Com. v. Mitchell

• Decision Date: 16 April 1975
• Parties: COMMONWEALTH v. James MITCHELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 6

326 N.E.2d 6

367 Mass. 419

COMMONWEALTH v. James MITCHELL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 3, 1975.

Decided April 16, 1975.

Richard M. Lane, Boston, for defendant.

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

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

REARDON, Justice.

The defendant was indicted for indecent assault and battery on a child under fourteen years of age, and for assault with intent to rape, and was found guilty on the indecent assault and battery charge. The cases were taken under G.L. c. 278, §§ 33A--33G. He is here on assignments of error to which we will make brief allusion.

1. It appears that following the seating of prospective jurors the judge, pursuant to G.L. c. 234, § 1A, explained the nature of the charge and asked the women on the jury whether any of them wished to be excused. The record indicates that none did. The defendant's argument based on Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), ^a does not come into play, for he has made no showing that women as a class were in fact excluded from the jury. See Commonwealth v. McKay, --- Mass. ---, ---, ^b 294 N.E.2d 213 (1973); Commonwealth v. Stone, --- Mass. ---, ---, ^c 320 N.E.2d 888 (1974).

2. The defendant states that he was denied a trial by an impartial jury because the Commonwealth challenged potential black jurors, and no blacks sat on the jury. But as was stated in Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965), 'The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.' We do not propose to transmute peremptory challenges into challenges for cause. See Commonwealth v. Talbert, 357 Mass. 146, 147, 256 N.E.2d 748 (1970); Commonwealth v. Stone, supra.

3. Error is alleged in that the judge allowed certain leading questions, but this is a matter within his discretion. Commonwealth v. Monahan, 349 Mass. 139, 162--163, 207 N.E.2d 29 (1965), and cases cited. Our review of the questions objected to indicates no abuse of discretion on the part of the trial judge. Nor is it our view that he unduly limited the cross-examination of the witnesses. The proper scope of cross-examination rested largely in the sound discretion of the judge, Commonwealth v. Smith, 329 Mass. 477, 479, 109 N.E.2d 120 (1952), and the limitations here fall far short of treading on the defendant's right of confrontation under the Sixth Amendment to the United States Constitution. Cf. Davis v. Alaska, 415 U.S. 308, 315--318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

4. There is complaint about the admission of a hospital record containing a history of the incident. It appears, however, that two hospital records were involved and that the judge, after colloquy with counsel and the express agreement of defense counsel, admitted the histories contained in both records. These went in without objection and no exception was saved from the ruling of the judge.

5. The complaint of the defendant relative to the qualifications of an expert on the characteristics of human hair is without merit. Here again this was a matter peculiarly within the discretion of the trial judge, and it is most apparent that he made no error either in ruling that the expert was qualified or in the admission of his testimony.

6. None of the defendant's rights under the Fourth and Fifth Amendments to the United States...