Com. v. MacDonald

• Citation: 333 N.E.2d 189,368 Mass. 395
• Decision Date: 22 July 1975
• Docket Number: No. 1,1
• Parties: COMMONWEALTH v. Ronald Malcomb MacDONALD ().
• Court: United States State Supreme Judicial Court of Massachusetts

Page 189

333 N.E.2d 189

368 Mass. 395

COMMONWEALTH

v. Ronald Malcomb MacDONALD (No. 1).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1975.

Decided July 22, 1975.

Martin K. Leppo, Boston, for defendant.

Thomas J. Mundy, Jr., Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant was found guilty of murder in the first degree, without a recommendation that the sentence of death be not imposed. He also was found guilty of assault and battery by means of a dangerous weapon. There was evidence from which the jury could have found that the defendant and one Richard Mandile (Mandile) fired numerous shots through the open door of a South Boston tavern, killing one man and wounding another.

The defendant claimed that he was not an occupant of the motor vehicle from which the shots were fired. The Commonwealth's case was based largely on the testimony of Mandile that he and the defendant together fired shots into the tavern. The defendant argues a variety of assignments of error in this appeal which is subject to G.L. c. 278, §§ 33A--33G.

1. The defendant argues that the denial of certain pre-trial motions was error, contending that he was denied his constitutional right to a fair trial. These motions sought the production of (a) the names and addresses of the Commonwealth's witnesses, (b) all statements pertaining to the identification of the defendant, (c) the names and addresses of all persons who were called, but did not testify, before the grand jury, and (d) a copy of all Mandile's statements related to this matter. The judge allowed the defendant's separate motion for all statements and evidence reasonably tending to show that the defendant did not commit the offenses. Additionally, the judge allowed so much of the defendant's motion for a list of witnesses as requested a list of those who actually testified before the grand jury.

In these circumstances, the judge's action may be reversed only if he abused his discretion. Commonwealth v. Salerno, 356 Mass. 642, 648, 255 N.E.2d 318 (1970); Commonwealth v. French, 357 Mass. 356, 399, 259 N.E.2d 195 (1970), judgments vacated as to the death penalty sub nom., Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2846, 33 L.Ed.2d 754 (1972); Commonwealth v. Therrien, 359 Mass. 500, 507--508, 269 N.E.2d 687 (1971); Commonwealth v. Lamattina, --- Mass.App. ---, --- ^a, 310 N.E.2d 136 (1974). There was no abuse of discretion here. The defendant did not advance any extraordinary circumstances in support of his motions. He has not shown that any particular prejudice resulted from their denial. This is not a case where the defendant constitutionally was entitled to the materials sought and any denial of them would be presumptively prejudicial. See Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).

We have recently discussed the proper procedures to be followed when a defendant requests the production of statements by prosecution witnesses. Commonwealth v. Lewinski, --- Mass. ---, --- - --- ^b, 329 N.E.2d 738 (1975). Those procedures were announced for the future and thus are not applicable here. We note, however, that, when Mandile testified, the defendant did not renew his motion for a copy of all Mandile's statements.

2. During the morning recess in the first day of trial, the judge interviewed successively two of the sixteen empanelled jurors. Each had informed a court officer that he knew one or more of the persons mentioned in the Commonwealth's opening. Neither the prosecution, the defense counsel, nor the defendant was present during these interviews in the judge's lobby.

The first juror to be questioned stated that he had known socially two Boston police officers who, it appeared, would be testifying. Each of these police officers later testified that he was off duty and in the tavern at the time of the shootings. Neither identified MacDonald as an occupant of the vehicle from which the shots were fired-the crucial issue in this case. The first juror told the judge that he could weigh the testimony of these expected witnesses fairly and impartially with all the other testimony in the case. The second juror informed the judge that he had known a person referred to in the Commonwealth's opening but this fact would not prejudice his judgment. That person never testified. After these interviews were completed, the judge called the prosecutor and defense counsel into the lobby to hear the stenographer read back the interrogation of each juror.

When the judge resumed the bench, defense counsel objected and excepted 'to the Judge's allowance of these two jurors to sit on the panel.' Defense counsel, who is not the defendant's counsel on this appeal, made no further objection. He did not move for a mistrial. He did not request a voir dire hearing concerning the jurors' bias. He did not object to the judge's conduct of these private interviews or to the defendant's absence from them.

The defendant now argues that his exclusion from the 'hearing at which evidence was taken to determine whether jurors were properly qualified' violated G.L c. 278, § 6; ¹ art. 12 of our Declaration of Rights; ² and the Sixth and Fourteenth Amendments to the Constitution of the United States. He does not argue here the only issue raised before the trial judge and preserved by exception, namely, the judge's discretionary determination not to discharge the two jurors.

We accept for the purposes of this case the defendant's constitutional contention that he had a right to be present during the judge's interview of each of the jurors. Commonwealth v. Robichaud, 358 Mass. 300, 302, 264 N.E.2d 374 (1970). ³ Furthermore, we accept the principle that any violation of a constitutional right gives rise to presumptive prejudice, which normally requires a reversal of the conviction, in the absence of an affirmative showing by the Commonwealth that the error was harmless. See Commonwealth v. Robichaud, supra; Commonwealth v. Tropeano, --- Mass. ---, --- ^c, 306 N.E.2d 811 (1974); Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954), amplified in 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956); Ellis v. Oklahoma, 430 F.2d 1352, 1355 (10th Cir. 1970), cert. den., 401 U.S. 1010, 91 S.Ct. 1260, 28 L.Ed.2d 546 (1971). But see United States v. Woodner, 317 F.2d 649, 652 (2d Cir. 1963), cert. den., 375 U.S. 903, 84 S.Ct. 192, 11 L.Ed.2d 144 (1963); United States v. Neff, 475 F.2d 861, 863 (3d Cir. 1973), cert. den., 412 U.S. 949, 93 S.Ct. 3007, 37 L.Ed.2d 1001 (1973).

However, in this case the defendant did not object to his absence from the private interviews. The error was clearly apparent at trial, and could have been cured easily by the judge's dismissal of the two challenged jurors, as sixteen jurors had been empanelled. Where the defendant thus has failed to make a timely objection, he should not be permitted to raise the issue for the first time on appeal. Amado v. Commonwealth, 349 Mass. 716, 718, 722, 212 N.E.2d 205 (1965). See Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934); United States v. Larkin, 417 F.2d 617, 618 (1st Cir. 1969), cert. den., 397 U.S. 1027, 90 S.Ct. 1271, 25 L.Ed.2d 536 (1970); United States v. Jorgenson, 451 F.2d 516, 520--521 (10th Cir. 1971), cert. den., 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972).

3. There was no error in permitting the Commonwealth to introduce black and white photographs of portions of the interior of the tavern, in which there were apparent blood stains, or in permitting the surviving victim to show the jury a scar on his leg. ⁴ These were matters of discretion, and there was no abuse. Commonwealth v. Torres,--- Mass. ---, --- - --- ^d, 327 N.E.2d 871 (1975).

4. There was no error in permitting the prosecution to argue to the jury that the defense was contrived. The defense consisted essentially of the claim that Mandile lied in placing the defendant at the scene of the shootings, and that another man, later deceased, was the second man in the motor vehicle. This defense was offered mostly through witnesses to whom the defendant had access while he was in prison awaiting trial. The defendant was visited repeatedly during this period by an attorney who then represented several of the defense witnesses, but not the defendant.

There was no abuse of discretion, or other error of law, in permitting the prosecution to establish these facts by questions to the defendant. The judge instructed the jury that no adverse inference should be drawn from the fact that the defendant changed counsel several times. Comment by the prosecutor on the tactics of the defense, based on the evidence and what the jury could observe in the court room, is permissible. Commonwealth v. Dunker, --- Mass. ---, --- - --- ^e, 298 N.E.2d 813 (1973), denial of habeas corpus affd. sub nom., Dunker v. Vinzant, 505 F.2d 503 (1st Cir. 1974); Commonwealth v. Valliere, --- Mass. ---, ---, 321 N.E.2d 625 (1974). ^f

Although it was highly questionable to characterize certain unspecified testimony as 'the rankest perjury that will probably ever be heard in a courtroom,' the question of who was telling the truth with regard to the identity of the second occupant of the motor vehicle was the fundamental issue at trial. The defendant argued in his closing that there was no reason for certain defense witnesses to commit perjury. It was not error to permit the prosecutor to respond concerning the untruthfulness of certain other defense witnesses, and the defendant anticipated in his closing that the prosecutor would do this. Nor was it error to permit the prosecution to attempt to establish that the defendant in custody had the opportunity to fabricate an alibi defense. Of course, the credibility of the witnesses was for the jury, as the judge made clear in his charge.

Although the defendant argues...