Guerin v. Com.

• Decision Date: 10 November 1959
• Parties: Joseph L. GUERIN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 38

162 N.E.2d 38

339 Mass. 731

Joseph L. GUERIN v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1959.

Decided Nov. 10, 1959.

Monroe L. Inker, Boston, for petitioner.

John Warren McGarry, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This proceeding on a writ of error comes before us upon an exception of the plaintiff in error (hereinafter called the petitioner) to an order of a single justice of this court affirming judgments of the Superior Court.

The petitioner was tried in 1953 on five indictments: two charging him with incest with his niece on different dates in 1952, two charging him with statutory rape of her on those dates, and one charging the commission of unnatural and lascivious acts with her on divers occasions in 1952 and 1953. He was found guilty on three indictments, one of incest, one of statutory rape, and one of unnatural and lascivious acts, and was sentenced to varying terms in the State prison. The Appellate Division of the Superior Court later ordered that the sentences run concurrently. G.L. c. 278, §§ 28A-28C, inserted by St.1943, c. 558, § 1, as amended. Both at the trial and before the Appellate Division the petitioner was represented by experienced counsel and no effort was made to bring the cases before this court by the ordinary methods of report or of exceptions. Nor was any motion made to bring the cases within G.L. c. 278, §§ 33A-33G, as amended, in order to make available to the petitioner a transcript of the evidence, although the testimony at the trial was taken by a court stenographer.

Sometime after the time for report or exceptions had elapsed, the petitioner filed the petition for a writ of error. The petition set out in sixty-four numbered paragraphs various alleged injustices before and during his trial and alleged fifty-five assignments of error. The petitioner moved, before the single justice, that he be furnished without cost a copy of the transcript of his trial. The order of the single justice granting the motion on the basis of Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, was reported to this court and was reversed on the ground that our procedure, unlike the Illinois procedure considered by the Supreme Court in the Griffin case, provides alternate methods by which a defendant may secure adequate appellate review. Guerin v. Commonwealth, 337 Mass. 264, 149 N.E.2d 220. The assignments of error related to numerous alleged errors at the trial and deprivations of constitutional rights before and during trial. Of these we said: 'Many * * * relate to alleged errors * * * not open on writ of error. Several make vague and sweeping suggestion of violation of rights under the Constitution of the United States or under our own Constitution. Having in mind that there was representation by experienced counsel at the trial, and that this counsel acted to have the sentences reduced, but took no steps to bring the cases here, we think that there should be something more than such a broad general charge wholly lacking in specification before it becomes essential to provide the transcript of the trial proceedings for the prosecution of this writ of error' (337 Mass. at page 269, 149 N.E.2d at page 224). Apparently in an attempt to bring before us 'something more' specific, the petitioner urged, at the hearing on the merits, that he was deprived of a right to consult with counsel during his trial. Although this matter is not the subject of an assignment of error, it is set forth in substance in the paragraph of the petition numbered 45 which reads as follows: 'Your petitioner was forced to remain shackled in the prisoners dock during his trial and was denied by his guard, Mr. Turner, Chief Bailiff of the Court, the right to consult with his attorney on matters of importance.' None of the other complaints in the petition in now urged and we treat them as waived.

The gravamen of the petitioner's present complaint is that he was prevented by a court officer during the course of his trial from consulting with his counsel, specifically so that he might give his counsel a bill of sale which, he claims, would have proved that he did not own the truck in which the crimes were alleged to have been committed at the time in question and so that he might show that various witnesses were not telling the truth. It appears, however, from facts alleged in the petition (paragraph numbered 64) that the bill of sale was in fact introduced in evidence and an instruction given as to its evidentiary character. Paragraph 64 alleges that that instruction was inadequate.

The fundamental character of the right of a person accused of a serious crime to have the aid and advice of counsel is recognized under the Fourteenth Amendment to the Constitution of the United States and in our own Constitution, art. 12 of the Declaration of Rights. It has been the subject of numerous decisions. Powell v. State of Alabama, 287 U.S. 45, 68-71, 53 S.Ct. 55, 77 L.Ed. 158, and cases cited. Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed....