Com. v. Leo

Decision Date21 August 1979
Citation379 Mass. 34,393 N.E.2d 410
PartiesCOMMONWEALTH v. Roy LEO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Sebastian J. Ruggeri, Greenfield (Edward P. Smith, Greenfield, with him), for defendant.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

Marguerite M. Dolan, Turners Falls, for Greenfield Recorder, amicus curiae, submitted a brief.

James F. McHugh, Janis M. Berry, Boston, for Globe Newspaper Co.

James C. Heigham, Boston, for Massachusetts Newspaper Publishers Ass'n, amici curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER and KAPLAN, JJ.

KAPLAN, Justice.

The defendant Roy Leo, a clergyman in his mid-fifties at the times charged, was convicted after jury trial on indictments for three separate sexual offenses against a fourteen-year old girl whom he was counseling indictments for assault and battery in the form of an offensive touching (G.L. c. 265, § 13A), and for two incidents of unnatural sexual intercourse with a female under the age of sixteen (G.L. c. 265, § 23). Based on the latter incidents, two indictments had been returned for unnatural and lascivious acts with a female under the age of sixteen (G.L. c. 272, § 35A). These indictments, considered "lesser included," were ordered dismissed before the case went to the jury. The defendant was sentenced to concurrent terms of six to ten years on the convictions for unnatural sexual intercourse; with the Commonwealth's consent the assault conviction was placed on file. On the present appeal under G.L. c. 278, §§ 33A-33G, the defendant urges a variety of assignments of error. 1 Primary contentions are that the judge erred in failing to exclude the press from the trial as supposedly required by G.L. c. 278, § 16A; that the prosecution of the defendant was a case of unfair "selective" enforcement of the law; and that the defendant was exposed to "double jeopardy." In addition, several rulings of the judge during trial are challenged as contrary to law, and the prosecutor's closing argument is criticized. None of the points raised is more that barely plausible. We affirm the convictions. As it is not claimed on this appeal that the evidence was insufficient to support the verdicts, we need not offer a full statement of the facts.

1. Failure to exclude the press. General Laws c. 278, § 16A, provides: "At the trial of a complaint or indictment for rape, incest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed, . . . the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case." 2 There were motions before trial by the defendant and the complaining witness (assented to by the Commonwealth) to exclude members of the public from the court room. The judge responded by barring miscellaneous onlookers, but he ruled that the press was not part of "the general public" in the meaning of the statute. Therefore he allowed newspaper reporters to attend and report the trial, but only on their undertaking not to publish information that might tend to disclose the identity of the complaining witness. 3 The defendant excepted to the admittance of the reporters.

This court has dealt with G.L. c. 278, § 16A, on two occasions. In Commonwealth v. Blondin, 324 Mass. 564, 87 N.E.2d 455 (1949) (Qua, C. J.), cert. denied, 339 U.S. 984, 70 S.Ct. 1004, 94 L.Ed. 1387 (1950), we held the statute to be constitutional, but said it must be read in light of "the general principle of publicity" (Id. at 571, 87 N.E.2d 455), and so the "expression 'such persons as may have a direct interest in the case' must be interpreted broadly," for "(t)he intent was to distinguish between persons having a legitimate reason for being present and mere idle spectators." Id. Upholding a conviction upon trial from which casual spectators had been excluded, we added: "It does not appear that the press was excluded, even if the statute could be interpreted as permitting such exclusion, which we need not decide." Id. at 572, 87 N.E. at 460. (Nor do we decide the point in the present case.) Relying on Blondin, we held in Commonwealth v. Marshall, 356 Mass. 432, 253 N.E.2d 333 (1969), that the statute did not envisage exclusion of a defendant's family or friends, and on that basis we reversed a conviction and ordered a new trial. That sort of exclusion "was beyond the authorization in 16A," (Id. at 434, 253 N.E.2d at 334) and, further, was "in violation of the Sixth Amendment to the Constitution of the United States," which entitled a defendant "at the very least . . . to have his friends, relatives and counsel present, no matter with what offense he may be charged." Id. at 435, 253 N.E.2d at 335, quoting from In re Oliver, 333 U.S. 257, 271-272 & n.29, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

Our cases do not give a direct answer to the question whether § 16A should be read to require (or permit) exclusion of the press, nor do they say how the United States Constitution or our own Declaration of Rights might impinge on such an interpretation. 4 But in Blondin We observed that the statute arose from the idea "that female witnesses in particular would come forward, institute complaints, and testify with less reluctance, so that more justice would be accomplished, if they could be relieved from the inhibitions imposed by the presence of a curiosity impelled audience." 324 Mass. at 571, 87 N.E.2d at 460. The act embodying the current version of § 16A was entitled, "An Act to protect female witnesses involved in illegitimacy proceedings and in crimes involving sex." St.1931, c. 205. The defendant himself acknowledges: "Clearly, G.L. c. 278, § 16A was designed to protect a class of people under the age of sixteen." See, for similar interpretations, United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694 (7th Cir. 1977); Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv.L.Rev. 1899, 1918-1919 (1978). As the main purpose of the statute appears to have been to assure that the Commonwealth's case would not be destroyed by reason of witnesses' reluctance to testify before a miscellaneous audience, it can hardly be inferred that the criminal defendant was an object of the statute's solicitude. Thus we conclude that he cannot complain of a violation of the statute. Cf. Falmouth Hosp. v. Lopes, --- Mass. --- A, 382 N.E.2d 1042 (1978); Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). A reference by the defendant to the Sixth Amendment right to a public trial is quite misplaced: it is he who objects to a public trial in the degree that the presence of the press makes for such a trial. Cf. Gannett Co. v. DePasquale, --- U.S. ----, ---- & n.11, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). We add that the defendant does not complain that the press coverage was such as to infect the trial with prejudice. 5

2. Selective enforcement. The evidence pointed to an incident of sexual intercourse between the complaining witness and a sixteen-year old boy, who was not prosecuted. This inspired an egregious motion by the defendant to dismiss the prosecution on grounds of selective or discriminatory enforcement of the criminal law. In Commonwealth v. Franklin,--- Mass. ---, --- B, 385 N.E.2d 227 (1978), after speaking of the wide discretion traditionally allowed to the executive in choosing targets for prosecution, 6 we described the specific preconditions of a challenge to the choice, which are not found here; 7 but if general arbitrariness might suffice, 8 that is not made out on the present record. The Commonwealth could, with reason, decide to prosecute only the adult who had abused a position of trust as the complainant's counselor or adviser. See Model Penal Code § 213.3 (Proposed Official Draft 1962).

3. So called "double jeopardy." The defendant proceeds on the assumption that the charge of unnatural and lascivious acts was within the perimeter of the charge of unnatural sexual intercourse as "lesser included." He objected to being indicted for both crimes (as to each incident), but on his own assumption all he was entitled to in substance was assurance that, if convicted, he would not be punished separately and cumulatively for two offenses. See Commonwealth v. Tabor, --- Mass. ---, --- - --- C, 384 N.E.2d 190 (1978); Commonwealth v. Kiley, 373 Mass. 454, --- D, 367 N.E.2d 837 (1977). The judge let the indictments stand over the defendant's objection, but before passing the case to the jury he dismissed the indictment for unnatural and lascivious acts (as to each incident) and instructed the jury, in effect, that under the indictment for unnatural sexual intercourse they might convict the defendant of that crime, or acquit him of that crime but convict him of unnatural and lascivious acts as a lesser included offense (carrying a lesser penalty), or acquit him of both; they could not convict the defendant separately of each of the two offenses. The dismissal and the instruction involved no error and indeed drew no objection from the defendant. We do not think the finding of indictments for the "larger" and "lesser" offenses and the defendant's going to trial under them can in themselves count as harassment by multiple charges of the type discouraged in Commonwealth v. St. Pierre, --- Mass. ---, --- E, 387 N.E.2d 1135 (1979).

4. Rulings in course of trial. (a) The judge admitted considerable evidence on the part of the Commonwealth that the defendant attempted to bribe or intimidate prosecution witnesses. The complainant's foster sister, who testified to certain particulars of the defendant's conduct, testified further that the defendant arranged for her to meet...

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