Commonwealth v. Blondin

Decision Date27 July 1949
Citation324 Mass. 564,87 N.E.2d 455
PartiesCOMMONWEALTH v. JOHN H. BLONDIN (and five companion cases [1]).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

May 2, 1949.

Present: QUA, C

J., DOLAN, RONAN SPALDING, & WILLIAMS, JJ.

Constitutional Law Assignment of counsel, Due process of law, Public trial. Practice, Criminal, New trial, Assignment of counsel, Public trial, Discretionary control of evidence, Trial of defendants together. Evidence, Leading question. Words, "In camera," "Behind closed doors," "Law of the land."

Questions of fact arising on a motion for a new trial of a criminal case are for the judge hearing the motion.

A judge hearing a motion for a new trial of a criminal case, by passing upon requests for rulings of law by the defendant and allowing a bill of exceptions based thereon, exercised his discretion in favor of considering the questions of law so raised even though they were or could have been raised at the trial, and such questions were open in this court.

Neither the Constitution nor the statutes of Massachusetts require an assignment of counsel to represent a defendant unable to employ counsel in a noncapital criminal case.

The Fourteenth Amendment to the Federal Constitution does not require an assignment of counsel to represent a defendant unable to employ counsel in every noncapital criminal case, but only in those instances where there are particular circumstances requiring such an assignment in order to secure to the defendant the fundamentals of a fair trial.

The record before this court disclosed no particular circumstances requiring an assignment of counsel in order to secure the fundamentals of a fair trial to men of mature years, not shown not to be of average intelligence, who were charged with, tried for, and convicted of rape and abuse of a female under the age of sixteen years and were unable to employ counsel.

A statement by a trial judge, that defendants charged with rape and abuse of a female under sixteen years of age were "tried in camera behind closed doors," meant on the record merely that he had excluded the general public from the court room in accordance with G. L. (Ter. Ed.) c. 278, Section 16A. Discussion by QUA, C.J., of the scope, meaning, and purpose of G. L. (Ter.

Ed.) c. 278 Section 16A, requiring the exclusion of the "general public" from the court room at the trial of certain kinds of criminal cases and the admission thereto of "only such persons as may have a direct interest in the case."

Action in accordance with G. L. (Ter. Ed.) c. 278, Section 16A, by the judge presiding at a criminal trial does not deny to the defendant due process of law in violation of either art. 12 of the Declaration of

Rights of the Massachusetts Constitution or the Fourteenth Amendment to the Federal Constitution.

The allowance of leading questions by the prosecutor at a criminal trial is within the discretion of the trial judge.

No error appeared in the trial together of separate indictments against three defendants for rape and carnal abuse of the same female on the same occasion.

THREE INDICTMENTS, found and returned on January 16, 1946. Motions for a new trial were heard and denied by Sullivan, J.

THREE PETITIONS for writs of error, filed in the Supreme Judicial Court for the county of Suffolk on January 5, 1948.

Following the issuance of the writs and returns and pleas, the cases were reserved and reported, without decision, by Dolan, J.

W. H. Lewis, Jr., (M.

J. John with him,) for the defendants-plaintiffs in error.

S. E. Levine, Assistant District Attorney, for the Commonwealth.

QUA, C.J. These six cases all grow out of the separate indictment and conviction of each of the three defendants of the crimes of rape and of abuse of a female child under sixteen years of age. Each of the three indictments charged the two crimes in separate counts. The extreme penalty for each crime is life imprisonment. G. L. (Ter. Ed.) c. 265, Sections 22, 23. The three indictments were tried together and resulted in verdicts of guilty against each defendant on each count. The trial judge sentenced each defendant on each count to imprisonment in the State prison for a term of forty to fifty years, the sentences on the two counts of each indictment to run concurrently. The Appellate Division of the Superior Court reduced the sentence on each count in each case to from twenty-five to thirty years. G. L. (Ter. Ed.) c. 278, Sections 28A-28D, as inserted by St. 1943, c. 558, Section 1, and as affected and amended in Sections 28A, 28B, and 28C by St. 1945, c. 255, Sections 1, 2, 3. The period of actual confinement is subject to further substantial reduction for good conduct and for satisfactory and diligent performance of work (G. L. [Ter Ed.] c. 127, Section 129, as appearing in St. 1948, c. 450, Section 1) and is subject to the possibility of parole as provided by law after a period of two thirds of the minimum sentence has elapsed. See G. L. (Ter. Ed.) c. 127, Section 133, as amended by St. 1946, c. 254.

The six cases now before us consist of a bill of exceptions taken in connection with a motion for new trial upon each of the original indictments and a reservation and report by a single justice of this court of proceedings upon writs of error sued out by the original defendants. The motions for new trial were filed after sentence but within the time allowed by G. L. (Ter. Ed.) c. 278, Section 29, as appearing in St. 1939, c. 271, Section 1.

The grounds of the motions for new trial are, except one, substantially the same as to each of the three defendants. They consist of various allegations of fact and assertions of errors of law. The motions were fully heard by the trial judge. It is plain that many of the allegations of fact were not believed by him. The facts were for him and not for us to determine. Commonwealth v. Dascalakis, 246 Mass. 12 , 25-26. The bills of exceptions do not, in general, disclose what evidence was introduced at the hearing of the motions, so that we could not decide facts even if questions of fact were within our province. The trial judge did make certain findings of fact, which we must accept as true. Davis v. Boston Elevated Railway, 235 Mass. 482 , 495. He also admitted in evidence at the hearing on the motions the full transcript of the evidence at the original trial, and this is included in the bills of exceptions. This evidence we may use in so far as it bears on any questions arising out of the motions as to errors of law in the conduct of the trial.

Ordinarily such errors occurring during the progress of a trial should be followed by immediate objection and exception, in order that they may be corrected at once, and cannot become the ground of a subsequent motion for new trial, unless the judge sees fit in his discretion to reconsider the matters involved. Commonwealth v. Dascalakis, 246 Mass. 12 , 24. Commonwealth v. McKnight, 289 Mass. 530 , 543-544. Commonwealth v. Galvin, 323 Mass. 205 , 220. But in this instance the judge passed seriatim upon all the defendants' requests for findings and rulings and has allowed bills of exceptions founded upon them. We think that he exercised his discretion in favor of considering them, as he might well do in the circumstances. We are further of opinion that this course has preserved for our consideration the questions of law as to which exceptions have been duly saved. This accords with the decision in Peterson v. Hopson, 306 Mass. 597 , 602-603, and with a number of intimations in others of the more recent cases. Loveland v. Rand, 200 Mass. 142 , 146. Ryan v. Hickey, 240 Mass. 46 , 48. Kelley v. Jordan Marsh Co. 278 Mass. 101 , 109. Commonwealth v. McKnight, 289 Mass. 530 , 543-544. Commonwealth v. Millen, 290 Mass. 406 , 408. Squires v. Toye, 291 Mass. 342 , 343. Ross v. Colonial Provision Co. Inc. 299 Mass. 39 , 42. It has been said that the practice is the same on both the civil and criminal sides of the court. Commonwealth v. Dascalakis, 246 Mass. 12 , 25. Commonwealth v. Gedzium, 261 Mass. 299 . We therefore deal with all substantial questions of law raised by exceptions in connection with the motions for new trial and argued in this court.

1. There was no violation of art.

12 of the Declaration of Rights of the Constitution of Massachusetts or, in our opinion, of the Fourteenth Amendment to the Constitution of the United States in putting the defendants to trial without the assistance of counsel. The defendants were never deprived of their right to have counsel in accordance with our Declaration of Rights. They had ample opportunity to procure counsel between January 4, 1946, and January 22, 1946. The only reason, as found by the trial judge, why they did not have counsel was their "inability to pay for the same." Article 12 of the Declaration of Rights does not require that counsel be furnished, and we may add that no statute requires it in noncapital cases. All this is fully explained in the case of Allen v. Commonwealth, which has been considered in connection with the present cases and is also decided this day.

In reference to the Fourteenth Amendment we said in the Allen case that we accept the law as fixed at the point now reached by actual majority decisions of the Supreme Court of the United States, and that "To the best of our understanding the law so determined does not require the assignment of counsel in every noncapital case, even though the charge be a serious one. That law, as we understand it, requires assignment of counsel in noncapital cases only when the defendant, by reason of youth, inexperience, or incapacity of some kind, or by reason of some unfair conduct by the public authorities, or of complication of issues, or of some special prejudice or disadvantage, stands...

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