Com. v. Carter

• Decision Date: 13 August 1996
• Citation: 423 Mass. 506,669 N.E.2d 203
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. John J. CARTER.

Page 203

669 N.E.2d 203

423 Mass. 506

COMMONWEALTH v. John J. CARTER.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued March 6, 1996.

Decided Aug. 13, 1996.

Steven J. Rappaport, Boston, for defendant.

Marcia B. Julian, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant, John J. Carter, was tried before a jury in Hampden County in September, 1992, on indictments charging murder in the first degree and murder for hire. The jury returned a guilty verdict as to murder in the first degree, and acquitted as to the companion indictment.

We summarize the evidence and inferences the jury could have drawn from it. At approximately 6:30 P.M. on March 3, 1991, the defendant and Donald Vanhook drove in a blue Subaru automobile from an apartment, where one Felicia Horace lived, to the "Rainville Hotel," a building at 32 Byers Street in Springfield. Before the two men left, Horace had supplied the defendant with a handgun. Vanhook dropped off the defendant on a street corner near the Rainville Hotel and waited. The defendant walked toward the hotel. Approximately twenty minutes later, Vanhook heard a gunshot, and the defendant returned to the automobile. He and Vanhook returned to Horace's apartment.

A resident of the Rainville Hotel testified that he had seen a man enter the building at about 6:30 P.M. Approximately five minutes later the man emerged with the victim, Jerry Hughes. After a brief exchange of words between the two, the man who had come from the blue vehicle stepped back, reached into his jacket, pulled out a gun, and shot Hughes at point blank range, killing him. This witness did not see the shooter's face, and so could not affirmatively identify Carter as the shooter.

Several other witnesses, although they did not see the actual shooting, did place Carter at the Rainville Hotel at the time of the killing. Two residents of the building stated that they saw Carter minutes or even seconds before hearing a single gunshot. Four witnesses who had spoken with Carter after the homicide each related conversations in which, to a greater or lesser extent, Carter admitted to killing Hughes.

To demonstrate a motive for the homicide, the prosecution showed that a reputed narcotics dealer, Brian Dawson, wanted Hughes killed, that Carter knew so, and that Carter was associated with Dawson. Evidence also showed that Dawson had supplied the handgun that Horace ultimately delivered to Carter.

The defense strategy relied primarily on cross-examination of the prosecution witnesses. Many percipient witnesses had been charged with unrelated crimes or were associated with Dawson. The defense attempted to portray these witnesses as having a motive to falsely implicate Carter, either to remain in Dawson's good graces or to receive favorable treatment from police and prosecutors. Donald Vanhook, perhaps the main prosecution witness because of his role in driving Carter to the scene, did in fact arrange a plea bargain with the Commonwealth.

After the first two days of testimony, the original trial judge fell seriously ill. Subsequently, it became clear that the original judge could not, for an indefinite period, resume presiding over the trial. Another judge in the Superior Court spoke to the jury and explained the situation. After discussions with, and argument from, counsel, this judge decided to take over and proceed with the trial from the point at which it had been suspended. Following a two-day recess, testimony was completed in just over one and one-half days. From the moment the original judge was reported incapacitated, counsel preserved Carter's rights, ultimately requesting a mistrial. That request was repeated throughout the trial, including after the jury returned their verdicts.

1. In Commonwealth v. Trapp, 396 Mass. 202, 213-214, 485 N.E.2d 162 (1985), S.C., 423 Mass. 356, 668 N.E.2d 327 (1996), we disapproved of the substitution of judges that did not comply with the requirements of Mass.R.Crim.P. 38(a), 378 Mass. 916 (1979). We also noted that substitution was generally "of grave concern to the proper administration of justice," and cited a number of cases in other jurisdictions that expressly held such substitution to be reversible error. Indeed even the Reporters' Notes to Mass.R.Crim.P. 38(a), Mass.Ann.Laws, Rules of Criminal Procedure at 574 (Law.Co-op.1979), suggest that midtrial substitution of a judge without the defendant's consent "is open to constitutional inquiry." In Trapp we reversed the judgment on other grounds. Therefore, we did not decide the substitute judge issue.

In Carter's case the court reporter fortuitously was using advanced equipment that allowed almost immediate transcription of testimony. As a result, the substitute judge was able to review the transcript of the evidence so far introduced, and was therefore able to comply fully with rule 38(a). ¹ Hence, we now directly face the question whether substitution of judges, in the midst of the presentation of the evidence, is permissible. Our rule 38(a) is modeled after Fed.R.Crim.P. 25(a), yet we can find no case in which the Federal courts have applied that rule, in the face of objection by the defense, to a substitution during the presentation of the evidence. ² A number of cases from other jurisdictions, mostly of early vintage, tend to support Carter's position that substitution in the midst of trial is improper. ³ Some of the scholarly commentary suggests the same. 2 Charles Alan Wright, Federal Practice and Procedure § 392 (2d 1982), citing Orfield, Disability of the Judge in Federal Criminal Procedure, 6 St. Louis U.L.J. 150, 151 (1960) (during Federal rulemaking process United States Supreme Court suggested possible constitutional infirmity).

Most of the cases cited were, however, generally entangled with outdated conceptions of the right to trial by jury. For example, in Freeman v. United States, 227 F. 732 (2d Cir.1915), the defendant consented to substitution, but it was believed that the defendant had no power to waive jury trial whatsoever. Compare id. at 742-751 with Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258, 74 L.Ed. 854 (1930). At the time of most of these cases the right to trial by jury was, at least in this Commonwealth understood formalistically as requiring a single tribunal comprised of both judge and jury. See generally Opinion of the Justices, 207 Mass. 606, 608, 94 N.E. 846 (1911). On such a view, a change of judge during the presentation of evidence would be no different than substituting new jurors who were only given the transcript of earlier witnesses' testimony.

Today, the jury trial guarantees of the Bill of Rights of the United States Constitution and the Declaration of Rights of the Massachusetts Constitution are understood functionally, emphasizing the interposition of lay factfinders into the judicial process. Williams v. Florida, 399 U.S. 78, 92-93, 90 S.Ct. 1893, 1901-02, 26 L.Ed.2d 446 (1970). Opinion of the Justices, 360 Mass. 877, 879-880, 271 N.E.2d 335 (1971). The judge's role is that of neutral magistrate, generally leaving issues of fact to the lay jury. On this more modern conception of the relationship between judge and jury, substitution of a judge poses far less a problem. Compare Unif.R.Crim.P. 741(e) (1974), 10 U.L.A. 354, 359 (Master ed. 1974) (disability of judge requires mistrial absent consent) with Unif.R.Crim.P. 741(e)(2) (1987), 10 U.L.A. 161, 162 (Spec.Pamph.1992) (allowing substitution over objection in jury trials). A substitute judge might perform a host of ministerial acts, such as signing a bill of exceptions, taking the jury verdict, or reading jury instructions that the first judge had prepared. See United States v. LaSorsa, 480 F.2d 522, 530-531 (2d Cir.), cert. denied, 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (1973) (substitute judge took over in midst of jury deliberations, took notes from jury that certain testimony be read back, and received verdicts); Eagan v. State, 480 N.E.2d 946 (Ind.1985) (substitute judge heard no motions from counsel and merely accepted jury verdict).

Virtually all the decisions that a trial judge must make, even when the judge has discretion as to the precise result, are decisions of law. See People v. Thompson, 158 Misc.2d 397, 408-409, 601 N.Y.S.2d 418 (N.Y.Sup.Ct.1993). Appellate courts routinely decide what jury instructions are appropriate, whether closing arguments remained within the bounds of the evidence and inferences, and whether the evidence was legally sufficient to support the verdict. These appellate decisions are made on a cold record and are thought sufficient to protect the defendant's rights. ⁴ The substitute judge who views even a portion of the evidence first hand is certainly in no worse a position. ⁵

Within the criminal jury trial the judge does make one decision that might require first-hand observation of all the witnesses. Immediately after the verdict the defendant can renew a motion for a directed verdict and move, in the alternative, for a reduction of the verdict or a new trial. ⁶ These latter two determinations require the judge to weigh the evidence, including, to some extent, the credibility of the witnesses. Carter asserts that the substitute judge, who reviewed only the cold transcript of the proceedings to that point, could not properly rule on such a motion, and the resulting alleged prejudice is what makes midtrial substitution impermissible. ⁷ In Carter's case the substitution occurred before the verdict. To the extent Carter's complaint centers around a Mass.R.Crim.P. 25(b)(2) postverdict motion, we can take some guidance from rule 38(b) which specifically authorizes a substitute judge to conduct all postverdict activities.

To take on the point more directly, when a substitute judge decides a rule 25(b)(2) motion, all that is lost is any effect that...