Com. v. Rahilly

• Citation: 13 Mass.App.Ct. 917,430 N.E.2d 859
• Parties: COMMONWEALTH v. Patrick S. RAHILLY.
• Decision Date: 27 January 1982
• Court: Appeals Court of Massachusetts

Page 859

430 N.E.2d 859

13 Mass.App.Ct. 917

COMMONWEALTH v. Patrick S. RAHILLY.

Appeals Court of Massachusetts, Berkshire.

Argued Jan. 11, 1982.

Decided Jan. 27, 1982.

Bernard Grossberg, Boston, for defendant.

Paul M. Vrabel, Asst. Dist. Atty., for the Commonwealth.

RESCRIPT.

The defendant has appealed from his convictions on a mixed bag of indictments framed under G.L. c. 90, § 24(2)(a ), G.L. c. 265, §§ 15 and 17, and G.L. c. 269, § 10(a ) and (c ). On the only remaining indictment under § 15 he was found guilty of assault with intent to kill. On the evidence, all the offenses were committed during a bank robbery or during an ensuing chase by the police which terminated when the defendant was captured at gunpoint and marked money from the bank was found in the waistband and a pocket of his trousers. 1. The pre-indictment publicity afforded by the news media was not a ground for dismissal of the indictments. Commonwealth v. Geagan, 339 Mass. 487, 492-493, 498-499, 159 N.E.2d 870, cert. denied, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959). Commonwealth v. Lewis, --- Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1796, 1798, 427 N.E.2d 934, and cases cited. 2. There was no abuse of discretion or other error in the denial of the defendant's motion in the alternative for a continuance or for a change of venue by reason of the pretrial publicity in the news media. None of that publicity was made part of the record, but it is clear from the judge's remarks concerning the same that, except for a single recent report as to the anticipated time of trial, all the publicity antedated the trial by more than seven months. The judge outlined in laymen's terms the general nature of all the charges and the anticipated proof in support thereof for the benefit of the venire as a whole before proceeding to conduct an individual voir dire of each prospective juror. It is clear from that process (which takes up a greater portion of the trial transcript than does the testimony) that no juror was seated who had any specific recollection of any news report which might have implicated the defendant in the robbery or in any of the ensuing events. The argument to the contrary is predicated on trial counsel's distortion of the answers the individual veniremen gave to some of the judge's questions. See generally Commonwealth v. Smith, 357 Mass. 168, 171-173, 258 N.E.2d 13 (1970); Commonwealth v. Scott, 360 Mass. 695, 696-697, 277 N.E.2d 483 (1971); Commonwealth v. Vitello, 367 Mass. 224, 236-238, 327 N.E.2d 819 (1975); Commonwealth v. Gilday, 367 Mass. 474, 491-492, 327 N.E.2d 851 (1975). We note that the prosecutor yielded two of his remaining peremptory challenges to the defendant after he had exhausted his own challenges. 3. All the contentions with respect to the in-court identifications of the defendant by the witnesses Kubicki and Hughes are answered by such cases as Commonwealth v. Jones, 375 Mass. 349, 355-356, 358-359, 377 N.E.2d 903 (1978), Commonwealth v. Napolitano, 378 Mass. 599, 603-604, 393 N.E.2d 338 (1979), and Commonwealth v. Cincotta, 379 Mass. 391, ---, --- - ---, Mass.Adv.Sh. (1979) 2671, 2673, 2674-2676, 398 N.E.2d 478. We note (as indicated in part 4 hereof) that it was the defendant, not the prosecutor, who brought out at trial the circumstances and details of the identifications which had been made when the case was called for the probable cause hearing. 4. As soon as it was discovered that there was a possibility that some of the first thirteen jurors who had been sworn might have seen the defendant in shackles outside the courtroom with the word "Walpole" stamped on his outer garb, his counsel moved orally and in the alternative (a) to poll the jurors, (b) for a mistrial or (c) for instructions to the jury that "their decision in this case is to be made only based on facts as elicited from the witness stand, as well as the exhibits introduced into (sic) evidence, and not on any extra matters which they may have come in contact with." The incident did not appear to have been other than momentary or accidental; there was nothing to suggest that the defendant had been required to wear the garb in question or that no other was available; and the jury were to learn shortly that two of the indictments were for assaults on police officers with intent to murder them (see and compare Commonwealth v. Brown, 364 Mass. 471, 476-477, 305 N.E.2d 830 (1973) ). The judge chose to pursue alternative (c). He gave the substance of the requested instructions as soon as the jury returned from their view; he told them, when the defendant brought out the facts with respect to his having been seen in handcuffs by the witnesses Kubicki and Hughes at the probable cause hearing, that the facts of arrest, custody and handcuffs were not evidence of the defendant's guilt of the crimes for which he was on trial and that no inference adverse to him should be drawn from those facts; and in his charge the judge specifically instructed that "(a)ny information which may have come to you directly or indirectly outside the court room is not evidence" and that "(t)he fact that he is ... arrested, here for trial is not the least evidence of his guilt, shall not put him in any unfavorable light before you." There was no abuse of discretion or other error in the judge's treatment of the problem. Commonwealth v. Brown, 364 Mass. at 477, 305 N.E.2d 830. Commonwealth v. MacDonald (No. 2), 368 Mass. 403, 409-410, 333 N.E.2d 194 (1975). Commonwealth v. Marvrellis, ...