Com. v. Carney

• Decision Date: 26 September 1991
• Docket Number: No. 90-P-1129,90-P-1129
• Citation: 31 Mass.App.Ct. 250,576 N.E.2d 691
• Parties: COMMONWEALTH v. Stephen J. CARNEY (and three companion cases). 1
• Court: Appeals Court of Massachusetts

Page 691

576 N.E.2d 691

31 Mass.App.Ct. 250

COMMONWEALTH v. Stephen J. CARNEY

(and three companion cases). ¹

No. 90-P-1129.

Appeals Court of Massachusetts,

Plymouth.

Argued April 5, 1991.

Decided Aug. 15, 1991.

Further AppellateReview Denied Sept. 26, 1991.

Wendy Sibbison, Greenfield, for Stephen J. Carney.

Stephen Hrones (Murray Kohn with him), Boston, for Christopher S. Carney.

Robert C. Thompson, Asst. Dist. Atty., for Com.

Before WARNER, C.J., and BROWN and GREENBERG, JJ.

GREENBERG, Justice.

Flames burst from the Bell family barn in Duxbury on the evening of April 28, 1988. The barn was behind Bruce and Daphne Bell's residence where they lived with their daughter, Andrea, and other family members. Daphne Bell, first to notice an orange-yellow light emanating from a window, ran into the barn where she observed two men pouring liquid onto bales of hay. She shouted, prompting both to flee. After returning to her house to sound a telephone alarm and alert her husband and daughter, she returned to the conflagration to save the animals trapped inside (a donkey and fourteen greyhounds and whippets). Her initial efforts were unsuccessful, but, on her second rescue attempt, she managed to free all but the donkey and two of the dogs. Her second foray into the barn proved costly. Overcome by the smoke, she lost consciousness and suffered serious burns. She was taken from the scene by ambulance to a local hospital, then transferred to Massachusetts General Hospital, where she remained for nearly three months.

As part of their investigation, police spoke with the Bell's daughter, Andrea, and learned that three years earlier the defendant Stephen Carney had fathered her child, who is in her custody. It appeared that, since the child's birth, Andrea's and Stephen's relationship had ended--in no uncertain terms. Conflicts over visitation resulted in the Bells' banishment of Stephen from their residence. There was evidence that, four weeks prior to the fire, an argument had erupted after an unannounced appearance by Stephen at the Bell residence. Andrea ultimately interceded in a confrontation between Stephen and her father. Theorizing that such animus might have motivated Stephen and his brother, the codefendant, Christopher Carney, to act in reprisal, police investigators focused on the brothers' activities on the night of the fire.

For her part, Daphne Bell was first questioned in the hospital on July 11, 1988, where she told a Duxbury police officer that she had seen two men in the barn pouring gas on the flames. She added that one of the men "looked like Stephen Carney" and the other was a "marine type" with a crewcut, wearing "flashy clothes." On the following day, she identified both defendants from a photographic array arranged by a State police arson investigator. They were arrested immediately thereafter.

The principal theory of the defense, developed through cross-examination of the Commonwealth's witnesses, was that Daphne Bell started the fire--presumably in concert with her husband--in order to collect on an insurance policy. The defendants introduced evidence that the Bells had filed for debtor protection under 11 U.S.C. §§ 1321 et seq. (1988) two years prior to the events in question. After an emotionally charged week-long trial, the defendants were convicted on both charges on May 26, 1989.

1. The unfair trial claim. The defendants assign as errors various comments the judge made in the presence of the jury, the cumulative effect of which they now claim deprived them of a fair trial. Commonwealth v. Sneed, 376 Mass. 867, 383 N.E.2d 843 (1978). Cutting and pasting portions of the record to suit their argument, the defendants attempt to cloak the judge in a partisan mantle. Viewing the entire trial in context, as we must, we conclude that the judge's remarks did not deprive the defendants of a fair trial.

a. The judge's partiality to Daphne Bell. The defendants' judicial bias claim centers on the judge's alleged regard for and treatment of the prosecution's main witness, Daphne Bell. Beginning with voir dire ² and progressing through the trial, the defendants argue, the trial judge championed the witness and protected her during cross-examination.

For example, on cross-examination, Daphne Bell became confused as to whether defense counsel was asking her to describe the persons she saw in the barn from her present memory or to confirm her prior statements to the police. The judge, as an aside, stated, "Before this woman--she has been a good witness, but [she] is not a professional witness. Y(3)27" The defendants' contention that, through this comment, the judge "vouched" for the credibility of the witness and thereby caused the jury to accept her version of events, see Commonwealth v. Green, 25 Mass.App.Ct. 751, 752-753, 522 N.E.2d 424 (1988), is without merit. The judge, sensitive to a lay witness's misunderstanding of an impeachment question, reacted to her confusion with a supportive comment which was harmless in the context of her testimony. See Commonwealth v. Marangiello, 410 Mass. 452, 461, 573 N.E.2d 500 (1991); Commonwealth v. Berger, 9 Mass.App.Ct. 814, 814-815, 398 N.E.2d 505 (1980). Furthermore, a short colloquy between judge and witness followed which made clear that the judge's purpose was to focus her testimony on what she related to the police investigators, leaving her credibility for the jury.

Next, the defendants complain that the judge, in attempting to squelch an appeal by the prosecutor to the jurors' sympathy for Daphne Bell's fire-related injuries, managed to achieve the reverse. During the course of the trial, it was obvious to the jury that Daphne still suffered from some visible effects of the injuries. In this connection, we must examine the judge's remark to the prosecutor: "We all felt sorry for her. What more do you want?" Defense counsel recorded no objection, although they later challenged the remark in a motion for mistrial on the fourth day of trial. ³ While the comment may, in hindsight, better have been left unspoken, we cannot say that it likely moved the jurors' sympathies towards the complaining witness. See Commonwealth v. Fitzgerald, 376 Mass. 402, 424-425, 381 N.E.2d 123 (1978), where similar references to the accusing witness in the jury instructions were not so prejudicial as to constitute a risk of a miscarriage of justice.

The primary theory of defense, as will be recalled, was that the Bells set fire to their own barn. The issues were contested by experienced and zealous advocates. At one point during cross-examination of Daphne Bell, the judge felt it necessary to caution Christopher's counsel against combatively approaching the witness--"jumping at her." We find that similar comments by the judge, too numerous to detail, were constructive, and not, as argued by the defense, derisively prejudicial. See Commonwealth v. Wilson, 381 Mass. 90, 118-119, 407 N.E.2d 1229 (1980) (the judge must be the trial's "directing and controlling mind"). Our examination of the entire record reveals that the judge, at times beleaguered by contentious and prolonged examinations of witnesses, was evenhanded and fair in his evidentiary rulings. Commonwealth v. Perez, 390 Mass. 308, 316, 455 N.E.2d 632 (1983). Commonwealth v. Mazzola, 22 Mass.App.Ct. 683, 687, 497 N.E.2d 280 (1986). The judge did not cross the line separating judicial guidance from judicial bias. Contrast Commonwealth v. Sneed, 376 Mass. at 869-870, 383 N.E.2d 843; Commonwealth v. Sylvester, 388 Mass. 749, 750-752, 448 N.E.2d 1106 (1983).

Finally, if any harm resulted, the judge's instructions were sufficient to vitiate the prejudice. Commonwealth v. Cohen, 27 Mass.App.Ct. 1210, 1211, 545 N.E.2d 50 (1989). He stated as follows: "Now my job is to conduct a fair trial, to make rulings on law, to rule on objections and to conduct the atmosphere of the courtroom in as fair and orderly a manner as I can. However, I don't want any one of you to look to me to see if you can determine how I feel about this case.... I have made some remarks during the course of the trial which unfortunately may be my way of doing things. What I say, what questions I ask, what statements I may make here, are not to be used by you in any way in figuring or determining how I feel this case should be decided. I have no right to interfere with your duties which is to find the facts and determine where the truth lies. That's your duty." In addition, the jurors were instructed that they were the sole judges of credibility. Compare Commonwealth v. Haley, 363 Mass. 513, 522, 296 N.E.2d 207 (1973); Commonwealth v. Paradise, 405 Mass. 141, 157, 539 N.E.2d 1006 (1989); Commonwealth v. Jiminez, 22 Mass.App.Ct. 286, 293, 493 N.E.2d 501 (1986).

b. The excessive sentencing claim. The final matter relating to the defendants' claim of judicial bias arose immediately after Daphne Bell's testimony at the voir dire hearing on the defendants' joint motion to suppress her identification. After denying the motion, and before starting the jury trial, the judge spoke with the attorneys and suggested the following: "Gentlemen, I want to tell you my position for what it's worth. Have you people ever thought of any way of disposing of this case without a trial? I think that [Daphne Bell] is a devastating witness. I think you should consider if you haven't if there is any way. If there isn't, it's all right, but I just want to point out clearly to you that I was most impressed with that witness, and I believe the jury will be, too.... [L]et me say that before this picture becomes a thorn in my side you might do a lot better with me before the trial than after. I want to point out to you ... in view of what little I know about this case, that, should there be a conviction here, there would be serious consequences following."

Trial counsel did not register any objection to the judge's ruminations or to the sentence. See Commonwealth v....