Com. v. Coleman

• Decision Date: 23 January 1984
• Citation: 461 N.E.2d 157,390 Mass. 797
• Parties: COMMONWEALTH v. Hayward L. COLEMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 157

461 N.E.2d 157

390 Mass. 797

COMMONWEALTH v. Hayward L. COLEMAN.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Oct. 4, 1983.

Decided Jan. 23, 1984.

Robert L. Sheketoff, Boston, for defendant.

John P. Corbett, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

Following a bench trial, the defendant, Hayward L. Coleman, was found guilty on September 23, 1981, by a judge in the Superior Court of aggravated rape, kidnapping, and assault and battery by means of a dangerous weapon. The judge sentenced the defendant to the Massachusetts Correctional Institution at Walpole (M.C.I., Walpole), imposing concurrent terms of from twelve to twenty years for the rape, and from nine to ten years for each of the other two convictions. The defendant appealed his sentences to the Appellate Division of the Superior Court, which did not alter the penalties. The defendant appealed his conviction to the Appeals Court, which affirmed the judgments. Commonwealth v. Coleman, 15 Mass.App. 922, 923, 444 N.E.2d 962 (1983). We then granted the defendant's application for further appellate review.

The defendant contends that his convictions should be reversed and the case remanded for a new trial. He argues that the trial judge erred by deciding the issue of the defendant's guilt before he had heard all of the evidence and the closing arguments in the case. The defendant also claims that the judge improperly considered the defendant's perjury on the witness stand in determining the sentence to impose for the convictions. ¹ He thus seeks a new trial, or, in the alternative, that the sentences imposed be vacated and the case remanded to a different judge for resentencing.

We conclude that even if we assume that the judge decided the issue of the defendant's guilt before hearing all of the evidence presented in the case, given the overwhelming evidence offered against the defendant and the defendant's admission of guilt, ² the judge's error, if any, does not create a substantial risk of a miscarriage of justice. We therefore affirm the convictions.

We conclude, however, that the judge improperly considered the defendant's perjured testimony in deciding the penalties to impose for the felony convictions. Accordingly, we vacate the sentences imposed on the defendant and remand the case for resentencing.

We briefly state the evidence. On January 3, 1981, the victim, a twenty-five year old married mother of three children, was in her automobile alone at the parking lot of a shopping mall in Brockton. The defendant entered her automobile on the driver's side and threatened her with a knife. He then drove off with her. They were in the vehicle for about three hours. During this time the defendant forced the victim to perform fellatio several times. After he left the automobile, the victim called the police, who developed a composite of the defendant from her description. The composite was shown on a Boston television station's news broadcast. The defendant observed the showing and fled the Commonwealth. He eventually was apprehended in another State. After indictment and arraignment, the defendant waived a jury trial and was tried before a judge in the Superior Court in Plymouth County.

During the trial, the defendant testified that the victim voluntarily drove the defendant around in her automobile. He said she performed oral sex voluntarily. The defendant stated that the woman volunteered to drive him home and waited in her automobile for the defendant while he stopped at a friend's house. The judge then questioned the defendant:

THE JUDGE: "So you hold the lady that is kind enough to drive you up there and you want [sic] the last two miles, and she waits fifteen minutes while you make phone calls to friends? You want me to understand that?"

THE DEFENDANT: "Your Honor, she volunteered."

THE JUDGE: "Oh, I see. You told her, in other words, you told her to go home and she said I'd rather stay?"

THE DEFENDANT: "I told her I had to go up and make a few calls ... and she said okay."

At the close of the case, the judge proceeded to evaluate the credibility of both the defendant and the victim before he rendered his verdict. He stated that he was "offended" by the defendant's "attempt to kid" him by his account of the incident. He also noted the absence of any corroborating evidence of this "false, foolish story." Concerning the victim, the judge said that he wanted "to make it clear I find that lady absolutely convincing without guile, truthful, direct, an honest woman."

After the judge announced that he found the defendant guilty of all charges, he asked to hear from the probation officer and from defense counsel on disposition. During a colloquy with defense counsel concerning the defendant's character, the judge interrupted the attorney and stated, "I made my findings the minute that woman took the stand and she turned to me, at some question I asked her, and I got a look at her full view, and I looked at her face and I saw openness and honesty and shock that she is here and shock that she had to be subjected to the kind of story that he chose to tell."

The judge then asked the prosecutor for his recommendation on the charges and sought guidelines on the sentences. The Commonwealth recommended a term of from twelve to twenty years on the rape charge, to be served at M.C.I., Walpole, and from nine to ten years on the other charges, to be served concurrently. The judge asked the defendant if he wished to say anything. When the defendant claimed that he was innocent, the judge proceeded to cross-examine him on the veracity of his testimony. ³ Eventually, the defendant began to admit that he had fabricated his account, at which point the judge called a recess and instructed the defendant to discuss a reasonable alternative sentence with his lawyer. Concerning the sentence for the rape conviction, the judge said that he was "thinking fifteen to twenty right about now."

Following the recess, the defendant admitted that he had testified falsely. Although he recognized that the defense counsel was only doing his job, the judge reiterated his "outrage" over the victim's being subjected to vigorous cross-examination and to her character being impugned. The judge accepted the Commonwealth's recommendations of from twelve to twenty years at M.C.I., Walpole, on the rape conviction, and from nine to ten years, concurrently, on each of the other convictions.

1. Prejudging the defendant's case. The defendant's first claim of error is that the judge determined the defendant's guilt before he heard all the evidence in the case and the closing arguments. In essence, his contention is based on the judge's statement during the sentencing hearing that he had "made [his] findings [in the case] the minute that woman [the victim] took the stand," and he saw "honesty and shock that she is here and ... that she had to be subjected to the kind of story that he chose to tell." The Commonwealth claims that such remarks made by the judge indicated only the factors that he considered in assessing the credibility of the defendant and the victim, and that the record, taken as a whole, does not support the defendant's claim. We note that the defendant failed to object to the judge's remarks at trial or to move for a new trial under Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). In these circumstances, this court will correct an error to which no objection has been made at trial only where it is necessary to prevent a "substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). While we agree with the Appeals Court that the remarks of the trial judge were "ill-advised," 15 Mass.App. at 922, 444 N.E.2d 962, we need not determine whether the judge committed error. It is sufficient to conclude that, even if we assume the judge to have committed error, the record shows no substantial risk of a miscarriage of justice as to the entry of a finding of guilt.

As the Appeals Court noted, the trier of fact properly may consider the "[c]haracter, appearance, demeanor, frankness, and the reasonableness of testimony" of witnesses and parties, in determining their credibility. 15 Mass.App. at 922-923, 444 N.E.2d 962. We have also held that "an earlier expression of opinion as to a matter to be decided does not disqualify a judge or indicate want of competency to hear fairly and decide impartially all issues." Commonwealth v. Clark, 379 Mass. 623, 631, 400 N.E.2d 251 (1980), quoting King v. Grace, 293 Mass. 244, 247, 200 N.E. 346 (1936). ⁴

By contrast, when a judge decides an issue in a case before listening to all the relevant evidence which a party presents, we have reversed the decision of the judge. Preston v. Peck, 271 Mass. 159, 163-164, 171 N.E. 54 (1930). We stated in Preston that a judge's duty to "hear all competent evidence requires as a necessary incident of that duty that he shall hear the evidence with an open mind and not reach a final conclusion upon the issue until he has heard all evidence bearing upon it which a party is prepared to offer and has a right to introduce." Id. Cf. Union Trust Co. v. Magenis, 266 Mass. 363, 365, 165 N.E. 496 (1929) (where Probate Court judge agreed to hear motion for rehearing of motion to frame jury issues, he must afford parties full hearing and not terminate session during oral argument of counsel). The judge commented that he had made his findings when the victim took the stand, which was before all the evidence was in, and before the defendant had testified. On the other hand, he did not preclude the introduction of other evidence and took the defendant's evidence, including the testimony of the defendant. Although we think the judge's remark to have been highly inappropriate, we cannot say that his conduct clearly deprived the defendant of a fair trial.

But,...