remedy for police misconduct committed to discretion of trial judge
How later courts described this case
- remedy for police misconduct committed to discretion of trial judge
Written by the judges who cited it.
The opinion
1. The defendant was not entitled as of right to have the prospective jurors interrogated individually in accordance with the provisions of G. L. c. 234, § 28, second par., as amended by St. 1975, c. 335. From the bare assertion in the affidavit filed by counsel for the defendant that racial prejudice is widespread in Hampden County the judge was not required to conclude that the statutory preconditions to the right of individual voir dire had been made to appear. Compare Common *924 wealth v. Corgain, 5 Mass. App. Ct. 899 (1977); Commonwealth v. Hogue, ante 901 (1978). 2. The bill of exceptions does not substantiate the defendant’s further contention that the judge denied him an opportunity to introduce evidence as to the existence of those preconditions. 3. The judge was not required as matter of law to grant the defendant’s motion for a mistrial based on the alleged misconduct of a police officer. Even if the record established, as it does not, that those allegations were factual, the misconduct obviously failed to accomplish its intended purpose to harm the defendant. In this posture the defendant’s motion presented at best a matter lying within the judge’s discretion, and in the absence of harm to the defendant the judge cannot be said to have abused his discretion in denying the motion.
Alan M. Katz for the defendant.
John C. Bryson, Jr., Assistant District Attorney, for the Commonwealth.
Judgment affirmed.