Opinion
No. 10–P–2034.
2012-05-30
COMMONWEALTH v. Joseph DIPRISCO.
Thus, the defendant had the burden to show that the witness's testimony was sufficiently developed to be admissible.
By the Court (CYPHER, GREEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Joseph DiPrisco, unsuccessfully sought to introduce the grand jury testimony of an unavailable witness in a murder trial that ended in the defendant's conviction of the lesser included offense of voluntary manslaughter. The defendant argues that the testimony qualified as prior recorded testimony under Commonwealth v. Clemente, 452 Mass. 295, 312–315 (2008), cert. denied, 555 U.S. 1181 (2009), and was sought on the ground that the witness was the only eyewitness to the stabbing of the victim. The defendant's principal complaint on appeal is that the trial judge denied his motion by adopting arguments in the Commonwealth's motion in opposition without an “independently articulated analysis.” Discussion. We state the applicable standard of review as it appears in Commonwealth v. Clemente, supra at 315:
The witness testified to a grand jury on November 18, 2008, concerning the incident that occurred on November 15, 2008. The witness died on February 21, 2010, almost three months before the trial held in May, 2010.
The trial judge allowed the Commonwealth's motion to exclude the grand jury testimony, thereby effectively denying the defendant's motion to admit it.
“[B]y its very nature, the testimony provided to a grand jury is limited, and no attempt is made to corroborate or discredit the witness providing the testimony. Ordinarily, this testimony is inadequate to provide a jury with a reliable ground upon which to base their deliberations, and thus cannot fulfill the requirements of the prior recorded testimony exception to the hearsay rule.
“If, however, the party seeking the admission of the grand jury testimony can establish that the Commonwealth had an opportunity and similar motive to develop fully a (now unavailable) witness's testimony at the grand jury, that earlier testimony would be admissible. Thus, the defendant would bear the burden of demonstrating that the [Commonwealth] ... had the opportunity and similar motive to credit or discredit the testimony, and therefore proceeded at the grand jury as if the witness were now on the stand.” (Citations omitted.)
Thus, the defendant had the burden to show that the witness's testimony was sufficiently developed to be admissible.
While the defendant's assertion that the Commonwealth had an opportunity to fully develop the witness's testimony before the grand jury may be correct, it is readily apparent on this record that the Commonwealth did not have a “similar motive” to fully develop that testimony. The Commonwealth stated that its objective before the grand jury was only to present sufficient evidence to obtain an indictment.
From our review of the lengthy transcript, we think it is obvious that before the grand jury, the prosecutor treated the witness in a nonconfrontational manner, made no effort to corroborate or discredit her testimony, and did not probe any differences between that testimony and the statements she and the defendant gave to the police. Because of the close relationship between the witness and the defendant, a drug-sharing relationship between the witness and the victim, and the witness's flight from the scene, the Commonwealth was uncertain whether the witness would be cooperative or hostile.
The witness had a limited view of the incident, and did not see the initial confrontation between the victim and the defendant, or the knife used in the stabbing. The prosecutor did not explore the witness's denial that she was impaired by the use of drugs on the day of the stabbing.
The grand jury testimony is not materially different from the witness's statement given to the police. Nothing appears in the testimony that would be exculpatory in relation to the defendant's theory of self-defense, nor has the defendant pointed to any evidence that he claims would be helpful.
Much of the defendant's argument appears to concede that there was little if anything to be developed in the witness's testimony. For example, although the witness testified three days after the stabbing, the defendant states that the Commonwealth's investigation essentially was complete and the defendant had admitted that he stabbed the victim, so that the Commonwealth could have established probable cause without the testimony of the witness. Moreover, the defendant states that no new fact or evidence was obtained from the testimony “that had any reasonable likelihood of enabling the Commonwealth to more effectively present her testimony later at trial.” Accordingly, the judge's reliance on the arguments in pages six through eight of the Commonwealth's motion, which our review indicates are supported in this record, was a proper exercise of her discretion in allowing that motion. See Commonwealth v. Gonzalez, 443 Mass. 799, 805 (2005).
Finally, the defendant has advanced other arguments that “have not been overlooked,” but we do not address because they require no discussion in view of our decision. Department of Rev. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
We acknowledge the receipt of a postargument letter from the defendant. Nothing in the letter requires a response beyond our decision as stated above.
Judgment affirmed.