Com. v. Stanley

• Decision Date: 14 February 1973
• Citation: 363 Mass. 102,292 N.E.2d 694
• Parties: COMMONWEALTH v. Thomas STANLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 694

292 N.E.2d 694

363 Mass. 102

COMMONWEALTH v. Thomas STANLEY.

Supreme Judicial Court of Massachusetts, Franklin.

Argued Dec. 6, 1972.

Decided Feb. 14, 1973.

Joseph C. Delcore, Everett, for defendant.

John M. Callahan, Dist. Atty., for the Commonwealth.

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

BRAUCHER, Justice.

The defendant was convicted by a jury of assault and battery upon a State police officer. His exceptions bring to us two questions: (1) whether there was error in the admission in evidence of the officer's in-court identification of the defendant, (2) whether a mistrial was required because some of the jurors had read a newspaper article relating to the trial and one of them brought the newspaper containing the article into the jury room.

The officer had stopped a motorist for speeding. The officer looked into the car and was suddenly kicked in the groin, fell down, was kicked several more times, and was left lying in the road. The next day he picked the defendant's photograph from a group of seven or eight pictures. About six weeks later he went to a police barracks to identify the defendant, who was under arrest for an unrelated motor vehicle offence, and picked him out of a group of police officers, some of whom were dressed in plain clothes.

At the trial the officer on direct examination identified the defendant as the man who had kicked him. The defendant on cross-examination first brought up the confrontation in the police barracks, suggesting that the officer had been unable to make an identification. On redirect examination the officer testified that there was no question in his mind at the time of the confrontation as to his identification of the defendant. The judge then held a voir dire and ruled that the confrontation was improper, but allowed the evidence previously given to stand by virtue of waiver and a finding that the in-court identification had independent basis and origin.

On the second day of trial, the defendant brought to the court's attention a newspaper article about the case. The article stated that the defendant was appealing a District Court conviction of assault and battery on the officer, who was 'brutally' beaten while on duty. It related that the case was originally defaulted when his attorney failed to appear and that when his attorney failed to appear a second time, the case was defaulted and the defendant given an extra year to his one and one-half year sentence. The article stated that another judge ordered the case tried, and that it was scheduled for May 9, but was postponed because the defendant's attorney was involved in a Boston murder trial.

The judge then asked each member of the jury whether he had read about the case in the newspapers and whether he had formed any opinion or prejudice as a result. Four of the jurors said they had read or seen the article, and one had brought it into the jury room, but all of them denied forming any opinion, bias or prejudice which would preclude them from rendering a fair and impartial verdict. The judge then instructed the jury not to read any publicity regarding the case, but denied the defendant's motion for a mistrial.

1. The judge found that at the time of the in-court identification the defendant and his counsel were well aware of the confrontation and identification at the police barracks. He correctly ruled that by failing to move to suppress or to request a voir dire or to object to the incourt identification the defendant had waived any claim that it was tainted by the earlier confrontation. Commonwealth v. Cooper, 356 Mass. 74, 78--80, 248 N.E.2d 253. His ruling that the confrontation was improper under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, was erroneous, since the defendant had not then been formally charged with the crime. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; COMMONWEALTH V. LOPES, MASS., 287 N.E.2D 118.^A It is not argued that the confrontation was impermissibly suggestive in violation of the standard of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Finally, the judge made careful findings, supported by the evidence, that the in-court identification had an independent origin. We do not substitute our judgment for that of the trial judge in this situation. COMMONWEALTH V. MURPHY, MASS., 289 N.E.2D 571^B and cases cited.

2. 'The parties were entitled to have the case decided only upon the evidence that was introduced at the trial. It was the duty of the judge to determine whether the rights of the defendant were adversely affected by the publication. Much must be left to the discretion of the trial judge, and his denial of the motion (for a mistrial) implies a finding that the defendant had not been prejudiced. The action of the judge cannot be said to constitute an abuse of sound judicial discretion. . . . Moreover, the judge . . . instructed the jury that if any of them had read newspaper articles concerning the case he should disregard what he had read. The defendant's counsel was apparently satisfied with the instruction and asked for nothing further. . . . In any event, we must assume that the jury followed the instructions.' Commonwealth v. Barker, 311 Mass. 82, 88, 40 N.E.2d 265, 269. Compare Commonwealth v. Crehan, 345 Mass. 609, 613--615, 188 N.E.2d 923; Commonwealth v. Eagan, 357 Mass. 585, 588--589, 259 N.E.2d 548; COMMONWEALTH V. BENEFICIAL FIN. CO., MASS., 275 N.E.2D 33^C.

The newsparer article in this case did not disclose the defendant's prior criminal record, as in the Crehan case, or an arrest while committing a crime other than that charged, as in the Eagan case, or involvement in a pattern of criminal activity, as in the Beneficial case. The characterization of the assault as brutal would be unlikely to affect jurors who had heard the victim's testimony. The reference to the District Court conviction, while unfortunate, was not necessarily fatal to a fair trial. Compare Clapp v. Clapp, 137 Mass. 183. It is often difficult if not impossible to conceal from a Superior Court jury the fact that there have been prior proceedings in the District Court. The defendant argues that the presence of the newspaper in the jury room required an automatic mistrial, but we do not think that its physical presence in the jury room added significantly to the likelihood of prejudice.

In these circumstances, we think a finding that the defendant had not been prejudiced was warranted, if, as in the Beneficial case, the judge gave 'prompt, clear, and forceful instructions to the jury,' which 'were hardly susceptible of misunderstanding by the jury,' and 'were, in the circumstances, sufficiently strong to counteract the possible effect of the adverse publicity.' The bill of exceptions does not include all the instructions given to the jury, and therefore raises no issue as to the adequacy of the instructions given.

3. We think it proper to add that the defendant improperly asserted in his brief that the judge 'did not instruct the jurors to completely disregard that which they had already seen or read.' In reply the Commonwealth attached an appendix to its brief, setting forth the curative instructions given. Counsel for the defendant apologized for 'this unintentional error,' and moved to strike the offending portions of the defendant's brief, asserting that 'counsel considered the sole issue to be whether the presence in the jury room of objects other than evidence was, in itself, grounds for a mistrial.' There was no motion to strike the Commonwealth's appendix, and no challenge to the accuracy of its quotations from the transcript. Those quotations, though not part of the bill of exceptions, show the soundness of our rule that we will not consider the adequacy of instructions if they are not included in the bill of exceptions.

The judge promptly instructed the jury not to read any publicity regarding the case, that the article was not evidence, was erroneous in at least one particular, and should be disregarded. He renewed this instruction at the end of the day. The following day, before the jury was brought in, he made extensive findings with respect to possible prejudice and denied the defendant's motion for mistrial. His charge to the jury included the following: 'As I indicated to you yesterday when the issue of newspaper publicity came up, you should totally disregard and put from your minds any information of that nature. It is not reliable, it is not part of the evidence of the case, and it shouldn't in any way shape, or manner be considered by you in deciding the case.'

Exceptions overruled.

REARDON, Justice (dissenting).

The motion for mistrial should have been allowed on the ground that the defendant's right to an impartial trial under the Sixth Amendment to the Constitution of the United States was gravely imperilled by extrinsic material which found its way into the jury room.

Prior to treating with the issue in the case which impels this dissent, a word is in order on a procedural difficulty which has served to muddy the record and also the opinion disposing of the matter. It appears that on a two day trial ending on May 26, 1971, the defendant's motion to take the case under G.L. c. 278, §§ 33A--33G, was allowed. Thereafter, on June 4, 1971, the '(o)rder making proceedings subject to . . . (G.L. c. 278, §§ 33A--33G, was) revoked for lack of statutory authority.' Subsequently, in 1972, and amended bill of exceptions was filed and eventually allowed, and that is what is before us. See Guerin v. Commonwealth, 337 Mass. 264, 149 N.E.2d 220. We are thus limited in our review to what appears in the bill which states, as it should, that it 'contains all of the evidence material to the exceptions alleged.' Commonwealth v. Boris, 317 Mass. 309, 58 N.E.2d 8; Commonwealth v. Klangos, 326 Mass. 690, 96 N.E.2d 176. In view of the seriousness of what has occurred, there is...