Com. v. Stetson

• Decision Date: 09 November 1981
• Citation: 384 Mass. 545,427 N.E.2d 926
• Parties: , 7 Media L. Rep. 2342 COMMONWEALTH v. David P. STETSON, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 926

427 N.E.2d 926

384 Mass. 545, 7 Media L. Rep. 2342

COMMONWEALTH v. David P. STETSON, Jr.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 15, 1981.

Decided Nov. 9, 1981.

Thomas P. McCusker, Jr., Westwood, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

The defendant was indicted for murder in the first degree of Philip McGee. A jury convicted him of murder in the second degree, and he was sentenced to serve life imprisonment. He appeals. We transferred the appeal here from the Appeals Court on our own motion, the offense having been committed before July 1, 1979. Commonwealth v. Davis, Mass.Adv.Sh. (1980) 555, 567, 570, --- Mass. ---, 401 N.E.2d 811.

The defendant claims error on a variety of grounds. Only two issues have sufficient merit to require extended discussion. First, the defendant argues that the trial judge denied his constitutional right to a public trial by excluding the public from the voir dire of a witness and from a brief portion of the same witness's testimony before the jury. Second, the defendant argues that the trial judge committed prejudicial error in admitting testimony by a prosecution witness whose memory was hypnotically enhanced. The defendant's other claims of error are stated in the text of this opinion. We conclude there was no reversible error and therefore affirm the conviction.

The basic facts are these. Shortly after midnight on February 10, 1979, in the Hough's Neck neighborhood of Quincy, two police officers found Philip McGee on his hands and knees on a sidewalk. McGee had apparently been walking home from a neighborhood bar. There was blood all over his face, and injuries to his legs prevented him from standing.

McGee was taken to Quincy City Hospital by ambulance and died there sixteen days later. His death was caused by a pulmonary embolism resulting from multiple fractures in both legs. The pathologist testified that McGee's leg fractures could have been caused by an automobile, a blunt instrument such as a bat, or by an adult jumping up and down on his legs. As a result of police investigation, the defendant was indicted for murder on December 11, 1979. ¹

Shortly before the police found McGee, a neighborhood youth, hiding behind some bushes, saw McGee lying face down in the same area. This young man testified that he saw the defendant walking toward him, with McGee's body just a few feet behind the defendant. Another witness testified that at approximately 1 A.M. of that morning she was awakened by fighting and arguing outside her house. She saw a car two feet from her side door with the defendant and a few others inside. She testified that two men were standing outside the car, and one said, "You didn't have to kill him."

Some time around February 10, the defendant came home with blood on his boots and pants and admitted to his roommate that he had just beat someone. About a week later, the defendant again admitted to his roommate that he was the one who beat "that guy." The defendant also admitted the beating to two neighborhood girls, with threats of harm if the girls told anyone. Two other witnesses testified that on three occasions they heard the defendant state that he was a murderer. After being arrested and advised of his Miranda rights, the defendant admitted being at the scene of the beating and watching another jump up and down on McGee's feet and legs. ² The defendant on three other occasions, however, told others he knew nothing about the beating or that he was not in the area at the time.

The Commonwealth presented other circumstantial evidence linking the defendant to the beating. The police took the defendant's boots at the time of his arrest, and a State police chemist testified to finding small crusts of human blood on the toe area of one boot. ³ On one occasion, sometime after the beating and before McGee's death, the defendant called Quincy City Hospital to inquire about someone's condition; and another time, he began to call the hospital but hung up after a friend present advised him that the police would investigate. The Commonwealth also presented evidence that the defendant had threatened or attempted to intimidate probable and actual prosecution witnesses.

1. Exclusion of public from courtroom. A witness testified that at 1 A.M., on the morning of the beating, she saw the defendant and a few others in a car parked near her house. She also heard a man standing next to the car say, "You didn't have to kill him." On cross-examination defense counsel asked the witness whether she told anyone about the incident. After identifying her son as one person she had informed, she refused to identify two other persons whom she had told. Defense counsel pressed the question whereupon the judge, without objection, ordered the spectators and jury cleared from the courtroom and began a voir dire. ⁴ During this fifteen-minute voir dire, the witness stated that she told her two daughters about the arguing and fighting outside her house without telling them who was there or what was said.

The jurors returned to the courtroom after the voir dire, and defense counsel, for the first time, objected to the exclusion of the public during the voir dire and during the anticipated follow-up questions before the jury. When cross-examination resumed in the jury's presence, the witness again testified that she told her daughters about the incident without any details. After defense counsel indicated that he was finished questioning the witness about the conversations with her daughters, the judge reopened the courtroom to spectators. The cross-examination and two bench conferences with the jury present lasted approximately four minutes. The trial consumed eight days.

The defendant contends that the fifteen-minute voir dire and four-minute cross-examination with spectators excluded from the courtroom violated his Sixth Amendment right to a public trial. Assuming, without deciding, that the defendant did not waive his right to a public trial during the voir dire, ⁵ we conclude there was no abuse of discretion in the trial judge's action in closing the court during the voir dire or during the four minutes of cross-examination before the jury.

This court has always recognized the right of a criminal defendant to be tried in an open court. Globe Newspaper Co. v. Superior Court (Globe I), Mass.Adv.Sh. (1980) 485, 494-496, --- Mass. ---, 401 N.E.2d 360; Commonwealth v. Bohmer, 374 Mass. 368, 380, 372 N.E.2d 1381 (1978); Commonwealth v. Blondin, 324 Mass. 564, 569-571, 87 N.E.2d 455 (1949), cert. denied, 339 U.S. 984, 70 S.Ct. 1004, 94 L.Ed. 1387 (1950). See also Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (judicial system should be open for public inspection). The right to a public trial, guaranteed by the Sixth Amendment to the Constitution of the United States, is applicable to our courts under the Fourteenth Amendment. Commonwealth v. Bohmer, supra; Commonwealth v. Marshall, 356 Mass. 432, 435, 253 N.E.2d 333 (1969). "This guaranty, the importance of which cannot be overstated, exists primarily to prevent the courts from becoming instruments of persecution." Commonwealth v. Bohmer, supra. See In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682 (1948); Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv.L.Rev. 1899, 1902 (1978). Under the public gaze, witnesses, counsel, and the judge are more strongly moved to a strict consciousness of their duty, thus improving the quality and fairness of our judicial system. Globe I, supra. See In re Oliver, supra; 6 J. Wigmore, Evidence § 1834, at 438 (Chadbourn rev. 1976); 91 Harv.L.Rev. at 1905.

"This right to a public trial is not, however, absolute and inflexible." Commonwealth v. Bohmer, supra. ⁶ See United States v. Ruiz, 579 F.2d 670, 674-675 (1st Cir. 1978); Wigmore, supra, § 1835, at 443. To ensure that the administration of the criminal law is fair and just, a trial judge has authority "to exclude spectators whose presence intimidates the witnesses." Commonwealth v. Bohmer, supra. See United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965), cert. denied sub nom. Orlando v. Follette, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966) (no error to exclude defendant's sympathizers who attempted to intimidate and harass witness); United States ex rel. Laws v. Yeager, 448 F.2d 74, 81 (3d Cir. 1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1201, 31 L.Ed.2d 251 (1972) (exclusion of witness's relative whose presence hindered ascertainment of truth not error). In determining whether the trial judge abused his discretion in excluding the spectators, we examine the record before us.

The trial judge was faced with the witness's reluctance to identify the other persons whom she had told of the incident and with defense counsel's persistence in this line of inquiry; the judge observed the witness and heard testimony that there was frequent fighting outside of the witness's house, which had sustained considerable damage; that on two separate nights, including the night prior to trial, fireworks exploded on the roof of her house and that these were most likely set by the defendant's codefendant; and that the witness herself had not come forth with her testimony until a few weeks before trial. More importantly, however, the assistant district attorney represented to the judge during the voir dire that other witnesses waiting to testify were afraid of both defendants and had come to court with great reluctance. The brief exclusion of the public was precisely tailored to obtain the particular defense-requested evidence, the evidence that this witness was most fearful of giving. Once the defense obtained its answers, the spectators were promptly readmitted. The judge's ruling struck an equitable balance...