On Sеptember 13, 1971, the defendant was indicted for a murder committed on July 11, 1971. On March 3, 1972, after five days of trial, the jury returned a verdict of guilty of murder in the first degree and recommended that the penalty of death be not imposed. The same day the defendant was sentenced to life imprisonment. The case is before us pursuant to G. L. c. 278, §§ 33A-33G. The defendant took exceptions tо the denial before trial of three motions made by him, and took 134 exceptions at trial. He filed twenty assignments of error, and argues eight of them in his brief.
We summarize the evidence. The victim, David Myers, was a man twenty-five years old, five feet seven inches tall, and weighed 230 pounds. He lived in a ground-floor apartment in Dorchester with Gloria Custis and their six months old baby. The defendant, Jаmes Haley, was about the same height as the victim, but much slim
On the same Saturday Gloria and the victim went to bed in their apartment between 10 and 10:30 p.m. The doors were locked, but a kitchen window was open. In the early morning of July 11, she awoke, heard their dog barking, and saw the victim going toward the kitchen. She said, “What’s the matter, David?” He said, “James stabbed me. James stabbed me.” As she was getting up from the bed, she heard a gunshot, and as she was running toward the kitchen, David said, “Why did you stab me, man? Brenda’s not here.” Gloria then looked into the bathroom, where the light was on, and saw the defendant and the victim struggling over the tub. The defendant had a small gun and a large knife in his hands, and the victim had his hands over the defendant’s hands, trying to get the knife and gun away from him.
The telephone in the apartment was disconnected, and Gloria thought that the telephone in the upstairs apartment of a neighbor was also disconnected. She grabbed her clothes, ran out the door and yelled for help. She ran a block and a half or two blocks to her brother’s apartment, arriving fifteen or twenty minutes after 5 A.M. The police were called. With her brother and two others, shе returned to her apartment, met the police there, and
The defendant workеd at the Massachusetts Institute of Technology on Saturday, July 10, until 2:45 P.M. Later he visited his mother at the hospital. Still later, in the evening, he was at a party in Dorchester. He left with others to get sandwiches about 3 A.M. and returned about 4 A.M. The defendant’s sister, who was at the party, testified that she saw the defendant about 5 to 6 A.M., when the crime apparently occurred.
The defendant сontends that he was denied the fair trial guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States because the trial judge (1) improperly excluded evidence not objected to by the Commonwealth, (2) improperly cross-examined Gloria Custis and the defendant’s sister, and (3) improperly admonished defence counsel in the presence of the jury. He also contends that there were two errors in the exclusion of evidence sought by the defendant on cross-examination, two errors in the admission of irrelevant and inflammatory evidence presented by the prosecution, and error in the denial of the defendant’s motion to make an unsworn statement to the jury.
1.
Exclusion of evidence on the judge’s own motion.
Some eighteen times during the cross-exаmination of prosecution witnesses by counsel for the defendant, the judge excluded questions on his own motion, without objection by the prosecution, and the defendant excepted. Several of the questions are characterized by the defendant himself as “marginally material,” “leading,” or “argumentative”; others seem largely rhetorical or repetitiоus. Still others might have been material if connected up, and were excluded only after the judge had asked whether counsel was prepared to make the necessary showing and after counsel had indicated that he was
Thus police witnesses were asked whether particular facts were significant or important. Gloria was asked whether she was “surрrised” at one point, whether she was “worried” at another, whether she knew the defendant’s mother was in the hospital, and whether she knew why the victim said, “Brenda is not here.” As to some of the questions, it seems to be conceded that exclusion would have been proper if the prosecution had objected. Answers to some might have been relevant to the biаs of the witness, but rulings excluding them after objection would not be disturbed unless the substantial rights of the defendant were clearly shown to have been prejudiced.
Commonwealth
v.
Makarewicz,
As the defendant contends, failure to object to offered evidence operates to waive objections tо its admissibility.
Boyle
v.
Columbian Fire Proofing Co.
“A good judge must have firmness. Sitting with a jury, he should so conduct the trial that the case will go to the jury, so far as his lawful powers permit, free from irrelevant considerations and appeals to prejudice and emotion. As a former justice of our court once said, ‘The judge who discharges the functions of his office is . . . the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings.’
*
It is true, now as in Lord Bacon’s day, that ‘an overspeaking judge is no well-tunеd cymbal,’ and that ‘It is no grace to a judge
“But a judge need take no vow of silence. He is there to see that justice is done, or at least to see that the jury have a fair chance to do justice. . . . The judge ought not to let the jury be diverted from the real issue. The skill of counsel must not be allowed to mislead the jury by raising false issues or by appeals to emotion and prejudice. ... It is not always easy for a judge to see his duty clearly. But a first-rate trial judge will find and tread the nаrrow path that lies between meddlesomeness on the one hand and ineffectiveness and impotence on the other.” Lummus, The Trial Judge, 19-21 (1937). See
Goldman
v.
Ashkins,
2.
Cross-examination by the judge.
The defendant contends that the judge conducted a biased examination of two witnesses. First, after Gloria had testified that the defendant had a gun and a knife in his hands while he was struggling with the victim in the bathroom, she stated on redirect examination that she saw the defendant’s “face and part of the upper part of his body.” Thereafter she answered in the affirmative when defence counsel asked, “You saw nothing else” except the face and upper part of his body, “is that right?” The judge
The judge could properly interrogate witnesses.
Commonwealth
v.
Oates,
3. Admonitions to counsel. Defence counsel, on direct examination, asked the defendant’s sister whether the defendant told her where he was going after he arose on Sunday morning. On objection, the judge excluded the question, and the defendant excepted. In a brief colloquy which followed, the judge asking counsel why he was taking an exception, said, “It’s clear that this is hearsay and inadmissible,” and then asked, “You say I’m wrong?” Counsel said, he- didn’t say the judge was wrong but “I disagree with your ruling.” The judge said, “I’m right, but you disagree, is that right?” He then told counsel to proceed and refused to let him make an offer of proof.
We need, not decide whether the question was proper to corroborate other evidence that the defendant went to play basketball. See McCormick, Evidence (2d ed.) § 295. Compare
Commonwealth
v.
Fatalo,
The defendant characterizes the judge’s remarks as “far from courteous and uncontroversial,” and claims that they “put counsel in the precarious position of fearing to except to the court’s ruling.” The transcript of course does not disсlose the manner or tone of counsel or judge, although it does show that counsel was able to overcome any fear of taking exceptions. Error cannot be based on mere assertion or speculation, but we have reviewed the transcript closely to ascertain whether the judge’s actions might have deprived the defendant of a fаir trial through the cumulative effect of tension between court and defence counsel. Compare
Commonwealth v
.
Lewis,
There were numerous comments and suggestions by defence counsel, unsupported by anything in the testimony, and a very considerable number of argumentative, rhetorical, repetitive and inconsequential questions. The judge intervened a number of times to try to еliminate unsupported assumptions, to elicit facts rather than adjectival characterizations, or to prevent repetition or confusion. The judge’s problem may be illustrated by a
These colloquies and others do reveal a certain tension between counsel and judge, but they also show that counsel created the problem. They do not show counsel terrified, nor do they show the judge playing a partisan or overzеalous role or expressing his opinion on the facts or departing from standards of courtesy and dignity. The judge fully instructed the jury that his rulings, comments and questions were not to be taken as indicating his opinion on issues of fact, and that they were to decide such issues without being influenced by what they might think his opinion to be. We conclude that the judge’s actions did not deny the defendant a fair trial.
Gloria had testified on direct examination that on the morning of the crime she had gone tо her brother’s apartment and had returned to her own apartment with her brother, a woman and one Milton Allston. On cross-examination she testified that Allston had spent the night at her brother’s house and that she had never gone out with him. Counsel then asked, “And, of course, he wasn’t at your house at all that morning?” The judge asked whether counsel was “prepared to show that by evidеnce,” counsel said he didn’t know, and the judge excluded the question. Like the Corbin" questions, this question was an attempt to throw suspicion on someone other than the defendant. Without some supporting evidence, it invited unwarranted speculation. See
Commonwealth v. Geagan,
5.
Admission of inflammatory evidence.
The defendant objected to testimony by Brenda as to why she left the defendant, her husband, about two months before the crime. She testified that they had an argument, and that he hit her and cut her over the eye, and another witness testified that she saw Brenda the same day and that Brenda had a scar over her eye and was bleeding. The judge ruled that this evidence had some relevance
6. Permitting an unsworn statement is not now required.
Commonwealth v. O’Brien,
7. We have carefully reviewed the evidence as required by G. L. c. 278, § 33E, as amended. It was open to the jury to return the verdict which they did, and justice does not require the entry of a verdict of a lesser degree of guilt than that returned by the jury or that there be a new trial.
Judgment affirmed,
Notes
“Braley, J., in
Whitney
v.
Wellesley & Boston Street Railway,
“Bacon’s Essays, ‘Of Judicature.’ ”