Chapter 14: Criminal Law and Procedure

Annual Survey of Massachusetts Law Annual Survey of Massachusetts Law

Volume 1977 Article 17

1-1-1977

Chapter 14: Criminal Law and Procedure Chapter 14: Criminal Law and Procedure

David A. Mills

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Recommended Citation Recommended Citation Mills, David A. (2012) "Chapter 14: Criminal Law and Procedure," Annual Survey of Massachusetts Law: Vol. 1977, Article 17.

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C HA PT ER 14

Criminal Law and Procedure

DAVID A. MILLS*

§14.1. Prosecutor's Opening Statement: Anticipated Evidence. In Commonwealth v. Martin,• the Supreme Judicial Court faced the novel question of whether a witness's assertion of his fifth amendment privilege in the presence of the jury necessitates reversal where the prosecutor's opening statement contains detailed references to the witness's expected testimony.2

This question presented little difficulty to the Court, which affirmed the conviction below. 3 Before considering the facts of the case before it, the Court noted that convictions are vulnerable to reversal where a witness asserts a fifth amendment privilege in two instances. 4 First, where there is definite prosecutorial misconduct in the questioning of a material witness in order to provoke a claim of privilege, reversal may be required. 5 Second, there is reversible error when the witness's refusal to answer is thought to add the "critical weight" that brings about the verdict of guilty. 8

After a careful review of the facts in the case before it, the Court found that the prosecutor was acting in good faith. 7 First, the Court noted that since the prosecutor already had the witness's agreement to testify, he acted properly in giving the jury a detailed summary of the testimony he expected from the witness. 8 Second, the Court noted that the prosecutor's questioning of the witness was not insistent or extended, nor did it suggest particularized states of fact from which the jury might easily

* David A. Mills practices with the firm of Mills and Teague, Boston.

§14.1. 1 1977 Mass. Adv. Sh. 806, 362 N.E.2d 507. 2 /d. 3 /d. at 818, 362 N.E.2d at 513. • Id. at 807, 362 N.E.2d at 508. I Id. • Id. at 807-08, 362 N.E.2d at 508. 7 /d. at 814, 362 N.E.2d at 511. • Id.

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Mills: Chapter 14: Criminal Law and Procedure

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280 1977 ANNUAL SURVEY OF MASSACHUSETTS LAW §14.2

draw harmful inferences.• Finally, the Court noted that in his closing argument, the prosecutor did not mention the witness's refusal totestify.••

In assessing whether the incident added the "critical weight" to the defendant's conviction, the Court found it necessary to examine the effect of the incident in light of the prosecutor's detailed opening statement.11 After noting the trial judge's curative instructions and the lack of any defense objection to the judge's final instructions, 12 the Court affirmed the conviction based on the fact that the "entire record m.akes a thoroughly convincing case against the defendant on the charges of the indictments entirely apart from any dubious aid the jury might have attempted to derive from Farland's [the witness] behavior on the stand."11 The test applied by the Court was that it "need not find that no weight was added, "14 but rather "that what was added could not have made the difference between acquittal and conviction."15 The Court explicity declined to decide whether the same test would apply where deliberate prosecutorial misconduct was involved.••

§14.2. Prosecutor's Closing Arguments. During the Survey year, the Supreme Judicial Court was faced with an inordinate number of cases dealing with alleged prosecutorial misconduct by reason of error in closing arguments. The situation became so acute that one judge intimated that the Court should become more willing to reverse convictions in cases involving improper closing arguments.•

A. Commonwealth v. Redmond2

This case is significant in that the prosecutor's closing argument was the basis for the Court's reversal of a conviction. In Redmond, the defendant had been charged with murder in the first degree, burglliry while armed, and armed robbery.3 There was strong evidence presented at the trial to sustain the charges. Included was the testimony of two of the defendant's friends that the defendant had said he received a black eye

• ld. at 816, 362 N.E.2d at 512. I d. I d. ld. at 817, 362 N.E.2d at 512. I d. I d. ld. at 818, 362 N.E.2d at 513. ld. at 807, 362 N.E.2d at 508.

§14.2. 1 Commonwealth v. Earltop, 1977 Mass. Adv. Sh. 532, 539-42, 361 N.E.2d 220, 223-24 (Hennessey, C.J., concurring).

1 1976 Mass. Adv. Sh. 1719, 351 N.E.2d 501. • ld.

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Annual Survey of Massachusetts Law, Vol. 1977 [2012], Art. 17


§14.2 CRIMINAL LAW AND PROCEDURE 281

as the result of his attempts to have intercourse with a woman who had slapped him.• The defendant denied having any conversation about this matter.5

In his closing argument, the prosecutor stated: "And I argue to you that the person that was up in that room that morning ... attempted to do something. I say that he attempted rape."• The defendant's motion for mistrial was denied; the judge gave curative instructions. 7 The prosecutor reluctantly accepted the suggestion of the trial judge to refrain from pressing the rape issue.8 However, despite his agreement, the prosecutor then described anew the scene, held up the blood stained undershorts of the defendant and stated: "Did he go up and take her pulse? You don't have to take down your pants to take a pulse."• Curative instructions were. immediately given after the defendant's objection.10

Additionally, in his closing argument, the prosecutor responded to an allegation by defendant's counsel that a key prosecution witness expected favorable treatment for his testimony. 11 The prosecutor stated that the witness would be prosecuted vigorously. 12 The defendant's motion for mistrial was denied. 13 The prosecutor repeated his error. 14

The Court reversed the conviction and ordered a new trial because of the cumulative effect of the prosecutor's improper agument which had

4 ld. at 1719-21, 351 N.E.2d at 502. One witness testified that the defendant said, "(H]e wanted to ball this girl and she didn't like to ball so she slapped him in the eye ... ,"and another testified "he had tried to ball a chick the night before and she ... slapped him, and he pointed to his eye and he said, 'gave me this' .... " Id. at 1721, 351 N.E.2d at 502.

• ld. at 1722, 351 N.E.2d at 503. 1 Id. at 1724, 351 N.E.2d at 504. 7 Id. The judge cautioned the jury that arguments of counsel were not evidence and that

as to rape or attempted rape, they were the sole judges of what took place and that he would ask them to consider it at a later time when he would give them the full charge. In light of the fact that no evidence was presented as to rape and that the prosecutor did not ask for an iniltruction on felony murder in the commission of rape, the. curative instructions seem inadequate, if not useless.Id. at 1724-25, 351 N.E.2d at 504.

• ld. at 1724, 351 N.E.2d at 504. • ld. at 1725, 351 N.E.2d at 504. 11 Id. The judge restated that the argument is not evidence and that it was for the jury

to determine what the evidence is. 11 Id. at 1725-26, 351 N.E.2d at 504. Though the evidence was strong against the defen

dant, he did put on a defense which consisted mainly of differing accounts between the defendant and the prosecution's witness and another who had been with the defendant on the day following the crime. See note 4, supra, for some of their testimony.ld. at 1728, 351 N.E.2d at 505.

11 Id. at 1726, 351 N.E.2d at 504. 11 I d. The judge did instruct the jury that "the issue whether anybody will be prosecuted

vigorously or not is not in this case." ld. •• Id. The judge instructed the jury that their memory of the evidence controlled.

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282 1977 ANNUAL SURVEY OF MASSACHUSE'ITS LAW §14.2

created a serious question as to the effectiveness of curative instructions.15 The Court emphasized that the prosecutor had "repeatedly and deliberately sailed unnecessarily close to the wind ... [going] beyond permissible limits."11 The Court did not comment further on the conduct of the prosecutor.

B. Commonwealth v. Killelea 17

In this case, as in Redmond, the Supreme Judicial Court reversed a conviction and ordered a new trial because of improper prosecutorial argument.

The facts of the case are very simple. Indeed, for our Survey purposes it is sufficient to say that the defendant was convicted of murder in the second degree, and assault and battery by means of a dangerous weapon. 18 The defendant did not dispute the acts causing the death of one individual and the shooting of another, but relied upon the defense of insanity .1' The defendant presented testimony of two psychiatrists as to lack of criminal responsibility within the standard of Commonwealth v. McHoul.m The Commonwealth presented psychiatric testimony in rebuttal. 21

In his closing argument, the prosecutor commented in detail with respect to the defense of insanity and explicitly suggested that the defendant would go free if found not guilty by reason of insanity. 22 At the conclusion of the prosecutor's argument, the defendant requested that the jury be instructed with respect to the improper suggestion that the defendant would be set free if found not guilty by reason of insanity.23

The instruction by the judge came in his charge to the jury and referred

11 Id. at 1727, 351 N.E.2d at 505. 11 ld. at 1728, 351 N.E.2d at 505. Citing cf. Commonwealth v. DiMarzo, 364 Mass. 669,

681, 308 N.E.2d 538, 546 (1974) (Hennessey, J., concurring). 17 1976 Mass. Adv. Sh. 1793, 351 N.E.2d 509. II ld. 11 ld. at 1800, 351 N.E.2d at 512. • ld. Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967), held that the

appropriate charge is contained in the Model Penal Code §4.01, which is commonly called the "substantial capacity" test.

11 1976 Mass. Adv. Sh. at 1802, 351 N.E.2d at 513. 12 ld. The prosecutor stated: Well, ... [look at] what happened to [Killelea] over the course of his treatment ... [after the crime]. Within a day or two, the guy was wandering around the grounds [of the psychiatric treatment facility]. Here's a man who's committed a brutal murder, and if [the defense experts] feel he got paranoia, paranoia [sic], they don't believe it, because they are not acting consistently. He's home, he's out on the street, he's with the public.

(emphasis added by the Court in the report of the decision). II fd.

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to the prosecutor's statement, stating "[t]hat is no consideration of yours ... [t]hat is of no consequence at all ... [l]et the chips fall where they may. "24 At the conclusion of the charge, the defendant renewed his request that the misstatement of law be further clarified, and the request for further instructions was denied. 26

The Court held that reversal of the verdict was required when it is noted that the prosecutor's comments misstated the law of the Commonwealth as it relates to the ultimate result of a jury verdict of not guilty by reason of insanity.26 The burden is on defendant's counsel to timely object; however, if so done, the judge must then provide an instruction to the jury which states the statutory law applicable to a defendant found not guilty by reason of insanity. 27

C. Commonwealth v. Borodine28

In comparison to the cases of Redmond and Killelea, in Borodine the improper pr~secutorial arguments were found not to constitute grounds for reversing the defendant's conviction for first degree murder. This case is similar to Redmond in that the Court looked not only to the individual effect of objectionable argument, but to the cumulative effect of several portions of the argument. In this case, the defendant alleged eight instances of improper argument by the prosecutor.21 The Court discussed three in detail and found two of these to be improper.30 The Court, in assessing the prosecutor's argument, found them offensive, both individually and cumulatively, but ruled that the trial judge's curative instructions and charge to the jury were adequate to eliminate the risk of prejudice to the defendant. 31

The first statement was that the victim "did not have an enemy in the world. H she did, you would have heard about it . . . . "32 On prompt

24 Id. at 1803, 351 N.E.2d at 513. 21 Id. Though the appeal was brought after the decision in Commonwealth v. Mutina,

366 Mass. 810, 323 N.E.2d 294 (1975), which made mandatory an instruction on the consequences of a verdict of not guilty by reason of insanity, if requested by defense counsel, the Court declined to change its previous ruling that Mutina only applies to trials held after that decision. 1976 Mass. Adv. Sh. at 1804, n.1, 351 N.E.2d at 514 n.l.

• Id. at 1804-05, 351 N.E.2d at 514. The Court saw fit to cite eleven cases from other jurisdictions as well as the A.L.R. to emphasize this point. Indeed, the Court went on to discuBB in detail that a verdict of not guilty by reason of insanity does not neceBBarily mean freedom for the defendant. Id. at 1805-07, 351 N.E.2d at 514-15.

27 /d. at 1809, 351 N.E.2d at 515. 18 1976 MaBB. Adv. Sh. 2153, 353 N.E.2d 649. 11 Id. at 2164-68, 353 N.E.2d at 654-56. 11 /d. at 2164-66, 353 N.E.2d at 654-55. •• /d. at 2168, 353 N .E.2d at 656. 12 /d. at 2164, 353 N .E.2d at 655.

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objection, the judge instructed the jury that they should disregard that remark as the defense need not produce any witnesses. 33 The second statement concerned a remark that the defendant had never been remorseful. 34 No objection was taken to this statement, but it was the basis for a motion for mistrial. 36 The Court held that the error was cured because the trial judge specifically noted the impropriety of this statement in his charge.11 The third statement was that several witnesses would, if they could, tell the jurors that the defendant hit the victim over the head with the murder weapon. 37 The Court held that the trial judge's curative instructions in response to an objection was sufficient in this regard.18 Finally, the Court summarily dealt with five other challenges to the prosecutor's closing argument." On the only one of consequence, the Court ruled that a prosecution argument that the defendant knows that he is guilty, is not, standing alone, a reference to the failure of a defendant to testify. 40

The Court distinguished Redmond and Killelea, noting that the prosecutorial misconduct in this case was not so flagrant or persistent as in the earlier two cases, and further noting the adequacy of the curative instructions in this case."

D. Commonwealth v. Burnett42

In this case, the defendant did not object to the prosecutor's statements. The Court nonetheless reviewed the prosecutor's statements under its statutory authority" to examine errors which are gravely prejudicial." While the specific discussion by the Court on the issue of inappropriate statements by the prosecutor is not of particular import, one comment is worthy of note. The Court concluded that the prosecutor's statements were "an attempt to fight fire with fire" in light of defense counsel's statements41 and expressed its disapproval of the prosecutor's statement. However, the Court failed to conclude that reversible error was present in the case. 41

11 Id. 14 Id. at 2165, 353 N.E.2d at 655. u ld. 11 Id. 17 Id. 11 Id. at 2165-66, 353 N.E.2d at 655. 11 I d. at 2166-68, 353 N .E.2d at 655-56 . .. Id. at 2166, 353 N .E.2d at 655. •• Id. at 2169, 353 N.E.2d at 656. 0 1976 Mass. Adv. Sh. 2171, 353 N.E.2d 665. o G.L. c. 278, § 33E. 44 1976 Mass. Adv. Sh. at 2175, 353 N.E.2d at 667. 41 Id. at 2179, 353 N.E.2d a 668. 41 Id. The Court explicitly noted that it would not condone a prosecutor using improper

argument to counteract defense counsel's improper argument though the opposite conclu-6




E. Commonwealth v. DeChristoforo47

This case was the latest in a number of cases in which petitioner DeCristofaro sought to have his conviction reversed because of alleged improper closing argument by the prosecutor.48 The case is probably most interesting because of its intriguing procedural history, both by rE';glllar appeal in the state court system and by petition for writ of habeas corpus in the federal system, with appeal to the Court of Appeals, and final action by the United States Supreme Court, all prior to the present case.

In this case the defendant sought to have the Supreme Judicial Court order a new trial by invocation of the Court's statutory power!' The Court declined to exercise the power, restating its previous ruling that the prosecutor's remarks, though arguably improper, were harmless in view of the great evidence of guilt against this particular petitionerdefendant. 50

F. Commonwealth v. Gouveia51

In this case, the Court upheld the defendant's conviction of rape and an unnatural act even though the prosecutor, by implication, commented upon the defendant's failure to testify. 52 The prosecutor, no less than six times, referred to the fact that the only testimony as to what happened when the defendant and the alleged victim were alone came from the victim." The defendant failed to object during the argument of counsel, but at its conclusion, made motion for mistrial. 54 That motion was denied, the trial judge relying upon curative instructions to the effect that it is the prosecution's burden to prove the case, and that no inference could be drawn from the defendant's failure to testify.55 No exception was taken by the defendant to this charge.58

sion might be inferred from the holding in Commonwealth v. Smith, 342 Mass. 180, 186, 172 N.E.2d 597, 602 (1961).

n 1976 MaBB. Adv. Sh. 2188, 353 N.E.2d 769. " The cases include DeChristoforo v. Donnelly, 416 U.S. 637 (1974), rev'g. 473 F.2d 1236

(1st Cir. 1973); DeChristoforo v. Donnelly, Misc. Civil No. 72-96-G (D. Mass. 1972); and Commonwealth v. DeChristoforo, 360 Mass. 531, 277 N.E.2d 100 (1971).

•• 1976 Mass. Adv. Sh. 2188, 2205, 353 N.E.2d 769, 777. DeChristoforo appealed pursuant to G.L. c. 278, § 33E .

.. 1976 MaBB. Adv. Sh. at 2205-06, 353 N.E.2d at 777, citing Commonwealth v. DeChristoforo, 360 MaBB. 531, 536-39, 277 N.E.2d 100, 105-06 (1971), and Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

" 1976 MaBB. Adv. Sh. 2877, 358 N.E.2d 1001. n Id. at 2882-83, 358 N.E.2d at 1004-05. 11 /d. at 2882, 358 N.E.2d at 1004. "Id . .. ld. 10 Id. at 2883, 358 N.E.2d at 1004. 7




The Supreme Judicial Court found the prosecutor's statements to be a comment upon the defendant's failure to take the stand.67 The Court recognized not only that the argument was improper, but that it would have been better for the trial judge to cure this problem by interrupting sua sponte and giving curative instructions. 68 The Court explicitly refused to adopt the rule of the First Circuit as announced in United States v. Flannery" that such comments will be "prejudicial as a matter of law" unless the judge interrupts and gives curative instructions, including an instruction that the United States Attorney is guilty of misconduct in making such a comment. 10

While explicity overruling earlier law to the effect that an objection to closing argument is untimely if not made until the conclusion of the argument, the Court stressed that objections must be taken with respect to any curative instructions. 11 Indeed, the Court placed defense counsel on notice that failure to object to an improper argument might well be considered a tactical decision of counsel, for it is possible that an argument may be helpful to a defendant, despite its impropriety. The Court reaffirmed that it is within the discretion of the judge to rely on curative instructions rather than to declare a mistrial. 12

G. Commonwealth v. Johnson13

In Johnson, the defendant was found guilty of second degree murder and sought to have the conviction set aside because of alleged prosecutorial misconduct, including improper argument ... The alleged prosecutorial misconduct concerned the repeated reference by the prosecutor to the fact that the victim was white and the defendant was black, and that the scene of the crime was a "project" primarily inhabited by blacks.15 The Court concluded:

17 Id. 18 Id. 18 451 F.2d 880, 882 (1st Cir. 1971). 18 Id. at 2883, 358 N.E.2d at 1004-05. II /d. oz I d. at 2884, 358 N .E.2d at 1005. 11 1977 Mass. Adv. Sh. 516, 361 N.E.2d at 212. 14 ld. at 521, 528-30, 361 N.E.2d at 215, 218-19. The defendant also alleged that there

was prosecutorial misconduct because of "slackness" in the delivery of discovery material to the defense. The defendant further claimed that the prosecutor called a witness whom he knew would be useless, but did so to create inferences about the defendant by the questions asked to this witness. The Court discussed the factual circumstances of both these allegations and concluded that there had been no misconduct. Id. at 529-30, 361 N.E.2d at 219.

•• Id. at 530, 361 N.E.2d at 219.

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There was no intention, we think, to try to inflame the jurors with racial prejudice. Contrast Commonwealth v. Graziano, 1975 Mass. Adv. Sh. 2282, 2290-93. Rather, the prosecution was entering into speculation about the probable motivations and behavior of such actors in such a situation when confronted with the homicide or official attempts to secure evidence. This amateur psychologizing was matched by defense reflections. . . . Counsel on both sides would have done better to stick more closely to the facts and to cut down on these ruminations, but we must attribute a certain sophistication to the jury as aided by the cautionary remarks of the judge.••

In declining to discuss all details of the attack on the prosecutor's final argument or conduct as a whole, the Court, nevertheless, issued a caveat that members of the bar would be most ill-advised to consider that each departure from the norm, not so grievous as to precipitate a reversal of a conviction, sets a new and less elevated standard for lawyer's behavior.87

H. Commonwealth v. Earltop88

The final case on prosecutorial argument during the Survey year concerned a statement by the prosecutor as to his personal belief in the defendant's guilt, a statement to which no objection was taken.•• The Court, though finding the argument improper, upheld the defendant's conviction for murder in the second degree. The action of the Court is particularly noteworthy in that it reviewed the alleged trial error absent the preservation of the issue for appeal. 70 Although the Court stated that "an assignment of error not based on an exception brings nothing before us,"71 the Court nevertheless considered the merits of the defendant's claim.

The significance of the Earltop case is, we suggest, in the concurring opinion of Chief Justice Hennessey which notes his growing concern over the number of cases in recent years where the prosecutor has engaged in improper argument.72 Indeed, the Chief Justice concluded that the large number of cases in recent years indicates that prosecutors either

"Id. " ld. " 1977 Mass. Adv. Sh. 532, 361 N.E.2d 220. " Id. at 536-37, 361 N.E.2d at 222. 71 Id. at 537, 361 N.E.2d at 222. The Court was reviewing the case pursuant to G.L. c.

278, § 33E. 71 1977 Mass. Adv. Sh. at 537, 361 N.E.2d at 222, citing Commonwealth v. Underwood,

358 Mass. 506, 509, 2Gs N.E.2d 577, 580 (1970). n 1977 Mass. Adv. Sh. at 539-42, 361 N.E.2d at 223-24 (Hennessey, C.J., concurring).

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288 1977 ANNUAL SURVEY OF MASSACHUSE'I'TS LAW §14.3

are not familiar with the boundaries of argument or choose to ignore them.71 The Chief Justice suggested that prosecutors should avoid extemporaneous argument and should consult with the trial judges as to the propriety of remarks prior to delivery of argument. 74 The concurring opinion concludes:

In recent years the same types of 'prosecutorial errors' are offered in case after case. It is my thought that this Court should in the future stand more ready to reverse the judgments in such cases, particularly when it appears that the simple precautions suggested herein have not been invoked. 71

§ 14.3. Alibi Defense: Disclosure by Defendant. 'In Commonwealth v. Edgerly,' the Supreme Judicial Court was asked2 to decide whether a trial judge could compel a defendant to give notice of his intention to present an alibi defense and, if so, the names and addresses of his witnesses; and, further, whether the trial judge could impose sanctions, including the exclusion of any alibi witness whose identity had not been disclosed. 3 The Court answered the first question in the affirmative• and deferred consideration of the second until such time as an appropriate fact situation was presented. 5

Defendant Edgerly was indicted for murder in the first degree.• The prosecution disclosed the names and addressed of its witnesses for its case in chief, and stood ready to disclose the identity of its rebuttal witnesses.7 The Commonwealth sought a motion to compel Edgerly to reveal whether he intended to present an alibi defense and, if so, the names and addresses of the witnesses he intended to call to establish that defense.8

The Court reviewed the decisions of the United States Supreme Court on the constitutionality of notice of alibi defense rules! In Williams v. Florida, 10 the Supreme Court rejected defendant's claim that a state

71 Id. at 539, 361 N.E.2d at 223. n ld. at 541, 361 N.E.2d at 224. 71 I d. at 542, 361 N .E.2d at 224.

§14.3. 1 1977 Mass. Adv. Sh. 707, 361 N.E.2d 1289. 2 The questions were reported to the Court by a judge of the superior court pursuant to

G.L. c. 278, § 30A. 1 1977 Mass. Adv. Sh. at 707-08, 361 N.E.2d at 1290. ' ld. at 716, 361 N.E.2d at 1294. • I d. at 713, 361 N .E.2d at 1293. • ld. at 707, 361 N.E.2d at 1290. 7 ld. at 710, 361 N.E.2d at 1291. 1 ld. at 707, 361 N.E.2d at 1290. ' ld. at 708-09, 361 N.E.2d at 1290-91. II 399 U.S. 78 (1970).

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reciprocal disclosure rule11 violated his fifth and fourteenth amendment guarantees by forcing him to be a witness against himself and also deprived him of due process and a fair trial. 12 The Supreme Court held the notice of alibi rule to be consistent with the role of the criminal trial as a "search for truth" because it encouraged thorough investigation of facts relating to guilt or innocence. 18

Both the Supreme Judicial Court and the United States Supreme Court subsequently clarified application of the Williams decision. In Gilday v. Commonwealth, 14 the Supreme Judicial Court found that the trial court had erred in requiring a defendant to disclose his alibi witnesses because of the absence of reciprocal disclosure requirements upon the prosecution. Such an order and the possible exclusion of testimony of undisclosed witnesses could deny the defendant due process and his sixth amendment right to summon witnesses on his behalf.

The propriety of the Supreme Judicial Court's decision in Gilday was confirmed by the Supreme Court in Wardius v. Oregon. 15 In Wardius, the Court reiterated its position that alibi notice rules were valid, 11 but as the Supreme Judicial Court held in Gilday, the absence of a reciprocal requirement upon the prosecution rendered such a requirement upon the defendant violative of due process. 17

Although the Commonwealth does not have a reciprocal disclosure rule, the Commonwealth had offered such reciprocity in Edgerly. 1K

Based upon that fact, the Court found the defendant was not denied a fair trial if compelled to reveal the identities of the alibi witnesses he intended to call. 11

The Court based its opinion in Edgerly upon the general view that disclosure of alibi rules are not a per se violation of the G.L. c. 263, § 5 right of a criminal defendant to defend himself and present witnesses, nor a denial of due process. This position is consistent with the Supreme Court's holding in Williams, the only difference being that neither the

11 Id. at 80 n.6, citing Fla. Rule Crim. Proc. 1.200. 12 399 u.s. 86. IS Jd. at 82-83. 14 360 Mass. 170, 274 N.E.2d 589 (1971). II 412 u.s. 470 (1973). 11 Jd. at 472. The Court reversed the conviction because alibi testimony from an undis

closed witness had been excluded under the invalid rule. The Court reserved decision on whether exclusion of alibi testimony was an appropriate sanction if reciprocal disclosure was mandated. Id. at 472 n. 4.

17 360 MaBB. 170, 173, 274 N.E.2d 589, 591-92 (1971). The Court declined to issue a notice of alibi rule, though acknowledging its power to do so, preferring to wait until the proposed Massachusetts Rules of Criminal Procedure for District and Superior Courts were finalized in this regard.

11 1977 MaBB. Adv. Sh. at 707, 361 N.E.2d at 1290. " Id. at 712, 361 N.E.2d at 1292.

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compulsion to disclose, nor the reciprocal burden on the Commonwealth, was found in a statute or case law. The fundamental fairness of the notice of alibi "rule" is based on the exchange between prosecutor and defendant of the names of alibi witnesses and the grant of additional disclosure rights to the defendant. If the rationale of Williams is to be applied to such situations, and it appears that the critical elements relating to fairness are present here, then the Court's decision in Edgerly is correct. It is the mutual exchange of information in the furtherance of justice which guided the Williams Court, zo and the Commonwealth's offer of reciprocity satisfies that requirement as well as the Florida rule did.

The Supreme Judicial Court reserved any decision on the question of the imposition of sanctions for failure to comply with a disclosure order.21 Whether sanctions, including the barring of testimony from undisclosed alibi witnesses, would be an abuse of discretion or unconstitutional, was left to a case by case determination. zz Such a determination would be governed by the question whether the sanction "in the circumstances of the case" unconstitutionally barred defendant from presenting a defense.

The Court's treatment of the question of sanctions reveals a desire to balance the need to provide a means of compelling obedience to a notice of alibi rule with an unwillingness to preclude the testimony of defense witnesses. It is in this light that the Court discusses a possible alternative to exclusion-the granting of a continuance in the event either party fails to comply with the rule.zz

§14.4. Voluntariness of Confessions and Admissions. In three cases decided during the Survey year, the Supreme Judicial Court rejected contentions that drug withdrawal, 1 the administration of a pain medication, z or a promise by the authorities3 rendered statements to the police involuntary. These cases are a continuation of the Court's effort to form a definition of what constitutes duress that will make a confession or admission involuntary and, therefore, inadmissible. 4 In addition, the Court decided that in certain circumstances the trial judge must,

II 399 U.S. 78, 81-82 (1970). 11 1977 MaBB. Adv. Sh. at 713, 361 N.E.2d at 1292. 11 Id. at 716, 361 N.E.2d at 1293. See United States v. Nobles, 422 U.S. 225, 241 (1975). II Id.

§14.4. 1 Commonwealth v. Fielding, 1976 MaBB. Adv. Sh. 2290, 353 N.E.2d 719. 1 Commonwealth v. Johnson, 1977 MaBB. Adv. Sh. 247, 359 N.E.2d 1286. 1 Commonwealth v. Fournier, 1977 MaBB. Adv. Sh. 719, 361 N.E.2d 1294. • Cf. Commonwealth v. Mahnke, 368 MaBB. 662, 35 N.E.2d 660 (1975); Delle Chiaie v.

Commonwealth, 367 MaBB. 527, 327 N.E.2d 696 (1975); Commonwealth v. Harris, 1976 MaBB. Adv. Sh. 2754, 258 N.E.2d 982.

12




sua sponte, conduct a voir dire on the voluntariness of a confession.5

In Commonwealth v. Fielding, • the Court carefully reviewed the medical evidence relating to the defendant's heroin withdrawal and discussed the relevance of narcotic addiction to voluntary statements in general.7 Fielding was the first defendant of the two participants to be arrested and charged with the fatal shooting of a liquor store employee during an armed robbery. 8 Within three hours of his arrest, Fielding had been given his Miranda warnings1 five times, had indicated each time that he understood them, and had made a confession after expressing a desire to talk at least four times. 10

Mter his subsequent arrest the next day, Yandle, Fielding's alleged accomplice, recieved three Miranda warnings before he also gave a statement. 11 Neither man had counsel present nor did either request an attorney during the time of the statements.

Mter signing his confession, Fielding complained that he was ill and requested that he be taken to the hospital. Yandle appeared mildly ill after making his inculpatory admission and was also taken to the hospital.12 The defendants were examined by a doctor who testified during a voir dire that neither had exhibited any signs of severe physical distress, irrationality, lack of lucidity, or any of the more obvious signs of heroin withdrawal. 13 Each defendant had been given a dosage of methadone~ The trial judge suppressed all statements made after administration of the methadone. 14

' Commonwealth v. Harris, 1976 Mass. Adv. Sh. 2754, 258 N.E.2d 982. • 1976 Mass. Adv. Sh. 2290, 353 N.E.2d 719. Fielding was combined with Common

wealh v. Yandle. Yandle was Fielding's alleged accomplice. The defendants had severed trials, but claimed the same error whim they sought appellate review.

7 /d. at 2301-02, 2304-05, 353 N.E.2d at 725-26, 726-27. • Fielding was arrested before Yandle on a warrant issued on the basis of an informant's

testimony. The warrant was later held invalid as not based on probable cause. Evidence demonstrating the reliability of the informant, a factor necessary to establish probable cause was lacking. ld. at 2293, 353 N.E.2d at 722. Commonwealth v. Vynorius, 369 Mass. 17, 22-26, 336 N.E.2d 898, 901-03 (1975) Aguilar v. Texas, 378 U.S. 108, 114 (1964). Fielding's confession, upon which probable cause for Yandle's arrest was based, was held to be freely made and, thus, uncontaminated by the Fourth Amendment violation of Fielding's arrest. Id. at 2313, 353 N.E.2d at 730. Brown v. Illinois, 422 U.S. 590 (1975); Michigan v. Tucker, 417 U.S. 433 (1974).

• Miranda v. Arizona, 384 U.S. 436 (1966). 11 1976 Mass. Adv. Sh. 2297, 353 N.E.2d at 724. " Jd. at 2304, 353 N.E.2d at 726. Yandle interrupted the last warning and then de-

scribed the crime in detail. •z Jd. at 2299-2305, 353 N.E.2d at 725-27. 13 Id. at 2301, 2307 n. 18, 353 N.E.2d at 725, 728 n. 18. " Id. at 2292-93, 353 N.E.2d at 723. The Court noted that the suppression may have

been "an abundance of caution," implying that the administration of a drug, per se, may not render a statement involuntary. I d.

13



.. 292 1977 ANNUAL SURVEY OF MASSACHUSE'l'TS LAW §14.4

Both the trial court and the Supreme Judicial Court explicitly rejected the defendants' contention that in their desperate condition of heroin withdrawal they were willing to say anything to get relief. However, in so doing, the Court did not rule out severe drug withdrawal as a state constituting duress; rather it merely held that these defendants did not present evidence that they were acting under such pressures, especially in the face of the prosecution's evidence to the contrary.I5 The Court also rejected the defendants' claim that their drug withdrawal state rendered them mentally confused and therefore unable to understand the confessions which they had signed.l8

It is interesting and timely also to note Commonwealth v. Johnson, 17

where the defendant alleged that certain statements he had made when questioned by police officers were inadmissible because he had been under the influence of pain medication and, thus, was unable to understand the Miranda warnings which had been given. There too, the Court reviewed the medical testimony given during the voir dire and concluded that the trial judge had been correct in admitting the statements.l8

Finally, while inducements by the police to make a statement can be viewed as duress!' in Commonwealth v. Fournier, 20 the Court noted that "[n]ot every inducement renders a statement involuntary." In Fournier, the Court upheld the trial judge's finding that a promise by the police to withhold the defendant's statement from a particular officer was not such an inducement as to have overborne the defendant's will.2t

In the case of Commonwealth v. Harris, 22 the SJC considered inter alia the extent to which it would invoke its discretion to review on appeal a challenge not raised by defense counsel at trial. The Court also considered the underlying claim-that it was reversible error for a trial judge, in the absence of a request from defendant, to fail to conduct a voir dire on the voluntariness of a confession.23

•• ld. at 2306-07, 353 N.E.2d at 727. 11 /d. at 2306, 353 N.E.2d at 727. " 1977 Mass. Adv. Sh. 247, 359 N.E.2d 1286. 18 /d. at 256, 359 N.E.2d at 1291. The defendant had a weak argument, as there was no

evidence that he had received any of the mild pain medication prescribed for him. 11 Commonwealth v. Sheppard, 313 Mass. 590,603-04, cert. denied, 320 U.S. 213 (1943);

Miranda v. Arizona, 384 U.S. 436, 476 (1966). 20 1977 Mass. Adv. Sh. 719, 723, 361 N.E.2d 1294, 1296. 21 /d. The Court stated that the use of the statement for impeachment purposes did not

violate the premise, as the defendant understood his statement would be introduced at trial. Id. at 721, 361 N.E.2d at 1295.

22 1976 Mass. Adv. Sh. 2754, 358 N.E.2d 982. See also Harris v. Commonwealth, 1976 Mass. Adv. Sh. 2772, 358 N.E.2d 991, involving the same parties and substantially similar issues, but based upon distinct convictions.

23 1976 Mass. Adv. Sh. at 2759-63, 358 N.E.2d at 985-87.

14




Defendant Harris was convicted of first degree murder and armed assault with the intent to rob in 1964. At trial, the Commonwealth introduced a confession made by the defendant approximately one and one-half hours after he was apprehended. The defendant claimed that the confession was beaten out of him-a charge police denied. Defense counsel did not attempt to exclude this testimony,-nor did he request a voir dire on the question of voluntariness. 24 In 1975, a consent decree was entered before a single justice of the Supreme Judicial Court, ordering that defendant be resentenced to life imprisonment, and that he be afforded full rights of appeal. 26

On appeal, defendant claimed, inter alia, that the trial judge committed reversible error when he failed to conduct a voir dire hearing on the issue of voluntariness, when he failed to make a determination on the voluntariness and admissibility of the confession, and when he failed to instruct the jury that they could independently conclude that the confession was involuntary. This three-part procedure has been a part of Massachusetts practice for years. The Commonwealth argued, however, that while such procedures are guaranteed a defendant who requests them, in the absence of such a request a trial judge is not obligated to initiate them sua sponte. The failure to make such a request constitutes a waiver.28

The Commonwealth initially asserted that the failure of defendant's counsel to raise this issue at trial precluded appellate review. The Court acknowledged that under its holding in Commonwealth v. Underwood, 27

normal practice would dictate that it refuse to consider the issue on appeal. The policy behind that practice, as noted by the Court, is that the trial and appellate courts must be informed of evidentiary issues at the earliest possible point in order to promote effective consideration of the legal issues raised. However, the Court concluded that the facts of this case required that it make an exception to the policy. Such an exception was justified under the holding of Commonwealth v. Freeman28 since failure to review would create a "substantial risk of a miscarriage of justice."28

The application of the exception enunciated in Freeman is dependent upon the particular circumstances of each case. In reaching its conclusion in Harris that appellate review was justified in spite of defendant's failure to preserve exceptions, the Court examined the Commonwealth's interest in the early identification of appellate issues and found it was

•• /d. at 2759, 358 N.E.2d at 985. 11 /d. at 2754, 358 N.E.2d at 982 . .. /d. at 2762, 358 N.E.2d at 987. 17 358 Mass. 506, 265 N.E.2d 577 (1970). 18 352 Mass. 556, 227 N.E.2d 3 (1967). 21 1976 Mass. Adv. Sh. 2764, 358 N.E.2d 988.

15




outweighed by the Commonwealth's interest in justice.30 It considered most important the fact that the appeal involved the admissibility of an allegedly coerced confession-evidence with a "powerful probative effect. "31 The Court also noted that the judge had failed to conform to a long-standing rule of Massachusetts practice; that due process of law would not be served by rejecting the appeal as untimely, and that affirmative evidence of involuntariness had been adduced at trial. 32

Defendant maintained on appeal that the trial judge committed reversible error when he failed to conduct a voir dire sua sponte following the adducement of testimony making out a substantial claim of involuntariness.33 As noted above, the Commonwealth also argued that defendant's failure to request a voir dire examination on the question of the voluntariness of the confession constituted a waiver of any procedural rights designed to prevent the use of coerced confessions.

The Court found the defendant's argument that the trial judge should conduct a voir dire sua sponte convincing. It concluded that if the defendant raises the issue ofvoluntariness, the trial judge must conduct a voir dire.34 If he concludes that the confession was made voluntarily, the trial judge must instruct the jury that if "upon the whole evidence in the case," they are satisfied the confession was involuntary, they should disregard it.36

The Court's refusal to deem the right to this procedure and instruction implicitly waived was based upon the nature of the defendant's right and the severity of the punishment imposed. The Supreme Judicial Court cited the United States Supreme Court's view that when fundamental constitutional rights are denied, the courts should "indulge every reasonable presumption against waiver," and "not presume acquiescence in the loss of [such] rights."36 Further, it cited the Supreme Court's decision in Brown v. Mississippi, 37 in which the Court stated that duty of adequately safeguarding ". . . the constitutional rights of a person on trial for his life rises above mere rules of procedure . . . . " 38 Because of these two constitutional precepts, the Court rejected the Commonwealth's claim that the defendant implicitly waived the constitutional right.

The Harris decision delineates the responsibilities of the defendant, prosecutor, and judge in situations involving allegedly coerced confes-

31 ld. at 2764, 358 N.E.2d at 988. 31 ld. 32 ld. at 2766, 358 N.E.2d 988-89. 33 ld. at 2755, 358 N.E.2d at 983. 3' I d. at 2761, 358 N .E.2d at 986. 34 ld. at 2765, 358 N.E.2d at 988, quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938). 37 297 u.s. 278 (1936). 38 ld. at 287, quoting Fisher v. State, 145 Miss. 116, 110 So. 361 (1926).

16




sions. The defendant must raise the issue of voluntariness, and unless the prosecutor can conclusively eliminate that issue, the judge must conduct a voir dire on the issue of voluntariness. The procedural safeguards which begin with the voir dire were first set forth in 1854 in Commonwealth v. Morey38 and are, by this decision not dependent upon defendant's request, but are mandated by the defendant's introduction of evidence which raises an issue of voluntariness. The Court's opinion leaves one question open. It will remain for later decisions to establish what quantum of evidence constitutes a "substantial claim of involuntariness."

§14.5. Double Jeopardy: The "Same Transaction" Rule Rejected. One of the requisites of a claim of double jeopardy is that two criminal prosecutions must be for the same offense.• This requirement has caused interpretation problems in situations where one act is a violation of several different criminal statutes. In such a situation the question is whether the prosecutor can bring the criminal actions one at a time or is required to bring all possible criminal actions in one proceeding. There are two competing rules for determining whether the defendant was put in double jeopardy-the same transaction rule and the same evidence rule. "The 'same evidence' [rule] permits multiple prosecutions where a single transaction is divisible into chronologically discrete crimes .... [citations omitted]. Even a single criminal act may lead to multiple. prosecutions if it is viewed from the perspectives of different statutes."2 The same transaction rule, on the other hand, would require that all charges arising out of the same transaction be prosecuted together. 3

In Commonwealth v. Gallarelli,' the Supreme Judicial Court reaffirmed the traditional rule that a "single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not,''5 there will be no double jeopardy problems if the defendant is prosecuted separately under each individual statute.

In rejecting the defendant's argument that the "same transaction" rule be adopted, the Court noted that the rule was neither constitution-

31 67 Mass. (1 Gray) 461 (1854).

§14.5. 1 See generally K. B. Smith, Massachusetts Practice, Criminal Practice and Procedure §§ 562-66 (1970). The United States Supreme Court has held that the 5th amendment double jeopardy provision is applicable to the states through the 14th amendment. Benton v. Maryland, 395 U.S. 784 (1969).

• Ashe v. Swenson, 397 U.S. 436, 451 (1970)(Brennan, J., concurring). 3 Commonwealth v. Gallarelli, 1977 Mass. Adv. Sh. 1013, 1018, 362 N.E.2d 923, 926. ' 1977 Mass. Adv. Sh. 1013, 362 N.E.2d 923. • /d. at 1018, 362 N.E.2d at 926 (emphasis added).

17



296 1977 ANNUAL SURVEY OF MASSACHUSETI'S LAW §14.5

ally required• nor did it commend itself as a matter of policy.7 While it did not specifically discuss the constitutional issue, the Court had considered the issue in detail in its 1972 decision of Kuklis v. Commonwealth. 8 In that case, the Court determined that a second criminal prosecution was constitutionally defective, when the prosecutor was required to prove the same elements in the second case that were proven in the first case.' If on the other hand, the prosecutor had to prove an additional fact, then there was no double jeoprdy violation since this constituted a different offense.10 In Gallarelli the first conviction was for attempting to bribe a juror and the second conviction was for conspiracy to bribe a juror. Since the prosecutor had to prove the additional element of agreement in the second case, the Court properly rejected the constitutonal claim. 11

Similarly, the Court was correct in dismissing the defendant's contention in this case on policy grounds. The Massachusetts legislature has enacted a specific statute requiring that "[a]n indictment for conspiracy to commit a substantive offense shall not be tried simultaneously with an indictment for the commission of said substantive offense."12

The offense of conspiracy to bribe a juror, therefore, could not have been tried with the offense of bribing a juror. Thus, at least with respect to this case, the Court was bound by the policy enunciated by the legislature. While the Court gave no indication as to whether its decision was limited to the conspiracy situation, it seepis clear that it is not. The Court relied on several older Massachusetts cases in which conspiracy was not involved and additionally rejected the "same transaction" test and endorsed the "same evidence" test in the broadest language possible. Nonetheless, the policy behind the double jeopardy clause is "that

' But see Ashe v. Swenson, 397 U.S. 436, 452·54 (1970) (Brennan, J., concurring). 7 1977 Mau. Adv. Sh. at 1019, 362 N.E.2d at 927. • 361 Mau. 302, 280 N.E.2d 155 (1972). • I d. at 306-0S, 280 N .E.2d at 158-60. In Kuklis, the defendant was found guilty of being

present where a narcotic drug was kept and possession of a narcotic drug. After these convictions, the defendant was then indicted and convicted for poBBeBBion with intent to seU. The Court dismiued the second conviction because the elements of the offense of possession with intent to sell and mere posseuion are the same. Id. at 307, 280 N.E.2d at 159.

" See id. at 306, 280 N.E.2d at 158 and cases cited therein. The Supreme Court has apparently endorsed an even leSBer standard. "There is nothing in the Constitution which prevents [the states] from punishing separately each step leading to the consummation of a transaction which it has the power to prohibit and punishing also the completed transaction." Albrecht v. United States, 273 U.S. 1, 11 (1926). See also Gore v. United States, 357 U.S. 386 (1958); State v. Harris, 63 N.J. Super. 184 (1960). Since this rule does not require proof of an additional fact, the Court in Kuklis rejected this standard and imposed the higher standard. 361 Mass. at 306, 280 N.E.2d at 158.

11 1977 MaSB. Adv. Sh. at 1018, 362 N.E.2d at 926. IZ G.L. c. 278, § 2A.

18




a state with all its resources and power [shall] not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity •••• " 13 Accordingly, there may, indeed, be times when the "same transaction" rule would be required as a matter of policy. The only concession made by the Court was that there may be "a case where prosecutorial discretion may be exercised in such a way under the same evidence rule as to amount to such harassment in multiple and successive prosecutions as to require relief for the defendant."14

§14.6. The Massachusetts "Speedy Trial Statute:" General Laws c. 277 §72A. While the factors to be considered in determining whether a defendant's constitutional right to a speedy trial has been violated seem clear, 1 the statutory right afforded by G.L. c. 277, §72A2

continued to present the state appellate courts with complex issues of interpretation and application.

Late in 1976, Commonwealth v. Fields3 presented the question of whether a defendant may be indicted and tried in the superior court after comp16ints charging the same crimes had been dismissed by a district court pursuant to section 72A. 4 In vacating Fields' conviction, 5

11 397 U.S. 436, 450, quoting Green v. United States, 355 U.S. 184, 187 (1957). 1' 1977 MaBB. Adv. Sh. at 1019-20, 362 N.E.2d at 927.

§14.6. 1 See Barker v. Wingo, 407 U.S. 514, 530 (1972). ' General Laws c. 277, § 72A, provides in part:

The commiBBioner of correction, the sheriff, master or keeper of a jail or house of correction, or in Suffolk county, a penal institutions commissioner of the city of Boston, shall, upon learning that an untried indictment, information or complaint is pending in any court in the commonwealth against any prisoner serving a term of imprisonment in any correctional institution, jail, or house of correction, which is under his supervision or control, notify such prisoner in writing thereof, stating its contents, including the court in which it is pending and that such prisoner has the right to apply, as hereinafter provided, to such court for prompt trial or other disposition thereof.

Any such prisoner shall, within six months after such application is received by the court, be brought into court for trial or other disposition of any such indictment, information or complaint, unless the court shall otherwise order.

• 1976 MaBB. Adv. Sh. 2518, 356 N.E.2d 1211. ' Fields was complained of in the district court for armed robbery and larceny on May

20, 1970. While incarcerated at M.C.I., Concord, on April 7, 1971, he made his application pursuant to § 72A, and the complaints were ultimately dismissed. Four months later he was indicted for armed robbery. It was undisputed that this indictment was based on the same events as the prior district court complaints. 1976 MaBB. Adv. Sh. at 2519-21, 356 N.E.2d at 1212-13.

• Relief was granted even though no exception had been taken in the superior court to the denial of a motion to dismiss in view of the obvious "substantial risk of a miscarriage

19



298 1977 ANNUAL SURVEY OF MASSACHUSE'ITS LAW §14.6

the Supreme Judicial Court concluded that such a dismissal in a district court "operates as a bar to subsequent prosecution for the same crime in the Superior Court. "•

After reviewing the purpose of section 72A of chapter 277 of the General Laws, 7 the Court initially noted that the statute does not explicitly set forth the consequence of non~compliance but only "direct[s] that 'within six months after ... [an] application is received by the court' there shall be a 'trial or other disposition of any ... [pending] indictment, information or complaint, unless the court shall otherwise order.' "8 While an actual trial clearly satisfies the statute, "the statutory language itself allows a trial judge to make other orders pertaining to the disposition or continuance of the case."•

In granting relief, the Court analogized the situation in Fields to that in Commonwealth v. Ludwig, 10 where "a district court judge dismissed complaints upon motion based, inter alia, on a claim of denial of a speedy trial where a continuance had been granted over the defendant's objection in violation of General Laws, c. 276, §35.''" Any subsequent prosecution for the same offense either in the district court or the superior court would be barred.'2

Two months later in Commonwealth v. Alexander, 13 the Supreme Judicial Court again granted relief on the basis of section 72A. Louis Alexander had been indicted for rape on March 3, 1971. On November 21, 1972, before any trial on the rape indictment, he was sentenced to M.C.I. Walpole on an unrelated charge. On March 6, 1973, he moved to dismiss the rape indictment based on both constitutional and statutory claims. No action was taken for an 11-month period at the end of which a hearing was held on Alexander's motion. The motion was subsequently denied and Alexander was convicted. 14

of justice." I d. at 2522, 356 N.E.2d at 1213. See Commonwealth v. Leavy, 1976 Mass. Adv. Sh. 1, 339 N.E.2d 923; Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967).

1 1976 Mass. Adv. Sh. at 2519, 356 N.E.2d at 1212. 7 See Commonwealth v. Gove, 366 Mass. 351, 354-56, 320 N.E.2d 900, 903-04 (1974). • 1976 Mass. Adv. Sh. at 2525, 356 N.E.2d at 1215, quoting General Laws c. 277, § 72A. • ld. at 2526, 356 N.E.2d at 1215. A continuance beyond the six month period would be

permissible if the delay appears necessary and justifiable. Commonwealth v. Boyd, 367 Mass. 169, 326 N.E.2d 320 (1975); Commonwealth v. Loftis, 361 Mass. 545, 281 N.E.2d 258 ( 1972). However, if such a continuance is granted, the trial judge should "specifically order an extension of the statutory period, stating the reasons therefore." Commonwealth v. Ambers, 1976 Mass. App. Ct. Adv. Sh. 1141, 1150, 357 N.E.2d 323.

10 1976 Mass. Adv. Sh. 857, 345 N.E.2d 386. 11 1976 Mass. Adv. Sh. at 2527, 356 N.E.2d at 1216. 12 See A.B.A. Standards, Speedy Trial, § 4.1 (1974). 13 1977 Mass. Adv. Sh. 76, 359 N.E.2d 306. " ld. at 77-78, 359 N.E.2d at 307. The case was before the Supreme Judicial Court.on

20




In Alexander, the Court again reiterated its position that

[ w ]here the defendant has neither caused the delay nor benefited from it, the statute does not inexorably render indictments ineffective after six months. Such a mechanistic approach is not required by the language of the statute and does not appear to have been contemplated by the Legislature. 15

However, where the delay was not the fault of the defendant, the Commonwealth "must at the very least, explain why such delay is 'reasonably necessary and justifiable.' " 18 Since the Commonwealth was unable to offer any explanation or justification for the 11-month delay in Alexander, the defendant was entitled to relief. 17

§14.7. Interrogation of Witnesses by the Trial Judge. In Commonwealth v. Campbell, 1 plaintiff alleged on appeal that the trial judge had rendered himself biased by interrogating witnesses himself. 2

During the course of the trial, the judge asked the defendant eighty-five questions and another witness twenty-five questions. Counsel had asked the same witnesses 1,725 questions and 901 questions respectively.3

In finding no error, the Court recognized the duty of the judge to be a "guiding spirit and controlling mind at a trial, " 4 and his power to ask questions of witnesses, provided his "examination is not partisan or biased."5 Defendant apparently offered no evidence of bias other than the fact that the trial judge had asked a total of 110 questions. The Supreme Judicial Court evaluated this bald statistic in light of the judge's specific charge to the jury "not to put any special significance to the fact or to the questions" he asked.• The Court's review of the judge's discretionary authority to interrogate witnesses was based upon

further appellate review of a decision of the Appeals Court. Commonwealth v. Alexander, 1976 Mass. App. Ct. Adv. Sh. 416, 344 N.E.2d 221.

15 1977 Mass. Adv. Sh. at 80, 359 N.E.2d at 308. 11 Jd. at 82, 359 N.E.2d at 309 quoting Commonwealth v. Boyd, 367 Mass. 169, 179, 326

N.E.2d 320. 17 The Court suggested that the Commonwealth might have protected itself "by the

timely filing and prompt prosecution of a motion in the Superior Court seeking an extension of the statutory period fixed by General Laws c. 277, §72A, stating in the motion or in an affidavit incorporated therein, the reasons in support of the requested extension." 1977 Mass. Adv. Sh. at 82, 359 N.E.2d at 309.

§14.7. 1 1976 Mass. Adv. Sh. 2208, 353 N.E.2d 740. z ld. at 2212, 353 N.E.2d at 743. 3 Id. at 2214, 353 N.E.2d at 744. • /d. at 2215, 353 N.E.2d at 744, quoting Golding v. Ashkins, 266 Mass. 374, 380, 165

N.E. 513, 516 (1929). • 1977 Mass. Adv. Sh. at 2214, 353 N.E.2d at 744, quoting Commonwealth v. Oates,

327 Mass. 497, 500, 99 N.E.2d 460, 461 (1951). • 1977 Mass. Adv. Sh. at 2215, 353 N.E.2d at 744.

21




"the rule of reason."7

The opinion is quite simple and straightforward. Defendant's claim to denial of a fair trial is not shown by evidence that the trial judge conducted a limited and apparently unbiased interrogation of two witnesses. Although the question of bias is for case-by-case determination, and therefore no one decision should be read too widely, it is evident from the Court's opinion that numbers alone will not support a finding of bias.

§14.8. Assistance of Counsel. During the Survey year, the Supreme Judicial Court and the Appeals Court dealt with the role of counsel in a variety of contexts. In Commonwealth v. Dabrieo, 1 the full bench, in dicta, set forth a judge's options in dealing with a counsel who seeks to delay trial because of his own overcrowded calendar. In Commonwealth v. Cavanaugh, 2 the Court considered whether it was an abuse of the judge's discretion to deny defendant counsel's request for more than eight days to prepare his case. The Appeals Court, in Commonwealth v. Bolduc, 3 reviewed a guilty plea in light of defendant's allegation that counsel had failed to advise him of the nature and number of the multiple charges he faced.

A. Commonwealth v. Dabrieo4

In Dabrieo, defendant's claim that he had been denied a speedy trial was rejected by the Supreme Judicial Court. 5 The Court determined that the primary cause of the twenty-seven month delay between indictment and trial was defense counsel's overcrowded schedule.' While appreciating the defendant's desire for representation by specific counsel and counsel's admirable efforts to represent his clients, 7 the Court took particular note of the options available to a judge faced with such delays.

In dicta, the Court suggested two alternatives for judges who find trial delayed because of defense counsel's busy schedule. 8 The full bench suggested that in such situations trial judges may refuse to make further

7 /d.

§14.8. 1 1976 Mass. Adv. Sh. 1957, 352 N.E.2d 186. • 1976 Mass. Adv. Sh. 2216, 353 N.E.2d 732. 3 1977 Mass. App. Ct. Adv. Sh. 182, 360 N.E.2d 340. • 1976 Mass. Adv. Sh. 1957, 352 N.E.2d 186. • Id. at 1972, 352 N.E.2d at 192. 1 /d. Defendant's original counsel died approximately one year after the defendant's

indictment, and was replaced by counsel referred to in this opinion. 7 /d. • ld. at 1973, 352 N.E.2d at 193.

22




assignments to an overburdened defense attorney, or more drastically, refuse to allow such an attorney to file appearances for additional clients.•

The Court offered no particular basis for this authority, but it may be presumed to be legitimately based upon the Court's supervisory powers over the lower courts of the Commonwealth.

B. Commonwealth v. Cavanaugh 10

Defendant Cavanaugh was arrested on June 18, 1974 and arraigned ten days later,ll Private counsel, who represented Cavanaugh on other pending legal matters, filed a limited appearance at the arraignment. 12

On November 11, 1974, the trial judge appointed this same attorney as counsel for trial, set for November 19.13 On the day before trial, counsel moved for a postponement on the grounds that more time was needed to prepare an adequate defense, alleging he had not represented defendant during the period between arraignment and the previous seven days. 14 The judge denied the motion, asserting that with the defendant's expertise acquired during six months of incarceration, defense counsel could prepare an adequate defense for the following day .15 The trial judge also stated the belief that during the six month interval between arraignment and trial, counsel had "conferred with his client many times," a charge emphatically denied by counsel and the defendant,l8

Prior to trial, defendant informed the judge that he no longer desired the services of his attorneyY The judge accepted defendant's request, but concluded that because defendant had rejected the assistance of the Massachusetts Public Defenders (an erroneous statement) 18 and because no private counsel more competent than the dismissed was available, defendant would have to appear pro se. 19 Counsel honored the Court's request that he remain on a "consulting basis."20

As the Court noted intially, the granting of a continuance usually rests within the trial judge's discretion, 21 but it must be provided if

• ld. 10 1976 Mass. Adv. Sh. 2216, 353 N.E.2d 732. 11 ld. at 2217, 353 N.E.2d at 733. " Id. at 2217, 353 N.E.2d at 734. 13 ld. " ld. at 2218, 353 N.E.2d at 734. •• ld. at 2219, 353 N.E.2d at 734. II fd. 17 ld. at 2220, 353 N.E.2d at 734. •• See id. at 2217 n.1, 353 N.E.2d at 734 n.l. 11 ld. at 2220, 353 N.E.2d at 734-35. 21 ld. at 2220, 353 N.E.2d at 735. 11 ld. at 2223, 353 N.E.2d at 736.

23



302 1977 ANNUAL SURVEY OF MASSACHUSETI'S LAW §14.8

necessary to effectuate the right to counsel.22 The appellate court's review is to be based upon the particular facts of the case. Under such a test, it was clear to the Court that the trial judge had abused this discretion and erroneously denied the continuance because the "facts" the judge considered in support of his denial of defendant's motion were "substantially and materially erroneous."23 Among the inaccuracies noted by the Court was that contrary to his stated belief, the trial judge had not presided over arraignment or set bail in the case, 24 defendant was not represented by nor had he been offered and rejected the representation of the Massachusetts Public Defenders, and he had not consulted with them prior to trial.25 Further, the judge took the position that defendant had been dilatory because he had obtained previous continuances. This was in conflict with court records which indicated no prior continuances.• Finally, the Court noted that the Commonwealth had failed to show how the requested continuance would hamper the administration of justice or cause prejudice. 27

The Supreme Judicial Court found the trial judge had based his exercise of discretion on erroneous information and saw no benefit to the public in denying the continuance.28 Those two factors, when taken together, constituted an abuse of discretion on the part of the trial judge.21

C. Commonwealth v. Bolduc30

In Bolduc, defendant, an escapee from Walpole, where he was serving a life sentence, was arrested and pleaded guilty to over thirty indictments, and was resentenced to Walpole.31 Thirteen years later he filed a motion for a new trial in superior court claiming that he had not made a "knowing and intelligent" guilty plea. 32 An evidentiary hearing was held at which it was determined that defendant had been arrested, indicted by a grand jury, and brought to trial without ever being arraigned or having the charges read to him. Appointed counsel did not

22 Id. 2224, 353 N.E.2d at 736. 23 Id. •• Id. at 2224-25, 353 N.E.2d at 736. 21 Id. at 2225, 353 N.E.2d at 736. 21 Id. 27 ld. 28 ld. 21 I d. The Court subsequently rejected the Commonwealth's claims that defendant had

waived his sixth amendment rights or in the alternative had been adequately represented by counsel appearing in a consulting capacity. ld. at 2226-33, 353 N.E.2d at 737-39.

30 1977 Mass. App. Ct. Adv. Sh. 182, 360 N.E.2d 340. 31 Id. at 182-84, 360 N.E.2d at 341. 32 ld. at 184, 360 N.E.2d at 341.

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see him until the day of trial.33 Defendant initially pleaded not guilty, but counsel asked the bench for time to acquaint the defendant with the charges against him. After twenty minutes, the requested conference ended and defendant pleaded guilty to all but two indictments. 34

The Appeals Court concluded from the evidentiary record that the trial judge had relied upon counsel to inform his client of the nature and number of the indictments, and that counsel had failed to do so.35 In so doing, defendant had been denied his sixth amendment right to counsel.

Rather than order a new trial, the Appeals Court remanded the case to the judge who had heard the motion for a new trial with instructions to determine whether defendant's delay in pursuing the claim-fourteen years-constitutes a waiver of his rights. 31

§ 14.9. Exclusionary Rule. In Commonwealth v. Saia, 1 the Supreme Judicial Court sought to make an accommodation between individual fourth amendment rights and substantial risk to public safety. The case was before the Court on the interlocutory appeal2 of the defendant, whose pre-trial motion to suppress was denied in the superior court.3

The facts as presented to the trial judge were that the police had received an anonymous telephone call that there was a "madman" at a particular address in Watertown, 4 and that the police, upon arriving at the scene, had heard "loud shouting" from the second floor. The police told the defendant Charles to "keep it cool, keep it down," whereupon there was more shouting. When the officer "attempted to go beyond the inner door, Charles began to struggle with him [and] ... after a short period of time James came downstairs and joined in the struggle. "5 The officers possessed neither a search warrant nor an arrest warrant. Before trial, the defendants "sought suppression of any testimony as to the observations or occurrences inside the premises."•

The Court flrst noted that the denial of the motion to suppress was

sa /d. at 186-88, 360 N .E.2d at 342. The original sentencing judge had retired so the motion was heard by the motions judge. /d. at 184-85, 360 N.E.2d at 341-42.

14 /d. at 188-89, 360 N .E.2d at 343. 11 /d. at 192-93, 360 N.E.2d at 344-45. 11 /d. at 196-97, 360 N.E.2d at 346.

§14.9. • 1977 Mass. Adv. Sh. 349, 360 N.E.2d 329. 1 See G.L. c. 278, § 28E. s Pursuant to chapter 278, § 28]!1, the matter was initially heard by a single justice who

allowed the defendant's application for an interlocutory appeal and then reported the matter to the full bench without decision.

• 1977 Mass. Adv. Sh. at 350, 360 N.E.2d at 330. The premises was a two-family dwelling, the second floor of which was occupied by the defendants (father and son) and the first floor by another member of the family.

• 1977 Mass. Adv. Sh. at 350-51, 360 N.E.2d at 330-31. • !d. at 352, 360 N .E.2d at 331.

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supportable on the basis that the entry of the police was lawful even though they had no warrant, 7 stating:

[T]hings seen and heard by the police when they arrived at the premises, including the loud noises emanating from the house and the foul and abusive language of Charles when he first greeted the police, were sufficient corroboration to reach the level of probable cause to believe that a felony had been committed or was in progress in the house. 8

However, Chief Justice Hennessey went one step further, stating that no relief would be warranted even if the entry by the police was illegal since "the evidence sought to be suppressed [was not shown to be] an 'exploitation' of the primary illegality."• After noting that "[t]here is no simplistic 'but for' ana.lysis that applies in this area of the law, " 10 the Chief Justice, writing for the Court, stated:

What is present here is simply an attempt to suppress evidence which is a result of allegedly willful acts of misconduct by James and Charles, whose provocation and perhaps ultimate defense may be found in the fact of the entry itself. The exclusionary rule does not reach this far. 11

1 In Commonwealth v. Forde, 367 Mass. 798, 799-803, 329 N.E.2d 717 (1975) the Court had held that where dwellings were involved the Commonwealth must show that it was impracticable for the police to obtain a warrant. See also Commonwealth v. Andrews, 358 Mass. 721, 723-26, 267 N.E.2d 233 (1971), where the Court indicated that the police must have probable cause to believe that a felony had been or was being committed to justify a warrantless entry to make an arrest.

• 1977 Mass. Adv. Sh. at 354, 360 N.E.2d at 332. ' Id. at 355, 360 N.E.2d at 332. Compare Wong Sun v. United States, 371 U.S. 471, 485

(1963). 10 See United States v. Bacall, 443 F.2d 1050, 1057 (9th Cir. 1971). 11 1977 Mass. Adv. Sh. at 355, 360 N.E.2d at 332.

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Chapter 14: Criminal Law and Procedure

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Transcript of Chapter 14: Criminal Law and Procedure