Com. v. Marshall

• Citation: 356 Mass. 432,253 N.E.2d 333
• Parties: , 39 A.L.R.3d 848 COMMONWEALTH v. George M. MARSHALL (and sixteen companion cases between the same parties).
• Decision Date: 01 December 1969
• Court: United States State Supreme Judicial Court of Massachusetts

Page 333

253 N.E.2d 333

356 Mass. 432, 39 A.L.R.3d 848

COMMONWEALTH v. George M. MARSHALL (and sixteen companion cases between the

same parties).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct 7, 1969.

Decided Dec. 1, 1969.

Israel Bernstein, Boston, for defendant.

Robert N. Gross, Asst. Dist. Atty., for Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

WILKINS, Chief Justice.

The defendant was indicted for the crimes of sodomy, G.L. c. 272, § 34; unnatural and lascivious acts with boys under sixteen, second offences, G.L. c. 272, § 35A; indecent assault and battery upon boys under fourteen, G.L. c. 265, § 13B; and being a lewd, wanton, and lascivious person in speech and behavior, G.L. c. 272, § 53. There are seventeen indictments which were tried subject to G.L. c. 278, §§ 33A--33G, and are here on the defendant's appeal with many assignments of error. On so much of the indictments as did not charge second offences, he was tried to a jury, and found guilty on each. On the remaining portions of the indictments which charged second offences, he was tried jury waived and found guilty on each.

The evidence is extremely sordid. Beyond stating that it was ample to convict, ¹ we shall not defile our reports by repeating any of it.

The third assignment is that there was error in accepting the recommendations of the district attorney that the trial be conducted in a private hearing, allowing only the witnesses to be present in the court room, and denying the request of the defendant that his mother, sister, brother, and a friend be allowed in the court room. The reasons assigned are that the judge (1) violated the constitutional right of the defendant to a public hearing and (2) misconstrued the provisions of G.L. c. 278, § 16A, which reads: 'At the trial of a complaint or indictment for rape, incest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed * * * the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case.'

Both reasons are valid, and we need not consider any other assignments to determine the case.

Before any evidence was taken the judge allowed the district attorney's motion that 'because of the age of the victims' the trial be in private hearing, allowing only the witnesses in the court room. Counsel for the defendant stated that the only spectators present were the defendant's mother, sister, brother, and a friend. The district attorney interjected, 'I would object to that very strongly, Your Honor. That is precisely why I don't want them in the courtroom.' Counsel for the defendant continued, 'I would respectfully request that these people be allowed to remain in the courtroom.' The judge ruled, 'No. We will accept the recommendation and suggestion of the District Attorney.' The defendant excepted.

In Commonwealth v. Blondin, 324 Mass. 564, 570--571, 87 N.E.2d 455, 459, it was stated by Chief Justice Qua, 'There is nothing in the Constitution of this Commonwealth corresponding to the right to a 'public trial' expressly granted by the Sixth Amendment to the Constitution of the United States, and there is nothing to prevent the enactment of such a statute as § 16A.' The Legislature, in enacting this (p. 571, 87 N.E.2d p. 459--460), 'could reasonably determine that the public interest would be better served by exclusion. * * * It calls only for exclusion of 'the general public' as distinguished from 'such persons as may have a direct interest in the case.' It is to be strictly construed in favor of the general principle of publicity. The expression 'such persons as may have a direct interest in the case' must be interpreted broadly. It was certainly not intended to be limited to the parties. * * * The intent was to distinguish between persons having a legitimate reason for being present and mere idle spectators who are often attracted in large numbers to sensational trials involving sex issues, not only to the detriment of the community but sometimes to the degradation of justice itself. We do not construe the statute as excluding a parent, husband, wife, or guardian of a defendant or even a friend whose presence he desires and who might give him legitimate assistance or comfort without interfering with the trial.'

We are of opinion that there was error in excluding the mother, brother, sister, and friend of the defendant. Such a ruling was beyond the authorization in § 16A. It was not a strict construction in favor of the general...