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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Meadows, 33
Mass.App.Ct. 534 (1992)
Appeals Court of Massachusetts,
No. 91‑P‑528.
Argued
Decided
Patricia A. O'Neill, Committee for Public Counsel
Services, Boston (Debra Shopteese, Committee for Public Counsel Services,
Roxbury, with her) for defendant.
Roger L. Michel, Jr., Asst. Dist. Atty., for Com.
Before KASS, SMITH and PORADA, JJ.
KASS, Justice.
During the
trial of Bernard Meadows for armed robbery, the trial judge on several occasions
rebuked or corrected defense counsel.
Those expressions of displeasure, the defendant claims on appeal,
deprived him of a fair trial. Additional
claims of error are that: the judge
asked a question [33 Mass.App.Ct.
535] of a witness in a manner which
suggested that the judge thought the defendant guilty; the judge prematurely cut off a line of cross‑examination; and the judge erroneously permitted the
introduction in evidence through a police officer of an out‑of‑court
identification of the defendant by the principal prosecution witness, the
victim of the robbery. We affirm.
Considering
the evidence in the light most favorable to the government, the jury could have
found that on August 26, 1989, Clifford Byrd, while walking his puppy, was
confronted by a man who told him it was a "stick up," that he (the
robber) had a gun, and that Byrd better give him everything he had. Byrd saw what looked like a cylinder pointed
at his abdomen and emptied his pockets of a five‑dollar bill and ten
cents. The robber bent down to pick up
the money and warned Byrd to "keep walking."
Byrd
walked to the nearest police station, where he picked two photographs of the
defendant out of mug shot books, rating the certainty of his photo‑identification
as seven on a scale of one to ten. The
next day, Byrd saw a man he was sure was the robber, wearing the same red
jacket he had worn at the holdup. On the
one‑to‑ten scale, Byrd rated the certainty of his identification
that day as a ten. On September 5, 1989,
ten days after the holdup, Byrd, who was in his car, spotted the stick‑up
man standing at the intersection of Erie and Ellerton streets in
Dorchester. Byrd drove home and from
there called his sighting and a description of the man into the police. They arrested the defendant forty minutes
later. At a probable cause hearing in
Dorchester District Court on September 15, 1989, Byrd identified the defendant
as the man who had robbed him.
1. Judge's criticism of defense counsel. Under the rubric of unfair criticism of
defense counsel by the judge, we consider five manifestations of judicial
displeasure, leaving two others for later discussion. (FN1)
[1] (i) On the first day of trial, the judge,
after the jury had left the courtroom for the lunch recess, told defense
counsel [33 Mass.App.Ct. 536] that he hoped that counsel, upon
resuming her cross‑examination of Byrd, would not continue to compare his
testimony at a probable cause hearing with his testimony at trial, unless there
were inconsistencies between the two.
That was an appropriate comment on a line of questioning that had
employed the transcript of the probable cause hearing to dwell on differences,
but not inconsistencies, between what the witnesses said then and later at
trial. See Commonwealth v. Haley, 363 Mass. 513, 518‑519, 296 N.E.2d
207 (1973) (it is the duty of the judge to direct and control trial
proceedings); Lummus, The Trial Judge 19‑21
(1937).
[2] (ii)
Later that day‑‑with the jury present‑‑the judge
directed defense counsel, in a snappish manner, "Now look, you are going
to read the transcript of the question and the answer. You read out of the transcript the question
the lawyer asked him and the answer ... [intervening statement by counsel] ...
Now, look, I'm telling you what you're going to do. Now you read the question and the
answer." Six pages later in the
transcript, the judge told defense counsel, "Please. Now I am telling you, you are not going to do
it; and I am telling you what to
do." Both remarks bore on a
subject as to which the judge had earlier offered guidance in more modulated
fashion. In the circumstances, the
judge's remarks were "a show of evanescent irritation‑‑a
modicum of quick temper that must be allowed even judges."
Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 15, 99 L.Ed.
11 (1954). Contrast Commonwealth v. Sylvester, 388 Mass. 749, 750‑752, 448
N.E.2d 1106 (1983); Commonwealth v. Mosby, 11 Mass.App.Ct. 1,
16‑17, 413 N.E.2d 754 (1980).
[3][4]
(iii) On an occasion the next day, while defense counsel was cross‑examining
another government witness, the judge interjected: "You know, [counsel], I hope you are
going to show the relevance of this very shortly. This is an armed robbery with an
identification problem, [counsel]. At
least that's what you've told me."
A page later in the transcript there is a remark of similar tenor. In neither instance had the prosecutor
objected to the question, and the point argued is that it was improper for the
judge to intervene, particularly in front of the jury. So far as possible, a judge should not dress
down [33 Mass.App.Ct. 537] counsel before the jury, Commonwealth v. Fitzgerald, 380 Mass.
840, 847, 406 N.E.2d 389 (1980), but when examination of witnesses veers off
the point, it is not unreasonable for a trial judge to rein in counsel. See
Commonwealth v. Haley, 363 Mass. at 519, 296 N.E.2d 207.
[5] (iv)
Toward the end of the second day of trial, the judge admonished defense counsel
severely for introducing (through the defendant's fiancee) alibi evidence
without prior notice to the prosecution, contrary, apparently, to agreement
memorialized in a pretrial conference report.
(FN2) See Mass.R.Crim.P. 11, 378
Mass. 862 (1979), and see also Mass.R.Crim.P. 14(b)(1), 378 Mass. 876
(1979). No doubt the reprimand, which
was made with the jury not in the
courtroom, was unsettling, but it was warranted and, above all, the judge
denied a government motion to strike the testimony of the witness who gave the
alibi evidence. In terms of what the
jury heard, the defense emerged from the situation unwounded.
[6] (v) By
the end of trial the attitudes of defense counsel and the judge toward one
another were distinctly brittle. Defense
counsel told the judge that he had been unfair to her and had reprimanded her within
the hearing of the jury. The judge said
defense counsel had been impolite and had not played by the rules. The most pronounced expression of judicial
ire concerned what the judge considered the smuggling in of alibi defense. That discussion occurred with the jury
outside the courtroom, but defense counsel thought the jury was just behind the door and could
hear. The judge summoned court officers
and held a hearing about whether his conversation with defense counsel had been
audible. The testimony was that it could
be heard in the courtroom but not outside the courtroom, and the judge so
decided. During the postcharge sidebar
conference, at which counsel were to ask for additions or corrections to the
instructions given to the jury (see Mass.R.Crim.P. 24[b], 378 Mass. 895 [1979]
), there was another eruption. The judge
had made an acerbic remark, [33
Mass.App.Ct. 538] "This is
going to be the law according to [defense counsel]" and counsel
responded: "[T]hat's the kind of
stuff that I feel that you have been unfair with me, in making comments like
that. You have done that throughout this
trial." The judge began to
respond, and counsel interrupted, saying, "And now you are pointing at me
and the jury is still in this room."
The temperature rose. The judge
said, not unreasonably, "When I talk, you stop. Do you understand that?" Counsel responded, "And now I think
they can hear you." Whereupon the
judge asked the jury be taken from the courtroom. While, as we have observed, it is preferable
for a judge not to discipline a lawyer in the presence of the jury, we do not
think courtroom exchanges can be so sanitized as to eradicate even controlled
irritation. That, on our reading of the
transcript, is how we would characterize the judge's comments and
reaction. The judge, when made aware
that the charged atmosphere might reach the jury box, did remove the jury from
the courtroom. He then continued the
discussion at some length with counsel, listened to her, responded to her
requests for amendments to his instructions, and, upon the conclusion of his
supplementary instructions to the jury (they having returned to the courtroom),
addressed the jurors as follows:
"One other thing I want to tell
you. During the course of this trial, I
may have made comments to counsel. I may
have interrogated witnesses. I may have
done any number of things. If there was
anything in my voice inflection or in my manner or in my questioning or in any
way whatsoever that makes you think I have formulated an opinion relative to
the issues involved in this case, I apologize to you for it. I ask that you disregard it.
"You are to make your
determination of whether this defendant is guilty or not guilty uninfluenced by
me in any way whatsoever."
[7] That
firm instruction is the last thing the jury heard before retiring and is likely
to have gone a long way in neutralizing any impression that might have been
conveyed that the judge [33
Mass.App.Ct. 539] thought ill of the
defendant. See Commonwealth v. Haley, 363 Mass. at 522, 296 N.E.2d 207. We assume that jurors will follow the
instructions given by the judge. Commonwealth v. Foster, 411 Mass. 762,
766, 585 N.E.2d 331 (1992). Commonwealth v. Edgerly, 6 Mass.App.Ct.
241, 260, 375 N.E.2d 1 (1978).
In none of
the exchanges between counsel and the judge did the judge become an advocate
for the prosecution, contrast
Commonwealth v. Sneed, 376 Mass. 867, 869‑871, 383 N.E.2d 843 (1978),
or otherwise suggest a view that the defendant ought to be found guilty.
[8] 2. Suggestive question. When she was cross‑examining Byrd, the
robbery victim, defense counsel asked a question the judge did not understand
and counsel reframed the question as follows:
"On a separate occasion, you saw the person that you picked out in
the photographs, right?" The judge
did not understand that question either and an exchange between the judge and
the witness ensued:
THE COURT: "I still don't understand the
question. He's testified that he saw him
the day afterwards, and then he saw him on another occasion after that. Is that correct, sir?"
THE WITNESS: "That is correct, your Honor."
THE COURT: "All right. Those two times, plus the time that you say
that you were robbed, were the only three times that you saw him prior to the hearing
in court, right?"
THE WITNESS:
"That is correct, your Honor."
The
defense argues on appeal that by, thus, summarizing Byrd's testimony, the judge
gave it a judicial imprimatur of credibility and, further, that the judge
undercut a line of cross‑examination intended to show that Byrd had
matched Meadows with the pictures he had seen, rather than with the man who had
robbed him. We think those arguments
somewhat overwrought. Nothing in the
context of the judge's intervention[33
Mass.App.Ct. 540] or anything the judge said suggests adoption
of the testimony of the witness. Prior
to that intervention the witness had manifested some confusion about questions
he was being asked. It was permissible
in the circumstances for the judge to be something more than a figurehead who
is "dignified, imposing, mysterious and strictly ornamental." (FN3)
See Commonwealth v. Campbell,
371 Mass. 40, 45, 353 N.E.2d 740 (1976); Commonwealth v. Flaherty, 1 Mass.App.Ct.
282, 289, 295 N.E.2d 698 (1973). The
judge attempted to focus the cross‑examination and defense counsel was
permitted to resume cross questioning.
We do not think there was error.
[9] 3. Limits on cross‑examination. Defense counsel examined with persistence
variations in declarations of certainty by Byrd on the one‑to‑ten
scale about his identifications. That
cross‑examination revealed faulty memory about his degree of certainty on
different occasions (at the police station, at the probable cause hearing, at
trial). On appeal, the defendant complains
that the judge improperly cut off cross‑examination on this subject but
the judge, here, did no more than exercise his wide discretion to limit the
extent and length of cross‑examination. Commonwealth v. Carroll,
360 Mass. 580, 589, 276 N.E.2d 705 (1971). Commonwealth v. Dominico, 1 Mass.App.Ct.
693, 714‑715, 306 N.E.2d 835 (1974).
Counsel had already mined the same vein for some time. To the extent there was an edge to the manner
in which the judge terminated the scale‑of‑certainty line of inquiry,
that was because of counsel's unwillingness to be guided by gentler requests to
move to a different subject. Again,
there was no error.
4. Police officer's testimony about the
certainty of Byrd's photographic identification. Without objection, a Boston police officer,
Paul J. Crossen, was allowed to testify that when Byrd identified two
photographs from mug shot books, he, Crossen, made a note that Byrd had rated
his certainty as a possible ten on the one‑to‑ten scale. At trial, Byrd had testified to a possible
seven about his initial photographic identification. The defense argues that Officer Crossen's
shoring up [33 Mass.App.Ct. 541] of Byrd's photographic identification
offended the principle discussed in
Commonwealth v. Daye, 393 Mass. 55, 60‑63, 469 N.E.2d 483 (1984),
namely that testimony by someone who observed an extrajudicial identification
ought not to be received when the very person said to have made such an
identification gives materially different testimony at trial. So, for example, had Byrd at trial denied
making any photographic identification at the police station, Officer Crossen
could not for probative purposes have testified that in fact he had, although
the officer's testimony could have been received solely to impeach. The reasons for the rule are amply discussed
in the Daye decision and need not be
restated.
[10][11]
An extrajudicial identification which corroborates the in‑court
identification may, however, be received. Commonwealth v. Repoza, 382 Mass. 119,
130, 414 N.E.2d 591 (1980). Commonwealth v. Daye, 393 Mass. at 60‑61,
469 N.E.2d 483. Here there is some
variation as to the degree of certainty.
At trial, however, Byrd attempted to say he was certain and the degree
of certainty he attributed to "seven" became a subject of
considerable cross‑examination. We
are of opinion that the variation was not a material one in the sense of the standard set out in Daye.
Compare Commonwealth v. Bassett,
21 Mass.App.Ct. 713, 719‑720, 490 N.E.2d 459 (1986). Byrd's testimony was consistent that he
recognized his assailant in the two photographs and in the street
identifications that he made thereafter.
Certainly nothing said by Officer Crossen so altered the state of the
evidence as to produce a serious risk of a miscarriage of justice.
Judgment affirmed.
(FN1.) Trial counsel is not the same lawyer as
the one who briefed and argued the appeal.
(FN2.) We so
infer from colloquy between the judge and counsel. The report itself is not in the record.
(FN3.) Pound,
The Judicial Office in America, 10 B.U.L.Rev. 125, 127 (Apr.1930), cited in
Lummus, The Trial Judge, 19‑21 (1937).