Com. v. Boyd

Decision Date25 March 1975
Citation326 N.E.2d 320,367 Mass. 169
PartiesCOMMONWEALTH v. Bradford BOYD.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

P. J. Piscitelli, Brockton, for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

REARDON, Justice.

The defendant was convicted in the Superior Court of first degree murder in a case taken under G.L. c. 278, §§ 33A--33G. The case is here on assignments of error.

The facts are not in dispute. At approximately 7:30 A.M. on December 19, 1971, the defendant, incarcerated at the Massachusetts Correctional Institution at Walpole, entered the inmate cafeteria where, with his own tray empty, he sat at a table of Black Muslims, including one Irving 2X Jones who was their minister and leader. Another inmate, Frank Smith, entered the dining room shortly afterward, and the defendant thereupon left the cafeteria, remaining in the hall outside where he placed back and forth. Several minutes later Smith departed the dining area and encountered the defendant in the hallway. A number of guards were in the immediate vicinity of the confrontation and they all testified that the defendant twice stabbed Smith in the chest with a sharpened kitchen knife, shouting 'Allah!' as he did so. Smith fell to the ground and was pronounced dead at 9:05 A.M. the same day.

The defense relied on a theory of insanity at the trial. One doctor had examined the defendant for the Commonwealth. He was of opinion that the defendant was criminally responsible at the time of the incident. Two psychiatrists testified for the defendant and described his conversion to the Muslim religion and his burgeoning obsession with the idea that Smith was a threat to that religion in general and to Jones, whom he had earlier threatened, in particular. Their conclusion was that he was not criminally responsible for his assault on Smith.

We discuss the assignments of error seriatim, making such reference as may be necessary to additional testimony.

1. The defendant first alleges error in the denial by the trial judge of a pre-trial motion to inspect grand jury minutes. He argues that such inspection was necessary because he was being held in the prison segregation unit, and neither he nor his counsel had ready access to inmates and to prison guards who might be potential witnesses. The denial of this motion was not error. He was not entitled to inspection of grand jury minutes under the law in effect at the time of the trial in the absence of a showing of a 'particularized need.' Commonwealth v. Carita, 356 Mass. 132, 140, 249 N.E.2d 5 (1969); Commonwealth v. De Christoforo, 360 Mass. 531, 534--535, 277 N.E.2d 100 (1971); Commonwealth v. Stewart, --- Mass. ---, --- - --- a 309 N.E.2d 470 (1974). The relaxation of that rule produced by the Stewart case is prospective only. COMMONWEALTH V. STONE, --- MASS. --- , 320 N.E.2D 888 (1974)B. A desire to obtain information general in nature to aid in preparing a defense and to discover that evidence which the Commonwealth possession is not sufficient to establish particularized need. Commonwealth v. Ladetto, 349 Mass. 237, 245, 207 N.E.2d 536 (1965); Commonwealth v. Cook, 351 Mass. 231, 233, 218 N.E.2d 393 (1966); Commonwealth v. Doherty, 353 Mass. 197, 207--210, 229 N.E.2d 267 (1967), cert. den. 390 U.S. 982, 88 S.Ct. 1106, 19 L.Ed.2d 1280 (1968). While the defendant complains here of 'strictures upon his attorney in his investigation,' no specific allegations of particularized need were made on presentation of the motion and none is made on appeal that the defendant or his attorney was denied access to any witness. Commonwealth v. Balliro, 349 Mass. 505, 515--516, 209 N.E.2d 308 (1965); Commonwealth v. Carita, 356 Mass. 132, 142--143, 249 N.E.2d 5 (1969); Commonwealth v. Flynn, --- Mass. ---, --- - --- c 287 N.E.2d 420 (1972). Had this been the case the proper procedure would have been the filing of a motion with the court to be allowed to interview a witness, Commonwealth v. Carita, supra, rather than to demand inspection of grand jury minutes. Commonwealth v. Doherty, supra, 353 Mass. 207, 229 N.E.2d 267. In addition, the burden is on the defendant to demonstrate prejudice in the denial of the motion. Commonwealth v. French, 357 Mass. 356, 378, 259 N.E.2d 195 (1970), judgment vacated in part sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2846, 33 L.Ed.2d 754 (1972). Commonwealth v. De Christoforo, 360 Mass. 531, 536, n. 2, 277 N.E.2d 100 (1971).

As we view the record, the defendant was provided with broad discovery, including the reports of prison guards, a list of the names of witnesses, and copies of statements of witnesses to be relied on by the Commonwealth, as well as a list of names and addresses of witnesses who appeared before the grand jury. In fact, the Commonwealth's answer indicates there was just one such grand jury witness and he did not testify at trial. It is questionable that even the liberalized Stewart rules would require inspection in these circumstances. We are not impressed by the defendant's suggestion of need based on possible evidence of conspiracy which was never introduced at trial. Dennis v. United States, 384 U.S. 855, 873--874, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).

2. The defendant complains of the denial of his motion to prohibit the Commonwealth from employing a prior conviction for rape to impeach his credibility were he to testify, stating that this could serve only to prejudice him because the conviction has no bearing on such credibility. It is clear that under G.L. c. 233, § 21, witnesses may be impeached by proof of prior conviction. This statute applies to a criminal defendant testifying in his own behalf. Commonwealth v. Subilosky, 352 Mass. 153, 167, 224 N.E.2d 197 (1967); Commonwealth v. West, 357 Mass. 245, 249, 258 N.E.2d 22 (1970). It is the function of the jury to consider the degree to which the prior conviction bears on credibility. Quigley v. Turner, 150 Mass. 108, 109, 22 N.E. 586 (1889). See Commonwealth v. West, supra. The defendant contends that while the statute might be applicable, due process questions are raised by its use in these circumstances. This has been rejected on numerous occasions in recent years. Commonwealth v. Ladetto, 353 Mass. 764, 230 N.E.2d 914 (1967); Commonwealth v. DiMarzo, --- Mass. ---, --- - --- d,308 N.E.2d 538 (1974); Spencer v. Texas, 385 U.S. 554, 563--564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). See McGautha v. California, 402 U.S. 183, 218, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). In our view all that a defendant can request in the face of the statute is a careful limiting instruction such as that given by the judge in Commonwealth v. Bumpus, --- Mass. ---, --- - --- e, 290 N.E.2d 167. See Commonwealth v. DiMarzo, --- Mass. ---, --- - ---. (Hennessey, J., concurring) f, 308 N.E.2d 538 (1974); Commonwealth v. Ferguson, --- Mass. ---, --- g, 309 N.E.2d 182 (1974).

3. The defendant claims that he was placed in jeopardy twice for the same offense and by the same sovereign in being administratively punished in prison before trial. This claim is based on his confinement in a segregated unit at the Massachusetts Correctional Institution at Walpole immediately following the incident of December, 1971. He claims that this confinement constituted administrative punishment, and that consequently his trial on the murder indictment was a violation of the provision of the Fifth Amendment to the United States Constitution applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Gallinaro v. Commonwealth, --- Mass. ---, --- h, 291 N.E.2d 420 (1973). See G.L. c. 263, § 7. The judge concluded that the defendant's confinement could not be characterized as punishment. He found that the 'defendant and the other Black Muslims were, on the date of the killing . . ., removed to Blocks 9 and 10 for their own safety. In the judgment of the administration of M.C.I. Walpole, there was substantial tension at Walpole at that time, and the administration was fearful of trouble between the Muslim population and the non-Muslim black inmates in this institution--having in mind that the defendant was a Muslim and the deceased was a non-Muslim black inmate.'

A review of the voir dire testimony on this point leads us to conclude that there was ample support for the judge's findings. The deputy superintendent of the prison, arriving there shortly after the stabbing, observed a group of approximately fifty non-Muslim blacks congregated outside the cell block where the Muslims were living. He concluded that the Muslims should be segregated because of the existing turmoil. The defendant strongly argues that by the end of the summer of 1972 all the Muslims save himself were transferred back to the general population, keeping him confined, he says, for punishment rather than protection. The deputy superintendent testified, however, that the defendant was in danger of his life at that time and, in his opinion, would not have been safe in the general population. The judge could have concluded that a special need for protection existed. See Smith v. Swenson, 333 F.Supp. 1253, 1258 (W.D.Mo.1971). As a general proposition, segregated confinement for lengthy periods is permissible to protect inmates whose presence in the general population would create unmanageable risks. G.L. c. 127, § 39. O'Brien v. Moriarty, 489 F.2d 941, 944 (1st Cir. 1974); Kirst v. Smith, 309 F.Supp. 497, 500 (S.D.Ga.1970), affd, 439 F.2d 146 (5th Cir. 1971); Breece v. Swenson, 332 F.Supp. 837, 843 (W.D.Mo.1971). Block No. 10, where the defendant was confined, was not in fact a punishment unit, another block being reserved for that purpose. There was evidence that amenities available for the general population went along with residents in block No. 10, with...

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