Commonwealth v. CurryCommonwealth v. Curry
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The defendant appeals pursuant to
Briefly, the pertinent evidence was as follows: The police testified that after receiving a call at approximately 4 a.m. on Wednesday, February 9, 1972, they arrived at the defendant’s apartment where they observed the victim lying on a bed lifeless and in a badly battered condition. The medical examiner testified that she had met her death as a result of “blunt force injuries of the face and head, with resulting subdural hematoma.”
The victim and the sixty year old defendant had been living together for approximately fourteen months. They had consumed large quantities of alcohol in the week preceding the homicide. The defendant testified that on the Sunday before the homicide, the deceased was intoxicated and stumbled and fell sustaining cuts and bruises. The defendant’s son corroborated his father’s story regarding the fall and the resulting injuries.
On behalf of the Commonwealth a young girl, who had been babysitting in an upstairs apartment on the night of the homicide, testified that she heard loud and methodical thumping noises and noises of a man and woman arguing coming from the defendant’s apartment throughout much of the evening.
The defendant, when questioned by police, made inconsistent statements regarding when he had last eaten, when the victim had fallen, and how he got blood on his clothing. These statements, as well as prior convictions for forgery and passing bad checks, were introduced during cross-examination to impeach the defendant’s credibility.
1. There is no merit to the defendant’s contention that he was denied the effective assistance of counsel by the judge’s refusal to allow him to confer with his counsel on the view.
The “chief purpose [of a view] is to enable the jury to understand better the testimony which has or may be
It is well settled that the taking of a view is discretionary with the trial judge.
The defendant argues, however, that once a judge permits a view and allows the defendant to be present, it is a violation of his right to counsel to prohibit the defendant from conferring with counsel at the scene of the crime. We disagree. Since the judge could have precluded the defendant’s presence, we perceive no basis for limiting the judge’s discretion regarding such conversations between the defendant and counsel at the view.
While we have said in recent cases that it is best to allow defendants to confer with counsel during the questioning of witnesses,
Guerin
v.
Commonwealth,
339 Mass. 731, 734-735 (1959);
Amado
v.
Commonwealth,
349 Mass. 716, 720-721 (1965);
Commonwealth
v.
Robichaud,
358 Mass. 300, 303 (1970), we do not believe that
The view was taken at a one-room apartment in which the homicide occurred. Fourteen jurors, the judge, three court officers, the assistant district attorney, the defendant and his counsel were all crammed into this one room. It was reasonable for the judge to have concluded, as he apparently did, that any discussion between the defendant and his counsel would be overheard by the jury and that it might have included extraneous matters. It was also reasonable for him to have determined that the danger of the jury’s hearing such conversation outweighed any benefit to be derived therefrom. Accordingly, we hold that the judge’s refusal to allow such conversation was not an abuse of discretion, nor did it constitute a denial of the defendant’s right to the effective assistance of counsel guaranteed by the United States Constitution and the Massachusetts Declaration of Rights.
2. On the third day of the trial, Robert Curry, son of the defendant, testified on his father’s behalf. In the course of cross-examination by the prosecutor the court recessed for the day pending further cross-examination. As the witness was leaving the court room through an alcove, he was arrested and handcuffed by two Roston police officers. This occurred at the same time that the jury, who were not sequestered, were leaving the court room.
At a lobby conference the next morning, defense counsel moved for a mistrial. The judge stated that he would “inquire into the facts . . . before making a determination.” Immediately thereafter, while in his lobby with neither counsel present, the judge spoke to the court officer regarding the occurrence. The judge then determined that general instructions to the jury would suffice. 2 When counsel returned to the lobby, the judge denied the defendant’s motion for a mistrial. The record does not indicate that defense counsel asked for the basis of the judge’s decision or that he requested additional inquiry into the matter. When the jury returned, the judge gave clear and precise cautionary instructions. 3
This is not a case where a defendant or witness was deliberately shackled for security reasons while he was in the court room. We have held that that procedure should be employed only when necessity is shown; guidelines for handling the procedure were laid down in Commonwealth v. Brown, 364 Mass. 471 (1973). In the present case the witness was not handcuffed when he testified; he was arrested as he left the court room, and this occurred without the knowledge or consent of the judge. We do not approve of the police action in this case, but we cannot say that the arrest of the witness in this manner requires reversal. Cf. Commonwealth v. Ferguson, 365 Mass. 1, 12-13 (1974); Commonwealth v. Stewart, 365 Mass. 99, 108-109 (1974). This is especially true in light of the clear and forceful instructions given to the jury as soon as possible after the incident.
The defendant contends that the judge erred by not inquiring of the jurors whether they observed the incident and whether they were prejudiced thereby. We disagree. The judge may well have concluded that anything but general instructions would have focused more attention on the incident and might have operated to the prejudice of the defendant. Although in hindsight another route might appear to have been more appropriate, we cannot say that the judge’s decision in this regard was incorrect or an abuse of discretion. See
Commonwealth
v.
Geagan,
339 Mass. 487, 507-508 (1959). See also
O’Shea
v.
United States,
400 F. 2d 78 (1st Cir. 1968), cert. den. 393 U. S. 1069 (1969). “We think that the judge’s instructions afforded ample direction concerning the jury’s duties and avoided dangers of misunderstanding which might have arisen from more specific references to
Similarly, in these circumstances, it was not reversible error for the trial judge to discuss the incident with a court officer without the defendant or his counsel present. Apparently all that happened was that the judge made discreet inquiry of the court officer to ascertain whether further action was necessary. This is not a case like Remmer v. United States, 347 U. S. 227 (1954), where the judge conferred with the prosecutor, the FBI and a juror, out of the presence of the defendant or his counsel, regarding a bribe attempt. Neither is it like Commonwealth v. Robichaud, 358 Mass. 300 (1970), where we held it was reversible error to exclude the defendant from a conference between the judge and various jurors who had allegedly discussed the case in an improper manner. We do not believe that in the circumstances before us the defendant or his counsel had information that would have aided in the questioning of the court officer. Furthermore, no request was made by defense counsel that either he or the defendant be present when further inquiry was made into the incident. Thus, we are not controlled here by our decision in the Robichaud case. “What was done does not fall under the condemnation of ‘secret instructions or clandestine communications,’” Lewis v. United States, 295 Fed. 441, 445 (1st Cir. 1924), cert. den. 265 U. S. 594 (1924), quoting from Lewis v. Lewis, 220 Mass. 364, 370 (1915), and, accordingly, we find no error.
3. There was no error in the judge’s refusal to charge the jury on the lesser included offense of assault and battery. We stated in Commonwealth v. Myers, 356 Mass. 343, 350 (1969), that “there must be an instruction on assault and battery if, but only if, the evidence raises a reasonable doubt that the acts of the defendant did not cause the victim’s death.” We believe that “the facts in the case at bar do not meet this test.” Id. at 350.
In light of the evidence stated above, “there was no reasonable basis to allow the jury to return a verdict for assault and battery. Such a verdict could only have resulted from a distorted and palpably unrealistic view of the evidence.” Id. at 351.
4. The defendant was tried on an indictment charging murder in the first degree. At the time of empanelling the jury,
The thrust of the defendant’s argument is that he was tried by a “death-qualified” jury; a jury not representative of the community. We have considered the problem of death-qualified juries on many recent occasions. In Commonwealth v. McAlister, 365 Mass. 454 (1974), we thoroughly examined the question and determined that there was no basis to conclude that death-qualified juries were more conviction-prone than juries otherwise selected. Id. at 457-462. Similarly, in Commonwealth v. Valliere, 366 Mass. 479, 487-488 (1974), and Commonwealth v. Stone, 366 Mass. 506, 508-509 (1974), we vacated sentences of death while upholding the underlying convictions where the jury selection process was conducted in the manner prescribed in the Witherspoon case. Most recently, in Commonwealth v. Harrington, 367 Mass. 13, 22-24 (1975), where five prospective jurors were excused because of their views on the death penalty, we held that the defendant had “not shown that he was deprived of a jury which could fairly and objectively determine his guilt or innocence.” Id. at 23. We believe these cases are controlling. The fact that the Furman case was decided during the defendant’s trial is not sufficient to distinguish his case from those cited above.
Judgment affirmed.
Notes
In this case, the defendant made no objection when photographs of the scene were offered in evidence. Defense counsel stated that he had seen the photographs and conceded they were a fair representation of the interior of the apartment.
The extent of this conference was as follows: Court Officer Basil: “I went up to count them. And this man said: ‘What did they bag that fellow for?’ So, of course, I didn’t say anything to him. The jury generally walks out two or three at a time. And I just didn’t question him anymore. I told him I didn’t see anything.” The Judge: “He may have mentioned it to the other jurors since that time. This was last night.” The Clerk: “I would agree with Your Honor, general instructions would suffice.” The Judge: “I will agree.”
“At this stage of the game, Mr. Foreman and ladies and gentlemen of the jury, I want to make this statement to you: You are reminded that this case is to be decided only — and I emphasize the word ‘only’ upon the evidence which is presented here in the courtroom under oath. If you have observed any activity outside of the courtroom or in the corridors or in the environs of the courthouse or if you have read anything concerning this case, this is not in any way to — and I emphasize this — it is in no way to enter into your deliberations or your discussions in determining the issues which are posed by this case. This case, I say again, shall be determined by you only upon the evidence presented here in this courtroom. This is inherent in your oath as jurors.”
The questions asked by the judge on this issue were as follows: “Have you any opinion that would prevent you from finding a defendant guilty of an offense punishable by death if he were proven to be guilty beyond a reasonable doubt?” “On the other hand, do you have any opinion that would prevent you from recommending leniency or clemency to the Court and joining with the other jurors if you felt that the circumstances warranted life imprisonment rather than capital punishment in the event of a guilty finding?” These questions were clearly proper. See Witherspoon v. Illinois, 391 U. S. 510 (1968). See also Commonwealth v. Ladetto, 349 Mass. 237, 245 (1965); Commonwealth v. Bumpus, 362 Mass. 672, 679 (1972), judgment vacated 411 U. S. 945 (1973), affirmed on rehearing, 365 Mass. 66 (1974).