Commonwealth v. DeCicco

¶1(dissenting). A pretty fair jurist once quipped that even a dog knows the difference “between being stumbled over and being kicked.” Holmes, The Common Law 3 (1881). See E. Amanti & Sons, Inc. v. Barnstable, 42 Mass. App. Ct. 773, 778-779 (1997). Were but the line between mistake and calculation always so clear. Where the majority apparently sees a mere stumble on the Commonwealth’s part here, I perceive a kick. Accordingly, I dissent.

¶2As noted by the majority, the prosecutor at trial repeatedly bolstered the credibility of the chief government witness, Madden, by assuring the jury that Madden ultimately would be tried for murder and that he had received no promise of lenity. In fact, less than a year later, a plea deal was struck, and Madden was permitted to plead guilty to manslaughter.

¶3It may never be known whether or to what extent the prosecutor had hinted to Madden at the time of the defendant’s trial that helpful testimony would be rewarded. The temptation for the prosecutor to engage in such conduct with an indicted but untried witness is plain: the witness then has every incentive to “go all out” in his efforts to please the prosecutor, while the government is permitted to enhance the witness’s credibility by touting the lack of a plea agreement.

¶4For me, the ultimate disposition of Madden’s case provides a sufficient basis to infer the secret existence of at least a tacit plea arrangement at the time of trial. See Commonwealth v. Hill, 432 Mass. 704, 712 (2000) (reduction of the charge “strongly supports the existence of an agreement between [the witness] and the Commonwealth”). Bolstering my conclusion is the fact that in Commonwealth v. Jackson, 428 Mass. 455, 457-459 (1998), a prosecutor from the very same office that prosecuted the defendant here, in approximately the same time frame, apparently made a similar arrangement with another *167government witness. Cf. Commonwealth v. Johnson, 21 Mass. App. Ct. 28, 41 (1985). Admittedly, as the majority explains, the charges against the witness in Jacksonwere dismissed on the basis of insufficient evidence (a dismissal the Commonwealth did not appeal), not a plea bargain. I note only that the government exerts complete control over the inculpatory evidence presented at trial.

¶5Even if, later events notwithstanding, it is believed that no inducement was offered to Madden, I still conclude that the government’s conduct was grossly improper. Any Superior Court prosecutor should know better than to guarantee that a particular defendant ultimately will be tried as indicted. Witnesses disappear, the weight of evidence shifts, eleventh hour plea agreements are reached. For the prosecutor here to state unequivocally and repeatedly that Madden will “go[] to trial, too, charged with first degree murder” was reckless in the extreme. In my view, where a prosecutor makes such an ill-advised promise, a trial judge would be well within his or her right to instruct the jury, sua sponte, that no such guarantee can be enforced against the government.

¶6In determining the correct curative for the prosecutor’s conduct, the majority ultimately concludes that even if Madden’s testimony were tainted — that is, unfairly bolstered by the Commonwealth — there was sufficient other evidence here to assure conviction, and so no risk of a miscarriage of justice is posed.1 In the first instance, I am very unclear about what “other evidence” the majority has in mind. Apart from Madden’s testimony, the only inculpatory facts adduced by the Commonwealth — circumstantial evidence possibly supporting the inference that the defendant had worn a hat and coat found at the scene that bore traces of an accelerant, as well as vague suggestions that the defendant and the victim’s father had been involved in an ongoing dispute — would not even meet the requirements of legal sufficiency. The majority makes much of evidence that the defendant poured a small quantity of methanol *168into a bottle before the fire was set — a fact the defendant freely admits. It was only through Madden’s testimony, however, that the Commonwealth was able to fink the filling of the bottle, itself a benign act (the defendant kept a large supply of methanol in his basement which he apparently used for various purposes), to the construction and decision to deploy the firebomb used here.2 Likewise, the majority emphasizes the evidence of the defendant’s animus toward the victim’s father. There was, however, at least as much evidence of similar antipathy on the part of Madden.

¶7As the Supreme Judicial Court stated in Commonwealth v. Collins, 386 Mass. 1, 9 (1982), quoting from Commonwealth v. Gilday, 382 Mass. 166, 177 (1980), if “through misfeasance or nonfeasance by the prosecutor, false testimony is introduced concerning an arrangement between the witness and the prosecutor .. . [a] conviction will be set aside if there is ‘any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” The Commonwealth here, either through guile or recklessness, purveyed to the jury what ultimately proved to be such false testimony. In view of the weakness of the government’s case apart from Madden’s testimony, I believe that the misleading evidence concerning Madden’s potential motives for bias likely “affected the judgment of the jury,” requiring reversal.

¶8More important, however, I conclude that reversal is mandated here in any event — questions of the strength of the evidence notwithstanding — as a normative measure aimed at deterring government malfeasance. While a drastic remedy to be sure, dismissal of indictments is one of the sanctions that may be imposed in response to serious official misconduct. See Commonwealth v. Cinelli, 389 Mass. 197, 210, cert, denied, 464 U.S. 860 (1983). I believe the Commonwealth’s actions here rose to the requisite level of bad faith to warrant that remedy.

¶9In a criminal trial, the balance of power already is tipped quite heavily in favor of the government. A prosecutor occupies the unique position of being able to offer hesitant witnesses substantial rewards for cooperation (or to inflict terrible penal*169ties for lack of same). A defendant has no similar leverage. Given this inequity, I believe that any abuse by the government of its already formidable power to influence testimony must be met with the harshest possible sanction.

¶10In Commonwealth v. Hill, 432 Mass. at 709-717, the Supreme Judicial Court ordered a new trial where the prosecutor had failed to disclose a secret plea agreement with a key government witness — an agreement of precisely the same sort that I believe existed here. Specifically, the Commonwealth had made no express promise to the witness, but offered instead to make concessions proportional to the ultimate value of the witness’s testimony. Despite this understanding, the prosecutor allowed the witness to tell the jury that no inducements whatsoever had been offered in exchange for his testimony. Fortunately, the witness in Hillsubsequently confessed the subterfuge.

¶11Unfortunately, in the main, shady practices of the type described in Hillseldom come to light. However, when they do, as I believe has happened here, the Commonwealth must be brought up short. In my view, this case marks an appropriate occasion to draw a fine in the sand. The majority would not go so far, at least not this time. Accordingly, I dissent.