Com. v. McGrath

• Decision Date: 02 November 1973
• Citation: 303 N.E.2d 108,364 Mass. 243
• Parties: COMMONWEALTH v. James M. McGRATH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 108

303 N.E.2d 108

364 Mass. 243

COMMONWEALTH v. James M. McGRATH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 1, 1973.

Decided Nov. 2, 1973.

David M. Skeels, Boston, for defendant.

Elizabeth C. Casey, Sp. Asst. Dist. Atty. (Robert J. McKenna, Jr., Legal Asst. to the Dist. Atty., with her), for the Commonwealth.

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

WILKINS, Justice.

The defendant was convicted of rape, kidnapping, assault with a dangerous firearm, and unlawfully carrying a firearm. The case, which comes before us on a substitute bill of exceptions, presents three questions for our consideration.

The defendant first claims that the jury were not impartial because the judge had earlier made certain critical remakrs to a different jury who had returned a verdict of not guilty in an unrelated case. Next, the defendant claims that certain statements made by the victim to police officers were improperly admitted as fresh complaints of the victim. Finally, the defendant argues that during the cross-examination of the victim the judge improperly denied the defendant the right to obtain the present address of the victim. The facts relating to each issue will be set forth in the appropriate section of this opinion. There was no error.

1. We turn first to the defendant's claim that because of the judge's critical comments to the jury in an earlier criminal case, the defendant was denied the fair trial to which he was entitled under the due process clause of the Fourteenth Amendment to the Constitution of the United States.

On the day that the case now before us was referred to the judge for trial, the judge criticised a jury which had returned a verdict of not guilty in an unrelated case. He told those jurors that the defendant 'had offered to plead guilty in return for a suspended sentence, but that he (the judge) did not give suspended sentences in such cases.' The bill of exceptions does not disclose the nature of the crime or crimes charged in the earlier case. The judge further told that jury that 'he did not understand how the jury could disregard credible evidence given by dedicated police officers.' The bill of exceptions does not indicate the importance of the testimony of the police officers in that earlier trial. Nor does it purport to set forth in full the judge's statement made to that earlier jury.

The defendant moved before another judge to have his case continued on the ground that the remarks made to the jury in the earlier case following their verdict 'may have prejudiced the minds of any jury selected from the same jury pool.' That motion was denied. The defendant excepted.

Prior to the empanelling of the jury in this case, the defendant submitted a request that the judge ask certain questions of the prospective jurors. ¹ These questions sought, among other things, to discover whether any of the jurors had, directly or indirectly, heard the statements made by the judge to the earlier jury. The judge declined to ask the questions of the jurors. He stated that he had 'checked and (found) that none of the jurors on this panel were' members of the earlier panel. He asked the jurors whether any of them had served on the jury in the earlier case and 'received no response.' There is no showing that any juror who sat on this case was in the court room when the judge made his remarks to the earlier jury.

On this state of the record, the defendant asserts that he has shown enough to support his constitutional claim that he was denied a fair trial. Granting that the matter of what questions should be put to prospective jurors is normally discretionary with the judge (see Commonwealth v. Nassar, 354 Mass. 249, 253--254, 237 N.E.2d 39 (1968), cert. den. sub nom., Nassar v. Massachusetts, 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586 (1969)) and that similarly the granting or denial of a continuance is discretionary (Commonwealth v. Klangos, 326 Mass. 690, 691, 96 N.E.2d 176 (1951); Commonwealth v. Smith, 353 Mass. 442, 445, 232 N.E.2d 917 (1968)), he claims that in these circumstances more was constitutionally required to have been done than was done in order to avoid possible prejudice to him. Compare COMMONWEALTH V. ROSS, MASS., 296 N.E.2D 810^A.

Any assertion that one or more jurors might have been prejudiced, or might have been influenced to act in a way which would not incur the wrath of the judge, is admittedly speculation. This was a different group of jurors. The earlier case may have involved very different circumstances. There is, for example, no showing of the relative roles of the police officer witnesses in the earlier case and in this one. Here the testimony of police officers, which is described in the next section of this opinion, was directly material only to the relatively minor crime, in the circumstances, of unlawfully carrying a firearm. As to the charges of rape, kidnapping and assault with a dangerous weapon, the victim's testimony was fundamental and the related testimony of police officers only corroborative.

Assuming any juror heard indirectly of the judge's remakrs to the earlier jury, it is nevertheless speculative as to the effect which such remarks might have on a juror. The judge in this case may well have instructed and presumably did instruct, the jury concerning their duty to decide the case on the facts, unaffected by anything they may have heard elsewhere. The defendant does not assert that the judge did not adequately cover the duty of the jury in his charge. ² The full remarks of the judge to the jury in the earlier case are not before us.

The defendant has simply failed to show that he was denied process of law (a) by the denial of his motion for a continuance, (b) by the judge's earlier remarks or (c) by the handling of the request for the questioning of the jurors at his trial.

What we have said should not be construed as an indorsement of a judicial practice of chastising jurors who disagree with the judge's views of the facts. In other circumstances a judge's critical remarks to a jury could be so damaging to the rights of litigants that even other members of the jury pool might be influenced to such a degree that corrective instructions could not cure the harm done. Here, however, the defendant has not shown that such a circumstance exists.

2. The defendant next contends that certain statements made by the victim were not admissible as fresh complaints. A complaint made by a victim of rape, attempted rape or other sex crime has long been admissible in this Commonwealth if the complaint is made soon after the commission of the offence. See Commonwealth v. Cleary, 172 Mass. 175, 176--177, 51 N.E. 746 (1898). Although not admissible to prove the truth of the facts asserted in the statement, a fresh complaint made by a victim is admissible to corroborate the victim's testimony. Commonwealth v. Elis, 319 Mass. 627, 629, 67 N.E.2d 234 (1946). Because the absence of a prompt complaint might itself tend to discredit the witness's testimony, it is not essential to the admissibility of the victim's fresh complaint that the defendant has first attempted to discredit the witness. Commonwealth v. Hanger, 357 Mass. 464, 466, 258 N.E.2d 555 (1970), and cases cited. See Glover v. Callahan, 299 Mass. 55, 57--58, 12 N.E.2d 194 (1937). Thus the existence and details of a victim's fresh complaint are admissible as part of the prosecution's direct case. The question whether the victim's complaint is admissible as fresh or prompt complaint is one as to which the judge should make a preliminary finding. Commonwealth v. Cleary, 172 Mass. at 177, 51 N.E. 746 (1898).

There is no dispute as to these principles of law. The defendant does argue, however, that two statements of the victim in the circumstances were not fresh complaints. Resolution of this issue requires a consideration of the particular facts, to which we now turn.

The victim testified that on November 23, 1970, she left her place of employment at 5 P.M. and went to a nearby garage to pick up her boyfriend's car. It was 'pitch black's were the car was parked. As she was unlocking the car, the defendant, who was carrying a gun, appeared and ordered her into the car. She asked him to let her go. He threatened to shoot her if she did not shut up. He then ordered her to get into the back seat and to take off her stockings and pants. After she did so, he had intercourse with her. Thereafter they remained in the back seat. She was nervous and kept talking.

Approximately two hours later a car, subsequently disclosed to be occupied by Captain Devin and another officer in the Boston Police Department, came up behind the parked car. Devin approached the parked car. The defendant put the gun on the floor of the car. In the course of questioning the defendant and the victim, Devin noticed the gun. The defendant admitted that he did not have a license for the gun. The defendant was then placed in the police car.

At this point a conversation took place between the victim and Devin, and shortly thereafter another conversation took place in the garage between the victim and a Detective Murphy who had been called to the scene. The defendant objected to the introduction in evidence of the statements then made by the victim to the police officers. The judge conducted a voir dire on the question whether statements made to the police in the garage (and later at the police station) were admissible as fresh complaints. After hearing the victim he ruled that the statements were admissible as fresh complaints.

Following the voir dire the victim testified further before the jury, but did not testify as to the substance of any statement she made about the defendant to the police in the garage. Devin and Murphy did so testified. Devin testified that after he had noticed the gun on the floor of the car and the defendant had admitted to having no license for the gun, the...