17 Mass. App. Ct. 1 | Mass. App. Ct. | 1983
Lead Opinion
Reading this transcript critically, one could wish for more circumspection on the part of the trial judge, but one emerges, nevertheless, with the clear view that no such error was committed as could call for reversal of the judgment.
The defendant Lawrence E. Stanton was charged by indictment with (i) assault and battery by means of a dangerous weapon, to wit, a tire iron, upon Aaron Soltes; (ii) assault with a dangerous weapon, an automobile, upon Soltes; (iii) the same, upon Joshua Hurwitz; and (iv) going away and failing to report after a motor vehicle collision on a public highway. A jury found the defendant guilty of the first and fourth charges, and acquitted him of the second and third. The judge sentenced him on the first offense; the conviction on the fourth charge was placed on file.
The jury could have found the facts as testified to by the Commonwealth’s witnesses, notably Soltes and Hurwitz. On November 1, 1980, about 3:00 p.m., Soltes was driving his 1970 Dodge Dart, with Hurwitz in the passenger seat, in
Leaving his car with a tire iron in his right hand, the defendant approached Soltes’s car on the driver’s side. Soltes and Hurwitz ran up the car windows. At close quarters, the defendant threw the tire iron against the driver’s window shattering it and striking Soltes in the area of his left eye. The defendant, going back to his car, turned down the license plate so as to conceal the license number. Then he drove away.
Hurwitz, who was a physician, after inspecting Soltes’s eye, took over the driving and brought Soltes to the Waltham Hospital. A plastic surgeon applied some thirty su
Soltes and Hurwitz had in fact seen and were able to record the license number of the defendant’s car (which, as it later appeared, was registered to the defendant). The police showed them, separately, an array of mugshots of seven or eight men and each selected the defendant’s picture. The tire iron was found in Soltes’s car.
Such was the substance of the Commonwealth’s case. The defendant took the stand to tell a different story beginning with an account of insulting remarks by Soltes at the South Street encounter; describing differently the movements of the cars; suggesting that Soltes was responsible for any collision; and protesting that the defendant’s tracking of Soltes was for the purpose of getting him to stop and exchange papers about the damage to the defendant’s car (the defendant spoke of two contacts, the first early in the sequence). The defendant admitted he had thrown the tire iron at the closed window. He had been “antagonized,” he said, by Soltes’s refusal to stop and parley. He admitted turning the license plate.
Ralph Kouyoumjian, who from boyhood knew the defendant, was one of three passengers in the defendant’s car. Called by the defense, he gave a muddled account of the course from South Street. According to this witness, the defendant had walked toward Soltes swinging the tire iron and it was by accident that it struck the car window.
1. It is first contended on the appeal that the defendant was denied a fair trial because various pleasantries by the judge created an atmosphere of levity that could have led the jury to make undeserved findings of guilt. No objection was taken, but the defendant points to the likely embarrassment of counsel in mentioning such a grievance to an offending judge. See Commonwealth v. Fitzgerald, 380 Mass. 840, 846 (1980) (also suggesting the possibility of objection out of the jury’s hearing). We have examined the
2. Over objection, a full face, “sanitized” picture of the defendant, the one selected by Soltes and Hurwitz, was received in evidence at the instance of the Commonwealth. The defendant argues that this was unnecessry, as the parties were prepared to stipulate to the fact of such selection and there was no issue of identification. Cf. Commonwealth v. Rodriguez, 378 Mass. 296, 309 (1979). The record colloquy about a stipulation seems unclear. The sense of it may have been that the array need not be introduced; only the chosen picture would be. However, we need not dwell on the matter in detail. The claimed prejudice to the defendant must arise from the picture’s suggesting, despite its being sanitized, that the defendant had a criminal record. But the defendant chose to testify and his criminal convictions were offered on cross-examination to impeach his credibility.
3. On cross-examination of Kouyoumjian, he was asked whether he had reported “the accident” to the police. There was objection (overruled) on the ground that, as a passenger, not the driver, this witness was not bound under
4. As a preface to charging on reasonable doubt by reading from Commonwealth v. Webster, 5 Cush. 295, 320 (1850), the judge allowed himself the remark that he did not “necessarily want to read to you from a judgment 132 years old,” but that was the will of the Commonwealth’s highest court.
5. Concealment of the license number tended to show consciousness of guilt, and the judge instructed the jury about it. He denied a request of counsel to say — reflecting the line taken in the defendant’s testimony where he admitted an intention to damage the car, but not the driver — that the jury might see fit to construe the license plate incident as showing consciousness of guilt as to injury to the property, but not to the person.
6. When the judge concluded his charge at 12:45 p.m. of the last day of trial, he said the jury “hopefully” would have their verdict by court closing time, four o’clock that afternoon, but of course they could keep on deliberating; in no case would they be sequestered overnight; and if necessary they would resume deliberation the following morning. In fact the court was called to order at 4:10 p.m. and the jury’s verdict was then received. Although no objection was registered below, the defense now tries to treat these circumstances as one would a hurried verdict following an aggravated form of the now discredited “dynamite” charge. See United States v. Flannery, 451 F.2d 880, 883-884 (1st Cir. 1971). We do not read the judge’s remarks as urging excessive speed or setting any deadline; it is indicative that the judge suggested the jury might well refrain from discussing the case at lunch. The jury did not behave as if pressed or panicked; they did not render a package verdict but rationally distinguished the first from the second and third charges.
Judgment affirmed.
We use the street names mentioned by the witnesses without correction to the official designations.
None of the remarks was directed against the defendant. Compare United States v. Hickman, 592 F.2d 931, 934-936 (6th Cir. 1979).
The judge was careful so to limit the evidential use of the convictions.
Conceivably the question could have been defended as attacking on cross-examination the truth of the witness’s testimony about a merely accidental impact of the tire iron: if that account was true, it was exculpatory, and the witness might be expected to report it voluntarily to the police. However, the Commonwealth did not attempt to make the point.
There is an obligation to charge the essence of Webster but there may be deviation from its exact language. See Commonwealth v. Ferreira, 373 Mass. 116, 130 n.12 (1977); Commonwealth v. Robinson, 382 Mass. 189, 197-198 (1981).
The defendant does not criticize the instruction by which intention to damage the car could carry over to the foreseeable wounding of Soltes.
Concurrence Opinion
(concurring). I concur, albeit reluctantly. Because the defendant testified that he had thrown the tire iron at the closed window I am able to conclude that the conduct of the judge could not possibly have affected the jury’s verdict. But this does not end the matter.
As a general rule, judicial credibility is directly proportional to judicial solemnity. On occasion some unforced humor in moderation may relieve tension and even enhance the climate of the courtroom, but it seems to me that the levity in this particular drama most certainly was missed by the defendant, the one person who had anything of critical importance at stake.
All defendants are entitled to a trial which “all parties should hope and strive to make impeccable [citation omitted], but which at least must not be unfair.” Commonwealth v. Paiva, 16 Mass. App. Ct. 561, 563 (1983). That imperative is as applicable to judges as it is to the
Suffice to say here that judges must adhere to their duty to keep the trial on an orderly course and to avoid prejudicial occurrences. Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 17 (1980). Nor should they allow the proceedings to take on a farcical or whimsical aura. See generally Lummus, The Trial Judge (1937). It cannot be gainsaid that a judge should take care to behave himself. Cf. Commonwealth v. Tirrell, 382 Mass. 502, 513 (1981) (Kaplan, J., dissenting).