Com. v. Haley

• Citation: 296 N.E.2d 207,363 Mass. 513
• Parties: COMMONWEALTH v. James HALEY.
• Decision Date: 03 May 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 207

296 N.E.2d 207

363 Mass. 513

COMMONWEALTH v. James HALEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1973.

Decided May 3, 1973.

Alfred P, Farese, Everett, for defendant.

Gerald F. Muldoon, Asst. Dist. Atty. (Elizabeth C. Casey, Boston, with him), for the Commonwealth.

Before TAURO, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

On September 13, 1971, the defendant was indicted for a murder committed on July 11, 1971. On March 3, 1972, after five days of trial, the jury returned a verdict of guilty of murder in the first degree and recommended that the penalty of death be not imposed. The same day the defendant was sentenced to life imprisonment. The case is before us pursuant to G.L. c. 278, §§ 33A--33G. The defendant took exceptions to the denial before trial of three motions made by him, and took 134 exceptions at trial. He filed twenty assignments of error, and argues eight of them in his brief.

We summarize the evidence. The victim, David Myers, was a man twenty-five years old, five feet seven inches tall, and weighed 230 pounds. He lived in a ground-floor apartment in Dorchester with Gloria Custis and their six months old baby. The defendant, James Haley, was about the same height as the victim, but much slimmer, weighing about 120 pounds. His wife Brenda is Gloria's sister, and the defendant and Brenda lived in the apartment for about a month in March, 1971. On May 3, 1971, the defendant struck Brenda and threatened her, and the same day she went to her parents' home in Delaware. She came back to Boston for about a week in June, but did not see the defendant. She came back again on July 9, and spoke to the defendant on the telephone. On Saturday, July 10, while Brenda and Gloria were on their way to Gloria's apartment, they saw the defendant about thirty-five feet away and he looked at them, but there was no conversation with him. Brenda and Gloria then went to Gloria's apartment, although Brenda was staying with a third sister at a different address.

On the same Saturday Gloria and the victim went to bed in their apartment between 10 and 10:30 P.M. The doors were locked, but a kitchen window was open. In the early morning of July 11, she awoke, heard their dog barking, and saw the victim going toward the kitchen. She said, 'What's the matter, David?' He said, 'James stabbed me. James stabbed me.' As she was getting up from the bed, she heard a gunshot, and as she was running toward the kitchen, David said, 'Why did you stab me, man? Brenda's not here.' Gloria then looked into the bathroom, where the light was on, and saw the defendant and the victim struggling over the tub. The defendant had a small gun and a large knife in his hands, and the victim had his hands over the defendant's hands, trying to get the knife and gun away from him.

The telephone in the apartment was disconnected, and Gloria thought that the telephone in the upstairs apartment of a neighbor was also disconnected. She grabbed her clothes, ran out the door and yelled for help. She ran a block and a half or two blocks to her brother's apartment, arriving fifteen or twenty minutes after 5 A.M. The police were called. With her brother and two others, she returned to her apartment, met the police there, and let them in. The victim was lying on the floor. He was taken to a hospital and pronounced dead at 5:45 A.M. The cause of death was a bullet wound in the head. He had been stabbed first. A bullet removed from the victim's head and two spent bullets found in the apartment had been fired from the same gun.

The defendant worked at the Massachusetts Institute of Technology on Saturday, July 10, until 2:45 P.M. Later he visited his mother at the hospital. Still later, in the evening, he was at a party in Dorchester. He left with others to get sandwiches about 3 A.M. and returned about 4 A.M. The defendant's sister, who was at the party, testified that she saw the defendant about 5 to 6 A.M., when the crime apparently occurred.

The defendant contends that he was denied the fair trial guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States because the trial judge (1) improperly excluded evidence not objected to by the Commonwealth, (2) improperly cross-examined Gloria Custis and the defendant's sister, and (3) improperly admonished defence counsel in the presence of the jury. He also contends that there were two errors in the exclusion of evidence sought by the defendant on cross-examination, two errors in the admission of irrelevant and inflammatory evidence presented by the prosecution, and error in the denial of the defendant's motion to make an unsworn statement to the jury.

1. Exclusion of evidence on the judge's own motion. Some eighteen times during the cross-examination of prosecution witnesses by counsel for the defendant, the judge excluded questions on his own motion, without objection by the prosecution, and the defendant excepted. Several of the questions are characterized by the defendant himself as 'marginally material,' 'leading,' or 'argumentative'; others seem largely rhetorical or repetitious. Still others might have been material if connected up, and were excluded only after the judge had asked whether counsel was prepared to make the necessary showing and after counsel had indicated that he was not. See Commonwealth v. Geagan, 339 Mass. 487, 509--510, 159 N.E.2d 870.

Thus police witnesses were asked whether particular facts were significant or important. Gloria was asked whether she was 'surprised' at one point, whether she was 'worried' at another, whether she knew the defendant's mother was in the hospital, and whether she knew why the victim said, 'Brenda is not here.' As to some of the questions, it seems to be conceded that exclusion would have been proper if the prosecution had objected. Answers to some might have been relevant to the bias of the witness, but rulings excluding them after objection would not be disturbed unless the substantial rights of the defendant were clearly shown to have been prejudiced. Commonwealth v. Makarewicz, 333 Mass. 575, 590, 132 N.E.2d 294. Commonwealth v. Greenberg, 339 Mass. 557, 580--582, 160 N.E.2d 181. Commonwealth v. Nassar, 351 Mass. 37, 43--44, 218 N.E.2d 72. Other questions, as to which specific prejudice is claimed, are discussed further below.

As the defendant contends, failure to object to offered evidence operates to waive objections to its admissibility. Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 99, 64 N.E. 726. Commonwealth v. Geagan,339 Mass. 487, 513, 159 N.E.2d 870. Such evidence may then be given its probative force by the trier of fact. O'Kane v. Travelers Ins. Co., 337 Mass. 182, 184, 148 N.E.2d 397. Regan v. John J. Amara & Sons Co., 348 Mass. 734, 737, 205 N.E.2d 705. It is contended, therefore, that the judge has no authority to exclude even inadmissible evidence unless it is objected to. Alternatively, it is contended that the authority to exclude without objection is limited to evidence 'wholly incompetent competent or inadmissible for any purpose.' See South Atl. S.S. Co. of Del. v. Munkacsy, 37 Del. 580, 594--595, 187 A. 600; Rabun v. Wynn, 209 Ga. 80, 82--83, 70 S.E.2d 745; Lambert v. Rodier, 194 S.W.2d 934, 937 (Ct.App.Mo.); Drescher v. Granite State Mach. Co., 96 N.H. 508, 511--512, 79 A.2d 16. Action by the judge on his own motion, it is said, put him in the position of an advocate for the Commonwealth, prejudiced the jury against the defendant, and deprived him of a fair trial.

We hold that the judge may of his own motion deal with offered evidence. See Wigmore, Evidence (3d ed.) § 18; McCormick, Evidence (2d ed.) § 55. 'There certainly must be some limit beyond which parties cannot be permitted to go, in extending issues of fact and bringing into a case matters which have no essential bearing on its real merits.' Mowry v. Smith, 9 Allen 67, 68. 'There are numerous cases where it has been held permissible for a trial judge to exclude from consideration evidence erroneously admitted over objection. . . . A party who succeeds in introducing incompetent evidence has no right to insist that it remain in the case. The trial judge may reconsider its admission and strike it out, provided no hardship befalls the party introducing it. Crowley v. Swanson, 283 Mass. 82, 85, 186 N.E. 46.' Walsh v. District Court of Springfield, 297 Mass. 472, 478, 9 N.E.2d 555, 559. Equally he may exclude it without waiting for an objection by counsel. Chicago & N.W. Ry. v. Kelly, 84 F.2d 569, 572--573 (8th Cir.). Alquero v. Duenas, 319 F.2d 40, 42 (9th Cir.). O'Kelley-Eccles Co. v. State, 160 Cal.App.2d 60, 65, 324 P.2d 683. Greer v. Whittington, 251 N.C. 630, 634--635, 111 S.E.2d 912.

'A good judge must have firmness. Sitting with a jury, he should so conduct the trial that the case will go to the jury, so far as his lawful powers permit, free from irrelevant considerations and appeals to prejudice and emotion. As a former justice of our court once said, 'The judge who discharges the functions of his office is . . . the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings.' ¹ It is true, now as in Lord Bacon's day, that 'an overspeaking judge is no well-tuned cymbal,' and that 'It is no grace to a judge first to find that which he might have heard in due time from the bar.' ² A judge who takes a case that he does not understand out of the hands of competent counsel who do understand it, is a nuisance. The judge must never become or appear to be a partisan.

' But a judge need take no vow of silence. He is there to see that justice is done, or at least to see that the jury have a fair chance to do justice. . . . The judge ought not to let the jury be diverted from the real issue. The skill of counsel must not be allowed to mislead the jury by raising false issues or by...