Com. v. Moore

• Decision Date: 29 August 1979
• Citation: 379 Mass. 106,393 N.E.2d 904
• Parties: COMMONWEALTH v. Albert Francis MOORE, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 904

393 N.E.2d 904

379 Mass. 106

COMMONWEALTH v. Albert Francis MOORE, Jr.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 7, 1979.

Decided Aug. 29, 1979.

Margaret Hayman, Boston, for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

BRAUCHER, Justice.

The defendant appeals from his conviction of murder in the first degree, and assigns as error the judge's refusal to allow him to sit at counsel table during trial. He also asserts error in the judge's refusal to allow impeachment of a prosecution witness by means of a polygraph test, and he argues a number of other evidentiary issues. We affirm the conviction.

The crime was committed in August, 1972. The defendant was indicted in January, 1976, and tried the following June. More than thirty-five witnesses testified at the trial, which lasted two and one-half weeks. The verdict of guilty was returned June 18, 1976.

We briefly summarize the evidence. The victim was a part owner and construction supervisor of a condominium project in Salem, and was found dead in his town house at the site shortly after 8:30 A.M. on August 14, 1972. His skull had been fractured by repeated blows with a blunt instrument, and death could have occurred at any time between 11 P.M. on August 13 and 8 A.M. the following morning. There were no signs of forced entry.

The defendant was a foreman at the project, and had a master key to the project buildings. There was antagonism between him and the victim. Four witnesses testified that the defendant had admitted the killing, and three of them described in detail the circumstances of the murder as told by the defendant.

The defendant testified in his own behalf. He admitted that he was at the project for a short time during the early morning hours of August 14, but denied killing the victim. He explained that he went to the project from his wife's home in Newton, New Hampshire, to exchange a truck for a rental car, so that his wife could use it for a trip on August 14. He stopped briefly at the company's cottage in Danvers, drove the car home, stayed there a short time, and reported for work about 7 A.M. After giving out work assignments, he again left the site. He testified that he first learned of the victim's death when he returned to work about 8:30 that morning.

1. The prisoner's dock. At a pretrial conference defense counsel agreed to the prosecutor's request that the investigating detective sit at counsel table. He then requested that the judge allow the defendant to sit at counsel table, explaining that the defendant had a hearing problem and that it was critical to have quick access to his client. He continued: "Also, and I know there is no basis that I know of in law for this, but there has always been something that has bothered me about that prisoner's dock, the effect that it has on the jury psychologically seeing a man in that enclosure." The judge noted that the court room had an amplification system, and said, "I will make some inquiry from the sheriff to see, because the Sheriff has, of course, the responsibility of security, so I will make some inquiry with reference to your request to have him sit next to you. That depends on security." The results of the inquiry and the reasons for denying defense counsel's request do not appear in the record, but there is no dispute that the defendant sat in the dock during the trial. During trial the prosecutor referred to "(t)he man sitting in this wooden enclosure," and the judge instructed the jury that "(w)here the defendant sits is a matter of custom like so many other things, (and) has no consequence."

Most court rooms used for criminal sessions in the Commonwealth are equipped with a dock, a wooden enclosure, usually measuring four or five feet square, in which it has long been customary for the defendant to sit during trial. The dock is open at the top, so that the upper torso of a seated person is visible. The judge, the court clerk, court officers and the jury occupy similar enclosures, the arrangement of which varies from court room to court room. The dock as we know it appears to be a vestige of the English baledock: "(A) small room taken from one of the corners of the court, and left open at the top; in which, during the trials, are put some of the malefactors." See Illinois v. Allen, 397 U.S. 337, 355 n.3, 90 S.Ct. 1057, 1067, 25 L.Ed.2d 353 (1970) (separate opinion of Douglas, J.).

There are few reported cases in other jurisdictions concerning the use of docks. Placement of defendants in the dock, "as was the English custom," was preferred to the use of more extreme measures such as "gyves" and shackles in State v. Kring, 1 Mo.App. 438, 443 (1876), aff'd, 64 Mo. 591 (1877). In State v. Kupis, 37 Del. 27, 29, 179 A. 640 (Ct. of Oyer & Terminer 1935), the defendant's request to sit with counsel rather than in the prisoner's dock was said to be "contrary to the well settled practice in this state." See also McCullough v. State, 40 Ala.App. 309, 312-313 & n.1, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959), and cases cited; Matthews v. State, 77 Tenn. 128, 130-131 (1882); Annots., 5 A.L.R.3d 1360, 1389-1390 (1966), 23 A.L.R. 1382, 1391-1393 (1923). In Commonwealth v. Boyd, 246 Pa. 529, 534, 92 A. 705 (1914), the court said that the defendant had a right to sit with counsel upon request, notwithstanding the general custom of placing the accused in the dock to secure an orderly trial. But the error was held harmless because it was "impossible for a mind not disturbed by excessive zeal to see in what respect the defendant was prejudiced." Id. at 534-535, 92 A. at 706.

We have often held that it is within the judge's sound discretion whether to grant a defendant's request to sit at counsel table or elsewhere. Commonwealth v. Walker, 370 Mass. 548, 573-574, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976); Commonwealth v. MacDonald (No. 2), 368 Mass. 403, 408-409, 333 N.E.2d 194 (1975); Commonwealth v. Bumpus, 362 Mass. 672, 680, 290 N.E.2d 167 (1972), judgment vacated and remanded on other grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d 407 (1973), aff'd on rehearing, 365 Mass. 66, 309 N.E.2d 491 (1974); Commonwealth v. Jones, 362 Mass. 497, 500-501, 287 N.E.2d 599 (1972). Cf. Guerin v. Commonwealth , 339 Mass. 731, 733-735, 162 N.E.2d 38 (1959) (right to communicate with counsel); Commonwealth v. Labbe, --- Mass.App. ---, --- - --- ^A, 373 N.E.2d 227 (request to sit with family); Commonwealth v. Magnasco, 4 Mass.App. 144, 148, 343 N.E.2d 444 (1976). The practice varies from judge to judge and depends largely on the circumstances of the individual case. In view of a recent opinion of the United States Court of Appeals for the First Circuit we think the use of the dock must be reconsidered. See Commonwealth v. Campbell, --- MASS. ---, --- N.14 , --- N.E.2D ----^B (1979).

In Walker v. Butterworth, 599 F.2d 1074, 1081-1084 (1st Cir. 1979), the court ordered that a writ of habeas corpus issue because the trial judge had required the defendant to exercise his peremptory challenges personally rather than through counsel, where his sanity was the sole issue. The opinion also discussed the prisoner's dock and concluded, "(b)ecause confinement in the prisoner dock is unnecessary to accomplish any important state interest and may well dilute the presumption of innocence, the Massachusetts prisoner dock must be considered, as a general matter, to be an unconstitutional practice." Id. at 1081. One judge would have found reversible constitutional error on this point, a second thought it unnecessary to decide "whether the use of the prisoner dock produced a likelihood of harmful error in this case"; and the third did not join in the portion of the opinion dealing with the dock because it was unnecessary for disposition of the appeal. We of course give respectful consideration to persuasive decisions of the Federal courts. See Commonwealth v. Masskow, 362 Mass. 662, 667, 290 N.E.2d 154 (1972). There is force in the characterization of the dock as an "anachronism" by the United States District Court judge in the Walker case. Walker v. Butterworth, 457 F.Supp. 1233, 1239 (D.Mass.1978). See ABA Standards Relating to Trial by Jury, Commentary to § 4.1(a) at 92 (1968). Ordinarily, a criminal defendant should be permitted to sit at counsel table. But the dock has served and may continue to serve a valid function in those cases where some form of restraint is necessary to prevent escape or to protect others in the court room. Although the restraint imposed is minor, it has sometimes proved a sufficient obstacle so that court officers could reach the defendant in time to prevent escape or harm to others. Where some form of security is essential, the dock seems far superior to surrounding the defendant with security personnel. Cf. Dorman v. United States, 140 U.S.App.D.C. 313, 324-326, 435 F.2d 385, 396-398 (D.C.Cir. 1970) (marshal seated behind each defendant); United States ex rel. Ford v. New Jersey, 400 F.Supp. 587, 593 (D.N.J.1975) (defendant seated behind counsel beside a guard). Where the defendant must be shackled, the dock conceals that fact from the jury and minimizes possible prejudice.

For the future, we think that a judge confronted with a request that the defendant be permitted to sit at counsel table should not deny the request unless he follows the "more circumspect procedure" we have prescribed for unusual security measures. See Commonwealth v. Brown, 364 Mass. 471, 478-480, 305 N.E.2d 830 (1973). In particular, the reasons for the denial should be stated on the record. But where inquiry reveals that some security measures are necessary, and that the dock is the least restrictive measure available, we think its use is proper.

In the present case, the defendant did not sharply raise a constitutional...