdict of guilty on a crime punishable

130

by death if the evidence warranted and if it was proved
to you beyond a reasonable doubt.

So when you start to decide whether or not Mr. De-
Chirstoforo should be the proper subject matter of cle-
mency, ask yourselves this — and this is the thing that
we so often really lose place of in a murder case. Ask
yourselves — what type of justice did they show to Joseph
Lanzi? We don’t know, really, much about Joseph [912]
Lanzi.

In a murder case, you can’t put into evidence the
history of his whole life, who he grew up with, what his
hopes and ambitions were, if any. But I think we can all
conclude that what he might have been or what he was or
what he wasn’t, he undeniably had a right to live and he
had a right to be free from murder and assassination and
he has a right now or his family and the public has a
right to expect that the people will deal severely with
those people who perpetrated that murder.

Ask yourselves this: Did they allow — on the issue of
clemency — did any of these people allow Joseph Lanzi
to impanel a jury to decide whether or not he should die?
Did they afford him the benefit of great counsel? Did
they afford him the benefit of a stenographer to keep the
records of his prosecution? Did they ask a jury to decide
whether or not he should live or die? They did not. These
people believe in capital punishment beyond any question
of a doubt.

Mr. Foreman, Lady and gentlemen of the [913] jury,
let me close by saying this to you: I respect each and
every one of you for the attention you have given this
case. You have given it in my judgment, remarkable at-
tention.

I expect that you will return a Verdict that is a reflection
of the truth. I honestly and sincerely believe that there
is no doubt in this case, none whatsoever.

chin = SIN Cah or te

;
7
;

131

I honestly and sincerely believe that you people feel
that way. The only thing I ask you to do is this: I don’t
think that it’s the function of a prosecutor to stand and
bang on the jury rail. This isn’t the Perry Mason Show.
I am not Hamilton Berger. Mr. Smith is not Perry Mason.
The true murderer is not sitting up back with the specta-
tors, about to stand up. The true murderer is right there
in that dock, Benjamin DeChristoforo.

Along with the other people who pumped those bullets
into the body, he was there, prepared for any eventuality.
He was there, prepared to assist them. He was their con-
federate. And he, more than anybody else, I think, is more
reprehensible than the other two combined, [914] because
this was the man who supposedly was the friend of Joseph
Lanzi.

He is, in fact, a traitor to his friends. He is a murderer
of his friend — pure and simple.

The Judge told you when you were first impaneled, I
think, that the word, ‘‘verdict’’, means: to speak the truth.

The only thing I have ever asked any jury, as a pro-
secutor, is that you all have the courage to speak the
truth, unafraid, please, unafraid.

Courage, determination — those are the assets that I
ask of a jury.

In closing, I only ask you this: When your Foreman
announces the verdict in this case, let it be a reffection of
truth of what this case is, and then myself, society, Joe
Lanzi, the entire world, can have no complaint with your
verdict.

The word, ‘‘verdict”’, means: to speak the truth. In the
privacy of your hearts and your consciences, you know
beyond any doubt what the truth is in this case.

Please direct your Foreman to stand up and speak that
truth for all of you.
Thank you very much.

.

132
[918] Mornine Session

(At 10 a.m., Wednesday, April 30, 1969, there was a
lobby conference, during which the following tran-
spired :)

Mr. Smith: If Your Honor please, I respectfully move
for a mistrial on the grounds that the argument made by
the Assistant District Attorney to the jury was so pre-
judicial and so unfair that it cannot be cured by instruc-
tions to the jury.

I have specific reference to the fact that in his argu-
ment, firstly, the District Attorney argued that there was
a plot whereby DeChristoforo was to use his friendship
with the deceased in order to get him into the vehicle for
the purposes of having him killed and that he exploited
his friendship in so doing.

There was no evidence from which this could be argued
or from which any inference could be made.

Secondly, the District Attorney stated on Page 913 of
the transcript that he honestly [919] and sincerely be-
lieved that there is no doubt in this case, none whatsoever.

I wish to point out to the Court that such a representa-
tion of personal belief is both improper and unethical.
If a defendant’s counsel argued to the jury that he per-
sonally believed in the innocence of the defendant, it
would be subject to reprimand and would be improper
argument.

Thirdly, on Page 910 of the transcript, the District At-
torney stated in his argument: ‘‘I don’t know what they’’
— referring to the defendant or his counsel — ‘‘want you
to do by way of a verdict. They said they hope that you
find him not guilty. I quite frankly think that they hope
that you find him guilty of something a little less than
first-degree murder.”’

The record reflects that an objection was made by me.

~ *

133

No ruling was made by the Court from the record except
that it could be inferred that the Court agreed with my
contention that it was not a fair argument, although the
Court’s response to my statement, ‘‘That is not fair argu-
ment’’, appears to be : [920] ‘‘No.”’

I believe that the argument is so improper that cau-
tionary instructions at this point cannot cure the pre-
judice that was created by that argument and, therefore,
move for a mistrial.

The Court: All right. Now, in response to your state-
ment, whether the record reflects this or not, my re-
sponse to your — and I do not think that you made a
formal objection.

Let us hear what the record says that you said on this
occasion.

Mr. Smith: I stood up and said, ‘‘I object to that.’’
And then the record reflects: ‘‘The Court: I don’t
think —’’ ‘‘Mr. Smith: That is not fair argument.’’
“The Court: No.’? ‘Mr. Smith: That isn’t so.’’
Then Mr. Irwin continued: ‘‘Let’s talk about murder
in the first degree.’’

The Court: All right. I think whether the record re-
flects it or not, that while this colloquy was taking place
or at least I was attempting to say something but you
were on your feet and talking.

Now, whether the record reffects it or not, [921] I said
that it was improper argument. I said, ‘‘No. This is im-
proper argument.”’

And thereupon, had there been a motion made by you
at that time to have me instruct the jury along the lines
of eliminating that from their minds, or something of
that nature, I certainly would have complied, because I
did consider at the time the argument was beyond the
grounds of complete propriety, but certainly far from
being grounds for a mistrial.

RATERS OORT, Ge GD THRE SEL SF OREO SOFT NRA TPS

134

Now, before the charge, I am willing to give such in-
structions to the jury in this regard as you wish me to.

I would bring to your attention, however, — and this,
I say, only to avoid prejudicing the defendant — that if
I were to specifically point out on this occasion, which
I am perfectly willing to do, if you ask me to, if I were
to specifically point out the language, it would only be
to emphasize it; and I do not think that that would be
very helpful.

I, of course, plan to generally instruct the jury that
arguments of counsel are not to be considered evidence
whatsoever and that [922] they are only the expressions
of the way that the various counsel, respective counsel,
hope that the jury will view the evidence which they have
heard, but they are not to consider arguments of counsel
as evidence.

Now, if you think that’s adequate instruction under the
circumstances, that, then, is all I would give.

On the other hand, if you think in some way your client
has been seriously prejudiced by this statement of Mr.
Irwin, — and I cannot agree that he has been seriously
prejudiced — I am perfectly willing to add to that general
statement in my instructions anything that you wish me
to add along these lines within reasonable limits.

But I will deny your motion for a mistrial.

Mr. Smith: Exception to the denial of the motion for
mistrial.

The Court: Yes.

Exception No. 98

The Court: But I am still perfectly willing to have you
request such instruction as you may think appropriate,
with the one [923] caveat that I make: that sometimes these
instructions only draw attention to a statement which, on
the face of it, is made only in argument and is not evi-
dence.

eae aaael * ES * a

135

Mr. Smith: Well, Your Honor, first of all, I think that
that’s a burden that defense counsel has to bear and de-
cide upon.

Now, without waiving my motion for a mistrial, I would
now request, then, that Your Honor forcefully and spec-
ifically instruct the jury that the statement made by Mr.
Irwin in his closing argument to the effect that the de-
fendant was not really seeking a not guilty here, but —

The Court: Certainly not to be considered.

Mr. Smith: Well, I would like to have, further on that,
that it was an improper statement; that from the begin-
ning of the trial up to this point, the defendant has
maintained his complete innocence and in no way has in-
dicated that he is willing or that he is seeking to have the
jury find him guilty of a lesser offense.

The Court: I will do so, and I suggest that you write
it out and I will file it with the papers, what you write
out, and I will so [924] instruct the jury.

Mr. Smith: I was going to add something, but I will
do it in my writing. I will write it out.

The Court: Tell me what it is. I am not going to go
much farther than that. That is about as far as I am going
to go.

Mr. Smith: And that the defendant is still presumed
to be innocent of all of the charges against him and
that —

The Court: Those matters, of course, are handled in
the charge proper. It is not necessary to go into it more
than once.

Mr. Smith: Except that I think that it requires a
specific charge.

The Court: I do not agree with that. I am perfectly
willing to give you what you just requested, but to go into
the presumption of innocence when quite obviously I am

EEE SIE TS TAPE ERE TR

2 Serge ae aR

136

going to talk at length about the presumption of inno-
cence —

Mr. Smith: I understand that, Your Honor, but I
think that this requires specific instructions.

The Court: You write out what you wish [925] and
I will give those instructions some consideration, and I
will grant what I wish to grant, and deny what I wish to
deny, and you may save your rights on that.

Mr. Smith: Allright, Your Honor.

Mr. Irwin: Judge, may I be heard for just a moment?

The Court: Sure.

Mr. Irwin: I would like to point out that with re-
ference to arguments to the jury, that I, on behalf of the
Commonwealth, first of all, take the position that the ar-
gument I made was in no way improper.

I also want to point out on the record that if we want
to talk about propriety of arguments, it became apparent
to me that Mr. Smith’s argument, the entire thrust of his
argument was that. He told the jury that this particular
defendant fled that night because he was afraid. There is
not one single iota of evidence in that direction.

He also told the jury that on this particular night, the
reason the defendant was in that car was because he was
getting a ride [926] home to Stoneham, and there’s not
one single iota of evidence, whether oral, written, or docu-
mentary, to show that whatsoever.

Mr. Smith: That just isn’t so.

The Court: Where is the evidence that he was invited
to take a ride or that he took a ride?

Mr. Smith: First of all, I said to the jury that fight
may be the result of many reasons. It may be the result
of innocent reasons, as well as reasons reflective of guilt;
that they could find, in view of the atrocious murder,
that he was in fear and that that’s why he fled.

137

I did not say that he fled. I did not assert as a fact
that he fled.
With respect to his taking a ride, I said that they could
find or that I argued to them that there was no evidence
of a conspiracy and that they could find that he was there
being driven home.
I argued that Stoneham was a short distance from —
The Court: Did you examine the transcript? My own
memory is somewhat different from this. [927] I have a
distinct memory, it seems to me, that there was consi-
derable discussion as to what — have you got today’s
transcript?
Mr. Smith: This is today’s (pointing).

(The Court looked at document.)
Mr. Smith: Assuming all that to be so and assuming
that I made an improper argument, which I do not admit
I made, this does not warrant such an improper argument
as was made by the prosecution.
If I made an improper argument, the time to have
raised that was at the time I was making it, by objection.
The Court: Write out the instruction which you wish
me to give and I will consider it.
Mr. Irwin: Before Mr. Smith leaves, Your Honor,
could I say one thing else on the record?
The Court: Yes.
Mr. Irwin: I would like to point out to the Court that
my understanding was — with all counsel in connection
with this case, together with the Court — that I was in
my argument to the jury, inasmuch as what happened,
that is, your ruling on the FBI conversation that I made
[928] reference to in my opening in the jury, you —
and I think properly so — asked me to state to the jury
that my opening was not evidence; that if, in fact, I re-
presented anything in my opening that I didn’t prove,
that —

138

The Court: I have it from Mr. Smith, too, because he
made some representations in his opening, too, that were
not established by fact.

Mr. Irwin: Yes. But I would like to point out to the
Court that it is my recollection that I did that pursuant
to the request of the Court, and Mr. Smith did not.

I would also like to point out to the Court that in his
opening to the jury he told this jury that he was going
to have some evidence — and I_ think that this is very
critical, because it’s implanted in the minds of the jury
now — he was going to have some evidence to show that
DeChristoforo that night got a ride home from these
people to Stoneham. There is not one single bit of evidence
of that.

In addition to that, he also said that while he was in that
car that night — and I [929] am using his words, quote,
unquote, in his opening remarks to the jury, that there
was an ‘‘incident’’, and those are his words, ‘‘an inci-
dent’’.

Mr. Smith: That is right.

Mr. Irwin: And I frankly, as honestly and as sincerely
as I can, respectfully recommend to the this Court that
there was not one single bit of evidence along those lines ;
that the only evidence the defense for Mr. DeChristoforo
produced in this case was a lot of people whom they
paraded to that witness stand, who talked about his re-
putation 10 or 15 years ago for honesty and nonviolence,
and not one single bit of evidence about the ride home
in that car or what went on in the car.

So I respectfully suggest to the Court that if what we
are going to have now is instructions about propriety or
impropriety of counsel’s arguments or opening statements,
then I would assume that or ask the Court respectfully to
charge the jury along those lines, too.

139

The Court: Well, you may make some suggestions, if
you wish to, in writing, and [930] I will act on those.
Mr. Irwin: Fine.

The Court: I do not think that I would accept your
statement that I should charge the jury, however, that
Mr. Smith made certain specific statements in his opening
which were never established by the evidence, which, of
course, is the case.

Mr. Smith: That’s so. But the ‘‘incident’”’ that I was
referring to and which Your Honor apparently under-
stood that I was referring to was that the fellow got mur-
dered in the car.

The Court: You made a statement that this man was
invited — it seems to me that the substance of it was that
he was invited to get a ride home. He lived five minutes
away in Stoneham, my memory is, and that he was along
for a joyride or ride home and knew nothing about this.
How this is conceivable, I do not know, but this is what
you said, and there was not one whit of evidence that I
heard that had anything to do with any such situation
as that.

Mr. Smith: That is digression from what [931] Mr.
Irwin just said. :

The Court: All I can do, gentlemen, to be fair with
you, is this: You write out, both of you, what you want
me to say, bearing in mind that I am not going to pre-
judice the cause of the Commonwealth any more than
I would prejudice your cause, and I am not going to go
overboard on these instructions and get too specific on
these instructions.

I do think that the record should indicate, if it does
not, — and perhaps it does — that you were perhaps
shouting louder than I was speaking at the time, but I
did say that this was improper argument.

If you had asked me to, I would have been glad to

“

140

mention this fact to the jury, that the statement by Mr.
Irwin — in my view, at least — went beyond the bounds
of complete propriety, but, on the other hand, far short
of anything that would warrant this motion for a mistrial,
as far as prejudicing the client.

There is certain amount of latitude in all arguments,
as you well know, since you have taken advantage of it
yourself.

* * *
[933] (The Court came in at 10:55 a.m., Wednesday, April
30, 1969.)

The Court: Good morning jurors.

Poll the jury.

(The jurors were polled and each answered to the
calling of his name.)
(Defendant DeChristoforo is present.)

The Clerk: Benjamin A. DeChristoforo. At this par-
ticular time you have a right to make an unsworn state-
ment to the jury, and you have the opportunity to do so.

Defendant DeChristoforo: Your Honor, members of
the jury. My name is Benjamin Anthony DeChristoforo.
I am 30 years of age. I am married. I am the father of a
baby boy.

I have known Joseph Lanzi all of my life. J oseph Lanzi
and I were very close and personal friends.

In April of 1967 I lived with my wife and my son in
Stoneham.

April 17, 1967, I was at work. I had no way to get home.
I asked Carmen Gagliardi if he was going to Medford
would he drive me [934] home. He told me he wasn’t,
that he was going to eat, he was going with Frankie and
with Joe. He asked me if I would care to join them. I
told him no, it was late.

He said he would drive me home, and take them back
in Town to eat.

PRS HES

ee

141

On the way home, on Route 93 in Medford, an argu-
ment broke. I had no part of it. I couldn’t stop it.

I saw Joseph Lanzi get shot. I threw myself on the
floor, I was afraid. I begged them to stop. I remember
somebody hitting me in the back; I thought I was shot.
I was screaming.

I remember being pulled up by my hair onto the seat.
I remember a gun being put in my face. I remember
being threatened and my famiy being threatened. I re-
member they tried to push me out of the car. I told them
I wouldn’t say anything. Until this day I didn’t even tell
my lawyer this.

Later on, on Fifth Street in Medford, as the officers

were approaching us, Carmen told me, ‘‘Remember what
I said.’’ He then got out of the car.
[935] When Officer Carr was approaching Frankie and
I, Frankie told me, if I loved my wife, if I loved my kid,
‘stay cool and keep your mouth shut.’’ He told me to
let him do all the talking.

When Officer Carr ordered us out of the car, he asked
me my name; I told him it was Benjamin DeChristoforo.
I did not answer any other questions, I was too afraid
to answer any other questions.

I asked him if I could leave to go over to Carmen’s
house. I didn’t know where Carmen was. I knew he had
a gun on him. I knew he was afraid. When the officer told
me that I could leave, I walked to the sidewalk. I turned
around, they weren’t looking at me, and I started to run.
I don’t think I stopped running until I got to my home
in Stoneham.

I woke up my wife. I told her to get some clothes ready,
get the baby. I told her something happened, I didn’t tell
her what. She drove me in Town. I asked her to take
me to my grandmother’s house; she did. I told her to take

HOOT PERMEATE TRE AEST Oe re
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142

the baby and go up to my father’s house. I have never
left my grandmother’s house until the FBI picked me up.
[936] I wasn’t hiding from the law. It was made per-
fectly clear to the FBI, to the Boston Police Department,
to the Medford Police Department that I would have
turned myself in but they had to come and get me, that
I was afraid.

For the last two years I have been living with Joe’s
death in my mind and Frankie’s words: Do I love my
wife? — I love her; — do I love my son? — I love him,
too.

= * *
[937] (The Court charged the jury as follows :)

Now, Mr. Foreman, Madam and gentlemen of this jury.
The defendant has availed himself of the right to address
you; but what he has said to you is not at all evidence
for your consideration.

The historical background of this testimony, if you will,
is quite interesting. Until 1866, the defendant in any crim-
inal case in this Commonwealth had no right in our Court
to testify on his own behalf. This was based upon the
theory, less than salutary theory, that the defendant had
such a great interest in his case that what he said would
be unworthy of belief.

Shortly before 1866, however, the practice was deve-
loped that the defendant would be allowed to make an
unsworn address to the jury; and this is just what you
have heard now from Mr. DeChristoforo. This practice
has been carried on throughout the years since sometime
before 1866.

It must be emphasized, that because the statement which
you have heard is unsworn, and, therefore, is not subject
to cross-examination, [938] because none of the rules of

143

evidence apply to any statement made by this or any
defendant under these circumstances, it is of course not
evidence for your consideration. That is to say, the state-
ment made by Mr. DeChristoforo is not evidence for your
consideration.

Now for the charge proper.

Let me begin this charge by saying to you, that, as I
have said with regard to unsworn statments, not subject
to cross-examination of the defendant, it is not evidence,
nor are arguments of counsel nor the opening of counsel
— whether it be the Assistant District Attorney in this
case or whether it be Mr. Smith —It is not evidence for
your consideration.

Openings of counsel made by either the District Attor-
ney or Mr. Smith on behalf of his client are not evidence,
but they are merely the statements by the District At-
torney or by Mr. Smith, the defense counsel, for what
they respectively hope to prove; and you the jury should
not consider any portion of the opening statement —
either of the prosecutor, or the opening statement of
Mr. Smith for [939] the defendant — you should not
consider any portion of these statements which was not
re-enforced by evidence during the course of the trial.
Any portion of those openings which was not re-enforced
by evidence in the course of the trial, of course, you will
put out of your mind.

The closing arguments, too, Madam and gentlemen of
the jury the counsel very often become overzealous.
Closing arguments are not evidence for your considera-
tion. Closing arguments, Madam and gentlemen, are merely
statements by the respective counsel as to how they hope
you will view the evidence which you have heard.

Now in his closing, the District Attorney, I noted, made

REALE IIE ELE SF PRIN PREIS ED IEICE TER ee ee a

144

a statement: ‘‘I don’t know what they want you to do by
_ way of a verdict. They said they hope that you find him
not guilty. I quite frankly think that they hope that you
find him guilty of something a little less than first-degree
murder.’? There is no evidence of that whatsoever, of
course, you are instructed to disregard that statement
made by the District Attorney.

[940] Consider the case as though no such statement
was made.

And the same instructions, of course, apply to any
statements in argument which were made by Mr. Smith |
on behalf of the defendant, if any, you feel there be, state-
ments which he made in his argument which were not sup-
ported by the evidence which you heard here during the
trial of the case. In short, the opening statement of coun-
sel or the arguments of counsel at the conclusion of the

case are not evidence for your consideration.

- [1010] Do counsel have anything further?

Mr. Smith: Yes.

(Conference at the bench as follows :)

Mr. Smith: I wish to take an exception to the Court’s
failure to give the requested specific instructions to the
jury concerning the statements of the District Attorney
in his closing.

And, in the alternative, I take an exception to the failure
to specifically instruct the jury, that the District Attor-
ney’s statement, which statement has been discussed with
the Court and which is made a part of the record, in the
proposed Request for Instructions.

Exception is to the refusal to specifically instruct the
jury that those statements made by the District Attorney
were improper and should be disregarded by them.

sa

145

CoMMONWEALTH OF MASSACHUSETTS
Superior Court

—

[Title Omitted in Printing]

DEFENDANT’S REQUEST FOR INSTRUCTIONS

In his closing argument to you, members of the jury,
Mr. Irwin the assistant district attorney, stated with
reference to the defense:

‘“‘T don’t know what they want you to do by way of
a verdict. They said they hope that you find him not
guilty. I quite frankly think that they hope you find him
guilty of something a little less than first-degree mur-
der.

‘‘(a) That statement was improper argument.
There is no basis for that statement. The defend-
ant has consistently maintained his innocence by vir-
tue of his plea of not guilty as to any and all charges
or accusations made against him.

‘““(b) As far as you are concerned the defend-
ant is still presumed to be innocent of any and all
charges before you.

‘“(e) You are to totally and completely elimi-
nate from your minds any such suggestion or argu-
ment made by Mr. Erwin (sic), insofar as that is
humanly possible and if you find that you cannot eli-
minate that from your consideration of the case then
you are to inform the foreman of the fact.

““(d) I ask you now whether there is anyone on
the jury who feels he cannot eliminate that from
his deliberations and from his consideration of his deci-
sion in this case.

‘‘(e) In again instruct you that you are to dis-
regard that statement made by Mr. Erwin (sic) and

146

consider this case as though no such statement was
made.”’
COMMONWEALTH OF MASSACHUSETTS
Suprriorn Court
[Title Omitted in Printing]
CLAIM OF APPEAL
Now comes Benjamin A. DeChristoforo and, being ag-
grieved by certain opinions, rulings, directions, judgments,
verdict and sentence, which were rendered against him in
the trial of said indictment and in every other proceeding
on said indictment heretofore filed, claims an appeal to
the Supreme Judicial Court.

By his Attorney,
PAUL T. SMITH
DATED: May 12, 1969.
Filed May 13, 1969.

COMMONWEALTH OF MASSACHUSETTS
Superior Court
[Title Omitted in Printing]
MOTION FOR NEW TRIAL

Now comes the defendant Benjamin A. DeChristoforo
and in accordance with General Laws Chapter 278 (Ter.
Ed.) s. 29, as amended, moves that this Honorable Court
grant a new trial on the grounds that justice may not
have been done, and further moves for a new trial on
the further grounds that the verdict was (a) against the
evidence, (b) against the weight of the evidence, (c)
against the law, (d) that the procedure in the matter of
peremptory challenges of jurors was violative of Rule
48 of the Superior Court Rules, and (e) that the closing
argument of the Commonwealth was so improper as to
violate the defendant’s rights to a fair trial and his rights
to Due Process of Law in that the Commonwealth’s argu-

147

ment contained not only improper suggestions, insinua-
tions, assertions of personal knowledge but was also so
highly prejudicial as to deprive the defendant of his fun-
damental rights under both the Massachusetts Constitu-
tion and of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.

By his Attorney,

PAUL T. SMITH

AFFIDAVIT

I, Paul T. Smith, hereby affirm and make affidavit that
the facts upon which this Motion for New Trial is grounded
are apparent upon the record, transcript and files.

I further make affidavit that I have mailed a copy of
this Motion, together with the Affidavit herein attached,
by mailing the same postage prepaid to John Droney,
District Attorney for Middlesex County at his office, Mid-
dlesex County Courthouse, E. Cambridge, Massachusetts.

PAUL T. SMITH
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK: ss. May 13, 1969

Then personally appeared the above-named Paul T.
Smith and made oath that the foregoing is true to the
best of his knowledge and belief,

Before me,

DOROTHY ROTH LaBOSSIERE

Notary Public
My commission expires. 11/7/70

Filed May 14, 1969.
1969, Nov. 24. After hearing, motion taken under ad-

visement.

Dec. 2, 1969. After examination of affidavits and after
hearing — the within Motion for New Trial is denied.
ROBERT SULLIVAN, J.S.C.

PRISE FUE gy NASER Be a ——_ gee ROE TIER OE ES

148

COMMONWEALTH OF MASSACHUSETTS
Superior Court
[Title Omitted in Printing]
DEFENDANT’S ASSIGNMENT OF ERRORS
Defendant assigns each of the following errors:
* oa =

4. Refusal to declare a mistrial because of the prose-
cutor’s closing argument, ‘‘I quite frankly think that they
(defendant and his counsel) hope that you find him guilty
of something less than first degree murder ;’’ the refusal
to instruct the jury in plain, unmistakable language that
such an argument was grossly improper and that they
must not consider that argument in their deliberations ;
and the denial of his motion for a new trial based thereon.
Such an argument was not only grossly improper, but it
was also highly prejudicial. Moreover, it was unlikely
that even the strongest instructions could erase the pre-
judice. Certainly such an impropriety could not be cured
by any pedestrian instruction.

Ex. No. 98 Tr. 913, 920-922.

Ex. No. 99 Tr. 1010-1011.

Unnumbered Exception Summary of the Record 54-55.

5. The refusal to declare a mistrial because of the
prosecutor’s closing argument, ‘‘I honestly and sincerely
believe that there is no doubt (about defendant’s guilt of
first degree murder) . . . none whatsoever ;’’ the refusal
to instruct the jury in plain, unmistakable language that
such an argument was grossly improper and that they
must not consider that argument in their deliberations ;
and the denial of his motion for a new trial based thereon.
Such an argument was not only grossly improper, but was
also highly prejudicial. It was unlikely that even the
strongest instruction could erase the prejudice. Certainly,

149

such an impropriety could not be cured by any pedestrian
instruction.

Ex. 98 Tr. 913, 920-922.

Ex. 99 Tr. 1010-1011.

Unnumbered Exception Summary of the Record 54-55.
* > *

PAUL T. SMITH
MANUEL KATZ
Attorneys for Defendant

Filed May 26, 1970.

COMMONWEALTH OF MASSACHUSETTS
Supreme Jupric1aL Court or MassacHUsTTS
COMMONWEALTH
v.
Bensamin A. DE CHRISTOFORO

Argued Jan. 4, 1971

Decided Dee. 7, 1971
Manuel Katz, Boston, for defendant.
John F. Mee, Asst. Dist. Atty., for the Commonwealth.
Before Tauro, C. J., and Currer, SPrmEckL, REaRDON,
Qurrico, Braucher and HENNESSEY, JJ.
Rearvon, Justice.
This is an appeal by the defendant. under G.L. ¢. 278,
§§ 33A-33G, from his conviction for first degree murder
in the Superior Court. The jury, which unanimously _re-
commended that the death penalty not be imposed, also
found the defendant guilty of illegal possession of fire-
arms. The case comes to us on a transcript of the proceed-
ings below, a summary of the record, and the defendant’s
assignment of errors.
The following facts are undisputed. About 3:55 A.M. on
April 18, 1967, a car in which the defendant and three
others were riding was stopped in Medford by two police
officers. Shortly thereafter the officers discovered that the

Sa at See re

150

oceupant of the right hand side of the front seat was
dead, having been shot once in the right side of the head
and three times in the left side of the chest. The officers
also discovered an unfired derringer on the floor of the
car behind the driver’s seat, and a .38 special caliber Smith
& Wesson revolver, which had been fired once, on the
rear right hand seat. A pathologist later estimated that
the deceased, identified as Joseph Lanzi, died in the car
sometime between 3 and 4 A.M. from the wounds de-
scribed above. The head wound had been inflicted by the
Smith & Wesson revolver and the chest wounds by a
Harrington & Richardson revolver which was discovered
sometime afterward buried in the vicinity of where the
car stopped. Before the officers’ suspicions were aroused,
however, both the defendant, who had been sitting behind
the driver in the back seat, and the driver, one Carmen
Gagliardi, had left the scene. The other occupant, Frank
Oreto, was arrested by the officers after their discovery
that the fourth man in the car was dead.

Indictments for murder in the first degree and illegal
possession of firearms were returned against Gagliardi,
Oreto, and the defendant. On October 26, 1967, Oreto, the
only one in custody, pleaded guilty to second degree
murder and the gun charges. The defendant, against whom
an F.B.I. warrant for unlawful flight was lodged in April,
1967, was apprehended by the F.B.I. in November, 1968,
at his grandmother’s house, where he had been living
continuously since the incident. Gagliardi and the defen-
dant were brought to trial together but only the defen-
dant’s case went to the jury. At the conclusion of all the
evidence Gagliardi pleaded guilty to second degree murder
and the firearms charges, and his pleas were accepted.

The Commonwealth, conceding that it was the other
two occupants of the car who fired the actual shots, relied
on circumstantial evidence to connect De Christoforo in

LEB LG T INLD

bees

151

a joint venture with them to kill Lanzi. Evidence was
introduced through Officer Carr, one of the two policemen
who stopped the car, that the defendant gave a false name
when they asked his identity. He also allegedly told them
that the man in the front seat, whom the officers at first
thought was asleep, was named ‘‘ Johnny Simeone,’’ that
he had been involved in a fight in Revere and that they
were taking him to the hospital. The defendant’s imme-
diate flight from the authorities and subsequent conceal-
ment was cited by the prosecution as evidence of guilt.

In addition to efforts to impeach the testimony of Of-
ficer Carr, counsel for De Christoforo called only charac-
ter witnesses and the defendant’s grandmother. Although
he stated in his opening address to the jury that he in-
tended to prove that the defendant was in the car only
because he was being given a ride home from ‘‘The Attie,’’
a bar in which he worked, he introduced no evidence to
support this theory. He repeated in his closing argument
that there were many reasons consistent with innocence
to explain the defendant’s presence in the car, including
his being given a ride home. Similarly, no evidence sub-
stantiated the suggestion in the opening that ‘‘certain
pressures’? other than consciousness of guilt explained
the defendant’s flight and concealment.

We treat with several issues raised by the defendant.

1. The defendant contends it was error to deny
his motion to inspect the minutes of the testimony of
Officer Carr before the grand jury. Two motions to in-
spect the grand jury minutes, one with respect to each
indictment, were filed before trial and were denied at
that time without prejudice to their renewal. During cross-
examination of Officer Carr, the defendant renewed his
motions with respect to Carr’s grand jury testimony and
moved in the alternative that the judge make an in camera

152

inspection of the minutes. The judge denied all the mo-
tions.

In a number of recent decisions we have held that a
judge is not required to grant such motions unless the
defendant establishes a ‘‘particularized need’’ to see the
grand jury minutes involved. Commonwealth v. Ladetto,
349 Mass. 237, 244-245, 207 N.E.2d 536. Commonwealth v.
Doherty, 353 Mass. 197, 209-210, 229 N.E.2d 267. Com-
monwéalth v. Carita, 356 Mass. 132, 141-142, 249 N.E.2d 5.
Dennis v. United States, 384 U.S. 855, 870, 86 S. Ct. 1840,
16 L.Ed.2d 973.:The judge property applied the rule laid
down in these decisions in denying the defendant’s mo-
tions. Although the defendant contended that in two re-
spects the testimony given by Carr at the trial was in-
consistent with prior statements made by him, in neither
instance was the alleged prior inconsistent statement
claimed to have been made as part of testimony before the
grand jury. In one instance the defendant pointed out an
inconsistency between Carr’s testimony at the trial and
his testimony at an earlier probable cause hearing in which
Oreto was the defendant.! He made full use of this in-
consistency in an attempt to impeach Carr’s testimony
at the trial. In the other instance the defendant claimed
an inconsistency between Carr’s police report, made
shortly after the incident, and his testimony at the trial.
As to the events involved in the testimony, Carr’s testi-
mony on this point was supported by the unchallenged
testimony of Officer Brady who was with Carr when the
events occurred. We conclude that there was no incon-
sistency between Carr’s testimony and his report which
he clarified at the trial. The defendant did not show that
the grand jury minutes would cast further light as to

1 At the trial Carr stated that the defendant told him the false story
about the dead man in the car, whereas at the probable cause hearing he
attributed the story to Oreto.

153

either of the alleged inconsistencies (compare Common-
wealth v. Gordon, 356 Mass. 598, 602-603, 254 N.E.2d 901)
or that the grand jury testimony might be in any other
way inconsistent with Carr’s testimony at trial. Common-
wealth v. Otero, 356 Mass. 724, 252 N.E.2d 210. In these
circumstances there was likewise no need shown for the
trial judge to inspect the minutes in camera himself. Com-
monwealth v. Cook, 351 Mass. 231, 233, 218 N.E.2d 393.
Commonwealth v. Doherty, 353 Mass. 197, 210, 229 N.E.2d
267.

The defendant urges that we review and reconsider
our holdings in the recent cases cited above which require
a showing of a ‘‘particularized need’’ before being per-
mitted access to the grand jury testimony of a witness
who becomes a witness at the trial of an indictment re-
turned by the grand jury. We recognize the difficult burden
which this rule places upon a defendant seeking to im-
peach such a witness on the basis of inconsistencies be-
tween his grand jury testimony and his trial testimony.
It may be desirable that we give further consideration to
this rule. However, it is not appropriate to do so on the
limited record of the case before us.? Such a change, if
any, might more appropriately be accomplished for pro-

2The defendant as the appealing party has the burden of presenting to
this court a record on appeal which shows that he was prejudiced by an
error committed by his trial court. Commonwealth v. Klangos, 326 Mass. 690,
691, 96 N.E.2d 176. The record before us contains no portion of the grand
jury minutes or any other information concerning the testimony given by
Carr before the grand jury. The minutes are not incorporated in the record
in any way. There is nothing to. indicate that the defendant availed himself
of any of the several methods open to him of having the minutes produced
in court for marking, identification and incorporation in the record in con-
nection with his exceptions to the denial of his motions with respect to the
minutes. We cannot speculate on what the minutes contain or on whether
they contain anything which might have been helpful to the defendant. The
defendant has not sustained the burden of furnishing us with a record show-
ing that he was prejudiced by the judge’s action on his motions to inspect
the grand jury minutes and his alternative motion that the judge inspect the
minutes in camera.

niacin PEST BAG LIN PENI e

154

spective application by exercise of the rule making power
of this court. In this particular case the defendant is not
precluded from seeking relief by way of a motion for a
new trial at the hearing on which he may, by proper ac-
- tion, compel the production of Officer Carr’s grand jury
testimony for determination by the trial judge whether
such testimony was in any way inconsistent with his testi-
mony at the trial. Earl v. Commonwealth, 356 Mass. 181,
248 N.E.2d 498.

2. The defendant moved for a mistrial at the
conclusion of the prosecutor’s closing argument because
of certain remarks in that argument. He claims also that
the judge’s instructions to the jury did not adequately
cure the prejudicial effect of these remarks.

The defendant is quite justified in objecting to certain
portions of the prosecutor’s closing argument. It was
clearly improper for the prosecutor to state, ‘‘They [the
defendant and his counsel] said they hope that you find
him not guilty. I quite frankly think that they hope that
you find him guilty of something a little less than first-
degree murder.’’ It was further improper for the pro-
secutor to state at another point his personal belief of the
guilt of the accused. Am. Bar Assn. Canons of Profes-
sional Ethics, Canon 15. Commonwealth v. Mercier, 257
Mass. 353, 376-377, 153 N.E. 834. Commonwealth v. Cooper,
264 Mass. 368, 374, 162 N.E. 733. Greenberg v. United
States, 280 F.2d 472, 474-475, (1st Cir.). Harris v. United
States, 131 U.S. App. D.C. 64,402 F.2d 656, 658-659.

The prosecutor’s argument as a whole, however, did not
require a mistrial. The judge acted properly within his
discretion in denying a mistrial and in relying on curative
instructions te erase the error. Commonwealth v. Bellino,
320 Mass. 635, 644, 71 N.E.2d 411, and cases cited. The
judge adequately guarded the defendant’s rights in each
instance.

155

Counsel immediately objected to the first state-
ment cited above. Although the transcript at this point
is not clear,? the judge was later at pains to point out
that he recognized at the time that the argument was
improper. The record suggests, as the judge said, that his
statement to this effect was not heard over defence coun-
sel’s expostulation. In addition, the judge explicitly stated
later that he would have given immediate instruction to
the jury to disregard the comment if defence counsel had
asked for one. No such motion was made. In the absence
of a suitable request the defendant cannot now successfully
argue that an immediate instruction to the jury was ne-
cessary to erase the prejudicial effect of the remark, We
suggest, however, that in many instances it may be more
effective for the judge to give immediate instructions,

After the closing arguments the judge declared his
willingness to include in addition to his general charge on
closing arguments of both counsel a specific reference to
whatever remarks the defendant thought were unduly pre-
judicial. In adequate compliance with a written request
for instructions about this first objectionable remark sub-
mitted by counsel for the defendant the judge specifically
covered the subject in his charge. Although the language
he used was less emphatic than that requested by the de-
fendant, who took exception to it, it was sufficient to
safeguard the defendant’s rights. Commonwealth v. Devlin,
335 Mass. 555, 568-569, 141 N.E.2d 269. Commonwealth v.
Gordon, 356 Mass. 598, 604, 254 N.E.2d 901.

Counsel for the defendant did not object at the time to
the prosecutor’s statement of his personal belief in the
guilt of the accused. He did mention it, however, in his
motion for a mistrial, and by implication at least requested

. 3The transcript shows that the judge was recorded as saying “No” in
what we interpret as agreement with defence counsel’s statement, “That is
not fair argument.”

156

a specific instruction on it. Nevertheless, his exceptions
to the judge’s charge were too vague to make clear to the
judge that there was objection to the judge’s refusal to
allude to that comment in particular in accordance with
a written request to this effect.‘ Compare Commonwealth
v. Cabot, 241 Mass. 131, 151, 135 N.E. 465. In view, how-
ever, of our obligation in capital cases to examine the
whole case (G.L. c. 278, § 33E), we have considered the
effect of this comment in light of the entire proceedings
(cf. Patriarea v. United States, 402 F.2d 314, 322 [1st
Cir.]) and particularly in the light of the judge’s general
admonition that counsel in their closing arguments ‘‘very
often become overzealous. Closing arguments are not evi-
dence for your consideration.’’ We feel this instruction
was adequate. As the judge pointed out, reminding the
jury of an improper remark, no matter what the purpose,
might tend to emphasize it.

[5] The defence has contended here that the improper
argument was aggravated in its effect because of the
jury’s knowledge that the codefendant had pleaded guilty.
This premise is not valid, because the codefendant’s guilty
plea was in no way inconsistent with the defendant’s pre-
sentation of his defence of the jury. Although the defen-
dant did not testify, his attorney represented in his open-
ing and closing statements to the jury that the defendant
was in the murder automobile but was there innocently
and was in no way involved with the killing. The jury,

Counsel for the defendant excepted “to the Court’s failure to give the
requested specific instructions to the jury concerning the statements of the
District Attorney in his closing. And, in the alternative, I take an exception
to the failure to specifically instruct the jury that the District Attorney’s
statement, which statement has been discussed with the Court and which is
made a part of the record [to the effect that defence counsel hoped the jury
would find the defendant guilty of a little less than first degree murder],
in the proposed Request for Instructions. [sic] Exception is to the refusal
to specifically instruct the jury that those statements made by the District
Attorney were — and should be disregarded by them.”

ey fade is - PRS ENA

157

upon learning of the guilty plea, then knew that at least
one other occupant of the vehicle had admitted criminal
responsibility for the murder. It is not logical to conclude
that the jury would accept any implied argument of the
prosecutor that, because one of the men whom the defen-
dant blamed for the murder had pleaded guilty, the de-
fendant was any less firm in his assertion that he himself
was not guilty of any crime whatsoever.

The improper argument must also be viewed in re-
lation to the weight of the evidence of the defendant’s
guilt..The case against the defendant was an extremely
strong one. It is not probable that the jury drew from
the argument the subtle inferences now suggested by the
defence. In any event, the remarks of the prosecutor were
insignificant and harmless as viewed in the context of the
great weight of evidence of guilt.

3. Assignments of error based on the judge’s
failure to give requested instructions are without sub-
stance. Three requested instructions dealt with the in-
ference of innocence which the jury must draw from evi-
dence which is consistent with both guilt and innocence.
Although they accurately stated relevant law, the judge
was not required to instruct the jury in the terms urged
by the defendant. He adequately covered the substance of
the requested instructions. Commonwealth v. Mannos, 311
Mass. 94, 113, 40 N.E.2d 291. Commonwealth v. Aronson,
330 Mass. 453, 458, 115 N.E.2d 362. Commonwealth v.
Monahan, 349 Mass. 139, 170-171, 207 N.E.2d 29. He in-
structed the jury fully and accurately on the presumption
of innocence and the burden of proof which the Common-
wealth must sustain. He specifically cautioned them not to
base their decision on suspicion or conjecture and further
instructed them on the proper treatment of circumstantial
as opposed to direct evidence in assessing guilt.

A final requested instruction was to the effect that

— —_— ee

158

‘*[f]light does not necessarily reflect feeling of guilt.’’
The judge properly instructed that evidence of the de-
fendant’s actions on the scene, his flight, and later con-
cealment, could be taken ‘‘as an admission of guilt.’’ He
cautioned them in addition, however, that ‘‘common fair-
ness insists that before you draw an inference of guilt for
the crime of killing, you should be satisfied that these acts
or words were at least a part of the motive or cause of
the consciousness of guilt which caused these acts or
words to be spoken.’’ The defendant could not require
more. ‘‘Having given the jury correct rules for their
guidance . . . [the judge] is not required to go further
and discuss possible findings of fact upon which a defen-
dant might be acquitted.’’ Commonwealth v. Greenberg,
339 Mass. 557, 585, 160 N.E.2d 181, 199. Commonwealth
v. Payne, 307, Mass. 56, 58, 29 N.E.2d 709. In addition, the
possibility that the defendant’s flight was prompted by
fear rather than guilt had already been suggested in ar-
gument to the jury by defence counsel. :

4. Four other alleged errors now argued were
not raised in the assignment of errors. It is incumbent
upon the defendants in capital cases, as in any other
kind of case, to file adequate assignments of error ac-
cording to the procedures provided in G.L. ¢. 278, §§ 33A-
33G. Section 33E of that chapter does not affect the ap-
plicability of the other sections in capital cases but only
empowers us to order a new trial ‘‘ ‘if satisfied’ that be-
cause of error of law or of fact the verdict is a miscarriage
of justice, or where because of newly discovered evidence
or for some other reason justice requires a new trial.’’
Commonwealth v. Bellind, 320 Mass. 635, 646, 71 N.E.2d
411, 418. We deal briefly with three in these contentions.
None of them demonstrates any injustice which would
require corrective action by us under § 33E. (a) Four
questions were put to a character witness for the de-

may

159

fendant on cross-examination. Two questions were ex-
cluded. The two questions allowed are not conceded by
the Commonwealth to have been improper. Any error,
however, was harmless because the questions whether the
witness’s opinion of the defendant would be detrimentally
affected by certain assumed facts about him merely stated
the prosecution’s theory of the defendant’s role in the
murder, with which the jury were already familiar. In
addition, the witness answered in the negative to both
questions. .

(b) The judge properly excluded clearly hearsay
testimony by the defendant’s grandmother about what the
defendant said to her when he arrived at her house several
hours after the murder.

(c) There is no merit to the contention that tne
procedure provided in G.L. ¢. 265, ¢ 2, for having the jury
determine in a single verdict both guilt and punishment
for first degree murder violates the Fifth and Fourteenth
Amendments to the .United States Constitution. The
United States Supreme Court has recently resolved this
- issue in» McGautha v. California, 402 U.S. 183, 91 S. Ct.
1454, 28 L.Ed.2d 711, decided with Crampton v. Ohio,
402 U.S. 183, 208-220, 91 S. Ct. 1454, 28 L.Ed.2d 711, in
which the court sustained the constitutionality of a similar
Ohio statute.

5. The defendant’s final argument stems from
the denial of his motion for a new trial. The motion, as
aniended some six and one-half months after it was origin-
ally filed, was based on allegedly newly discovered evi-
dence outlined in four affidavits. Three of these were to.
the effect that the defendant was in the car on the night
of the murder because Gagliardi had offered him a ride
home from ‘‘The Attic.’’ One of the three, by the de-
fendant’s father, also contained an account of an incident
which would suggest that the derringer found in the back

Fees anew’ ee cd y PER * 5 AEF OIN SEE Tr ee

ESI

166

so as to suggest knowledge of additional evidence not
known to the jury), would afford him a privilege not even
accorded to witnesses under oath and subject to cross-
examination. Worse, it creates the false issue of the re-
liability and credibility of counsel. This is pecularily un-
fortunate if one of them has the advantage of official
backing.’’ Greenberg v. United States, 280 F.2d 472, 475
(1st Cir.). See Harris v. United States, 131 U.S. App. D.C.
105, 402 F.2d 656, 657-659 ; Hall v. United States, 419 F.2d
582, 586 (5th Cir.). The statement by the prosecutor of his
personal belief in the defendant’s guilt compounded the
serious harm resulting from the prosecutor’s earlier im-
proper statement, for the statements taken together might
lead to an inference that the prosecutor had personal
knowledge of the defendant’s guilt by reason of the de-
fendant’s unsuccessful attempt to plead to a lesser crime.
The cumulative effect of the remarks of the prosecutor
with no adequate and corrective instructions, coupled with
the jury’s knowledge without clarifying instructions that
the codefendant had pleaded guilty at the close of the
evidence, seriously prejudiced the defendant’s right to a
fair trial. a

Moreover, the judge in his final |
correct the harmful effect of the imp oper argument. It
is the rule of this Commonwealth that the jurors are
generally expected to follow instructions to disregard mat-
ters withdrawn from their consideration. Commonwealth
v. Bellino, 320 Mass. 635, 645, 71 N.E.2d 411. Common-
wealth v. Crehan, 345 Mass. 609, 613, 188 N.E.2d 923.
However, there have been persuasive opinions that cor-
recting instructions cannot overcome serious prejudicial
effect. What was stated by Justice Jackson in his con-
curring opinion in Krulewitch v. United States, 336 U.S.
440, 453, 69 S. Ct. 716, 723, 93 L. Ed. 790, constitutes a
practical and realistic appraisal of the situation. ‘‘The

167

naive assumption that prejudicial effects can be overcome
by instructions to the jury ... all practicing lawyers know
to be unmitigated fiction.”” There are circumstances in
which the prejudicial effect is of such proportions that
it cannpt be corrected by instructions to the jury.® In
Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620,
F.27, 20 L.Ed.2d 476, the court stated: ‘ [T]here are some
contexts in which the risk that the jury will not, or cannot,
follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and
human limitations of the jury system cannot be ignored.’’
Moreover, corrective instructions must be sufficiently
strong to accomplish the purpose of counteracting the
adverse effect of the prejudicial remarks or evidence.
Heina v. Broadway Fruit Mkt. Inc. 304 Mass. 608, 611,
24 N.E.2d 510. Commonwealth v. Crehan, infra. See Lon-
don v. Bay State St. Ry. 231 Mass. 480, 485-486, 121 N.E.
394; Stricker v. Scott, 283 Mass. 12, 14-15, 186 N.E. 45.
In the instant case, the judge did not instruct the jury
at the time the improper argument was made nor did he
call for an immediate retraction. See Commonwealth v.
Cabot, 241 Mass. 131, 135 N.E. 465. In his final instruc-
tions to the jury the trial judge made the routine observa-
tion that arguments of counsel are not evidence: ‘‘Con-
sider the case as though no such statement was made.”’
In the circumstances of this case the instructions were
far from sufficient to overcome the serious damage done.
“Tt was the duty of the judge to emphasize the fact that
the argument had been grossly improper; to point out in

5 Error was found in Commonwealth v. Cabot, 241 Mass. 131, 135 N.E.
465, (that defendant’s defence was a technical one), and in Commonwealth
v. Domanski, 332 Mass. 66, 69-70, 123 N.E.2d 368 (that an unfavorable in-
ference should be drawn from the defendant’s failure to call witnesses where
there was no evidence that the defendant had witnesses he could call).
Worcester Telegram & Gazette, Inc. v. Commonwealth, 354 Mass. 578, 238
N.E.2d 861. Commonwealth v. Gordon, 356 Mass. 598, 603-604, 254 N.E.2d
901.

oe SE RAR SUITE OP OIE (GAIA, RRRMONTE

168

plain, unmistakable language the particulars in which it
was unwarranted and to instruct the jury to cast aside in
their deliberations the improper considerations that had
been presented to them, using such clear and cogent lan-
guage as would correct the obviously harmful effect—of-
the argument. This was not done.’’ Commonwealth v.
Cabot, 241 Mass. 131, 150-151, 1385 N.E. 465, 472. London
v. Bay State St. Ry. 231 Mass. 480, 486, 121 N.E. 394.

The majority opinion notes that if defence counsel had
requested immediate instructions at the time of the im-
proper remarks the judge would have given them and
that ‘‘[i]n the absence of a suitable request the defendant
cannot now successfully argue that an immediate instruc-
tion to the jury was necessary to erase the prejudicial
effect of the remark.’’ In a capital case where a man’s
life may be at stake, and in view of the requirements of
G.L. ec. 278, § 33E (as amended through St. 1962, ¢. 453),
this view of the majority is untenable. The trial judge
has the ultimate responsibility (as we have on review) of
guaranteeing the defendant a fair trial. In the circum-
stances of this case it was the judge’s obligation imme-
diately, with clear and unmistakable language, to instruct
the jury that the prosecutor’s arguments were grossly im-
proper. Moreover, he should have ordered their retraction
by the prosecutor. Even though defence counsel may not
have moved for immediate corrective instructions, his ob-
jections to the remarks were sufficient to require immediate
action by the judge. The prosecutor’s comments were so
prejudicial in nature that the judge should have acted
sua sponte. In the total circumstances of the case nothing
less could have safeguarded the defendant’s constitutional
rights to a fair trial.

The remarks of the prosecution in this case were far
more prejudicial than the newspaper publicity of the de-

169

fendant’s criminal record in the Crehan case.* The pro-
secutor’s argument in the instant case permitted or per-
haps even suggested an inference that the defendant had
conceded his guilt and was merely hoping for something
a little less than a verdict of murder in the first degree.
This diminished his chance for a fair trial to a far greater
degree than would have the publication in a newspaper
of his criminal background. Unlike a newspaper, the pro-
secutor ostensibly speaks with the authority of his office.
The prosecutor’s ‘‘personal status and his role as a spokes-
man for the government tend’ed] to give to what he...
[said] the ring of authenticity . . . tend[ing] to import an
implicit stamp of believability.’’ Hall v. United States,
419 F.2d 582, 583- (5th Cir.). The prosecutor’s re--
marks probably called for a mistrial. In any event the
judge’s failure to instruct the jury adequately and with
sufficient force to eliminate the serious prejudice to the
‘defendant constitutes fatal error. Moreover, the judge’s
routine final instructions to the jury were far from suffi-
cient to correct the error. By then the defendant’s posi-
tion had so deteriorated that his chances for a fair de-
liberation of his fate by the jury were virtually elimin-
ated.

For these reasons I believe that the defendant did not
receive a fair trial. I would grant a new trial.

6In Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923, during the
trial certain newspaper articles implied that each defendant had a criminal
record. “On this assumption some action by the judge was required to over-
come the possibility of prejudice. The judge recognized this and, rejecting
the argument for a mistrial, decided that immediate instructions were not
required and that a general caution in the charge would be adequate.” This
court further stated, “Postponing any instruction until the charge, however,
risked an adverse effect in the interval.” Judgments were reversed.

170

SPIEGEL, Justice (dissenting).

I am in complete accord with the Chief Justice’s dis-
senting opinion. Nevertheless I feel impelled to also state
my disagreement with the majority’s adherence to the
-rule requiring the defendant to show a ‘‘particularized
need’’ to inspect the grand jury minutes of the testimony
of witnesses who testified before the grand jury and who
subsequently testified at the trial. 7

1. The current rule imposes on the defendant a well-
nigh intolerable burden, and is thus out of touch with the
‘‘growing realization that disclosure, rather than suppres-
sion, of relevant materials ordinarily promotes the proper
administration of criminal justice.’’ Dennis v. United
States, 384 U.S. 855, 870, 86 S. Ct. 1840, 1849, 16 L.Ed.2d
973. In the case at bar for instance, the majority hold ‘that
the defendant was not entitled to disclosure because he ~
‘‘did not show that the grand jury minutes would cast
further light as to either of the alleged inconsistencies .. .
or that the grand jury testimony might be in any other
- way inconsistent with Carr’s testimony at trial.’’ _How
could the defendant make such a showing, in the absence
of an admission by the witness (see, e.g. Commonwealth
v. Carita, 356 Mass. 132, 141-142, 249 N.E.2d 5), without
first inspecting the minutes? It is a formidable task con-
fronting a defendant to show a ‘‘particularized need,’’
unless per-chance he is possessed of supernatural powers.
In the case of Jencks v. United States, 353 U.S. 657, 667-
668, 77 S, Ct. 1007, 1013, 1 L.Ed.2d 1103, involving a de-
fendant’s request for inspection of written reports of
F.B.I. agents concerning events as to which they testified
at trial, the court pointed out: ‘‘Requiring the accused
first to show conflict between the reports and the testimony
is actually do deny the accused evidence relevant and ma-
terial to his defense. The occasion for determining a con-
flict cannot arise until after the witness has testified, and |

{

171

unless he admits conflict . .. the accused is helpless to
know or discover conflict without inspecting the reports.
A requirement of a showing of conflict would be clearly
incompatible with our standards for the adminisration of
criminal justice in the federal courts and must therefore
be rejected.’’ a
This court in Commonwealth v. Cook, 351 Mass, 231,
. 233, 218 N.E.2d 393, citing Pittsburgh Plate Glass Co. v.
United States, 360 U.S. 395,79 S. Ct. 1237, 3 L.Ed.2d 1323,
and Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840,
16 L.Ed.2d 973, has said that our rule requiring a defen-
dant to show a ‘‘particularized need’’ appears to be the
same as the Federal rule. We should recognize, however,
that many Federal Courts of Appeals have interpreted
the Dennis case as implicitly repudiating the ‘‘particular-
ized need’’ standard.’ One court in the case of Cargill v.
United States, 381 F.2d 849, 851-852 (10th Cir. 1967) has
said relative to the opinion in the Dennis case: ‘‘The .
Court retains the requirement that ‘particularized need’
be shown in order that the secrecy may be lifted, but holds
in effect that such need is shown when the defense states
that it wishes to use the transcript for the purpose of
impeaching a witness, to refresh his recollection, or to
test his credibility. Thus the Court as far as cross-
examination is concerned has removed most, if not all,
of the substance from the particularized need requirement,
although it has retained the term. Under this opinion,
it appears that the \defense is entitled to the grand jury
transcript of the witness’s testimony when the jury’s
functions are ended, and when the request is made during

1 Since the Supreme Court in the Dennis Gase based its decision upon its
supervisory powers over the Federal District Courts and not upon a constitu-
tional right of the accused, we are not compelled to follow it. Connor v.
Picard,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0278%3A1. Public record. Not legal advice.