Com. v. Sylvester

• Decision Date: 13 April 1983
• Parties: COMMONWEALTH v. Elmer SYLVESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1106

448 N.E.2d 1106

388 Mass. 749

COMMONWEALTH v. Elmer SYLVESTER.

Supreme Judicial Court of Massachusetts Essex.

Argued Nov. 4, 1982.

Decided April 13, 1983.

Ellen A. Howard, Boston (Jane Kenworthy Lewis, Lynn, with her) for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant appeals from two convictions of rape of a child under sixteen years 1. Judge's comments in the presence of the jury. The defendant contends that the judge's repeated "ridicule [of] defense counsel, threat[s] to cut off her argument, interrupt[ing] and question[ing] witnesses, and comment[s] on the evidence," for which he moved for a mistrial, demonstrated to the jury a bias against the defendant which "could not have been cured by the two sentences in the charge" instructing the jury not to be influenced by colloquies between the judge and counsel. ¹ The defendant likens his trial to that in Commonwealth v. Sneed, 376 Mass. 867, 869, 383 N.E.2d 843 (1978), wherein we ordered a new trial "because the judge, in many and diverse ways, deprived the defendant of a fair and impartial jury trial." The Appeals Court (Id., supra 13 Mass.App. at 365, 433 N.E.2d 107), considered the tone of the remarks in this case as more closely resembling that in Commonwealth v. Fitzgerald, 380 Mass. 840, 846-849, 406 N.E.2d 389 (1980), a case involving the same trial judge. The Appeals Court, while critical of the judge's remarks, declined to find them so prejudicial as to warrant a reversal of the convictions. ² We cannot agree. In Fitzgerald, there were "several personal observations in the course of the trial, not all of them directed against the defendant or his counsel. The judge was rightly concerned about the slow pace of the trial. His criticisms in some instances should have been made out of the presence of the jury. Other comments, however, were clearly warranted" (footnote omitted). Id. at 847, 406 N.E.2d 389. In the case before us, the overwhelming majority of his critical remarks were directed to defense counsel. Most of the remarks were made in the presence of the jury. Nearly all were disparaging of defense counsel's skill, and some had personal overtones. See Jones v. Commonwealth, 379 Mass. 607, 609-610, 400 N.E.2d 242 (1980). Defense counsel's conduct of the defense was characterized neither by ineptitude, Commonwealth v. Mosby, 11 Mass.App. 1, --- n. 12, Mass.App.Ct.Adv.Sh. (1980) 2145, 2161 n. 12, 413 N.E.2d 754, nor by antagonism toward the judge, Commonwealth v. Lewis, 346 Mass. 373, 379, 191 N.E.2d 753 (1963). Counsel objected steadfastly and respectfully, and painstakingly attempted to preserve her client's rights throughout the course of the trial. Compare Commonwealth v. Fitzgerald, 380 Mass. 840, 406 N.E.2d 389 (1980). We have recognized that "any judicial comment is likely to be accorded substantial weight by the jury." Commonwealth v. Sneed, 376 Mass. 867, 870, 383 N.E.2d 843 (1978), citing Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933). "[T]he particular danger created by such criticism in open court is the likelihood that it will 'impress the jury with the idea that Equally as important, some of the judge's conduct interfered with counsel's ability to put on a full defense. Most significantly, the judge excluded questions, put by defense counsel on redirect examination of the defendant, relating to why a neighbor had complained about him, the defendant's disposal of certain magazines, and his lack of contact with his own children. These matters had been raised on cross-examination and defense counsel had a right to rehabilitate her witness. ³ See Commonwealth v. Ferreira, 373 Mass. 116, 131, 364 N.E.2d 1264 (1977), and cases cited. On another occasion the judge cut off an answer during direct examination of the defendant by saying: "I am not going to let you let him spill out narrative material here about self-serving statements about what he did in the police station. There is a way to try this case. Get to it." The testimony would not have been excludable merely on the ground that it was self-serving, see Commonwealth v. Caldron, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 620, 624, 417 N.E.2d 958, and the jury could well have concluded from the judge's remark that the defendant's testimony was not worthy of belief. Finally, the trial judge twice interrupted defense counsel during her closing argument to criticize her for commenting on the applicable law. One of his reprimands, before telling defense counsel, "Come over here," was: "If you don't get to the facts, I'm going to have you sit down, and you will waive your argument. Now, let's get to summarizing the facts." At the very least, this reaction to counsel's comments was unduly harsh and unnecessarily disruptive of her final argument.

of age, G.L. c. 265, § 23, and also appeals from three convictions of unnatural and lascivious acts on a child under sixteen years of age, G.L. c. 272, § 35A. The jury acquitted the defendant of two counts each of rape and unnatural and lascivious acts on one of the three alleged victims. The Appeals Court affirmed[388 Mass. 750] the judgments. Commonwealth v. Sylvester, 13 Mass.App.Ct. 360, 433 N.E.2d 107 (1982). We granted further appellate review. The defendant assigns as errors the judge's prejudicial comments made in the presence of the jury, denial of his motion for relief from prejudicial joinder, and improper and insinuating remarks made by the prosecutor during his opening statement. We conclude that the defendant must receive a new trial. [the judge] disfavors the attorney and, inferentially, the position the attorney represents.' " Commonwealth v. Mosby, supra, 11 Mass.App. at ---, Mass.App.Ct.Adv.Sh. (1980) at 2161, 413 N.E.2d 754, quoting State v. Pokini, 55 Hawaii 640, 645, 526 P.2d 94 (1974). We think the judge's instruction that the jury should not consider "any give and take between the Court and any lawyer ... in determining the guilt or innocence of this defendant" could not erase the pervasive impression that the judge disfavored the defense counsel. See Commonwealth v. Sylvester, 13 Mass.App.Ct. 360, 369 n. 3, and 372, 433 N.E.2d 107 (Brown, J., concurring).

Our examination of the defendant's claims of error, viewed in the context of the conduct of the entire trial, has convinced us that, in diverse ways, he was deprived of a fair and impartial trial. Commonwealth v. Sneed, 376 Mass. 867, 870, 383 N.E.2d 843 (1978).

2. Motion for relief from prejudicial joinder. The defendant was indicted on one count of unnatural and lascivious acts on one alleged victim; one count of rape and one count of unnatural and lascivious acts on another alleged victim; and three counts of rape and three counts of unnatural and lascivious acts on the third alleged victim. Approximately six weeks before trial, the defendant moved to sever the indictments. This motion was not supported by an affidavit. See Mass.R.Crim.P. 9(d)(2), 378 Mass. 859 (1979). The motion judge denied the motion, concluding that "[I]t appear[s] from these representations [of counsel] that the alleged locus was identical, the criminal behavior alleged, the inducements and methods alleged to induce victims alleged to be of a common character ... [are] within Rule 9(a)(1)." ⁴ Defense counsel then filed While the defendant's motion raised several issues, ⁵ on appeal his sole contention is that "joinder was 'not in the best interests of justice' because of the number and repulsive nature of the crimes charged." We agree with the Appeals Court that severance was not required on that ground, and we decline to adopt a rule that a special prejudice inheres in the joinder of sexual offenses, requiring that such indictments be tried separately in all circumstances. The decision not to allow the motion on this ground was, therefore, in the sound discretion of the trial judge. Commonwealth v. Jervis, 368 Mass. 638, 645, 335 N.E.2d 356 (1975), and cases cited. Since the issue is likely to come up on retrial an additional discussion of the motion under rule 9 is necessary.

a pretrial motion, supported by an affidavit, for relief from prejudicial joinder. The trial judge heard and denied that motion on May 9, 1980.

In the case before us, the defendant was accused of committing sexual offenses between May 12, 1979, and December 31, 1979. ⁶ Two of the alleged victims were brothers and lived in the defendant's neighborhood. The third alleged victim lived in another part of the city but habitually visited the defendant's neighborhood. All of the offenses were alleged to have taken place in private, at the defendant's apartment. All of the alleged victims testified that they first met the defendant at a neighborhood store, where he helped out but received no wages. All of them were said to have been subjected to fellatio. All testified they were given money by the defendant. The alleged offenses and their circumstances were thus undoubtedly similar, if not identical, in major respects. However, they were not "related" within the meaning of Mass.R.Crim.P. 9(a)(1), unless the judge could conclude that they arose "out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Id.

In Commonwealth v. Blow, 362 Mass. 196, 200, 285 N.E.2d 400 (1972), we reviewed the guidelines to be employed in considering a motion to sever indictments. We said that joinder of indictments for a single trial is permissible when "several indictments charg[e] different crimes arising out of a single chain of circumstances"; or when "several offenses might have been joined in one indictment, and would be proved by More recently, in Commonwealth v. King, 387 Mass. 464, 469-473, 441 N.E.2d 248 (1982), we held that evidence of oral sex and the use of a dog to perform...