Com. v. Curry

• Decision Date: 20 June 1975
• Citation: 368 Mass. 195,330 N.E.2d 819
• Parties: COMMONWEALTH v. James H. CURRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 819

330 N.E.2d 819

368 Mass. 195

COMMONWEALTH

v. James H. CURRY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 8, 1975.

Decided June 20, 1975.

James A. O'Donovan, Somerville, for defendant.

Robert J. McKenna, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The defendant appeals pursuant to G.L. c. 278, §§ 33A--33G, from his conviction of manslaughter on an indictment charging murder in the first degree. He contends that the trial judge erred (1) in refusing to allow him to confer with counsel while on a view, (2) in denying a mistrial when the defendant's son (a chief witness) was arrested as he left the court room, (3) in refusing to charge the jury on assault and battery, and (4) in refusing to grant a mistrial on the ground that the jury did not represent a fair cross section of the community. We affirm.

Briefly, the pertinent evidence was as follows: The police testified that after receiving a call at approximately 4 A.M. on Wednesday, February 9, 1972, they arrived at the defendant's apartment where they observed the victim lying on a bed lifeless and in a badly battered condition. The medical examiner testified that she had met her death as a result of 'blunt force injuries of the face and head, with resulting subdural hematoma.'

The victim and the sixty year old defendant had been living together for approximately fourteen months. They had consumed large quantities of alcohol in the week preceding the homicide. The defendant testified that on the Sunday before the homicide, the deceased was intoxicated and stumbled and fell sustaining cuts and bruises. The defendant's son corroborated his father's story regarding the fall and the resulting injuries.

On behalf of the Commonwealth a young girl, who had been babysitting in an upstairs apartment on the night of the homicide, testified that she heard loud and methodical thumping noises and noises of a man and woman arguing coming from the defendant's apartment throughout much of the evening.

The defendant, when questioned by police, made inconsistent statements regarding when he had last eaten, when the victim had fallen, and how he got blood on his clothing. These statements, as well as prior convictions for forgery and passing bad checks, were introduced during cross- examination to impeach the defendant's credibility.

1. There is no merit to the defendant's contention that he was denied the effective assistance of counsel by the judge's refusal to allow him to confer with his counsel on the view.

The 'chief purpose (of a view) is to enable the jury to understand better the testimony which has or may be introduced.' Commonwealth v. Dascalakis, 246 Mass. 12, 29, 140 N.E. 470, 477 (1923). 'The function of the jury . . . is simply to observe.' Commonwealth v. DiMarzo, --- Mass. ---, --- ^a, 308 N.E.2d 538, 542 (1974). Although what is seen on the view may be used by the jury in reaching their verdict, in a 'strict and narrow sense a view may be thought not to be evidence.' Commonwealth v. Dascalakis, supra, 246 Mass. at 30, 140 N.E. at 478.

It is well settled that the taking of a view is discretionary with the trial judge. G.L. c. 234, § 35. Commonwealth v. Dascalakis,supra, at 29, 140 N.E. 470. Commonwealth v. Lamoureux, 348 Mass. 390, 392, 204 N.E.2d 115 (1965). Commonwealth v. DiMarzo, supra, at --- ^b,308 N.E.2d 538. Similarly, if a view is taken it is within the judge's discretion to allow the defendant to be present. Commonwealth v. Dascalakis,supra, 246 Mass. at 29, 140 N.E. 470. Commonwealth v. Belenski, 276 Mass. 35, 40--41, 176 N.E. 501 (1931). Commonwealth v. Nassar, 351 Mass. 37, 47, 218 N.E.2d 72 (1966). Commonwealth v. DiMarzo, supra, at --- ^c, 308 N.E.2d 538. It is a violation of neither the Fourteenth Amendment to the United States Constitution, Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), affirming Commonwealth v. Snyder, 282 Mass. 401, 185 N.E. 376 (1933), nor art. 12 of the Declaration of Rights of the Massachusetts Constitution, Berlandi v. Commonwealth, 314 Mass. 424, 449--453, 50 N.E.2d 210 (1943), to conduct a view in the absence of the defendant.

The defendant argues, however, that once a judge permits a view and allows the defendant to be present, it is a violation of his right to counsel to prohibit the defendant from conferring with counsel at the scene of the crime. We disagree. Since the judge could have precluded the defendant's presence, we perceive no basis for limiting the judge's discretion regarding such conversations between the defendant and counsel at the view.

While we have said in recent cases that it is best to allow defendants to confer with counsel during the questioning of witnesses, Guerin v. Commonwealth, 339 Mass. 731, 734--735, 162 N.E.2d 38 (1959); Amado v. Commonwealth, 349 Mass. 716, 720--721, 212 N.E.2d 205 (1965); Commonwealth v. Robichaud, 358 Mass. 300, 303, 264 N.E.2d 374 (1970), we do not believe that the instant situation is analogous. No rights of the defendant were lost by prohibiting conversation between the defendant and counsel on the view. Had the condition of the premises at the view not been as it was at the time of the crime, the defendant had ample opportunity to make that fact known to his counsel when pictures of the premises were introduced in evidence. There was no evidence that such a difference existed. ¹

The view was taken at a one-room apartment in which the homicide occurred. Fourteen jurors, the judge, three court officers, the assistant district attorney, the defendant and his counsel were all crammed into this one room. It was reasonable for the judge to have concluded, as he apparently did, that any discussion between the defendant and his counsel would be overheard by the jury and that it might have included extraneous matters. It was also reasonable for him to have determined that the danger of the jury's hearing such conversation outweighed any benefit to be derived therefrom. Accordingly, we hold that the judge's refusal to allow such conversation was not an abuse of discretion, nor did it constitute a denial of the defendant's right to the effective assistance of counsel guaranteed by the United States Constitution and the Massachusetts Declaration of Rights.

2. On the third day of the trial, Robert Curry, son of the defendant, testified on his father's behalf. In the course of cross-examination by the prosecutor the court recessed for the day pending further cross-examination. As the witness was leaving the court room through an alcove, he was arrested and handcuffed by two Boston police officers. This occurred at the same time that the jury, who were not sequestered, were leaving the court room.

Defense counsel contends that the occurrence was 'in plain view of the jurors,' but there is no indication in the record how many jurors actually observed the incident. It is clear, however, that at least one juror observed the arrest, because he later asked a court officer, 'What did they bag that fellow for?'

At a lobby conference the mext morning, defense counsel moved for a mistrial. The judge stated that he would 'inquire into the facts . . . before making a determination.' Immediately thereafter, while in his lobby with neither counsel present, the judge spoke to the court officer regarding the occurrence. The judge then determined that general instructions to the jury would suffice. ² When counsel returned to the lobby, the judge denied the defendant's motion for a mistrial. The record does not indicate that defense counsel asked for the basis of the judge's decision or that he requested additional inquiry into the matter. When the jury returned, the judge gave clear and precise cautionary instructions. ³

The defendant now contends that it was error for the judge not to have declared a mistrial and not to have included the defendant and his counsel in the conference with the court officer regarding what effect the incident might have had on the jurors. We cannot accept either contention.

This is not a case where a defendant or witness was deliberately shackled for security reasons while he was in the court room. We have held that that procedure should be employed only when necessity is shown; guidelines for handling the procedure were laid down in COMMONWEALTH V. BROWN, --- MASS. --- , 305 N.E.2D 830 (1973)^D. In the present case the witness was not handcuffed when he testified; he was arrested as he left the court room, and this occurred without the knowledge or consent of the judge. We do not approve of the police action in this case, but we cannot say that the arrest of the witness in this manner requires reversal. Cf. Commonwealth v. Ferguson, --- Mass. ---, --- - --- ^e, 309 N.E.2d 182 (1974); Commonwealth v. Stewart, --- Mass. ---, --- - --- ^f, 309 N.E.2d 470 (1974). This is especially true in light of the clear and forceful instructions given to the jury as soon as possible after the incident.

The defendant contends that the judge erred by not inquiring of the jurors whether they observed the incident and whether they were prejudiced thereby. We disagree. The judge may well have concluded that anything but general instructions would have focused more attention on the incident and might have operated to the prejudice of the defendant. Although in hindsight another route might appear to have been more appropriate, we cannot say that the judge's decision in this regard was incorrect or an abuse of discretion. See Commonwealth v. Geagan, 339 Mass. 487, 507--508, 159 N.E.2d 870 (1959). See also O'Shea v. United States, 400 F.2d 78 (1st Cir. 1968), cert. den. 393 U.S. 1069, 89 S.Ct. 726, 21 L.Ed.2d 712 (1969). 'We think that the judge's instructions afforded ample direction concerning the jury's duties and avoided dangers of misunderstanding which might have arisen from more specific references to the...