*1 102 Stanley. Commonwealth plea voluntarily was entered was petitioner’s to due any right petitioner violation under the Fourteenth Amendment. process
Judgment affirmed. Stanley. vs. Thomas February 14, 1973. 6, 1972. Franklin. December Kaplan, Hennessey, Tauro, C.J., Reardon, Braucher, JJ. & Present: article, trial, Practice, Criminal, Newspaper Fair Mis- Identification. trial, Judicial discretion. A victim’s in-court A defendant jected properly being structions. a crime in District brought newspaper influenced to and was into the admitted charged [104-105] article, announcing identification of independent of a with assault and Court, evidence. the article and room Reardon, J., dissenting. which was by [104] a juror, his conviction a prior, battery defendant, where those judge gave legal by identification, four of the “brutal” prejudiced jurors curative jurors was denied unob- in- by Complaint District Court and sworn to in the received on January 8,1969. Franklin Court the case was tried be- Superior On appeal Campbell, fore J. Delcore for defendant. C.
Joseph Attorney, M. the Common- Callahan, John District wealth. was convicted a J.
Braucher, officer. His battery upon police of assault and State (1) whether there to us two bring questions: exceptions in- the officer’s error in admission evidence of (2) whether a mis- defendant, court identification some of had read because trial was required of them trial and one newspaper relating into the the article containing room. Mass. 102 for speeding. officer motorist stopped *2 suddenly officer looked into the and was kicked car several more and was down, times, fell was kicked groin, The he day left in the road. the de- lying picked next fendant’s a or photograph group eight pic- from of seven six tures. About weeks later to a police went barracks defendant, to the who was under arrest an identify picked unrelated motor vehicle him out of a offence, of police some of whom were dressed in group officers, clothes. plain
At the on trial officer examination direct identified the defendant as the who man had kicked him. de- fendant on cross-examination the con- brought up first frontation in the police barracks, suggesting that officer had been unable make to an identification. On re- direct examination the testified that was no officer there his mind time question in at the of the confrontation as to his identification of the defendant. The judge then held a voir dire and ruled that the confrontation was improper, but allowed the evidence previously given stand by virtue of waiver and a finding that the in-court identification had independent basis and origin.
On the second day of trial, brought the defendant the court’s attention a newspaper article case. about the The article stated that the defendant was appealing District Court conviction assault and on the battery officer, who was beaten “brutally” while It re- duty. lated case defaulted his originally when attorney failed to when his appear attorney failed to a second case time, appear defaulted and the extra given year to his one and one-half year sentence. The stated that another judge ordered the case tried, and that it was scheduled for May 9, but was postponed because defendant’s attorney was involved a Boston murder then asked each member of the judge whether he had read about and whether newspapers he had any formed or as a opinion prejudice result. Four said had read seen the they article, or all of them
one had into but room, it denied bias any opinion, prejudice forming impar- would a fair and preclude them rendering not to tial instructed the judge verdict. then denied the any case, but publicity regarding defendant’s motion for mistrial.
1. The found at time of the in-court judge well identification the defendant and his counsel were police aware of the confrontation and identification at the He correctly failing barracks. ruled that move in- or to dire or suppress object voir request claim court identification the defendant had waived *3 Com it was tainted the earlier confrontation. by that monwealth v. Cooper, 74, ruling 356 Mass. 78-80. His United States was that the confrontation under improper U. S. Wade, 388 since the defend 218, erroneous, v. not then been with the crime. formally charged ant had v. 406 U. 682. Commomwealth v. S. Kirby Illinois, Lopes, 362 Mass. 451. It is the confron 448, argued that tation was in violation of the impermissibly suggestive of Stovall v. U. S. Denno, 293. Finally, 388 standard evi the careful the findings, supported made judge the had an dence, independent that in-court identification We do not substitute our that origin. judgment Mur in this situation. Commonwealth the judge trial phy, 542, 362 Mass. and cases cited. 546-549, case parties
2. “The were entitled to have the decided was introduced at the trial. the evidence that only upon the It of the to determine whether duty judge was the of the affected the rights adversely defendant were of the must be left to the discretion publication. Much and his denial of the motion trial judge, mistrial] [for the not been preju- that defendant had implies finding The be said consti- diced. action of cannot judge . . More- tute an abuse of sound discretion. . judicial . . that if any . instructed the over, judge jury the case newspaper concerning them had articles The disregard what he had read. defendant’s should satisfied with the instruction apparently counsel 105 Mass. Commonwealth v. we must any event,
asked for ... nothing further. assume followed instructions.” that v Barker, 82, Mass. Compare . 88. v Com Crehan, 613-615; 345 Mass. . Eagan, monwealth v. Common 585, 588-589; 357 Mass. wealth Fin. Co. 296-299. Beneficial disclose newspaper this did not Crehan prior record, defendant’s criminal as in the or an arrest while a crime other than case, committing Eagan that in a case, as in the involvement charged, pattern of criminal activity, as in case. Beneficial The characterization would assault brutal be affect unlikely to who had heard the victim’s testi- mony. reference to the conviction, District Court while unfortunate, necessarily fatal fair Clapp Clapp, Compare 183. often if difficult not impossible conceal from a Supe- rior the fact there have been prior pro- ceedings District Court. argues room presence re- quired an automatic we mistrial, but do not think its physical presence in the jury room added significantly to the likelihood of prejudice.
In these we circumstances, think a finding *4 defendant had not been prejudiced warranted, if, as case, judge the gave “prompt, clear, and Beneficial forceful instructions to the which jury,” “were hardly of susceptible the misunderstanding jury,” “were, strong in the circumstances, sufficiently to counteract the possible effect of the adverse of ex- publicity.” The bill ceptions does not include all the instructions to the given jury, and therefore raises no issue to the of adequacy the instructions given.
3. We think it to add the im- proper asserted his properly in brief the “did not judge instruct the completely disregard that they already seen or read.” In reply the Common- wealth attached an appendix to its brief, forth setting the given. curative instructions Counsel for the defend- and moved error,” ant unintentional apologized “this brief, to strike the of the defendant’s offending portions issue to be that “counsel considered sole asserting in room of other presence jury objects whether in for a mistrial.” itself, than evidence was, grounds ap- There was no motion to strike the Commonwealth’s and no of its pendix, challenge accuracy quotations not part from the Those transcript. quotations, though of the bill of the soundness of our rule exceptions, show that we will not consider of instructions adequacy if are not they included the bill exceptions. not to read judge promptly jury instructed the any publicity case, regarding erroneous at one evidence, particular, least disregarded. be He renewed this instruction should day, at the end before the day. following were re- in, findings made extensive with the defendant’s spect possible prejudice and denied for mistrial. included charge motion His I “As indicated when the following: to-you yesterday issue of should newspaper publicity up, you totally came put minds information of disregard your that nature. it reliable, part is not the evi- case, dence of the and it any way, shouldn’t shape, manner be considered by you the case.” deciding
Exceptions overruled. The motion for mistrial J., dissenting. Reardon, allowed on the the defend- ground should have been ant’s to an trial under the Amend- right impartial Sixth gravely ment the Constitution the United States was way extrinsic material which found its into imperilled by room. Prior im- with the issue in the case which treating *5 is in order on a diffi- procedural a word dissent, this pels and also the the record muddy which has served to culty matter. It on a appears of the that opinion disposing the defendant’s 1971, trial on day ending May 26, two Mass. v. 33A-33G, §§ 278, motion take the under L. c. G. 1971, was on Thereafter, 4, allowed. June the “[o]rder §§ 33A- L. subject to . . . c. making proceedings [G. 33G, statutory authority.” revoked for lack of Sub was] in of sequently, exceptions an amended bill filed is before and and that eventually allowed, what See Guerin us. 264. Commonwealth, We are limited in in bill appears thus our review what states, which as should, it that it “contains all of the evi Common dence material alleged.” the exceptions wealth Klan Boris, 317 Mass. 309. gos, of 690. view of seriousness what occurred, has is reproduced there that en margin tire of the portion brings possible bill which into focus of infringement the defendant’s Sixth Amendment rights.1 1“During day trial, the second the defendant newspaper relating Court’s attention a which article to the trial appeared May 25, Greenfield Recorder of 1971. This article Stanley appealing stated that Thomas a conviction district court battery brutally Trooper assault and on State Stoekwell who was duty September beaten while 1968. related failed to this case that originally attorney appear defaulted his when attorney appear time, when his failed a second the case was year given defaulted and the an and one- extra to his one year half sentence. The article stated that the case was reviewed McLaughlin Chief Superior Justice H. Walter and that Court Supreme Justice Ammi Cutter of Judicial' Court issued order judgment directing County for case be tried in Franklin Superior May. originally Court It further related that the case was May 9, Attorney postponed scheduled for but when could not Farese come to Greenfield because of his in a involvement Boston murder “The defendant moved a for mistrial of this because article. jury any- Court thing then asked each member whether he had read newspapers whether, about the case in the a result of
any publicity, any opinion prejudice such he or formed had preclude reaching completely impartial would him from fair and they verdict. Four members of the stated had either juror through or had seen the article. One that he had scanned testified exactly said, although it but tell it he there was what knew couldn’t^ something the juror bringing it about the case. Another admitted containing into the room stated that he had read it. Another testified that he had read and a half one paragraphs. juror jurors. The fourth that he had read said the list juror article, A attempted fifth admitted he had to sheriff read the but that chance to it was taken room before they it. The see asked all if or four had formed ex- pressed any opinion, against prejudice or had bias or either rendering precluded the defendant which would have them from impartial they fair and verdict and all four stated that did not. The *6 102 363 Mass. 108 Stanley. v. Commonwealth the beyond In well briefing the case the went parties admittedly record. For his distorted defendant part, the it in his and his thereon. reading of the bill argument The distortion by Commonwealth meet the proceeded 742, 1:22 351 Mass. seeking employ (13), S.J.C. Rule flesh out by appendix means of an its argument brief forth instruc setting judge’s extracts the tions, charge on and the findings mistrial, the motion 2 A is not be jury. portion material, of this which fore on struck, us the record and which should have been it has way has found its where majority opinion into the improper residence. in this the prejudice which affected defendant lay during ongoing
case
the
four
reading by
trial of a
article
it evident
that
newspaper
making
a District
conviction
defendant
appealing
“who was
police
on a State
officer
battery
assault
3
brutally
beaten.”
offending
appeared
he
that
had
jury room,
juror
and a fifth
“admitted
by
article” but
it was
taken
attempted
to see
from the
“before
a chance
the sheriff
room
had
fifth
That
bill is
it.”
statement
in the
indicative
received information from
source
had
some
juror
him
it. The
peruse
majority opinion
caused
to desire to
Barker,
v.
311 Mass.
leans
on
heavily
Barker
facts
is
apposite.
82. On its
case
Barker . . .
to show that
nothing
“[t]here
[was]
had
any juror
anyone
the article
been read
or that
regarding
publicity
to read
Court then instructed the
article and
a mistrial because of this
case.
defendant moved for
room. The Court
of the fact
it was found
because
subsequently
mo-
motion
denied the
took this
under advisement and
exception
exception
An
and this
tion.
was
was taken
duly saved.”
2
plays
exceptions and
1:22
outline bills of
Rule
concerns itself with
no role here.
3
have found
such as
arose in this trial
Problems
the one which
McHenry
way
reported
United
decisions.
their
into
number
States,
(D.
States,
Cir.).
295 Fed.
States, 360 U. 312-313. some of the S. that case jurors saw and read newspaper articles alleging defendant had felony two other convictions reciting defamatory matters about him. The judge questioned each of jurors. Each of ex- the seven who been posed to the articles assured the he felt judge that no prejudice as a result of the articles. The Federal District Court denied the motion for mistrial, and the United States Supreme Court in “The reversing stated, prejudice to the defendant is almost certain be as when great that evidence reaches the jury news through accounts as when it is a of part prosecution’s evidence. ... It may indeed be greater for it is then not tempered pro- tective procedures.”
The defendant, of is course, under no obligation take the stand in his own defence. See Festo, Mass. 275, 282. No emphasis is needed in of description the disadvantage which his is when his prior misadventures are referred to as they were here. He was confronted with a choice of suffering damage or mounting the stand to A explain away. it point is made that what transpired “did not disclose the defend ant’s criminal prior record,” if indeed he had one. But this attempted application a technical test the field is not prejudice acceptable. Whether the conviction in the District constituted “criminal record” as such is of no moment. is important What is whether exposed to article were prejudiced him against by that exposure.
This court has recently recognized all seeds of are record.” We
prejudice not limited to “criminal have Rules Disciplinary our new Canons of Ethics 3:22, Rule Regulating Law, the Practice state- extrajudicial counsel from enjoined making or character, reputation, ments which relate to “[t]he indictments, prior criminal record (including arrests, crime) DR 7-107 other of the accused.” charges (B) (1). is injunction recognition That based through suffer certain injury may which the defendant Nota- extra-judicial reaching jury. communications ble in new is canon the refusal such communi- limit cations to technical alone. di- “criminal records” of communi- fact, rected part, precisely type cation which in this case. occurred “The 1907, said,
Mr. Justice as *8 Holmes, long ago to be reached of our that the conclusions theory system is only in a will induced evidence and argument be influence, in whether open court, by any and not outside Colorado, Patterson v. private public of talk or print.” 462. U. S. In affect years likely recent the nature of to prejudice been of discussions be- has elaborate jury subject The bar contended that press tween the the bar. has of form any record in tended publication individual’s if it reached a and, to create pre-trial prejudice fair This hap- was destructive of a during trial, some be one facet of on which there is pens prejudice to in the media. problem students agreement among The in 1968 American fact, commissioned study Association Foundation noted: Publishers Newspaper a po- to record as point seem the criminal signs “[A]ll no This in itself is tent element. pretrial publicity is com- not pretrial publicity But its linkage finding. jurors to whether learn of plete. implication or at trial or com- through, record through press, Wilcox, mon has been sorted out.” knowledge Sciences, 52-53. the Behavioral Press, Jury, case indicates that The bill exceptions present had read the article stated inquiry four who jurors a fair precluded rendering would not be they appear does not juror The fifth impartial verdict. in- “The Court then subject to have been to inquiry. regarding structed the to read publicity made inquiry the case.” first Speaking is are the best jurors, problem judges whether of their own bias or lack of it. It has been stated that their so the courts have effect abandoned concluding impartial Lofton, own to insure responsibility juries. the Press, Justice and 329-330.4
It has been established on inquiry jurors very consciously unconsciously express do not frequently honestly their reaction offensive material they have B. A. may seen. See A. Standards Fair Relating to Free Trial and Press, (Approved 56-57 Draft, General 1968). Commentary,
The bill but information provides meager on the judge’s cautionary instructions. of cautionary in- adequacy structions this of case is type always questionable and, in fact, the likelihood of may harm to the defendant even increase with such instructions. Judge Jerome Frank once said of them, warning sort tends to rub in “[T]hat the very fact the cautioned to ... disregard. recalls the classic story boy told young to stand ” in the corner and ‘not think of a white elephant.’ Frank & Frank, Guilty, Not 113.
Furthermore, it is not without significance cases that Irvin in field, recent in this Dowd, years 366 U. 717, S. Rideau v. Louisiana, 373 U. 723, Sheppard Maxwell, S. 384 U. S. have been 333, departing the view “that the discretion of the trial with to judge regard these questions is extremely broad and that actual prejudice, simply likelihood harm, must be shown in order to obtain relief.” A. B. A. Standards Fair Relating to Trial and Free Press, supra, 112. The Sheppard 4Also, prior even impeach the limited use of to convictions has juries beyond go been impeachment criticised basis that will employ against the evidence otherwise the defendant. There is empirical support much Comments, evidence to this conclusion. See 763, 777; 426, 70 Yale L. J. L. Harv. Rev. 441. Mass. 112 Associates, Lloyd Inc.
New Investment Bedford outside in- in eases tainted emphasized possibly make have an “appellate duty fluence tribunals Pp. of the circumstances.” 362- evaluation independent 363. battery. accused of assault and “brutally beaten,” well have been his victim was
may jury read, as the said and as one-third of the Amend- but he was entitled to a trial under the Sixth untainted the introduction of such an article ment room. one’s conclude credulity It taxes played no the deliberations ver- part Amendment, dict of the and on jury. Under Sixth basis of common sense effect giving without Amendment, there are serious attached to questions in the to a verdict case. defendant was entitled fair He did A it. mistrial should have been get declared.
City Lloyd Bedford Investment New vs. Associates, others, Inc. Francis J. & ; Lawler
third-party defendants. 7, February 14, Bristol. December 1972. 1973. Tauro, C.J., Braucher, Hennessey, Kaplan, Wilkins, & JJ. Present: Limitations, Municipal Corporations, Statute limita- Statute of. Contract, Words, Payment. Implied Mistake. tions. contract. action,” “Personal “Accrues.” An “Personal” is The statute of limitations on run when the discovered. by mistake, despite statute public actions action capacity, of limitations for into by municipality, used personal, real, [118-122] money subject G. the action’s antecedents L. c. “personal paid and mixed. under G. L. even rather action for § if actions.” [117-118] as in the classic than when the c. 260, recovery [117] in the §§ equity, municipality’s mistake money paid division of 18, begins January dated Superior Contract. Writ 15,1970. *10 Chmielinski, J., on a motion
The action was heard facts. undisputed for judgment