Commonwealth v. Piscopo

91 Mass.App.Ct. 1128

86 N.E.3d 512 (Table)

COMMONWEALTH

v.Bernard PISCOPO.

15-P-416

Appeals Court of Massachusetts.

Entered: June 20, 2017

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Bernard Piscopo, was convicted of voluntary manslaughter after a jury trial on an indictment charging him with murder in the second degree.² In this consolidated appeal, the defendant raises various claims of trial error and contests the denial of his motion for new trial. We affirm.

1. Third-party culprit and Bowden defenses. The defendant's conviction arose from a fatal stabbing in the course of a fracas in a South Boston bar. At trial, the defendant sought to introduce evidence from a variety of sources suggesting that another combatant in the bar fight, Christopher Cook, killed the victim. The defendant also argued that the Boston police inadequately investigated Cook's involvement in the offense. See Commonwealth v. Bowden, 379 Mass. 472, 486 (1980). Though substantial evidence was admitted at trial in support of these defenses, the defendant claims that some proffered evidence was improperly excluded.

In reviewing the exclusion of third-party culprit evidence, "[b]ecause the issue is one of constitutional dimension, we are not bound by an abuse of discretion standard, but rather examine the issue independently." Commonwealth v. Conkey, 443 Mass. 60, 66-67 (2004). The exclusion of evidence of a Bowden defense, which is not constitutional in nature, "is examined under an abuse of discretion standard." Commonwealth v. Silva–Santiago, 453 Mass. 782, 804 n.26 (2009). In exercising her discretion to admit such evidence, "the judge must determine ... whether the probative weight of the evidence outweigh[s] the risk of unfair prejudice to the Commonwealth from turning the jury's attention to ‘collateral matters.’ " Commonwealth v. Wood, 469 Mass. 266, 278 (2014), quoting from Silva-Santiago, supra at 803.

a. Anonymous tip. The defendant first argues that the trial judge improperly excluded evidence that a woman approached an officer putting up crime scene tape outside the bar and told him, "Cook did this," before refusing to identify herself and walking away. Though the anonymous woman's statement was excluded, the judge permitted the defendant to question the officer about the incident, and about the steps the officer took in response, in support of his Bowden defense.

Third-party culprit evidence "must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative." Silva–Santiago, supra at 801, quoting from Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). Otherwise inadmissible hearsay evidence may be admissible as third-party culprit evidence, but only if "the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other ‘substantial connecting links' to the crime." Silva–Santiago, supra at 801, quoting from Commonwealth v. Rice, 441 Mass. 291, 305 (2004).

Here, the judge properly excluded the anonymous hearsay statement because it was both vague and lacking in reliability. The statement and surrounding circumstances did not convey the nature of the tipster's knowledge, her relationship to the events at issue, or whether she was a percipient witness. "To the extent that the unknown [woman's] statements do not offer the source of [her] information, the statements have no reliability." Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014). See Commonwealth v. Scott, 470 Mass. 320, 327-328 (2014) (vague information with unclear source in police reports offered as third-party culprit evidence properly excluded).

For the same reasons, the anonymous statement holds minimal probative value as Bowden evidence, and the judge did not abuse her discretion in excluding it. The defendant was permitted to question the officer about the steps he took, or failed to take, to investigate or report the tip. Any probative weight of the statement itself was outweighed by its unfairly prejudicial impact. Moreover, the defendant was permitted extensive exploration of his Bowden defense throughout the trial. He repeatedly suggested that the police failed to subject the evidence to sufficient scientific testing, to conduct photo arrays properly, or to adequately secure the scene and interview witnesses. The defendant forcefully argued in closing that the police in fact avoided investigation of Cook. "Thus, where the issue of an inadequate investigation was fairly before the jury, the defendant suffered no prejudice from the exclusion of the proffered evidence." Wood, 469 Mass. at 278.

b. Cook's silence. The defendant next challenges the exclusion of evidence that Cook, through his attorney, refused an interview with the police, and that he subsequently invoked his Fifth Amendment privilege not to testify before the grand jury. Cook's invocation of his right against self-incrimination was patently inadmissible and properly excluded. See Commonwealth v. Gagnon, 408 Mass. 185, 197-198 (1990). Cook's refusal to speak with police was essentially cumulative of admitted testimony that Cook, speaking directly with a detective, would not discuss the bar fight, said he "wanted to talk to somebody else and ... he would get back to [the detective]," and then never spoke with the detective again. Exclusion of Cook's later refusal through his attorney was not error, nor did it prejudice the defendant in any way.

c. Cook's prior bad acts. The defendant additionally challenges the exclusion of evidence relating to Cook's prior arrests. In this regard, the defendant proffered evidence related to a 2003 incident in which Cook was arrested for possession of a firearm and subsequently was reported to have threatened and assaulted arresting officers, including an officer who later responded to the 2007 stabbing.³ The judge permitted testimony regarding the assault and threats, but precluded testimony as to the alleged gun possession. The defendant also proffered hearsay police reports of two assaults in bars using beer bottles, taking place in 2001 and 2002, which the judge excluded.⁴

To present the prior bad acts of an alleged third-party culprit, a defendant must show that "the acts of the other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of [the] defendant as the person who committed the crime." Conkey, 443 Mass. at 66, quoting from Commonwealth v. Hunter, 426 Mass. 715, 716–717 (1998). See Commonwealth v. Pimental, 454 Mass. 475, 479 (2009) (prior bad act of third-party culprit not admissible where it "share[d] no singular features [with] or striking resemblance" to charged offense).

The judge did not abuse her discretion in excluding the proffered prior bad acts, which were temporally remote and lacked a distinctive connection to the charged offense. Cook's alleged possession of a firearm in 2003 bore no similarity to or connection with the 2007 stabbing. The other two bar fights, which took place five and six years prior to the 2007 incident, involved bottles rather than a knife. These incidents were essentially "commonplace or pedestrian," with "nothing in them so striking or salient as to connect them to a single putative offender." Commonwealth v. Brown, 27 Mass. App. Ct. 72, 76 (1989). The lack of substantive or temporal connection to the charged offense rendered the three prior bad acts ultimately lacking in probative value as to either the third-party culprit or Bowden defense.

d. Photographs held by Cook's attorney. Finally, the defendant challenges the denial of his pretrial motion to obtain third-party process, see Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), in which he sought the production of photographs of Cook's hands shortly after the stabbing, purportedly taken by and in the possession of Cook's attorney.

The issuance of compulsory process is "reserved to the sound discretion of the judge." Commonwealth v. Mitchell, 444 Mass. 786, 791 (2005). The motion judge (who was not the trial judge) found, and we agree, that the photographs were covered by the attorney-client privilege. Alleged to have been taken in the context of Cook's seeking legal advice in the aftermath of the bar fight, the photographs were an element of Cook's confidential communications with his attorney. "[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." RFF Family Partnership, LP v. Burns & Levinson, LLP, 465 Mass. 702, 708 (2013), quoting from Upjohn Co. v. United States, 449 U.S. 383, 390 (1981).⁵

Even assuming that the photographs were not privileged material, the motion judge did not abuse her discretion in denying the defendant's request to obtain information that was "merely cumulative of other available testimony to the same effect." Commonwealth v. Watkins, 375 Mass. 472, 489 (1978). The defendant presented a witness who testified that he had observed cuts and lacerations on Cook's hands the day after the stabbing. This witness also testified that Cook had told him that he had provided his attorney with photographs of the cuts or that his attorney had taken the photographs. Thus, the jury were made aware of the injuries to Cook's hands. Furthermore, given the extensive testimony throughout the trial of glass and bottles being broken during the course of the bar fight, the probative force of the photographs was limited at best.

e. Harmless error. None of the rulings the defendant challenges regarding third-party culprit evidence deprived him of the ability to present a defense suggesting that Cook was the killer. The defendant was permitted to present considerable evidence implicating Cook, including forensic evidence, evidence of Cook's criminal history, and testimony detailing his behavior and statements before and after the bar fight. In his closing argument, the...