Com. v. Scott

• Decision Date: 31 December 1971
• Citation: 277 N.E.2d 483,360 Mass. 695
• Parties: COMMONWEALTH v. Robert L. SCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 483

277 N.E.2d 483

360 Mass. 695

COMMONWEALTH v. Robert L. SCOTT.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Dec. 7, 1971.

Decided Dec. 31, 1971.

Reuben Goodman, Boston, and Robert V. Greco, Roslindale, on brief, for defendant.

Matthew J. Ryan, Jr., Dist. Atty., and Leonard E. Gibbons, Asst. Dist. Atty., on brief, for the Commonwealth.

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

QUIRICO, Justice.

The defendant was tried, convicted and sentenced on four indictments charging the crimes of kidnapping (No. 24055), assault and battery (No. 24056), rape (No. 24057), and sodomy (No. 24058). His appeals under G.L. c. 278, §§ 33A-- 33G, present two assigned errors for review by this court. One relates to the denial of his motion for a change of venue, and the other relates to the denial of a request made by the defendant and by his counsel that counsel be permitted to withdraw his appearance. With the issues thus limited it is not necessary for us to recite the sordid details of the crimes as described in the evidence.

1. Motion for Change of Venue. The crimes charged by the indictments were all allegedly committed at Springfield on December 19, 1969. The victim of the crimes was related to persons involed in the publication of daily newspapers in Springfield, and the incident was the subject of considerable coverage by those newspapers. The newspapers also carried notices of a reward for information concerning the persons who committed the crimes. No news item contained the name of the defendant or otherwise identified him until February 8, 1970, when he and two other persons were arrested for an alleged burglary.

The indictments were returned by the grand jury in April, 1970. On May 11, 1970, the defendant filed a motion for change of venue to another county, alleging that 'because of extensive publicity in local and regional newspapers, radio and television concerning the circumstances and details of the alleged offenses' he could not obtain a fair and impartial trial in Hampden County. At the hearing on the motion on May 21, 1970, approximately seventy articles which had appeared in the Springfield newspapers from December 20 1969, through April, 1970, concerning the alleged crimes were placed in evidence. The motion was denied on June 16, 1970. On the record before us, it was not error to deny the motion.

'(W)hile under G.L. (Ter.Ed.) c. 277, § 51, there may be a change in the place of trial it should be ordered with 'great caution and only after a solid foundation of fact has been first established.' Crocker v. Justices of Superior Court, 208 Mass. 162, 180, 94 N.E. 369, 377. The newspaper accounts and comments submitted to the judge did not require a finding that the guilt of the defendant had been so generally and substantially prejudged by the residents of the county that an unbiased tribunal for the trial could not be obtained.' Commonwealth v. Bonomi, 335 Mass. 327, 333, 140 N.E.2d 140, 148. Commonwealth v. Millen, 289 Mass. 441, 463--464, 194 N.E. 463. Commonwealth v. Sheppard, 313 Mass. 590, 594--595, 48 N.E.2d 630, cert. den. sub nom. Sheppard v. Massachusetts, 320 U.S. 213, 63 S.Ct. 1450, 87 L.Ed. 1850. Commonwealth v. Blackburn, 354 Mass. 200, 203--204, 237 N.E.2d 35. Commonwealth v. Wilson, 355 Mass. 441, 445, 245 N.E.2d 439. Commonwealth v. Smith, 357 Mass. 168, 171--173, 258 N.E.2d 13.

The trial of the indictments did not start until October 5, 1970, almost ten months after the crimes were alleged to have been committed, and almost five months after the hearing on the motion for a change of venue. The motion was not renewed before trial. There is nothing in the record to indicate whether the case was the subject of publicity after May 11, 1970, or that the publicity before that date had any effect on the defendant's ability to receive a trial before an unbiased jury. The jurors were instructed and interrogated in substantially the language of G.L. c. 234, § 28, to make known whether they were related to the defendant, the victim, or the attorneys in the case, whether they had any interest in the case or had expressed or formed any opinion in the case and whether they were sensible of any bias or prejudice for or against the parties. No juror reported any disqualification under that instruction. The defendant made no request that the jurors be given any additional instruction or that any questions be put to them in relation to the alleged publicity. The jurors were kept in custody from the time they were empanelled until they returned their verdicts. The judge informed the jurors that the purpose for this was to prevent their exposure to trial publicity. On this record, the newspaper stories published from December 20, 1969, through April, 1970, did not entitle the defendant to a change of venue either when his motion therefor was heard on May 21, 1970, or on October 5, 1970, when the trial began.

2. Denial of Withdrawal of Counsel. On the return of the indictments in April, 1970, the defendant was arraigned and he pleaded not guilty. At that time he was represented by a lawyer from the Massachusetts Defenders Committee (MDC). On April 30, 1970, the MDC lawyer withdrew his appearance with approval of the court. See Rule 101C of the Superior Court adopted April 28, 1967, effective June 1, 1967. On the same date Mr. J. Arthur Hickerson, a lawyer selected and retained by the defendant, filed his appearance for him.

On May 11, 1970, Mr. Hickerson filed the following motions for the defendant on each of the four indictments: motion to dismiss, motion for speedy trial, motion for change of venue, motion for a bill of particulars, motion for trial separate from other indictments, motion for copy of a certain written statement, motion for names of grand jury witnesses, motion for exculpatory evidence, and motion to inspect vehicle. The motion for copy of a written statement was later waived. All the others were heard and argued by Mr. Hickerson. As a result of Mr. Hickerson's appearance for the defendant, the case was continued until May 20, 1970, and then continued again until June 23, 1970. On the latter date Mr. Hickerson moved for a further continuance which was allowed, and a new trial date was set for September, 1970. Thereafter counsel agreed to have the case assigned for trial on October 5, 1970, to permit them to arrange for the attendance of necessary witnesses including the victim of the crimes who was attending school.

When the indictments against the defendant were called for trial on October 5, 1970, his counsel, Mr. Hickerson, informed the court that on that morning the defendant had informed him he no longer wanted him to act as his counsel. Mr. Hickerson asked to be permitted to withdraw from the case. He said that (a) there was no animosity between him and the defendant, (b) he had not been paid a fee which had been promised him, and (c) he had received a request from the defendant 'to come to Walpole with certain materials and other things, and it amounted to my getting advice from other sources than my choice in this case.' The defendant told the court that he did not want Mr. Hickerson to represent him. He was allowed to read a statement in which he claimed the right 'to be granted counsel of . . . (his) own choice . . . without paying any attorney,' and in which he cited the case of Lamoureux v. Commonwealth, 353 Mass. 556, 233 N.E.2d 741. He did not ask to have a...