Com. v. Cordeiro

• Decision Date: 10 March 1988
• Citation: 519 N.E.2d 1328,401 Mass. 843
• Parties: COMMONWEALTH v. John CORDEIRO (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1328

519 N.E.2d 1328

401 Mass. 843

COMMONWEALTH v. John CORDEIRO (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Bristol.

Argued Nov. 3, 1987.

Decided March 10, 1988.

Kenneth L. Sullivan, Fall River (J. Drew Segadelli, North Falmouth, with him), for John Cordeiro.

John F. Palmer, Boston, for Victor Raposo.

Phillip L. Weiner, Asst. Dist. Atty. (Patricia O. Ellis, Asst. Dist. Atty., with him), for the Com.

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

LYNCH, Justice.

After a trial in the Superior Court, separate from the trial of codefendants Joseph Vieira and Daniel Silvia, 401 Mass. 828, 519 N.E.2d 1320 (1988), the defendants, John Cordeiro and Victor Raposo, were found guilty of aggravated rape. G.L. c. 265, § 22(a ) (1986 ed.). ² Each was sentenced to a term of from nine to twelve years at the Massachusetts Correctional Institution at Cedar Junction. They appeal from their convictions and from the denial of their motions for a new trial. We transferred the cases here on our own motion and we affirm.

We recite here only those facts which augment or differ from those provided in Commonwealth v. Vieira, 401 Mass. 828, 519 N.E.2d 1320 (1988), decided today. The jury in the trial of Cordeiro and Raposo would have been warranted in finding that, as Silvia was on top of the victim on the floor in the narrow area next to the bar, Raposo attempted to force the victim to perform fellatio. After the victim had been placed on the pool table, Cordeiro forced the victim to perform fellatio. While she was on the pool table, Raposo told the crying victim that she should be quiet and they would let her go.

Cordeiro and Raposo jointly claim that the judge's order prohibiting camera coverage of the victim was an abuse of discretion under S.J.C.Rule 3:09, Canon 3(A)(7), as amended, 387 Mass. 1218 (1983), and prejudiced their right to a fair trial. Second, they contend that the judge erred in refusing to instruct as requested on the defense of consent. Additionally, they join in the claims of Vieira and Silvia regarding delayed disclosure of exculpatory evidence. See Commonwealth v. Vieira, 401 Mass. at 831, 837 nn. 4 & 8, 519 N.E.2d 1320. Individually, Raposo contends that the judge's rulings regarding severance and the admissibility of evidence of a prior conviction for impeachment purposes constituted prejudicial error requiring a new trial.

1. Electronic media coverage. ³ Prior to trial, the Commonwealth filed a motion to limit media coverage, seeking, inter alia, to preclude camera coverage of the victim during the trial. A supporting affidavit filed by the victim attested to concerns about the impact of media coverage on herself and her children, and, consequently, on her feelings about testifying. ⁴ Hearings were held at which various media interests were represented. The judge conducted extensive voir dire of prospective jurors as to the potential influence of the presence of cameras at trial on their ability to evaluate fairly and impartially the evidence. After the jury were empanelled and sequestered, the judge prohibited all news media from photographing or filming the victim during her testimony or while she was present in the courtroom. ⁵ Other aspects of his order, not challenged here, addressed the general conduct of media coverage during the course of the trial.

On appeal, the defendants contend that the order exempting the victim from camera coverage (1) was an abuse of discretion under S.J.C.RULE 3:09, CANON 3(A)(7), AND (2)⁶ prejudiced their right to a fair trial where the jury were aware that the victim was accorded special treatment with regard to camera coverage. ⁷

a. Abuse of discretion. The defendants contend that the evidence adduced in support of the Commonwealth's motion to limit media coverage was insufficient to support what they assert to be the requisite finding that camera coverage of the victim "will create a substantial likelihood of harm to any person." S.J.C.Rule 3:09, Canon 3(A)(7)(a) (emphasis supplied). In support of this argument, the defendants seek to rely on cases dealing with the constitutionality of limiting public or press access to criminal trials for the proposition that there should be a more particularized determination and stronger showing of need on the part of the individual before any restriction of media coverage is justified, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (Massachusetts statute requiring mandatory closure of courtroom to press and general public during testimony of minor victims of sexual offenses violates First and Fourteenth Amendments to the United States Constitution).

Such reliance is misplaced. Even assuming that the defendants have standing to raise such issues, it has not been argued that this case implicates public or press rights of access to trial. See In re Petition of Post-Newsweek Stations, Fla., Inc., 370 So.2d 764, 774 (Fla.1979) (rejecting the argument that the First Amendment mandates entry of the electronic media into judicial proceedings). Nor do the defendants argue that, as applied, the rule violates their right to a public trial under the Sixth Amendment to the United States Constitution. "The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed." Nixon v. Warner Communications, Inc., 435 U.S. 589, 610, 98 S.Ct. 1306, 1318, 55 L.Ed.2d 570 (1978). We, therefore, do not view the rule as requiring the same showing of particularized individual need or compelling State interest as is required before interests of constitutional dimension may be infringed.

What is required, as a matter of State law, to justify a limitation on electronic media coverage, is delineated in the rule which provides that electronic media coverage may be limited or suspended "if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence" (emphasis added). This language is to be interpreted in accordance with the broad discretion of the judge in handling trial publicity and other matters pertaining to the conduct of a trial. See Commonwealth v. Cameron, 385 Mass. 660, 668, 433 N.E.2d 878 (1982); Commonwealth v. Bohmer, 374 Mass. 368, 380-381, 372 N.E.2d 1381 (1978). In the context of the notoriety and unusual facts of these cases, the affidavit of the victim was sufficient to permit the judge to find a substantial likelihood of harm to her. Moreover, it was within the discretion of the judge to consider the likelihood of harmful consequences to the State's interest in protecting witnesses and in its attendant ability to prosecute alleged perpetrators of sexual offenses. Indeed, the Supreme Court has expressly approved safeguards "to protect certain witnesses--for example ... victims of sex crimes ...--from the glare of publicity and the tensions of being 'on camera.' " Chandler v. Florida, 449 U.S. 560, 577, 101 S.Ct. 802, 811, 66 L.Ed.2d 740 (1981). We conclude that no error arose from the judge's order prohibiting camera coverage of the victim.

b. Constitutional prejudice. The crux of the defendants' constitutional argument is that their due process rights were violated, not by the presence of cameras in the courtroom, but by the distinctive treatment accorded the victim. They contend that the jury's awareness of such treatment, as evidenced by the affidavit described in note 7 supra, constituted an extraneous influence on the jury such that, in the analysis of constitutional prejudice, the burden should be placed on the Commonwealth "to show beyond a reasonable doubt that [the defendants were] not prejudiced by the extraneous matter." Commonwealth v. Fidler, 377 Mass. 192, 201, 385 N.E.2d 513 (1979). ⁸ Additionally, the defendants analogize the prejudice alleged to flow from the distinctive and "preferential" treatment of the victim to the sort of prejudice to the right to be presumed innocent which may result from distinctive treatment of a defendant, citing Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976) (defendant in prison garb) and Commonwealth v. Young, 382 Mass. 448, 461-462, 416 N.E.2d 944 (1981) (defendant in dock), S.C., 399 Mass. 527, 505 N.E.2d 186 (1987).

Matters pertaining to the conduct of a trial are generally discretionary and the burden is on the defendant to demonstrate prejudice justifying reversal. Commonwealth v. Cameron, supra. "[N]ot every incident or circumstance which focuses the jury's attention on the fact that the defendants are the persons on trial can be considered to invade constitutional rights." Commonwealth v. Campbell, 378 Mass. 680, 697 n. 14, 393 N.E.2d 820 (1979). Where, as here, the judge gave lengthy and clear instructions on the presumption of innocence, the nature of evidence, and the jury's role as the sole finder of credibility, ⁹ there was no abuse of discretion.

Where the judge found that the jury were aware that the victim was not subject to camera coverage, the remaining issue is whether this distinctive treatment constitutes an extraneous influence such that the burden should shift to the Commonwealth to show beyond a reasonable doubt that the defendants were not prejudiced. We hold that, where the judge's order was within the discretion accorded by S.J.C.Rule 3:09, Canon 3(A)(7)(a), the burden remains on a defendant to show prejudice. ¹⁰ As in the case of alleged error relating to the presence of cameras or the broadcast of a trial, e.g., Commonwealth v. Burden, 15 Mass.App.Ct. 666, 448 N.E.2d 387 (1983), a defendant bears the burden of showing prejudice relating to properly ordered limitations on electronic media coverage. To hold otherwise would be tantamount to saying that a proper discretionary order of a trial judge pertaining to the conduct of the trial could be collaterally...