Com. v. Sneed

• Decision Date: 18 December 1978
• Citation: 376 Mass. 867,383 N.E.2d 843
• Parties: COMMONWEALTH v. Ralph M. SNEED, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 843

383 N.E.2d 843

376 Mass. 867

COMMONWEALTH v. Ralph M. SNEED, Jr.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 7, 1978.

Decided Dec. 18, 1978.

William J. Leahy, Boston, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

A jury returned guilty verdicts on complaints which charged the defendant with possession of burglarious tools and unauthorized use of a motor vehicle. He appealed. The Appeals Court reversed the conviction on the complaint for possession of burglarious tools and ordered a judgment to be entered for the defendant. The Appeals Court affirmed the conviction for unauthorized use of an automobile. Commonwealth v. Sneed, 6 Mass.App. --- ^A, 373 N.E.2d 1201 (1978). This court allowed the defendant's application for further appellate review of this conviction. We reverse and order a new trial, on the ground that the defendant did not have a fair and impartial trial.

The facts are as follows. On May 1, 1975, Officer Roland Anderson, a police officer in the town of Weston, was assigned to patrol in an unmarked police vehicle. He and his partner, Sergeant Robert Alenburg, were driving in an easterly direction on Route 30 when, about 1:10 P.M., he observed a late model, blue Mercedes Benz automobile (Mercedes), registration No. E-69-609, traveling in the opposite direction. Officer Anderson's attention was drawn to this vehicle because it slowed down as it approached residential driveways on Route 30. Officer Anderson called in to the police station, asking for a license check and a stolen car check.

Subsequently, Officer Anderson was notified by radio that the Mercedes had been reported as stolen. By this time the police had lost sight of the Mercedes, but they informed other police departments, by radio, of the stolen vehicle. During the next several hours the police of several cities were involved in high-speed chases of the Mercedes. Finally, the vehicle collided with a police vehicle in the town of Arlington. The two occupants of the Mercedes fled together, the defendant alighting from the door on the passenger's side. After a foot chase, the defendant was apprehended.

After the defendant was arrested, he told several police officers that he had been hitchhiking when he was picked up by the driver of the Mercedes and that he did not know the car was stolen until the chase began.

The sole defense witness was Pamela Washington, a long time friend of the defendant. Miss Washington testified that on May 1, 1975, she met the defendant in Market Square, Lynn, where they took a bus to Haymarket Square in Boston. They then took the trolley to Park Street station, where they caught the train to Harvard station. Miss Washington and the defendant shopped and walked around Harvard Square for an hour or an hour and one-half. The defendant then tried to thumb a ride. A Volkswagen automobile stopped and, after the defendant spoke with the driver, the vehicle drove off. A Mercedes then stopped, the defendant got in it, and the car drove off. The driver of the Mercedes was a black man. Miss Washington next saw the defendant about two weeks later.

A strong argument can be made that the defendant must have a new trial because the trial judge's charge as to reasonable doubt was inadequate. It consisted of a single cryptic paragraph which simply said that the jury could return guilty verdicts if they were "morally certain, even though (they) may have some reservations" about the defendant's guilt. In the context of the entire charge, it could well be said that the instructions were correct only in their reference to moral certainty, and were so brief and casual as to trivialize the important concept of proof beyond a reasonable doubt.

We conclude that the defendant must have a new trial because the judge, in many and diverse ways, deprived the defendant of a fair and impartial jury trial. We discuss below only the most obvious illustrations of this improper intrusion.

The judge's bias is clearly shown in his handling of the witness Washington. He addressed inadmissible questions to her concerning her "failure" to testify at prior District Court proceedings. See G.L. c. 278, § 23; Commonwealth v. Morrison, 1 Mass.App. 632, 635-637, 305 N.E.2d 518 (1973). He later emphasized this "failure" in his charge to the jury. He not only admonished the witness as to perjury, presumably outside the hearing of the jury, but also threatened to hold defense counsel in contempt of court when counsel suggested that the jury, before they were excused from the court room, might have heard part of the colloquy between the judge and witness, and that the jurors should be questioned as to that possibility. In our view, the circumstances were such that the jury were probably aware that the judge did not believe the witness. The judge's participation in all of this showed his disregard for the concept that any judicial comment is likely to be accorded substantial weight by the jury. Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). Commonwealth v. Hanscomb, 367 Mass. 726, 732, 328 N.E.2d 880 (1975) (Hennessey, J., concurring). See Commonwealth v. Festa, 369 Mass. 419, --- ^B, 341 N.E.2d 276 (1976). It is reasonable to assume, and almost inescapable, that he unjustifiably intimidated the witness (see Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972)) and severely eroded her credibility. See Commonwealth v. Festa, supra; United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964).

The judge's partiality here is also transparent in his instructions to the jury. The role of the trial judge is that of an impartial arbiter and not that of a prosecutor. Apart from his duty to instruct the jury on the applicable law, a judge may state the evidence and discuss possible inferences therefrom. Commonwealth v. Binkiewicz, 342 Mass. 740, 750-753, 175 N.E.2d 473 (1961). Cahalane v. Poust, 333 Mass. 689, 692-693, 132 N.E.2d 660 (1956). Commonwealth v. Barry, 9 Allen 276, 279 (1864). He may not, however, directly express an opinion on the credibility of particular witnesses, Commonwealth v. Binkiewicz, supra, 342 Mass. at 753, 175 N.E.2d 473; Commonwealth v. Barry, supra; Commonwealth v. Perry, 3 Mass.App. 308, --- ^C, 329 N.E.2d 150 (1975) nor may he instruct the jury that they must draw particular inferences from the evidence, Commonwealth v. Therrien, 371 Mass. ---, --- ^D, 355 N.E.2d 913 (1976); Commonwealth v. Cote, 5 Mass.App. ---, --- ^E, 363 N.E.2d 276 (1977). In disregard of these principles, the judge here adopted the role of an advocate. We assume that he was convinced of the defendant's guilt on the weight of the evidence, but that state of mind called for judicial restraint which he did not exercise.

The defendant is entitled to relief here even though his exceptions were recorded to the judge's "charge as a whole." Ordinarily such a general exception brings nothing before us on appeal. McKnight v. Red Cab Co., 319 Mass. 64, 66-67, 64 N.E.2d 433 (1946). However, in this case the charge was so permeated with error that we think this is the rare case where a general exception was sufficient. We observe also that a previous colloquy in which defense counsel tried to save his client's rights had resulted in a totally unwarranted threat by the judge to hold defense counsel in contempt of court.

It is perfectly clear and beyond all argument that reversal of these convictions is required by reason of the judge's language in his instructions on the defendant's failure to testify. No aspect of the charge to the jury requires more care and precise expression than that used with reference to the right of a defendant in a criminal case to remain silent and not be compelled to incriminate himself, as provided in art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the Constitution of the United States. Even an unintended suggestion that might induce the jury to draw an unfavorable inference is error. Commonwealth v. Maloney, 113 Mass. 211, 214 (1873). Commonwealth v. Harlow, 110 Mass. 411, 412 (1872). Instructions which adhere to the letter, but not the spirit, of these protections, are cause for reversal. Brown v. Commonwealth, 335 Mass. 476, 481-482, 140 N.E.2d 461 (1957). The instructions must thoroughly protect the defendant against any prosecutor's argument, or intimation by the judge, that the defendant is invoking constitutional rights to conceal or deceive. ¹ See Commonwealth v. Gouveia, 371 Mass. ---, --- - --- ^F 358 N.E.2d 1001 (1976); Commonwealth v. Borodine, 371 Mass. 1, --- - ---, --- ^G, 353 N.E.2d 649 (1976), cert. denied, 429...