Petition — Butterworth v. Walker

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“Bupreme Court, U.

FILED

SEP 5 1979

In the MICHAML ROBAK, JR., CLERK

Supreme Court of the United States.

OcrTosBER TERM, 1978.

No 69-371

FREDERICK BUTTERWORTH €&r At.,

PETITIONERS,

TERRELL WALKER,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Francis X. BELLOTTI,

Attorney General,

STEPHEN R. DELINSKY,

Assistant Attorney General,

Chief, Criminal Bureau,

Barsara A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

Rosert S. Potters,

Assistant Attorney General,

One Ashburton Place,

Room 1805,

Boston, Massachusetts 02108.

(617) 727-2240

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Question presented

Constitutional provisions involved

Statement of the case

Prior proceedings

Statement of facts

Reasons for granting the writ

A compelled pre-trial announcement by a criminal

defendant which demonstrates only his satisfac-

tion or dissatisfaction with each juror as they

are chosen is not within the scope of the Fifth

Amendment privilege against self-incrimina-

tion

A. The Fifth Amendment prohibits only com-

pelled statements which are offered for the

truth of their content

B. The effect of the respondent’s compelled

statements on the successful presentation of

of his insanity defense was de minimis

Conclusion

Appendix A: Opinion of Supreme Judicial Court of

Massachusetts

Appendix B: Opinion of United States District Court

for the District of Massachusetts

‘Appendix C: Opinion of United States Court of Ap-

peals for the First Circuit

“I wowwnswns — =

Table of Authorities Cited.

CASEs.

Brooks v. Tennessee, 406 U.S. 605 (1972)

Buchalter v. New York, 319 U.S. 427 (1943)

California v. Byers, 402 U.S. 424 (1971)

Chapman v. California, 386 U.S. 18 (1967)

Commonwealth v. McHoul, 352 Mass. 544 (1967)

Commonwealth v. Millen, 289 Mass. 441 (1935), cert.

den. 295 U.S. 765 (1935)

Commonwealth v. Walker, 370 Mass. 548 (1976)

Donnelly v. DeChristoforo, 416 U.S. 637 (1974)

Gilbert v. California, 388 U.S. 263 (1967) ©

Harris v. New York, 401 U.S. 222 (1971)

Holt v. United States, 218 U.S. 245 (1910)

Miranda v. Arizona, 384 U.S. 436 (1966)

People v. Rucker, 82 Cal. App. 3d 450, 147 Cal. Rptr.

144 (1978)

Schmerber v. California, 384 U.S. 757 (1966)

United States v. Baird, 414 F. 2d 700 (2d Cir. 1969)

United States v. Bohle, 445 F. 2d 54 (7th Cir. 1971)

United States v. Dionisio, 410 U.S. 1 (1973)

United States v. Handy, 454 F. 2d 885 (9th Cir. 1971)

United States v. Sullivan, 274 U.S. 259 (1927)

United States v. Wade, 388 U.S. 218 (1967)

Walker v. Butterworth, 457 F. Supp. 1233 (D. Mass.

13n

1978) 3, 10n, 12

TABLE OF AUTHORITIES CITED. iii

Walker v. Butterworth, 599 F. 2d 1074 (1st Cir. 1979) ], 3,

8, 9n, 10, 11

Walker v. Massachusetts, 429 U.S. 943 (1976) 3

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fifth Amendment 2,8,9

Fourteenth Amendment 2

28 U.S.C. § 1257(3) 1

Mass. Gen. Laws c. 234, § 29 8n

2 Hawk. P.C. c. 43, § 4 8

*®

In the

Supreme Court of the United States.

OcroBer TERM, 1978.

No.

FREDERICK BUTTERWORTH _Er At.,

PETITIONERS,

TERRELL WALKER,

RESPONDENT.

Opinion Below.

The opinion of the court below (App. A) is reported at 599

F. 2d 1074 (1st Cir. 1979).

Jurisdiction.

The decision of the court below was rendered on June 7,

1979; however, the judgment was stayed for ninety days pend-

ing application to this Court for a writ of certiorari. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1257(3).

Question Presented.

Whether requiring a criminal defendant personally to an-

nounce his peremptory challenges to the venire violates his

Fifth Amendment right not to incriminate himself.

Constitutional Provisions Involved.

FirrH AMENDMENT.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

FOURTEENTH AMENDMENT.

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

—

Statement of the Case.

PrioR PROCEEDINGS.

On December 13, 1973, Terrell Walker was indicted by a

Suffolk County, Massachusetts, grand jury for the murder of a

Boston police officer and for five armed robberies. He was

convicted on August 14, 1974, after a jury trial held in Salem,

Massachusetts,’ and sentenced to life imprisonment on the

murder charge and concurrent fifteen to twenty-five year

terms on the armed robbery charges.

On appeal to the Massachusetts Supreme Judicial Court, the

convictions were affirmed. Commonwealth v. Walker, 370

Mass. 548 (1976) (App. A). A petition for a writ of certiorari

was denied by this Court on November 8, 1976. Walker v.

Massachusetts, 429 U.S. 943 (1976).

Walker subsequently filed a petition for a writ of habeas

corpus in the District Court for the District of Massachusetts

which was denied. Walker v. Butterworth, 457 F. Supp. 1233

(1978) (App. B). He then appealed to the United States Court

of Appeals for the First Circuit which, on June 7, 1979, re-

versed the order of the District Court and granted Walker's

application for habeas corpus.* Walker v. Butterworth, 599

F. 2d 1074 (1st Cir. 1979) (App. C).

STATEMENT OF FActs.

Prior to the empanelment of the petit jury, the trial judge

informed Walker and his counsel that, since this was a capital

' This case was widely reported in the media since the victim's brother, also

a Boston police officer, had been murdered in 1970 during an armed rob-

bery. Therefore, venue for the trial was changed to Salem, Massachusetts, a

rural community approximately sixteen miles northeast of Boston.

'*The court’s order, however, was stayed for ninety days to permit Butter-

worth to apply to this Court for a writ of certiorari.

case, pursuant to well-established procedure in the Common-

wealth, Walker himself, would be required to exercise his per-

emptory challenges by announcing his satisfaction or dissatis- .

faction with each juror once the court had determined that the

juror was otherwise qualified to serve. Walker did so by

stating either “I am content,” or “I challenge” after consulting

with his counsel .*

The prosecutor, in his closing argument to the jury, com-

mented on the court’s requirement that Walker personally ex-

ercise his peremptory challenges.‘

I just want to say this to you. Ask yourself about this par-

ticular defendant. What do you think? Do you think he

knew what he was doing when he stood up there and

said, “I am content with this juror? I am content with

this juror? I am content with this juror?” Do you think

he knew what he was doing then?

Walker objected to the comment at the conclusion of the

prosecutor’s argument and requested a curative instruction.

The trial judge agreed to inform the jury that Massachusetts

tradition mandated that a defendant in a capital case per-

sonally announce his satisfaction or lack thereof with each

juror and he did so at the outset of his lengthy instructions.

In a first degree murder case many times the Court re-

quires that the defendant make his own announcement

rather than through his attorney as to whether or not he

*Counsel objected to the procedure on the ground that it might interfere

with Walker's insanity defense by impressing the jurors with Walker's pres-

ent competency.

“Seventeen days had elapsed from jury empanelment to closing arguments.

wishes to challenge or whether or not he wishes to accept

and announce that he is content with a particular juror

that has been selected. In this case the Court required

that the defendant himself, after consultation with his at-

torney, make the announcement personally as to whether

or not he wished to challenge or whether or not he was

content with the particular juror that might have been

called and he announced his contentment in each instance

individually or personally himself in the selection of his

panel. So then again I put questions to you and inquiries

and again you were accepted without challenge either by

the Commonwealth or by the defendant, and you have

been sworn to well and truly try the issues between the

Commonwealth and the defendant according to the law

and to the evidence.

Additionally, the trial judge instructed the jury that its ver-

dict must be based only upon the evidence, that evidence“. . .

is what you get from the lips of witnesses under oath together

with any exhibits which [the court] permitted to be marked

..., that argument of both the prosecutor and defense

counsel was not evidence, and that its verdict must not be

based upon “. . . speculation, guesswork, conjecture, or

anything which may be the subject of pure imagination.”

Finally, in defining the defense of insanity the trial judge

twice instructed that the jury was to consider only the defend-

ant’s mental capacities at the time he committed the offense.

At trial, the Commonwealth introduced evidence demon-

strating that Terrell Walker and three others conspired to rob

the Suffolk Loan Company, 1904 Washington Street, Boston,

Massachusetts, and did carry out their plan on November 30,

1973, in the early afternoon. During the robbery, Walker shot

and killed Boston Police Officer John D. Schroeder, who was

in the loan company at the time.

Two of Walker’s co-venturers, Nathaniel Williams and An-

thony J. Irving, testified for the Commonwealth at the trial.

By their testimony, the Commonwealth demonstrated that on

the morning of the robbery, Walker, Williams, Irving and a

woman identified only as “Sue” met at the girl’s Monticello

Street, Boston, apartment and discussed the forthcoming rob-

bery.> Walker informed the others that the Suffolk Loan

Company was the target, supplied Williams with a .38 caliber

pistol and arranged for “Sue” to drive the getaway car. He

also demonstrated to Williams how to operate the handgun

and what to do once they entered the loan company. He fur-

ther announced that he would carry a handgun as well.

Soon thereafter, Walker, Williams, and Irving entered the

store, emptied the jewelry cases, and removed money from the

cash register. Officer Schroeder was shot by Walker during

the robbery.

The participants made their escape in “Sue’s” car and di-

vided the jewelry and money at a Boston housing project

apartment. Walker was arrested by the Boston police later in

the day at that apartment.

Several individuals who were present in the Suffolk Loan

Company also testified for the Commonwealth. Isadore Mar-

gulis identified Walker as the youth who had shot Officer

Schroeder in the neck, left the body and returned in a few

minutes to rob him of his money and service revolver. Anas-

tasio Kapfaskis, also present, identified Walker as the person

who struggled with Schroeder over a gun and shot him in the

neck. Two or three minutes later he observed Walker return

to the body and, after searching it, remove a gun, badge and

some money.®

‘Williams testified that Walker telephoned him earlier that morning ask-

ing him if he wanted to join him in an armed robbery and arranged to meet

him at “Sue’s.”

* Others present testified similarly to the incident but were not able to iden-

tify the respondent as the killer of Schroeder.

Walker did not dispute the Commonwealth’s evidence, but

rather asserted that he was insane at the time he committed

the charged offenses. In support of his claim, he offered the

expert testimony of Dr. Frank Gatti, a psychiatrist, who had

last examined him on May 6, 1972, approximately eighteen

months before the offense. The May 6th consultation lasted

less than two hours and was the only contact Gatti had with

Walker. Nevertheless, Gatti opined that Walker was insane

under the appropriate test employed in the Commonwealth.’

He did admit, however, that when he did examine Walker, he

did not feel his condition serious enough to warrant hospitali-

zation.

Additionally, Walker called Dr. Guy Seymour, a clinical

psychologist, who had extensively examined him five months

after the offenses. He opined as well that Walker was not

criminally responsible. The Commonwealth called no med-

ical witnesses in rebuttal, choosing, rather, to rely upon the

lay testimony admitted during its case in chief. Walker did

not testify.

Reasons for Granting the Writ.

The petitioner submits that this petition for a writ of cer-

tiorari should be granted for the following reasons.

1. The aecision of the Court of Appeals for the First Circuit

represents a bizarre departure from this Court’s recent deci-

sions delineating the scope of the privilege against self-incrimi-

nation.

“A person is not responsible for criminal conduct if at the time of such

conduct as a result of mental disease or defect he lacks substantial capacity

either to appreciate the criminality [wrongfulness] of his conduct or to con-

form his conduct to the requirements of law.” Commonwealth v. McHoul,

352 Mass. 544, 546-547 (1967).

2. The decision of the Court of Appeals for the First Circuit

is in conflict with a decision of another jurisdiction.

A CoMPELLED Pre-TRIAL ANNOUNCEMENT BY A CRIMINAL DE-

FENDANT WHICH DEMONSTRATES ONLY HIS SATISFACTION OR

DISSATISFACTION WITH EACH JUROR AS THEY ARE CHOSEN IS

Not WITHIN THE SCOPE OF THE Firt1t AMENDMENT PRIVILEGE

AGAINST SELF-INCRIMINATION.

Massachusetts has traditionally required that in a capital

case the defendant personally announce his peremptory chal-

lenges to the jurors as they are 2zawn for his venire. See Com-

monwealth v. Millen, 289 Mass. 441, 477 (1935), cert. den.

295 U.S. 765 (1935). The tradition has its roots in the com-

mon law and acknowledges the vital importance of the right to

an impartial jury by requiring the defendant’s personal in-

volvement in the selection of those who will judge him. See 2

Hawk. P.C. c. 43, § 4.

In reversing the order of the District Court and granting the

respondent's application for a writ of habeas corpus, the Court

of Appeals held that to require the respondent to announce his

own peremptory challenges during jury empanelment uncon-

stitutionally compelled him to communicate his mental state

and thought processes to the jury. This compelled communi-

cation infringed his privilege not to incriminate himself since it

rebutted his insanity defense. Walker v. Butterworth, supra,

at 1082. The court’s decision, however, misconstrues nu-

merous prior decisions of this Court and unwarrantedly ex-

pands the protection of the Fifth Amendment to encompass

*By statute, a defendant charged with a crime punishable by death or life

imprisonment is entitled to twelve peremptory challenges. Mass. Gen. Laws

c. 234, § 29.

compelled statements which are used for purposes other than

their content. Moreover, in the circumstances of this case, the

First Circuit’s decision is even more bizarre since the respond-

ent’s statements had little, if any, evidentiary value.°

A. The Fifth Amendment Prohibits Only Compelled

Statements which are Offered for the

Truth of Their Content.

In defining the scope of the privilege against self-incrimina-

tion, this Court has consistently held that the privilege is a bar

against compelled statements which are used for their com-

municative content. See Holt v. United States, 218 U.S. 245,

253 (1910). Thus, compelling a defendant to give a sample of

his blood, Schmerber v. California, 384 U.S. 757, 765 (1966),

or to stand in a line-up for the purposes of identification,

United States v. Wade, 388 U.S. 218, 223 (1967), or to exhibit

certain clothing in the courtroom, Holt v. United States,

supra, at 253, or to give an exemplar of his handwriting, Gil-

bert v. California, 388 U.S. 263, 266 (1967), does not impli-

cate the protection of the Fifth Amendment. Rather, the

privilege against self-incrimination prohibits governmental

“. . . compulsion to disclose any knowledge [an individual]

might have.” United States v. Wade, supra, at 222 (emphasis

supplied).

*The First Circuit attempts to buttress its opinion that the respondent’s

statements were evidence by pointing to the prosecutor’s summation where

he argued that the respondent’s insanity defense was rebutted by his ability

to exercise his own peremptories. Walker v. Butterworth, supra, at 1082-

1083. However, the fact that the prosecutor stated that this was evidence

does not make it so. The prosecutor's conduct, therefore, must be analyzed

in terms of due process. See Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

The court below, however, rejected this approach.

In the instant case, the First Circuit reasoned that Walker's

statements “I am content” or “I am not content” conveyed to

the jury a subtle message which was directly relevant to

Walker’s sanity.

. in the context of an insanity defense, the words

necessarily take on an additional meaning and relate im-

portant and incriminating information. The content of

the words and the mental processes that they necessarily

embodied and revealed conveyed an inescapable message

to the jury.'°

Walker v. Butterworth, supra, at 1082-1083. Nevertheless,

the privilege does not carry with it any greater significance

merely because the defendant asserts that he was insane at the

time he committed the offense. Thus, statements made to an

examining psychiatrist are not within the scope of the privilege

since their use is as real or physical evidence rather than as

testimonial or communicative evidence. See United States v.

Baird, 414 F. 2d 700, 703 (2d Cir. 1969). See also United

States v. Bohle, 445 F. 2d 54, 66 (7th Cir. 1971); United States

v. Handy, 454 F. 2d 885 (9th Cir. 1971)."

In a recent case involving similar facts, the California Court

of Appeals reached a decision in direct conflict with the First

©The District Court stated that although it was “conceivable that a juror

could infer past sanity from a demonstration of present competency, the

logical leap is a substantial one.” Walker v. Butterworth, supra, 457

F. Supp. at 1240.

"' The First Circuit drew a distinction between compelled statements to a

psychiatrist and the statements in this case on the ground that the former are

of “great importance” on the issue of sanity. Walker v. Butterworth, supra,

at 1084. This Court, however, has yet to recognize an exception to the priv-

ilege based upon the “importance” of the evidence. Rather, the decision in

Miranda v. Arizona, 384 U.S. 436, 460 (1966), seems to indicate that such an

exception would find little support.

Circuit’s decision in the instant case. People v. Rucker, 82

Cal. App. 3d 450, 147 Cal. Rptr. 144 (1978). There, in order

to rebut the defendant’s defense of diminished capacity, the

prosecution introduced over the defendant’s objection state-

ments made by him during a police station interrogation in

which his continued requests for counsel were ignored. The

Court of Appeals affirmed the introduction of the statements

since the clear use of the statements was to demonstrate to the

jury the defendant’s “. . . clarity of voice, thought processes

and intonation.” Jd. at 148. Thus, it was not the content of

what the defendant had said that was relevant, but rather the

manner in which he had said it. Therefore, the court rea-

soned that the defendant’s statements fell directly within the

scope of this Court’s decisions in Schmerber v. California,

supra; Gilbert v. California, supra; and United States v.

Dionisio, 410 U.S. 1 (1973). The First Circuit, however, held

these decisions to be inapposite. Walker v. Butterworth,

supra, at 1083.

Thus, it is apparent that the First Circuit has totally mis-

construed the scope of the privilege against self-incrimination

and made it applicable to a defendant’s compelled statements

which are used for purposes other than to demonstrate the

truth of their content. Cf. Harris v. New York, 401 U.S. 222

(1971). While the facts in this case are unique, the effect of

the First Circuit’s decision is nevertheless far-reaching, for its

logical extension would prohibit the use of otherwise highly

probative evidence of a defendant’s mental faculties and leave

the jury to decide the issue of mental responsibility on the

often conflicting, abstract opinions of psychiatric experts.

B. The Effect of the Respondent's Compelled Statements

on the Successful Presentation of his Insanity

Defense was De Minimis.

At his trial, the respondent offered the testimony of two ex-

pert witnesses, a psychiatrist and a psychologist. The psychia-

trist had last examined the respondent eighteen months before

the crime and for less than two hours. The psychologist did

not examine the respondent until five months after the crime.

Yet, the First Circuit found that the respondent’s personal an-

nouncement of his peremptory challenges and the prosecutor’s

improper comment on it to be error of constitutional signifi-

cance which necessitated granting a writ of habeas corpus.

Even assuming that the respondent’s privilege against self-

incrimination was infringed by this Massachusetts tradition,

error, if any, was harmless beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18, 21-24 (1967).

While the First Circuit had little trouble concluding that the

respondent’s statements and the prosecutor’s comment under-

cut the respondent’s defense of insanity, it ignored the fact

that the central issue in the case was insanity at the time the of-

fense was committed, not competency at the time of trial. It

was this fact that caused both the Massachusetts Supreme Ju-

dicial Court, Commonwealth v. Walker, supra, at 563, and

the District Court, Walker v. Butterworth, supra, at 1240, to

conclude that the respondent’s statements were not relevant to

the issue of sanity. In finding the statements prejudicially

relevant, the First Circuit has engaged in unwarranted specu-

lation. See Buchalter v. New York, 319 U.S. 427, 431 (1943).

Moreover, whatever inference the jury drew from the re-

spondent’s statements could also readily be drawn from his

failure to disrupt the proceedings, his ability to consult with

his counsel, or his apparent comprehension of the nature of the

proceedings. The logical extension of the First Circuit’s deci-

sion would necessitate isolating a defendant whose defense is

insanity from the jury’s view so that no inferences at all could

be drawn from his conduct during the trial.'*

Finally, in the trial judge’s charge to the jury, he instructed

that it decide the case only upon the evidence presented. He

further defined evidence as that heard from the witness stand

and that represented in the exhibits. Additionally, he in-

structed that the prosecutor’s argument was not evidence, that

personal announcement of peremptory challenges was tradi-

tional in Massachusetts capital cases, and that in deciding

whether the respondent was criminally responsible the jury

should consider the respondent’s mental state at the time he

committed the crime.

In light of the marginal significance of the respondent’s

statements and the clear instructions by the trial judge, it is ap-

parent that requiring the respondent to announce his chal-

lenges did not amount to constitutional error which mandated

relief in this collateral attack.'*

Furthermore, to hold that such a neutral expression of satis-

faction or dissatisfaction with potential jurors is encompassed

by the privilege ignores the requirement of this Court that

“lijn order to invoke the privilege it is necessary to show that

the compelled disclosures will themselves confront the claim-

ant with ‘substantial hazards of self-incrimination.’” Cali-

fornia v. Byers, 402 U.S. 424, 429 (1971). Petitioner suggests

that the decision of the First Circuit is totally at odds with the

decisions of this Court and, in the words of Mr. Justice Holmes,

'? The First Circuit attempted to rebut this argument by reasoning that the

statements were compelled while the respondent’s other actions were volun-

tary. Yet, this overlooks the fact that the respondent’s very presence in the

courtroom is compelled as well.

‘That the Massachusetts procedure might seem archaic and irrational

does not alone warrant its being found unconstitutional. See Brooks v. Ten-

nessee, 406 U.S. 605, 613-616 (1972) (Burger, C.J., dissenting).

amounts to “an extreme if not extravagant application of the

Fifth Amendment.” United States v. Sullivan, 274 U.S. 259,

263-264 (1927).

Conclusion.

For the reasons stated above, the petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

STEPHEN R. DELINSKY,

Assistant Attorney General,

Chief, Criminal Bureau,

BARBARA A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

ROBERT S. POTTERS,

Assistant Attorney General,

One Ashburton Place,

Room 1805,

Boston, Massachusetts 02108.

(617) 727-2240

Appendix A.

DECISIONS

OF THE

SUPREME JUDICIAL COURT

MASSACHUSETTS

COMMONWEALTH US. TERRELL WALKER.

Suffolk. December 1, 1975.— June 24, 1976.

Present: HENNESSEY, C.J., REARDON, QUIRICO, BRAUCHER, KAPLAN,

Wixins, & Liacos, JJ.

Homicide. Search and Seizure. Constitutional Law, Search and sei-

zure. Probable Cause. Arrest. Practice, Criminal, Production of

evidence, Challenge of jurors, Fair trial, Instructions to jury, Ex-

amination of jurors, Location of defendant in court room, Capital

case. Identification. Evidence, Other offense, As to credibility of

witness, Cross-examination, Judicial discretion, Of insanity. Jn-

sanity.

At a murder trial, evidence that police officers went to an apartment

_ where the defendant was hiding, knocked loudly and demanded en-

try, that they did not use trickery or threats to gain entrance, and

370 Mass, 548 549

Commonwealth v. Walker.

that the lessee of the apartment admitted the police because she

was afraid of the defendant warranted a findiny that her conscnt to

the entry and search was freely and voluntarily given. [554-556]

Where findings were warranted that the lessee «f an apartment gave

her consent to a search of a bedroom and that police officers who

had observed someone peering from the bedroom window were jus-

tified in entering the bedroom to ascertain whether any person was

in that room, there was no error in the denial of a motion to sup-

press guns found in plain view in the bedroom. [556-558]

At a murder trial, where the lessee of an apartment voluntarily con-

sented to police entry, information obtained from the lessee could

be used as a basis for probable cause to arrest two codefendants and

there was no error in admitting testimony of the two codefendants

and another who was present in the apartment at the time of the

entry. [558-559]

Where there was probable cause to arrest a defendant for murder and

robbery and where, even if there had not been probable cause, the

arresting officer, who knew of the existence of {wo outstanding war-

rants against the defendant, was justified in making the arrest, there

was no error in admitting in evidence a pair of sneakers taken from

the defendant at the time of his arrest. [559-560]

At a murder trial, there was no error in the admission of testimony by

a police officer that at the time he arrested the defendant he was

aware of two outstanding warrants issued against the defendant pre-

viously, where the testimony was not admittcd as probative of the

contents of the warrants but only to show probable cause to arrest

the defendant. [560-561]

At a murder trial, where consent had been found to the police entry of

an apartment, there was no error in the exclusion of various ques-

tions designed to show that testimony of the lessee was “tainted” by

an illegal entry. [561-562]

There was no abuse of discretion in a judge’s denial of various mo-

tions to produce tapes of interviews with a witness or the grand jury

testimony of a witness for the purpose of refreshing the recollection

of police interviewers. [562-563]

At the trial of an indictment for murder, there was no merit in a con-

tention by the defendant that his constituiional rights against self-

incrimination and to a fair, impartial jury were violated by the re-

quirement that the defendant, after consultation with his attorney,

personally announce his contentment or dissatisfaction with prospec-

tive jurors even though the defendant raised an insanity defense;

the prosecutor’s reference in his closing argument to the defendant's

exercise of his peremptory rights, though better omitted, was not

prejudicial to the defendant. [563]

At a murder trial a witness’s out-of-court identification of the defend-

ant during a jury view of the scene eight months after the crime was

admissible where the witness’s identification was made spontane-

ously during a chance encounter, despite the fact that the witness

had not been able to identify the defendant on the day of the crime.

[563-565]

At a murder trial there was no error in the admission of a witness's

out-of-court identifications of the defendant {rom photographs and

at a lineup where there was nothing impermissibly suggestive in

either procedure and where the witness’s equivocal identification at

550 370 Mass, 548

Commonwealth v. Walker.

the lineup was brought to the jury’s attention; there was no error in

the judge's failure to make explicit findings as to whether an inde-

pendent basis existed for the witness’s in-court identification of the

defendant where he had made specific findings that the witness's

out-of-court identifications were proper. [566-568]

At a trial for murder and robbery, a witness’s testimony that he and

the defendant had a stolen car which they decided not to take to

the scene of the robbery was admissible where any prejudice to the

defendant was outweighed by the probative value of the statement

on the issue of criminal intent. [568-569]

At a murder trial, a mistrial was not required by the fact that a police

officer testified as to a witness's identification of the defendant and

the testimony was then struck, where the judge gave cautionary in-

structions at the first opportunity and questioned the jurors regarding

any influence or prejudice the statement may have created in their

minds against the defendant. [569-570]

Where a defendant had purportedly impeached a witness through use

of a portion of a transcript of the witness’s pre-trial testimony, there

was no error in allowing the Commonwealth to introduce in evidence

another portion of the transcript to show that the specified few re-

sponses in her pre-trial testimony, to which the defendant had re-

ferred, were not inconsistent with her trial testimony. [570-571]

At a trial for first degree murder where it was stipulated that a witness

would be permitted to plead guilty to murder in the second degree

if he testified against the defendant, there was no error in the ex-

clusion of defense counsel’s questions to the witness as to his moti-

vation for testifying; nor was there error in the exclusion of ques-

tions as to the witness’s refusal to testify at a pre-trial hearing on a

motion to suppress. [571-572]

At a murder trial, there was no error in the refusal of the trial judge

to ask prospective jurors whether they would give greater weight to

the testimony of a police officer than to that of a private citizen nor

in his refusal to allow the defense counsel personally to ask voir

dire questions of the prospective jurors. [572-573]

At a trial for first degree murder and robbery, the judge did not abuse

his discretion in refusing to allow the defendant to sit at the counsel

table rather than in the prisoner’s dock. [573-574]

There was no error in a criminal trial in the judge’s remarks in his in-

structions that the defendant could appeal the jury’s verdict but the

Commonwealth could not where, taken as a whole, the judge’s in-

struction was designed to protect the defendant from prejudice by

explaining why the defense counsel took exceptions to various rul-

ings and the prosecutor did not. [574-576]

At a murder trial, there was no error in allowing a witness, whose in-

court identification of the defendant was excluded because an imper-

inissibly suggestive photographic display had been shown to her

prior to trial, to testify that she could identify two men at the scene

of the crime who did not shoot the victim and that they were not

_ in the court room. [576-577]

At a murder trial in which the defendant introduced expert testimony

that he was insane at the time of the crime, the judge correctly in-

structed the jury on the use of the presumption of sanity and on the

Commonwealth’s burden of proving sanity beyond a reasonable

doubt. [577-582]

370 Mass. 548 551

Commonwealth v. Walker.

Upon a verdict of guilty on indictments charging first degrec murder

and armed robbery, where there was evidence at trial that the

defendant engaged in a carefully considered, intelligent plan to com-

mit the crimes, even though two qualified experts expressed the

opinion that the defendant was insane at the time of the crimes and

the Commonwealth produced no contrary testimony, the defendant's

evidence as to insanity was not so compelling as to require reversal

under G. L. c. 278, § 33E. [582-583] HENNeESSEY, C.J. (dissenting,

with whom KAPLAN, J ., joined). L1acos, J., concurring.

INDICTMENTS found and returned in the Superior Court

on December 13, 1973.

A pre-trial motion to suppress evidence was heard by

Taveira, J., and the cases were tried before him.

Norman S. Zalkind & Eric D. Blumenson (Stephen L.

Saltonstall with them) for the defendant.

Newman A. Flanagan, Assistant District Attorney, for

the Commonwealth.

HENNESSEY, C.J. The defendant was tried before a jury

on five indictments charging him with murder in the first

degree and armed robbery, and was convicted on all five

indictments. He was sentenced to life imprisonment on the

murder charge and to fifteen to twenty-five years’ impris-

onment on each of the armed robbery indictments, the

terms of years to be served concurrently with the life term.

The defendant prosecutes these appeals under G. L. c. 278,

§§ 33A-33G.

We find no error in the rulings of the trial judge, and

consequently we affirm the judgments. Further, a majority

of the Justices participating in this decision are of the

opinion that “justice in [this] particular case” (Common-

wealth v. Geraway, 364 Mass. 168, 184 [1973] [Tauro, C.J.,

and Braucher, J., dissenting]) does not require that we ex-

ercise the discretion vested in us under G. L. c. 278, $ 33E.’

1 The author of this opinion is compelled to express the view, which

can be found in a dissent infra, that the judgment should be reversed,

the verdicts set aside, and a new trial granted in this case through ap-

plication of our discretionary power under G. L. c. 278, § 33E. See Com-

monwealth v. Kostka, ante, 516, 539-540 (1976) (Hennessey, C.J., and

Kaplan, J., dissenting).

552 370 Mass. 548

Commonwealth v. Walker.

We turn now to a discussion of the defendant’s numerous

assignments of error seriatim.

The facts are as follows. Sometime around noon on No-

vember 30, 1973, three men with guns robbed a pawnshop

on Washington Street in Boston. While the robbery was in

progress, one of the armed men struggled momentarily

with and killed a plain-clothed Boston police officer who

happened to be inside the pawnshop at the time.

Responding to the robbery and murder, several police

officers, including Detective Louis McConkey of district 2

of the Boston police department, showed the customers

and employees of the pawnshop numerous photographs of

possible suspects. Tentative identifications of at least two

individuals, Terrell Walker and his brother, Arnold, were

obtained.

In the late afternoon of that same day Detective Mc-

Conkey and a contingent of plain-clothed police officers

from districts 2 and 11 sought entry into a Columbia Point

housing project apartment leased to Darlene Freeman,

Arnold Walker’s fiancée.? Among the officers accompany-

ing Detective McConkey was Detective Frank Olbrys,

who was aware of two outstanding warrants for the arrest

of Terrell Walker.

The police officers surrounded the ground level apart-

ment, knocked loudly on the door, and demanded entry.

Although there was no immediate response from within,

the police deduced that the apartment was occupied be-

cause they could hear noises emanating from inside the

apartment and because someone was observed peering out

a side bedroom window after peeling back the corner of a

drawn shade. A passkey was obtained to facilitate the po-

lice entry, but it was not until a bolt on the inside of the

apartment door was released by Ms. Freeman that the

police actually found themselves inside.

2 Detective McConkey knew Ms. Freeman, having talked to her ap-

proximately two or three months prior to November of 1973 on an un-

related matter. At that time he learned that Ms. Freeman was Arnold

Walker's fiancée, and that Terrell Walker possessed a firearm.

370 Mass. 548 553

554 370 Mass. 548

Commonwealth v. Walker.

Considerable confusion ensued. It is at least clear, how-

ever, that the defendant was asked his name and responded

falsely, and that Detective Olbrys identified him as Terrell

Walker.and placed him under arrest. Detective McConkey

took Ms. Freeman aside to find out what she might know

about the pawnshop incident, while other officers fanned

out throughout the apartment to gather up any remain-

ing individuals they might discover therein. During the

course of Ms. Freeman’s conversation with Detective Mc-

Conkey it was revealed that a gun or guns were in one of

the bedrooms. Two guns were eventually recovered from

a bedroom, and various other items of evidence connected

with the pawnshop robbery were discovered and seized

during the police occupation of the apartment.’ Arnold

Walker (now also under arrest) and other persons in the

apartment, including Ms. Freeman and the defendant,

were taken to police headquarters. From Ms. Freemz.n in-

vestigating officers learned the identity of two individuals

allegedly involved with the defendant in the robbery and

murder. Nathaniel Williams and Anthony Irving were

later apprehended with the murder weapon among their

possessions.

An extensive and comprehensive hearing was held be-

fore trial to consider the defendant’s motion to suppress

the evidence obtained by the police at Ms. Freeman’s

apartment.* The judge found that Ms. Freeman had know-

3 One of the guns seized was the police department revolver issued

to the slain Boston police officer; also taken were a medallion and three

rings found under a mattress in one of the bedrooms, a hatful of rings

and watches discovered under a chair in one of the bedrooms, and a

ring found in the pocket of a pair of trousers. With the exception of

the two guns, these items of evidence were suppressed from introduc-

tion at trial by the judge, who found at a prcliminary hearing on the

defendant’s motion to suppress that Ms. I‘recman had not given any

general consent to the search of her apartment and that these items

were not in plain view.

* The judge found as a preliminary matter that the defendant had

standing to object to the search of the apartment. See Commonwealth

v. Deeran, 364 Mass. 193, 195 (1973); Commonwealth v. Dirring, 354

Mass. 523, 531-533 (1968); Brown v. United States, 411 U.S. 223, 229

(1973) ; Jones v. United States, 362 U.S. 257, 267 (1960).

ingly, intelligently and voluntarily consented to the police

entry and presence in her apartment and that the two guns

found in one of the bedrooms were found by the police in

plain view. The judge further found that the defendant

had been arrested on probable cause and also on the two

warrants for his arrest which were outstanding. Ms. Free-

man’s later statements to the police, in which she incul-

pated Williams and Irving, were found by the judge to be

the result of an intervening, independent act on her part

to supply information to the police, and were not deemed

to be tainted in any way by the entry and search of her

apartment. We have mentioned elsewhere in this opinion

the judge’s disposition with regard to other items of real

evidence seized at the apartment. See note 3 supra.

1. It is uncontroverted that the police had no search

warrant covering Ms. Freeman’s apartment.’ The para-

mount question then becomes, broadly, Has the prosecu-

tion carried its burden of showing the existence of some

one of the “ ‘... few specifically established and well-delin-

eated’” exceptions to the warrant requirement? Vale v.

Louisiana, 399 U.S. 30, 34 (1970), quoting from Katz v.

United States, 389 U.S. 347, 357 (1967).

The prosecution demonstrated, primarily through the

testimony of Detective McConkey and Ms. Freeman, that

the police entered her apartment and confiscated at least

the two guns which were introduced in evidence as a result

of Ms. Freeman’s consent to that entry and search. That

Ms. Freeman, as lessee of the apartment, and one on the

premises at the time of the entry and search, could give a

valid consent is not disputed. The issue narrows, we think,

to whether, in all the circumstances, her consent to the en-

try and search can be said to have been freely and volun-

tarily given. Commonwealth v. Mendes, 361 Mass. 507, 512

. 5 The record does not require a finding that the police went to the

apartment for the purpose of searching it. For all that appears, it is

reasonable to assume that the police initially went there only to ques-

tion Ms. Freeman. The show of strength by the police is not incon-

sistent with this assumption in view of the police knowledge that three

armed men had already killed one police officer and were still at large.

370 Mass. 548 555

Commonwealth v. Walker.

(1972). Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973). Bumper v. North Carolina, 391 U.S. 543, 548

(1968).

Decisions of this court and of the United States Su-

preme Court make it clear that “consent freely and volun-

tarily given” means consent unfettered by coercion, ex-

press or implied, and also something more than mere

“acquiescence to a claim of lawful authority.” Bumper v.

North Carolina, supra at 549. The fact that a person is

not informed by the police that he has an unqualified right

to refuse to consent to an entry or search is “a factor to be

taken into account” on the issue of voluntariness, but is by

no means determinative of that issue. Schneckloth v. Bus-

tamonte, supra at 248-249.

In the instant case, determined as the police were to

enter the Freeman apartment, they did not utilize trickery

or threats to gain entrance to the dwelling. In considering

all the circumstances, we must take into account not only

the conduct of the police but also the conduct and state-

ments of persons inside the apartment prior to the police

entry.

At the preliminary hearing the judge would have been

warranted in finding that, after the loud knocks on the

apartment door, someone inside the apartment went to a

bedroom window, pulled the shade back, and informed

those inside the apartment that there were “cops” all

around the building. Ms. Freeman’s three children were

watching television in the apartment at that time. The

apartment occupants argued with the defendant, who ex-

pressed his intention not to go to jail by stating that “[t]he

only way to get me is take me out of here in a pine box.”

There was talk of guns by the defendant. A shootout

seemed imminently possible. Ms. Freeman was frightened

—not of the police, but of the defendant and what he

might do to avoid arrest.

We conclude, as the trial judge did, that it was this

atmosphere of tension and fear of the defendant which

prompted Ms. Freeman to admit the police in the first in-

stance. In ‘hese circumstances the judge was warranted in

556 370 Mass. 548

Commonwealth v. Walker.

concluding that her consent was freely and voluntarily

given since the only element of fear was injected by the

defendant’s conduct, which was unknown to the police at

the time they sought entry into the apartment. In view of

the limited information possessed by the police before they

entered the apartment and the spontaneity of their action

as the situation developed, the circumstances here are dis-

tinguishable from those in the case of Commonwealth v.

Forde, 367 Mass. 798 (1975), and more closely approxi-

mate the circumstances surrounding the warrantless entry

into an apartment which we recently upheld in Common-

wealth v. Moran, ante, 10 (1976). There was no error.

2. We turn now to the judge’s findings and rulings as to

the search conducted by the police once they were inside

the Freeman apartment. Two independent grounds were

offered to justify the seizure of the guns which were found

in one of the apartment bedrooms. On the one hand, the

judge found that these guns were discovered in plain view

by one of the officers who entered the bedroom to ascer-

tain whether that room was the one from which someone

had been observed peering out; on the other hand, the

judge found that Ms. Freeman expressly consented to a

search of the bedroom for the guns while she was convers-

ing with Detective McConkey.

In our view the judge could properly rely on either of

the two grounds cited by him. A finding was warranted

that Ms. Freeman gave consent to the search of the bed-

room for guns, and this permissible finding justified the

police action.

Even if we were to assume, as urged by the defendant,

that Ms. Freeman gave no consent to search the bedroom,

we conclude that the search also was justified on the sec-

ond ground cited by the judge, for it is clear that in light

of what the police observed and learned immediately on

entering the apartment, they then were justified in enter-

ing the bedroom at least for the purpose of ascertaining

whether there was any other person in that room. This in-

vestigation generally was justified in the interest of safety

of the police and the occupants of the apartment, and par-

10a

370 Mass. 548 557

Commonwealth v. Walker.

ticularly justified by the observation that someone had

earlier looked out of that window toward the police outside.

Since the police were lawfully in the bedroom, we need

only consider whether the requirements of plain view were

met. Coolidge v. New Hampshire, 403 U.S. 443, 465-473

(1971).

The plain view doctrine requires prior police justifica-

tion for an intrusion in the course of which an officer in-

advertently comes across incriminating evidence. The

“prior justification” language is merely another way of

articulating the necessity for “some... legitimate reason

for being present unconnected with a search directed

against [an] accused.” Coolidge v. New Hampshire, supra

at 466. The inadvertence requirement simply lends credi-

bility to the doctrine by ensuring that only evidence which

the police did not anticipate or know to be at the locus of

a search will be seized without a warrant. When the plain

view doctrine is relied on to justify a warrantless scizure

of evidence, attention must be paid also to seeing that the

police, in full possession of probable cause to believe that

incriminating evidence is present in a particular place,

have not waited until an opportune moment to “place

themselves in a position to gain a plain view of the evi-

dence.” Commonwealth v. Forde, 367 Mass. 798, 809

(1975) (Hennessey, J., concurring in result).

The testimony before the trial judge on the motion to

suppress revealed that Detective McConkey knew that the

Freeman apartment was not the residence of the defend-

ant. No officer testified to a reasonable belief that the

defendant would be found within the apartment. There

was no evidence that the police officers involved even an-

ticipated an occasion to search the Freeman apartment,

much less that they knew or anticipated that evidence re-

lated to the pawnshop robbery and murder might be lo-

cated there. As for the inadvertence requirement, in mak-

ing his finding on plain view the judge would have been

justified in relying on the testimony of Detective Richard

Driscoll, as corroborated by other police officers present at

the time, that Detective Driscoll discovered the uncon-

lla

558 370 Mass. 548

Commonwealth v. Walker.

cealed guns, one of which he immediately recognized as a

Boston police officer’s revolver, while turning to leave the

bedroom after checking the window. We conclude that it

was not error to admit the two guns in evidence.

3. The defendant based his next two related assign-

ments of error on the premise that no valid consent to en-

ter the Freeman apartment could be demonstrated in all

the circumstances. That being the case, he argues, all evi-

dence obtained as a product of the “illegal” police presence

would be inadmissible at trial absent a showing that it was

independently arrived at. Specifically, he contends that

the police could not base probable cause to arrest Nathan-

iel Williams and Anthony Irving on the information ob-

tained from Ms. Freeman at police headquarters after the

“illegal” entry, nor could the prosecution use the testi-

mony of these two accomplices or of Anthony Dobson, who

was in the apartment both earlier on the day of Novem-

ber 30, 1973, and during the “illegal” police entry. Cf.

Commonwealth v. Bumpus, 362 Mass. 672, 674-675 (1972).

These two assignments of error fail even without appli-

cation here of the familiar “fruit of the poisonous tree” ap-

proach.* Commonwealth v. Spofford, 343 Mass. 703, 707-

708 (1962). Wong Sun v. United States, 371 U.S. 471,

487-488 (1963). Nardone v. United States, 308 U.S. 338, 340-

341 (1939). Silverthorne Lumber Co. v. United States, 251

U.S. 385, 392 (1920). That principle is essentially con-

cerned with whether the use of secondary evidence — that

evidence which may have been arrived at through exploita-

tion of the primary illegality — will in any way encourage

police misconduct. We have upheld the trial judge’s ruling

6 The trial judge chose to rest his denial of the defendant’s motion

to suppress Ms. Freeman's statements and the testimony of Williams

and Irving on the finding that these statements resulted from an “in-

tervening, independent act” on her part to supply information to the

police. This approach seems sound, but, in light of our agreement with

‘the trial judge that there was no primary illegality, it is unnecessary

for us to pursue it further. The same can be said of the defendant's

claim regarding Anthony Dobson's testimony.

We do note that Ms. Freeman was not under arrest when she gave

information to the police later that same day. Compare her situation

with the facts in Michigan v. Tucker, 417 U.S. 433 (1974).

12a

370 Mass. 548 559

Commonwealth v. Walker.

on the voluntariness of Ms. Freeman’s consent to the po-

lice entry of her apartment, thus removing any stigma of

“taint” from whatever information Ms. Freeman later gave,

and from the testimony elicited from the three other wit-

nesses.

4. The defendant contends that it was error to deny

his motion to suppress from evidence a pair of Converse

sneakers taken‘from him after his arrest.’ In pressing this

contention, the defendant says that his arrest was unlaw-

ful (1) because the police entered a dwelling without ei-

ther an arrest or a search warrant; (2) because there was

no probable cause to believe that the defendant was in the

apartment; and (3) because the police did not have proba-

ble cause to believe that the defendant had committed a

crime.

We have already disposed of the issue as to the police

entry into the apartment. Beyond this, the trial judge con-

cluded that the sneakers were properly taken as part of a

legitimate search incident to arrest. He based his conclu-

sion on the alternatives that the defendant was arrested

on probable cause relating to the pawnshop robbery and

murder, and that there were two outstanding warrants for

the defendant’s arrest, the existence of which were known

to the arresting officer. We fully agree with the trial judge’s

conclusions as to both grounds on which he relied.*

7 The sneakers were a material item of evidence linking the defendant

with the crime since the slain policeman’s murderer, after the shooting

and at a time when considerable blood was on the floor of the pawn-

shop, straddled the body and removed the officer's wallet and service

revolver. Impressions from the tread pattern of the murderer's sneakers,

found in dried blood on certain tiles from the floor of the pawnshop,

could have been made by the sneakers worn by the defendant at the

time of his arrest. Additionally, expert testimony showed that there

were small particles of dried human blood, type O, on the defendant’s

sneakers; the slain policeman had type O blood.

8 Even if the police purported to act under the warrants, and seized

the sneakers pursuant to their investigation of the murder and rob-

bery, which was unrelated to the warrants, no invalidity of the seizure

is established since there was probable cause relating the defendant to

the murder and robbery. See Commonwealth vy. Tarver, 369 Mass. 302,

306, 308 (1975).

l3a

560 370 Mass. 548

Commonwealth v. Walker.

Even if we were to agree with the defendant’s conten-

tion that there was no probable cause to arrest him on the

murder and robbery charges then being investigated, there

was testimony by at least two officers present at the apart-

ment that they were aware of two extant warrants for the

defendant’s arrest.® One of the officers who testified to a

knowledge of the existence of these two warrants was, in

fact, the complaining officer in connection with one of the

two warrants. This officer further testified, over objection

and exception of the defendant, that while on patrol a

week or two before November 30, 1973, he had seen the

defendant, and that the defendant had fled when the of-

ficer got out of his vehicle to apprehend him. It was this

officer who identified the defendant and placed him under

arrest after the entry into Ms. Freeman’s apartment.

The legality of the defendant’s arrest in the circum-

stances described above is beyond question. The police

need not carry arrest warrants around on their persons.

Compare Commonwealth v. Bowlen, 351 Mass. 655, 659-

660 (1967), with Mass. R. Crim. P. 5 (c) (3) (Tent. Final

Draft, Feb. 1976). This is not a case where law enforce-

ment officers employed some ruse or acted in bad faith to

conceal an absence of probable cause to arrest an indi-

vidual. See Wilson v. United States, 325 F.2d 224, 225-226

(D.C. Cir. 1963), cert. denied, 377 U.S. 1005 (1964). Cf.

Bumper v. North Carolina, 391 U.S. at 549 n.14; Mapp v.

Ohio, 367 U.S. 643, 644-645 (1961). “Unlike probable cause

to search, probable cause to arrest, once formed will con-

tinue to exist for. the indefinite future, at least if no inter-

vening exculpatory facts come to light.” United States v.

Watson, 423 U.S. 411, 449 (1976) (Marshall, J., dissent-

ing).

5. The defendant challenges the trial judge’s admission

in evidence at the hearing on the motion to suppress the

testimony of Detective Frank Olbrys that he was aware of

the existence of two warrants issued previous to the defend-

® The defendant has not argued that there was no probable cause for

the issuance of these two warrants.

l4a

370 Mass. 548 561

Commonwealth v. Walke r.

ant’s arrest. This testimony was accepted on the issue of

probable cause to arrest the defendant, and was admitted

only to show the knowledge of the arresting officer and to

determine whether he acted prudently in the circum-

stances. The defendant’s challenge to the admission of this

testimony, bottomed as it was on the best evidence rule,

has no merit. The oral testimony was not received as pro-

bative of the contents of the arrest warrants. It is well

settled that the rule has no application to an attempt to

show, among other facts, the existence of a document or

action taken by persons in reliance on a document’s exist-

ence. See W.B. Leach & P.J. Liacos, Massachusetts Evi-

re hat (4th ed. 1967); K.B. Hughes, Evidence § 404

6. Several of the defendant’s allegations of error relate

to the correctness of excluding certain questions asked by

defense counsel at the suppression hearing. The excluded

questions were designed to show that the police “exploited”

their “illegal” entry of the Freeman apartment by inter-

rogating Ms. Freeman to obiain further evidence regard-

ing participants in the crimes. In the same vein, the judge

denied the defendant’s motions to produce a tape of the

Freeman interview by police, to listen to the tape in cam-

era, and to produce the tape and statements of Ms. Free-

man for the purpose of refreshing the recollection of the

police interviewers. Also excepted to is the denial of the

use of Ms. Freeman’s grand jury testimony to refresh

the recollection of one of the police interviewers, and the

striking of testimony of one officer to the effect that Ms.

Freeman had told certain officers, on the way to police

headquarters, that someone had taken some of the fruits of

the robbery “and gone south.”

We have fully examined the pertinent portions of the

transcript relating to these assignments of error. The trial

judge was correct in his rulings on the evidentiary matters

and on the several motions. Since the trial judge con-

cluded that there was no primary illegality in the police

conduct, and that Ms. Freeman voluntarily consented to

the police entry of her apartment, the attempt to show

15a

562 370 Mass, 548

Commonwealth v. Walker.

“taint” could not have been material to the judge’s ulti-

mate conclusion.

At any rate, the defendant had ample opportunity to

examine Detective McConkey, Sergeant Frank Mulvey,

and the head of the Boston police department homicide

unit, as to the circumstances of Ms. Freeman’s question-

ing and the information obtained from her. The only ques-

tions excluded by the judge were either leading or called

for a hearsay response by the witness McConkey. With re-

spect to one question an offer of proof was made to the

judge, but in light of the expected testimony and our con-

clusion that Ms. Freeman’s statements were not tainted,

we do not see how the defendant was prejudiced. The wit-

ness Mulvey demonstrated through his response to the

questioning of defense counsel that he really “couldn’t say”

whether Ms. Freeman specifically mentioned Williams and

Irving by name, and defense counsel was fully permitted

to elicit from the witness the few particulars he could re-

call concerning Ms. Freeman’s questioning.

The police tapes were the subject of a pre-trial motion

for production which was denied by the judge. They were

not utilized by the prosecution for any purpose during the

hearing on the motion to suppress. There is nothing be-

fore us to show that*the tapes contained statements in-

consistent with the testimony of the witness in court. We

have said in the past, and we reaffirm that principle here,

that a defendant does not have an absolute right to have

material of this nature produced for his use or inspection

at trial. This is a matter which ordinarily rests in the trial

judge’s sound discretion. Leonard v. Taylor, 315 Mass. 580,

583-584 (1944), quoting from Goldman v. United States,

316 U.S. 129, 132 (1942). But cf. Commonwealth v. Marsh,

354 Mass. 713, 721-722 (1968). Where notes, memoranda,

tapes or the like have not been used to refresh a witness’s

recollection, they, likewise, are not automatically to be

made available to the defense, especially when their use

would be ostensibly for the purpose of refreshing the mem-

ory of some other witness. This is the clear implication of

our reasoning in Commonwealth v. Guerro, 357 Mass. 741,

16a

370 Mass, 548 563

Commonwealth v. Walker.

756-757 (1970), and nothing said by this court with regard

to grand jury minutes in Commonwealth v. Stewari, 365

Mass. 99, 105-106 (1974), can be construed to the con-

trary.

7. The defendant was required personally to exercise his

peremptory rights in selecting the jury. He was directed to

say either “I am content” or “I challenge.” The use of this

procedure is denominated error in that it violated the

defendant’s rights against self-incrimination and to a fair,

impartial jury. Further, the defense cites prejudice in the

prosecutor’s reference to the defendant’s exercise of these

rights during his closing argument to the jury.’°

We reject this claim of error. The practice used in this

Commonwealth in cases of murder in the first degree to

require a defendant, after consultation with his attorney,

personally to announce his contentment or dissatisfaction

with prospective jurors is sound. The practice does not re-

quire additional justification simply because the defense to

the indictments is that the defendant, at the time of com-

mission of the offense, was not legally responsible for his

actions. Commonwealth v. Millen, 289 Mass. 441, 476-477,

cert. denied, 295 U.S. 765 (1935). Though the better ap-

proach is for the prosecutor to refrain from any reference

to the exercise of peremptory rights in a case such as this

one, we believe that the reference made by the prosecutor

here was cured by clear instructions to the jury by the

trial judge on this matter.

8. The witness Margulis, an employee of the pawnshop,

was allowed after extensive voir dire questioning by both

sides, to identify the defendant as the one who shot the

police officer. The witness’s in-court identification of the

defendant was bolstered by testimony that the witness

spontaneously identified the defendant as the murderer

some eight months after the crime, when the witness ob-

19In closing, the prosecutor stated: “Ask yourself about this par-

ticular defendant. What do you think? Do you think he knew what he

was doing when he stood up there and said, ‘1 am content with this

juror? I am content with this juror? I am content with this juror?’ Do

you think he knew what he was doing then?”

17a

564 370 Mass. 548

Commonwealth v. Walker.

served the defendant at the pawnshop while a view of the

scene was being conducted for the jury’s benefit. The

defendant claims that both the out-of-court and the in-

court identifications should have been excluded by the

trial judge, the former because it was the result of a proce-

dure so unnecessarily suggestive and conducive to irrepa-

rable mistaken identification as to amount to a violation

of due process, the latter because it was the product of the

suggestive procedure. Commonwealth v. Kazonis, 356

Mass. 649, 651-653 (1970), and cases cited. See Neil v.

Biggers, 409 U.S. 188, 198-199 (1972) ; Foster v. California,

394 U.S. 440, 442-443 (1969); Stovall v. Denno, 388 U.S.

293, 302 (1967).

The defendant points out that Margulis did not pick out

a photograph of the defendant (or of anyone else, for that

matter) shortly after the incident, that the witness did

not accurately describe the police officer’s assailant when

interviewed by the police on the day of the incident, and

that Margulis did not identify the defendant at a lineup

on the evening of the incident.'! He further emphasizes

that the Commonwealth pressed the view at the pawnshop

and the handcuffing of the defendant during all phases of

the view, and that the witness’s testimony, offered on voir

dire, was replete with contradictions to a statement given

to the police on the day of the crimes regarding his ability

to identify the assailant.

As to the suggestiveness of the “confrontation” on the

view, the trial judge found that Margulis recognized the

defendant right away as the one who shot the police of-

ficer, and that this recognition came without questioning

or suggestion from anyone. The due process right to a fair

trial is violated when the totality of the circumstances sur-

rounding an out-of-court confrontation shows that there is

“‘a very substantial likelihood of...misidentification.’ ”

Neil v. Biggers, supra at 198, citing Simmons v. United

States, 390 U.S. 377, 384 (1968). However, the concept of

11Qn voir dire the defendant brought to the judge's attention. that

Margulis had stated at the lineup that “I only saw the one guy who

shot [the police officer] and they are not the ones who shot [him].”

18a

370 Mass. 548 565

Commonwealth v. Walker.

misidentification in this context is tied in with the word

“confrontation,” which connotes “a calculated move by the

police to bring about pre-trial observations of a suspect by

an eyewitness.” Commonwealth v. D’Ambra, 357 Mass.

260, 263 (1970). In the D’Ambra case we said that when

an eyewitness accidentally confronts a suspect, and the po-

lice make no improper attempt to elicit an identification,

the problem of illegality disappears. [ bid.

No evidence was brought out on examination of the

witness Margulis that his observation of the defendant

was prearranged in any way. The defendant accompanied

the jury on the view at his own request. Thus, while it

may be difficult to accept that an individual would make

no identification of a suspect on the day of the crime, and

would unhesitatingly do so on seeing that same suspect,

handcuffed and surrounded by police officers, on a day

eight months after the incident, the due process argument

we consider here calls on us to weigh more than just the

witness’s credibility. Accepting the judge’s findings on this

issue as true, see Commonwealth v. Murphy, 362 Mass.

542, 547 (1972), we conclude that the trial judge was war-

ranted in finding that Margulis spontaneously recognized

the defendant at a chance encounter. See Allen v. Moore,

pi F.2d 970, 974 (1st Cir.), cert. denied, 406 U.S. 969

1972).

What we have said regarding Margulis’s out-of-court

identification has direct bearing in this case on the correct-

ness of the judge’s ruling with respect to the in-court iden-

tification which followed within a matter of days after the

out-of-court encounter.’

12 The judge found that, all told, Margulis observed the murderer for

several minutes, at one time face-to-face while the man held a gun to

him and took a plastic case containing identification cards from him;

at another time when, as close as one foot from him, the man strug-

gled with and shot the police officer; and at still another time when the

man returned to the body of the slain policeman and removed a gun

and wallet. The judge accepted the witness’s explanation that he did

not identify any photographs and failed to identify the defendant at

the lineup because of the effect of the incident on him, because his

attention was minimal due to the trauma of the incident, and because

the witness was scared and made but a cursory observation of the in-

_ ——————— —

19a

566 370 Mass. 548

Commonwealth v. Walker.

9. The witness Anastasio Kapfaskis, an employee of the

pawnshop at the time of the incident, testified that he had

been shown numerous photographs of possible suspects on

three occasions on the day of the murder, had identified

one photograph (the defendant’s) as that of the man who

shot the police officer, and had viewed eleven men in a

lineup held on the evening of the murder and identified

the seventh man from the left (the defendant) as the one

who shot the police officer. Kapfaskis was further allowed,

over the objection and exception of the defendant, to make

an in-court identification of the defendant as the murderer.

The defendant contends that this witness’s testimony

concerning his pre-trial identification of the defendant at

the lineup should have been excluded because it was the

product of an illegal arrest and was based on an invalid

lineup which violated the defendant’s right to due process

of law. It is further alleged that the in-court identification

proffered by the witness Kapfaskis should have been ex-

cluded because the trial judge made no finding regarding

an independent basis for this identification or, in the alter-

native, the identification was tainted by the “illegal” lineup

and should for this reason have been excluded.

In support of his argument regarding the witness’s pre-

trial identification, counsel for the defense brought out on

voir dire of this witness that his identification at the lineup

was equivocal, and that the officer conducting the lineup

unsuccessfully pressed the witness for a more definite state-

dividuals in the lineup. It was ruled that the in-court identification was

based solely and completely on the witness's observation of the defend-

ant during the course of the robbery and murder.

Because we have upheld the judge’s ruling that the pre-trial ‘“con-

frontation” was not so suggestive as to violate due process, it is un-

necessary for this court to enter into the special analysis (concerning

“independent source”) which is required in any case where it is shown

that there was a prior illegal pre-trial identification procedure. We fur-

ther express no comment as to the permissible applicability of an ap-

proach, different from the independent source rationale, to a confronta-

tion and in-court identification which occurred after the decision in

Stovall v. Denno, 388 U.S. 293 (1967). See Commonwealth v. Botelho,

369 Mass. 860, 870-875 (1976).

20a

370 Mass. 548 567

Commonwealth v. Walker.

ment.” As to the in-court identification, the defendant

cites as controlling the case of Commonwealth v. Mendes,

361 Mass. 507, 511 (1972), where we said that, in a case

where there was an illegal pre-trial identification necessi-

tating a new trial, the issue of independent basis for an in-

court identification should be considcred and resolved by

the trial judge in explicit findings.

We find no merit in either of these allegations of error.

The trial judge made specific findings, supported by the

witness’s testimony at trial and on voir dire, that there was

nothing impermissibly suggestive about the photograph

identifications or the lineup, at which the defendant was

represented by counsel. The judge’s findings amply sup-

port his conclusion. Rather than suggesting that any par-

ticular suspect in the lineup was indeed the one who shot

the police officer, the officer conducting the lineup was

pointing out that the witness should (in fairness, perhaps,

to one who was not involved in the pawnshop incident)

tell the police if he had seen any of the suspects before.

We cannot, in all the circumstances, consider the officer’s

prodding an intimation that the police believed that one

of the lineup participants was the assailant, or that Kap-

faskis was identifying “the wrong man.” The judge’s fail-

ure to make explicit findings relating to the issue of inde-

pendent basis is not error in this case, in light of his specific

and well based finding that there was no suggestiveness in

18 The following colloquy took place at the lincup, in the defendant’s

presence, after Kapfaskis had said that the one who shot the policeman

= either number seven (the defendant) or number eleven from the

eft:

THE POLICE OFFICER: “Have you ever seen any of them before?”

THE WITNESS: “Yes.”

THE POLICE OFFICER: “Which one?”

THE WITNESS: “Do I have to?”

THE POLICE OFFICER: “I feel it is your duty if you have seen them to

tell = We are no better than the witnesses we have. Like I said, which

one

The witness continued to equivocate, maintaining that it was either

number seven or number eleven from the left.

2la

568 370 Mass, 548

Commonwealth v. Walker.

the photograph identifications or the lineup.'* Conflicts in

Kapfaskis’s testimony before the grand jury regarding the

assailant’s footwear, as well as the full transaction of events

at the lineup, were brought to the jury’s attention and

were correctly treated as matters going to the weight of

the witness’s identification as opposed to its admissibility.

10. At trial, the Commonwealth presented Anthony Ir-

ving as its own witness. On direct examination, Irving

testified to a meeting prior to the robbery at which he

asked the defendant “if he wanted to make any money.”

Irving then stated that “we decided [to] make some

money, and we had a stolen car, but we didn’t want to

take the stolen car.” After the prosecutor queried the wit-

ness as to who was meant by his reference to “we,” the

defendant objected; the judge permitted the witness to

answer, “Me and [the defendant],” and the defendant ex-

cepted to the admission of this testimony. The defendant

now contends that, since it is common knowledge that

stealing or receiving a stolen automobile is a crime, this

testimony was prejudicial, and that the trial judge’s state-

ments before the jury in ruling on his objection” com-

pounded the prejudice.

It is generally not permissible to show that a criminal

defendant committed an unrelated crime on a prior occa-

sion if the purpose of this showing is to raise an inference

of guilt on the charge faced by the defendant at trial.

Commonwealth v. Welcome, 348 Mass. 68, 70-71 (1964).

14 See note 12 supra. In any event, we think that, if detailed findings

by the judge had been called for here, the evidence fully would have

warranted a finding of independent basis for the in-court identification

since the witness testified that he observed the assailant for “a good

minute” before and during the shooting, and gave a good description of

the clothing worn by the man he observed and the events which trans-

pired ee the shooting. See United States v. Wade, 388 U.S. 218, 241

(1967).

15 In making his ruling the judge said: “Well, I don’t know whether

Walker had anything to do with this. You have to explore this. I think

I will have to permit an explanation. He said, ‘We had a stolen car.’

Go ahead. What do you mean by ‘we?’ He said, ‘we.’” After the wit-

= response the judge said: “I will let it stand for whatever it is

worth.”

22a

370 Mass, 548 569

Commonwealth v. Walker.

23a

570 370 Mass, 548

Commonwealth v. Walker.

Commonwealth v. Banuchi, 335 Mass. 649, 654 (1957), and

cases cited. Nevertheless, this rule is not applicable in all

situations where the question arises; rather, there may be

other relevant and probative purposes on which to base ad-

mission of the testimony of unrelated crimes. We have

stated the test to be applied in these instances in this

way: “If... the value of the statement as legitimate proof

appeared to be substantially outweighed by the danger of

prejudice not correctable by the good sense of the jury, a

case could be made for excluding it ....” Commonwealth

v. Chalifoux, 362 Mass. 811, 816 (1973).

It is not apparent from the record that the Common-

wealth elicited this specific reference to a stolen car for

any invalid purpose. Further, any prejudice to the defend-

ant engendered by admission of this testimony was sub-

stantially outweighed by the probative value of the state-

ment on the issue of criminal intent, see Commonwealth

v. Butynski, 339 Mass. 151, 152 (1959), and the judge’s

instructions to the jury on the subject.

11. Detective McConkey testified before the jury that

following the incident he had shown Lawrence Bean, a wit-

ness to the robbery and murder, a group of photographs,

and that Bean had selected three or four photographs, one

being a photograph of the defendant. The defendant con-

tends that this testimony was inadmissible hearsay and

severely prejudicial because it violated his right to con-

front the witnesses against him as guaranteed by the Sixth

and Fourteenth Amendments to the United States Consti-

tution. Bruton v. United States, 391 U.S. 123, 126 (1968).

Pointer v. Texas, 380 U.S. 400, 406 (1965).

We do not agree that the admission of this testimony

required the allowance of the defendant’s motion for a mis-

trial. The testimony was struck from the record by the

judge and a definitive cautionary instruction was given to

the jury at the first opportunity, followed by a question-

ing of the jurors regarding any influence or prejudice

the statement may have created in their minds against the

defendant. The witness Bean had previously taken the

stand and had testified that he selected five or six photo-

graphs as “resembling” the men in the store on the day in

question, but he also testified before the jury that he did

not positively identify anyone at the lineup, and the clear

implication of his total testimony was that he did not get

a good look at the person who shot the police officer. Though

the defendant argues persuasively that Bruton v. United

States, supra, and Jackson v. Denno, 378 U.S. 368 (1964),

authoritatively established that curative instructions, in

certain circumstances, are insufficient to remedy the preju-

dice resulting from inadmissible but dramatic evidence

which reaches the jurors’ ears, we do not consider those

decisions apposite in the circumstances of this case. We

hold to our expressed belief that “it cannot be assumed

that jurors will ignore strong instructions to disregard cer-

tain matters.” Commonwealth v. Stone, 366 Mass. 506, 513

(1974), citing Commonwealth v. Gordon, 356 Mass. 598,

604 (1970).

12. The Commonwealth was permitted to read in evi-

dence a portion of the transcript of Ms. Freeman’s pre-

trial testimony after the defendant had purportedly im-

peached Ms. Freeman at trial through use\of another

portion of the same transcript of testimony. The defend-

ant claims that his use of the pre-trial testimony was to

show a prior inconsistent statement by Ms. Freeman re-

lating to whether she had seen a gun or guns before the

police found two guns in one of the bedrooms, and that the

Commonwealth could not corroborate Ms. Freeman’s trial

statement or use the pre-trial testimony to show a prior

consistent statement that the witness made. See Common-

wealth v. Heffernan, 350 Mass. 48, 52 (1966); Boutillette

v. Robbins, 338 Mass. 195, 197-198 (1958); Wilson v. Jef-

frey, 328 Mass. 192, 194 (1951).

The defendant’s statement of the rule of evidence re-

garding prior consistent statements, in the abstract, is cor-

rect. However, we find no error in the trial judge’s ruling

allowing the Commonwealth to read the disputed portion

of the transcript since it is plain that this ruling was predi-

cated on a desire to keep the witness’s entire testimony in

context. From a reading of the entire testimony of this

24a

370 Mass. 548 571

Commonwealth v. Walker.

witness it is readily seen that the specified few responses

in her pre-trial testimony, to which the defendant referred,

were not inconsistent with her trial testimony that she saw

the defendant with a gun before the police entered her

apartment. All that the defense succeeded in bringing out

at the pre-trial hearing was that Ms. Freeman had not ac-

tually seen any guns in the bedroom where they were

eventually discovered by the police.

13. Nathaniel Williams, an accomplice of the defendant

in the robbery, refused to answer questions (other than

preliminary questions) at the pre-trial hearing on the mo-

tion to suppress, claiming his privilege under the Fifth

Amendment to the United States Constitution. He testi-

fied at trial, however, giving a thorough description of the

events of November 30, 1973, and inculpating the defend-

ant as to the robbery and the murder. On cross-examina-

tion, certain questions propounded by the defendant bear-

ing on Williams’s motivation for testifying were excluded

by the judge, and it was further ruled that the defendant

could not pursue before the jury a line of questioning going

to whether Williams had refused to testify at the pre-trial

hearing.

The issues raised by the allegation that these eviden-

tiary rulings were in error are whether the judge unduly

limited the defendant’s rights to cross-examine and con-

front the witnesses against him, and whether the judge

erred in denying the defendant his right to impeach by

showing bias or motivation for Williams’s testimony.'*

25a

572 370 Mass. 548

Commonwealth v. Walker.

16 A related assignment of error concerns the trial judge's exclusion

of a question put to Ms. Freeman which sought to show that she might

be motivated to shift blame for the murder because her fiancé, Arnold

Walker, was under indictment as an accessory ‘after the fact to murder

stemming from the pawnshop incident. Notwithstanding the fact that

this question was not answered, the defendant brought out quite clearly

the relationship between Ms. Freeman and Arnold Walker, and further

showed that Ms. Freeman had no particular affection for the defend-

ant. We cannot say that the trial judge abused his broad discretion to

make proper rulings on the scope of cross-cxamination in this instance.

See, e.g., Commonwealth v. Heffernan, 350 Mass. 48, 50, and cases

cited, cert. denied, 384 U.S. 960 (1966).

Without derogating from the importance to a fair trial

of the right of cross-examination, see Commonwealth v.

Ahearn, ante, 283, 286-28" (1976) ; Commonwealth v. Fer-

rara, 368 Mass. 182, 186-190 (1975); Davis v. Alaska, 415

U.S. 308, 315-318, 320 (1974); Chambers v. Mississippi,

410 U.S. 284, 294-295 (1973), the courts of this Common-

wealth have recognized that this right is not necessarily

infringed by curbing inquiry where the matters sought to

be elicited have been sufficiently brought to the attention

of the trier of fact through other questioning or other

means. See Commonwealth v. Carroll, 360 Mass. 580, 589

(1971); Commonwealth v. Dominico, 1 Mass. App. Ct.

693, 712-714 (1974). In the instant case there was ample

evidence, including the recounting of a stipulation between

the prosecutor and Williams’s attorney that if Williams

testified the court would be asked to accept a plea of guilty

of murder in the second degree, which the jury could weigh

against the witness’s assertion on the stand that he was

motivated only to tell the truth. As for the defendant’s

contention that he was severely prejudiced by not being

permitted to bring out that Williams had refused to testify

earlier, we think the trial judge was well advised to rule as

he did in this case, and there was no abuse of discretion in

this ruling. See Commonwealth v. Heffernan, 350 Mass. 48,

50, and cases cited, cert. denied, 384 U.S. 960 (1966).

14. The defendant requested that the following question

be directed to prospective jurors: “This case will involve

testimony by both police officers and private citizens, and

such testimony may be in conflict. Will you tend to give

greater weight or belief to the testimony of a police officer,

simply because he is a police officer?” Although the Com-

monwealth had no objection to allowing this question, it

was within the sound discretion of the judge to deny the

request. Commonwealth v. Pinckney, 365 Mass. 70, 73

(1974). Commonwealth v. Stewart, 359 Mass. 671, 677

(1971) (no abuse of discretion in refusing similar ques-

tions even though defendant on trial for killing a police-

man). The defendant’s argument that refusal to put this

question to prospective jurors abridged his right to a fair

26a

370 Mass. 548 573

Commonwealth v. Walker.

and impartial jury by preventing effective voir dire exami-

nation is groundless..G. L. c. 234, § 28, as amended by St.

1973, c. 919.17 Commonwealth v. Pinckney, supra, and cases

cited. The same can be said for the defendant’s further

argument that the judge erroneously refused to allow de-

fense counsel personally to ask voir dire questions of the

prospective jurors. See Commonwealth v. Nassar, 354

Mass. 249, 253 (1968), cert. denied, 393 U.S. 1039 (1969) ;

Commonwealth v. Kiernan, 348 Mass. 29, 35-36 (1964) ;

Commonwealth v. Geagan, 339 Mass. 487, 504, cert. denied,

361 U.S. 895 (1959), petition for habeas corpus denied

sub nom. Geagan v. Gavin, 181 F.Supp. 466, 474 (D. Mass.

1960), aff'd, 292 F.2d 244, 248 (1st Cir. 1961), cert. denied,

370 U.S. 903 (1962).

15. The defendant moved before trial that he be allowed

to sit at the counsel table rather than in the prisoner’s

dock, as is customary in Massachusetts in criminal trials,

absent unusual circumstances. We have in other cases con-

sidered the same basic arguments as those presented on —

these appeals, i.e., that use of the dock deprives an accused

of his presumption of innocence before the jury and his

right to consult freely with counsel during the trial, and

prejudices him with respect to in-court identification by

witnesses. In those cases we have said that “it is within the

sound discretion of the trial judge whether to grant a

defendant’s request to sit at counsel’s table or elsewhere.”

Commonwealth v. Bumpus, 362 Mass. 672, 680 (1972),

citing Commonwealth v. Jones, 362 Mass. 497, 500-501

(1972) .1* In the present case the judge assured counsel for

17 The trial of this case took place before G. L. c. 234, § 28, was

amended by St. 1975, c. 335, which, “if it appears that, as a result of

the impact of considerations which may cause a decision ... io be made

in whole or in part upon issues extraneous to the case,” makes manda-

tory inquiry into matters such as “possible preconceived opinions to-

ward the credibility of certain classes of persons.”

18 Since the Bumpus decision, in Commonwealth v. Brown, 364 Mass.

471, 479-480 (1973), we established certain minimal guidelines which

we suggested a trial judge follow when he contemplates using excessive

or special security precautions at a trial. The Brown requirements were

geared to deal with special restraints or precautions, such as shackling,

27a

574 370 Mass. 548

Commonwealth v. Walker.

the defendant that he would have all the time he needed

to confer with his client during the trial. Despite the fact

that two identifying witnesses made reference to the man

in the dock as the one who shot the police officer, other

crucial identification testimony came from accomplices to

the crime who, presumably, would have been able to iden-

tify the defendant regardless of where he was seated in the

court room. We do not think that the judge abused his

discretion by arbitrary or unreasonable action, considering

the crimes charged and the defendant’s reputation.

16. The defendant cites as erroneous the judge’s in-

struction to the jury that the Commonwealth, unlike the

defendant, cannot appeal the jury’s decision. Claiming that

there was no necessity for injecting into the proceedings

the “extraneous and prejudicial” issue of appeal rights, the

defendant cites decisions from other jurisdictions in which

reference to the appeals process was held to be reversible

error. See United States v. Fiorito, 300 F.2d 424, 426-427

(7th Cir. 1962). State v. Mount, 30 N.J. 195, 212-215

(1959). Cf. People v. Johnson, 284 N.Y. 182, 187-188

(1940) (prosecutor’s questions to prospective jurors). An

examination of the cited decisions uncovers the rationale

behind such holdings: It is reversible error for the judge or

prosecutor to make remarks which have the inescapable

effect of reducing the jurors’ appreciation of the signifi-

cance of their deliberations and verdict. Such remarks im-

plicitly tell the jurors not to be overly concerned about ren-

dering hasty or “correct” verdicts, since the defendant is

adequately protected by the process of appeal to higher

tribunals,

The defendant has indeed touched on a subject which,

if it is to be mentioned to the jury at all, must be handled

with the greatest of care and discretion by a judge in fram-

ing his jury instructions. We can conceive of trials in which

the better practice might be to refrain from mentioning

handcuffing or gagging a defendant, and were not intended to deal with

less drastic means of minimizing the danger of harm to the public and

maintaining order in the court room, such as use of the prisoner's dock.

28a

370 Mass. 548 575

Commonwealth v. Walker.

anything about the Commonwealth’s part in the appellate

process. Where it appears to the trial judge that the defend-

ant could not have been placed in an unfavorable light

through the routine practice of his counsel in objecting and

excepting, again it may be preferable to forgo comment. In

our time it is probable that jurors are aware of appeals in

criminal cases, and unless the trial judge has some reason-

able belief that procedures employed during the trial may

have unduly confused the jury or unduly prejudiced one

side or the other — with an especially keen eye to any pos-

sible unfairness to the defendant — it is better to allow

their awareness to play what small part it will, if any, in

the decision they reach.

Having said this, we find no error in the instruction be-

fore us.’* Taken as a whole, this portion of the judge’s

19 The pertinent part of the challenged instruction is as follows:

“Now, during the course of the trial you probably observed un-

doubtedly that certain objections were taken by the defendant through —

his attorney. Well, the law in that regard is that the defendant, if he

fails to save an exception or take an exception to a judge's ruling, has

nothing as a basis for a review in a higher tribunal, so in order to pro-

tect the rights of the defendant, it is incumbent upon his attorney to

take an exception to any ruling that the Court might make in order to

perfect or open the door for an appeal, if one indeed is taken, and it

is only for the purpose of later determining of the legality of the

rulings made by the judge if exceptions are taken and if an appeal is

taken. This is the right of the defendant, defendant's counsel. This is

the reason why exceptions were taken by the defendant doing his job

for his client, or by the defendant’s counsel dving his job for his client.

“Now, on the other hand, you probably noted that certain objections

were made by the Assistant District Attorney but that no exceptions

were taken by the Assistant District Attorney. Well, under our proce-

dure and the state of our law a District Attorney or Assistant District

Attorney may make objections and call matters to the attention of the

Court and have discussions with the Court at the other end of the

bench, as you saw we did on many occasions, but the Commonwealth

has no right to an appeal except in certain preliminary matters with

which you are not now concerned. So, if the judge overrules an objec-

tion of the Commonwealth so far as the Commonwealth is concerned,

the Assistant District Attorney again may call a particular ruling of

law to the Court for correction, suggest correction to the Court, but he

cannot take a iegal exception. I wanted to point out to you why you

might have seen exceptions on the part of the defense counscl, no ex-

ceptions on the part of the Assistant District Attorney trying the case

for the Commonwealth.”

29a

576 370 Mass. 548

Commonwealth v. Walker.

instruction was plainly designed to protect the defendant

from prejudice by explaining his counsel’s unquestionably

proper actions in preserving his client’s rights.

17. The witness Susan Reyno was not permitted to

make an in-court identification of the defendant because

the judge, after voir dire, found that the prosecutor or some-

one designated by him had shown her a suggestive pho-

tographic display just prior to her testimony at the trial.

She had seen numerous photographs of possible suspects

shortly after the incident and had viewed the lineup held

that evening but had not positively identified the defend-

ant on either occasion. However, the Commonwealth did

elicit from the witness that she saw and could identify the

two men who did not shoot the police officer, and that

these two men were not in the court room. The defendant

assigns the denial of his motion for a mistrial as error, al-

leging that the judge permitted the jury, through this pro-

cedure, to infer that the witness had made an identifica-

tion of the defendant. It is further said that the defendant

was placed in a quandary through this procedure since he

could not cross-examine Mrs. Reyno to show her inability

to identify the defendant without exposing the jury to her

prior illegal identification.

The judge’s ruling, which precluded the in-court iden-

tification of the defendant by this witness, did not extend

to any testimony she offere:] regarding the other two men

she observed in the store on the day of the crimes. While

the record is somewhat muddled on this precise point, it

appears that the witness had testified previously that she

could identify two “fellows” who, from their locations in

the pawnshop at the moment of the shooting, could not

have killed the police officer. This testimony was received

before the jury without objection. There was no-motion

to strike this testimony at any point during the witness’s

examination. The effect of Mrs. Reyno’s later testimony

was cumulative at worst, see generally Commonwealth v.

Kirker, 362 Mass. 202, 203-205 (1972), and its admission

does not supply grounds for a mistrial.

30a

370 Mass. 548 577

3la

578 370 Mass. 548

Commonwealth v. Walker.

The defendant’s dilemma, referred to supra, was more

imagined than real. The record shows that the defend-

ant on cross-examination successfully procured an admis-

sion from the witness that she had lied to the defendant’s

investigator about the number of persons involved in the

robbery whom she could identify, and the jury were read

the lineup transcript where, confronted with the defend-

ant, Mrs. Reyno could not identify him and said, “No, he

was taller, I think.” The judge excluded further questions

by the prosecutor on redirect examination which would

have emphasized that Mrs. Reyno had said, prior to or

during the voir dire, that she could identify all three men

who were in the store. The judge also refused to allow the

prosecutor to use before the jury any photographs of the

two other men on the basis that they were not supplied to

the defendant pursuant to a court order. There was no sub-

stantial prejudice to the defendant in these circumstances.

18. The defendant produced at trial two lay and two

expert witnesses who testified, inter alia, to the defend-

ant’s bizarre behavior since early childhood, attempts to

place the defendant in McLean Hospital in early 1972, and

the defendant’s insanity within the meaning of Common-

wealth v. McHoul, 352 Mass. 544, 546-547, 555 (1967). The

Commonwealth produced no expert witnesses to rebut this

testimony. More will be said of the specifics of the expert

testimony infra; for now it is sufficient to note that this

evidence properly raised an issue for the jury to resolve.”

20 The defendant does not assert that, as matter of law, he should

have been granted directed verdicts of not guilty by reason of insanity.

This undoubtedly stems from our ruling in Commonwealth v. Smith,

357 Mass. 168, 177-180 (1970), where we said that it was not error

to deny a motion for a directed verdict in the context of a case in

which the Commonwealth presented no evidence that the defendant

was sane and the defendant presented two experts who concluded that

the defendant was insane at the time of the commission of the offense.

See Commonwealth v. Kostka, ante, 516, 535-536 (1976); Common-

wealth v. Ricard, 355 Mass. 509, 515 (1969); Commonwealth v. Hart-

ford, 346 Mass. 482, 489 (1963); Commonwealth v. Cox, 327 Mass. 609,

613 (1951). In the Smith case we emphasized that the question of

criminal responsibility “is one of the issues of fact which in a capital

The defendant argues that there was error in this case

in the judge’s instruction to the jury on sanity. The defend-

ant would have this court (1) reverse his convictions on

all the indictments because the judge’s instruction reversed

the burden of proof! and in effect allowed the Common-

wealth to prove its case by presenting no evidence whatso-

ever on the issue of sanity, or (2) set aside the verdicts of

guilty on all the indictments as against the weight of the

evidence since the defendant presented lay and expert tes-

timony as to his legal mental incapacity to commit the

crimes charged and the Commonwealth presented no af-

firmative evidence of sanity, relying instead on the “pre-

sumption of sanity.”

The trial judge instructed the jury that, “[g]enerally,

when a person is charged with a criminal offense and there

is no evidence introduced concerning his mental condition,

under such circumstances it is to be presumed that the per-

son charged with the crime was of sufficient mental capac-

ity to commit it. We assume under those circumstances, as

I just recently indicated, that the man has the mental

capacity to commit a crime. The law states that in such

cases there is a presumption that a person is sane.”? He.con-

tinued to instruct that the jury must “consider and look at

the whole evidence regarding the mental condition of the

defendant in making [the] determination [of sanity or

case must ‘be tried by a jury,’” and we were emphatic in holding that

the power of the jury as sole judges of the credibility and weight of

all the evidence of sanity could not be usurped by expert opinion testi-

mony. Commonwealth v. Smith, supra at 178, 180.

21 The burden of proof is a composite burden usually requiring the

party on whom it rests to “go forward” with the evidence (the “burden

of production”) and to convince the trier of fact by some quantum of

evidence (the “burden of persuasion”). The defendant concedes that,

even in a criminal case, where insanity is a defense the defendant shoul-

ders the “burden of production,” and therefore no challenge to the

judge’s instruction in this case is premised on a shifting of this burden.

The defendant's challenge to the instruction is concerned only with the

manner in which, from his viewpoint, it shifted to him the “burden of

persuasion.”

22 See Commonwealth v. Kostka, supra at 525 n.5, wherein we ex-

plained the necessity of using the term “presumption,” and indicated

that we do not suggest that the term be used in instructing the jury.

—

32a

370 Mass. 548 579

Commonwealth v.. Walker.

insanity],” and that “[t]he burden is upon the Common-

wealth to prove that the defendant was legally sane beyond

a reasonable doubt”... as I have already defined for you

the meaning of proof beyond a reasonable doubt.”

The judge then pointed out to the jury that “we have

had some opinion testimony given by psychiatrists, psy-

chologist, and we have heard other evidence as to the men-

tal capacity of the defendant for his acts or conduct.” After

explaining that those who have “given special attention

and study to the field of mental infirmities and weaknesses

[are] allowed to give [their] opinion as to the mental

capacity of a defendant to commit a crime,” the judge

charged that because experts are allowed to express their

opinions, “it doesn’t follow that [they] are to usurp the

function or to stand in the place of the jury.” Experts’

opinions, the judge noted, are “evidence for your consider-

ation,” and “subject to the weight that the jury feels

should be given to it.”

The judge then told the jury that “[i]n assessing a

defendant’s mental responsibility for crime, the jury should

weigh the fact that a great majority of men are sane and

the probability that any particular man is sane.” The as-

sessment of mental responsibility for crime, the judge said,

“is to be made in each case in the light of the evidence in-

troduced, the circumstances that [the jury] have heard.”

As “sole judges of the credibility and weight of all evidence

on the issue of insanity,” the jury “may believe, but is not

compelled to believe, any... testimony or opinion given

by an expert.”

23 The defendant flags as confusing and incorrect the judge's refer-

ence at one point in his charge to the Commonwealth's burden of

proving the defendant “reasonably sane beyond a reasonable doubt.”

Beyond question, this was an unfortunate slip of the tongue. However,

coming as it did — sandwiched between repeated references to the cor-

rect standard of “legally sane beyond a reasonable doubt” — we will

not engage in a “fine-spun parsing of the... judge's charge to the jury

[so as to turn] the appellate review of this case into [a] ‘quest for

error’....”" Cool v. United States, 409 U.S. 100, 105 (1972) (Rehnquist,

J., joined by Burger, C.J., and Blackmun, J., dissenting). See Cupp v.

Naughten, 414 U.S. 141, 146-147 (1973).

33a

580 370 Mass. 548

Commonwealth v. Walker.

The judge then reiterated that “it has been stated in

our judicial decisions that it is for the jury to determine

whether or not the fact that a great majority of men are

sane and the probability that any particular man is sane

may be deemed to outweigh the evidential value of any

expert testimony that [a person] is insane.” In concluding

this portion of his charge, the judge stated that “[i]t is

for the jury to determine again on all the evidence and all

of the circumstances whether the defendant did or did not

lack mental capacity to commit a crime.”

We find no reversible error in this charge to the jury.

Contrary to the defendant’s assertion, the judge did not

instruct the jury that they could weigh the “presumption

of sanity” as an element of the whole evidence and then

determine that the “presumption” outweighed the evi-

dence of lay and expert witnesses that the defendant was

insane at the time of the crimes. The judge’s reference to

the fact that in the mine run of cases (where no evidence

is presented by either side on the issue of sanity) a person

is “presumed” sane, though we do not see its relevance in

this case, was merely introductory. This language set the

stage for the judge’s more pertinent instructions as to the

law in cases where the defendant does produce evidence

of insanity. In the latter, more crucial portion of his charge

the judge instructed, not as to any “presumption of san-

ity,” but only as to the jury’s prerogative of considering

the “fact that a great majority of men are sane and the

probability that any particular man is sane.”**

In so instructing the jury, the judge correctly distin-

guished between the procedural and substantive operations

of the “presumption of sanity” which we recently analyzed

in Commonwealth v. Kostka, supra at 530-531. The sub-

stantive operation of the “presumption,” we said in

Kostka, does not require or allow the jury to weigh the

“presumption” itself as evidence; “rather, the jury weigh

24 See Commonwealth v. Kostka, supra at 525 n.5 (1976) wherein

we described the appropriate charge to be given as to this aspect of

the proof of sanity.

34a

370 Mass. 548 581

Commonwealth v. W alker.

the facts underlying the presumption and the inferences

that may follow from those facts... which are considered

to be part of the jury’s ‘common experience that most peo-

ple...are sane’” (citations omitted). Commonwealth v.

Kostka, supra at 530-531.

Nor are we compelled to conclude that the judge’s in-

struction here permitted the jury to find the defendant

sane beyond a reasonable doubt based solely on their com-

mon experience that most men are sane. As we have recog-

nized in several decisions (see note 20 supra), most no-

tably Commonwealth v. Smith, 357 Mass. at 180-181,

whether or not a defendant testifies or makes an unsworn

statement, there is invariably other evidence which a jury

are permitted to weigh in reaching their conclusion on the

sanity issue. See Commonwealth v. Ricard, 355 Mass. at

515 (evidence of provocation and of defendant’s conduct

before and after the crime) ; Commonwealth v. Hartford,

346 Mass. at 489-490 (testimony of witnesses as to defend-

ant’s conduct around the time of the crime); Common-

wealth v. Cox, 327 Mass. at 613 (evidence of murder

committed with deliberately premcditated malice afore-

thought). In the instant case there was accomplice testi-

mony relating to the defendant’s conduct before the crimes,

eyewitness testimony relating to the defendant’s conduct

at the time of the murder, and testimony from others who

were able to observe the defendant a short time after the

crimes had been committed. In addition, the circumstances

of the murder in this case could not have made it “plainly

apparent” that no sane person would have committed the

act. Commonwealth v. Smith, supra at 180. See Common-

wealth v. Francis, 355 Mass. 108, 111 (1969); id. at 112

(Whittemore and Cutter, JJ., dissenting). The charge to

the jury clearly and correctly pointed out that their duty

was to consider all the evidence in reaching their decision

on the defendant’s mental responsibility.

Finally, we are not persuaded that the judge’s instruc-

tion impermissibly shifted the burden of proof to the

defendant. The instruction was emphatic as to the Com-

35a

582 370 Mass. 548

Commonwealth v. Walker.

monwealth’s burden of proving sanity beyond a reasonable

doubt; it left no room for the jury to maneuver in deter-

mining whether that burden had been met on all the evi-

dence. As we said in Commonwealth v. Kostka, supra at

533, since sanity is not an element of the crimes charged,

“recent Supreme Court cases on the use of presumptions

and inferences to establish an element of the offense...

[and thus shift the burden of proof as to those elements to

the defendant, are not] apposite to our inquiry.”

19. Disposition under G. L. c. 278, § 33E.

With particular reference to the defendant’s urging that

we set aside the verdicts of guilty as against the weight of

the evidence because the Commonwealth presented no ex-

pert testimony that the defendant was sane at the time of

the crimes, our cbservations in the Kostka case are per-

tinent. As we said there, “We believe that the instant case

can be distinguished readily from the cases in which we

have determined that the defendant’s evidence of insanity

was so compelling that reversal under § 33E was appropri-

ate.” Commonwealth v. Kostka, supra at 537-538.

We have alluded to the testimony in this case bearing

on the circumstances of the crimes which the jury could

properly consider as relevant to the dual tests of sanity as

set forth in Commonwealth v. McHoul, 352 Mass, 544, 546

(1967). There was testimony from one of the defendant’s

accomplices that he and the defendant planned the pawn-

shop robbery “to make some money,” and that they en-

listed as the driver of the getaway car a third person who

had a car bearing out-of-State license plates; the witnesses

to the murder testified that the defendant shot the police-

25 In this regard the instruction was in conformity with the standard

long enunciated by this court in the many cases cited and discussed

in Commonwealth v, Kostka, supra.

20In this quote from Kostha we cited Barnes v. United States, 412

U.S. 837 (1973), and Turner v. United States, 396 U.S. 398 (1970),

cases relied on by the defendant in the present case as supportive of

his claim that the instruction impermissibly shifted the burden of

proof to him.

36a

370 Mass, 548 583

Commonwealth v. Walker.

man during a struggle, and then returned to the slain offi-

cer’s body to remove his wallet and service revolver; Ms.

Freeman and Anthony Dobson, who were present in the

Freeman apartment after the robbery and murder, testified

as to the events surrounding the “splitting up” of the rob-

bery proceeds; Ms. Freeman testified as to the defendant’s

reaction on learning that the police had surrounded her

apartment; and, finally, two of the police officers present at

the Freeman apartment testified that the defendant denied

that he was Terrell Walker when asked his identity. From

this testimony a basis could be found to differentiate be-

tween the instant case and cases like Commonwealth v.

Mutina, 366 Mass. 810 (1975) , and Commonwealth v. Cox,

327 Mass. 609 (1951), where, as we pointed out in Kostka,

supra at 538, “there was neither an intelligent plan nor a

rational motive for the murder.”

Furthermore, though this case differs even from Kostka

in that two qualified experts (as compared to one such ex-

pert in the Kostka case) expressed the opinion that the

defendant was insane at the time of the crimes, we cannot

say that the jury would not have been justified in accord-

ing little weight to both of the experts’ opinions. In particu-

lar, the opinion of the first of the two experts (Dr. Gatti)

was susceptible to receiving slight value since he had seen

the defendant only once for approximately an hour and a

half some one and one-half years before the pawnshop in-

cident and, admittedly, he had no knowledge of anything

that might have happened to the defendant in the interval

between his interview with the defendant and the commis-

sion of the offenses.

We have examined the entire record and given careful

consideration to all the defendant’s assertions in view of

our duty under G. L. c. 278, § 33E, and a majority of the

court are of the opinion that justice does not require re-

versal, a new trial, or the entry of a verdict of a lesser

degree of guilt.

Judgments affirmed.

37a

584 370 Mass. 548

Commonwealth v. Walker.

HENNESSEY, C.J. (dissenting in part, with whom Kaplan,

J., joins). As in the recent case of Commonwealth v.

Kostku, ante, 516 (1976), I am impelled to utilize the un-

usual procedure of writing the main opinion for the court

and including in this separate opinion my dissent from the

court’s reasoning in declining to set aside the verdict in

this case under § 33E.

Once again we are faced on appeal with a case in which

there was uncontradicted expert testimony that the defend-

ant — who had a long history of mental disease antedating

the crime — was insane at the time he committed the of-

fenses with which he was charged. In my opinion, not only

is the fact that the Commonwealth has chosen not to pro-

duce affirmative evidence of sanity “inexplicable” (see Peo-

ple v. Silver, 33 N.Y.2d 475, 483 [1974]), but it results, in

this case, in injustice of the kind this court may prevent

by exercising our discretion under § 33E.

In the majority’s refusal to act under § 33E here, I dis-

cern a trend toward treating the Commonwealth’s burden

on the sanity issue in cases like Commonwealth v. Mutina,

366 Mass. 810 (1975), and Commonwealth v. Cox, 327

Mass. 609 (1951), differently from its burden in cases such

as this one and Commonwealth v. Kostka, supra. There

may be some validity to this trend; but the problem re-

mains as to just what role the “presumption of sanity”

should play in these cases. I suggest that a more uniform

approach by this court would place the Commonwealth on

notice that the failure to introduce medical evidence of

sanity, in the face of credible evidence tending to establish

insanity, means that the Commonwealth “runs the very real

risk of reversal and the granting of a new trial” under the

provisions of § 33E. Commonwealth v. Kostka, supra at 539-

540, (Hennessey, C.J., and Kaplan, J., dissenting in part).

Liacos, J. (concurring). I am in general agreement

with the majority’s reasoning and agree with their result

in this case. I share, however, the Chief Justice’s concern

about the proper role of the “presumption of sanity” after

credible evidence of insanity has been adduced. I therefore

38a

370 Mass. 585 585

Commonwealth v. Bulliro.

39a

Appendix B.

join in that part of his dissenting opinion which suggests

that reversal and the granting of a new trial may be ap-

propriate should the Commonwealth fail to produce affirma- UNITED STATES DISTRICT COURT

FOR THE

tive evidence of sanity in a case such as this.

DISTRICT OF MASSACHUSETTS.

TERRELL WALKER,

PETITIONER,

FREDERICK BUTTERWORTH er At.,

RESPONDENTS.

Civ. A. No. 77-973-C.

September 28, 1978.

| Norman S. Zalkind and Stephen L. Saltonstall, Zalkind &

Zalkind, and Eric D. Blumenson, Suffolk University Law

School, Boston, Mass., for petitioner.

Robert S. Potters, Asst. Atty. Gen., Crim. Div., Boston,

Mass., for respondents.

Opinion

Carrrey, Chief Judge.

This is a § 2254 petition for a writ of habeas corpus brought

by a state prisoner, Terrell Walker, against Fred Butterworth,

Superintendent of Massachusetts Correctional Institution,

Walpole, Massachusetts. Petitioner is presently serving a sen-

40a

tence of life imprisonment imposed by the Superior Court of

Suffolk County after his conviction on one count of first-degree

murder of John D. Schroeder, a plain-clothed police officer,

and four counts of armed robbery of Officer Schroeder, a loan

company, and two customers. The defense offered was that

petitioner was insane at the time he committed the charged of-

fenses. The convictions were affirmed by the Supreme Judici-

al Court, and a petition for certiorari was subsequently

denied. Commonwealth v. Walker, Mass. 350 N.E.2d 678,

cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314

(1976). Petitioner has exhausted available state remedies.

Under 28 U.S.C.A. § 2254(a), federal habeas corpus review

does not lie for every legal error, infirmity or undesirable prac-

tice occurring in a state trial, but rather is limited to those er-

rors which violate a state prisoner’s federal constitutional or

statutory rights and which cannot be said to be harmless be-

yond a reasonable doubt. E.g., United States ex rel. Santiago

v. Vincent, 423 F.Supp. 103, 106 (S.D.N.Y. 1976). aff'd, 553

F.2d 94 (2d Cir. 1977); see Cupp v. Naughten, 414 U.S. 141,

146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Petitioner contends

here that his jury trial in August, 1974 was constitutionally

defective in four respects:

(1) The court’s instruction that the Commonwealth cannot

take an appeal but the defendant can violated petitioner’s

rights to due process of law and to a constitutionally fair trial

by an impartial jury;

(2) the combination of the court’s requirement that the peti-

tioner personally exercise his peremptory jury challenges, and

the prosecutor’s argument that this exercise demonstrated

sanity, violated petitioner’s rights under the Fifth, Sixth, and

Fourteenth Amendments of the United States Constitution;

(3) the confinement of petitioner in the prisoner’s dock erod-

ed the presumption of innocence and deprived petitioner of his

right to a constitutionally fair and impartial trial;

4la

(4) the court’s instructions, particularly on the “presump-

tion of sanity,” reduced the Commonwealth’s burden of proof

and deprived him of a constitutionally fair trial on the issue of

his sanity, in violation of petitioner’s right to due process of

law.

Every claim raised in support of the petition was directly

addressed and rejected by a majority of the Supreme Judicial

Court. Indeed, disagreement was voiced by three of the Jus-

tices only with respect to the presumption-of-sanity issue. 350

N.E.2d at 702 (Hennessey, C.J., & Kaplan, J., dissenting in

part), 350 N.E.2d at 702-03 (Liacos, J., concurring). On

habeas review their reasons in support of a discretionary rever-

sal under Mass.Gen.Laws Ann. ch. 278, § 33E (West Supp.

1977-78) do not require or support a finding of constitutional

error. See Cupp v. Naughten, supra, 414 U.S. at 146, 94S.Ct.

396.

After a hearing and a review of the voluminous record, I

rule that petitioner’s application for a writ of habeas corpus

should be denied and the petition dismissed.

RIGHTS OF APPEAL

At trial, the court, in the course of its instructions to the

jury, offered an explanation of why defense counsel, but not

the Assistant District Attorney, had taken exception to over-

ruled objections. The court observed that the Commonwealth

enjoyed no right of appeal from “particular ruling{s] of law”

made at the trial. By inference, the court suggested that the

defendant could pursue an appeal from such rulings and his

counsel took exceptions to its overruled objections in order to

preserve that right.

The Supreme Judicial Court rejected claim of error re the

mention of appeal rights. In acknowledging the sensitivity of

42a

this subject in the context of jury instructions, the court de-

clared that the better practice, in most trials, would be to re-

frain from mentioning either the appellate process or the ob-

jection and exception procedure. 350 N.E.2d at 696-97. But

viewing the lengthy charge as a whole, the court concluded

that the challenged portion of the instruction “was plainly

designed to protect the defendant from prejudice by explain-

ing his counsel’s unquestionably proper actions in preserving

his client’s rights.” Id. 350 N.E.2d at 696-97. Therefore, it

ruled that cases such as United States v. Fiorito, 300 F.2d 424,

426-27 (7th Cir. 1962), and State v. Mount, 30 N.J. 195,

212-15, 152 A.2d 343 (1959), were distinguishable because

these remarks were not intended to dilute the jurors’ apprecia-

tion for the significance, correctness, or permanence of their

verdicts. Id. 350 N.E.2d at 696; cf. People v. Johnson, 284

N.Y. 182, 187-88, 30 N.&.2d 465, 467 (1940).

Petitioner now contends that the potential effect of the in-

struction on the jury, not the well-intentioned motive of the

trial judge, should have been the focal point of the reviewing

court. He argues that coming from the judge, the remark was

prejudicial because it skewed the jury’s sense of responsibility

by allowing its members to believe that a mistaken decision

against the Commonwealth was final, but that an error

against the defendant could always be corrected.

The precise contours for federal habeas review of an errone-

ous state-court instruction have been forcefully articulated by

the Supreme Court:

Before a federal court may overturn a conviction result-

ing from a state trial in which this instruction was used, it

must be established not merely that the instruction is un-

desirable, erroneous, or even “universally condemned,”

but that it violated some right which was guaranteed to

the defendant by the Fourteenth Amendment.

43a

. . . [A] single instruction to a jury may not be judged

in artificial isolation, but must be viewed in the context of

the overali change. Boyd v. United States, 271 U.S. 104,

107 [46 S.Ct. 442, 443, 70 L.Ed. 857] (1926)... . [A]

judgment of conviction is commonly the culmination of a

trial which includes testimony of witnesses, argument of

counsel, receipt of exhibits in evidence, and instruction of

the jury by the judge. Thus not only is the challenged in-

struction but one of many such instructions, but the pro-

cess of instruction itself is but one of several components

of the trial which may result in the judgment of convic-

tion.

. . . [T]he question is not whether the trial court failed

to isolate and cure a particular ailing instruction, but

rather whether the ailing instruction by itself so infected

the entire trial that the resulting conviction violated due

process. Cupp v. Naughten, supra, 414 U.S. at 146-47,

94 S.Ct. at 400.

Neither Fiorito nor Mount, relied on by plaintiff, involved

federal habeas review of a jury charge delivered at a state

court proceeding. Indeed, both decisions relied upon the

broad, nonconstitutional, supervisory-power grounds that

Cupp rejected as alien to habeas analysis. 414 U.S. at 146, 94

S.Ct. 396, see 300 F.2d at 427, 152 A.2d at 352. Moreover,

the jury instructions challenged in Fiorito flagrantly invited a

juror to conclude that his factual determination was prelimi-

nary and thus unimportant. See 300 F.2d at 425-27. The in-

struction in the instant case, however, did no more than say

that the judge’s rulings of law were not final with respect to

the defendant. See United States v. Miceli, 446 F.2d 256,

259-60 (1st Cir. 1971). It invited no abdication of the jury’s

exclusive province to find facts. Accordingly, Fiorito and

Mount are distinguishable and do not control this case.

44a

I concur with the Supreme Judicial Court that a fair reading

of the challenged portion of the instruction suggests that it was

gratuitously intended to benefit Walker, not to prejudice him.

Speculation about the effect of a discrete portion of a 57-page

charge, on the minds of lay jurors who sat through a two-week

trial, is an uncertain task for a judge as well as for counsel. In

its charge, the trial court made it clear to the jury; that the

Commonwealth was obligated to prove the petitioner’s guilt

beyond a reasonable doubt; that their duty to pass upon the

guilt or innocence of the defendant was a “grave,” “solemn,”

and “heavy” one; that their verdict should be free of bias, prej-

udice or hostility; that speculation, guesswork, surmise or con-

jecture should play no part in their consideration; that they

were the sole “judges . . . [and] final arbiters of the facts;”

that their analysis of testimony should be fair, impartial, and

dispassionate; and that they must accept and apply the law as

instructed. Thus, even assuming that effect rather than intent

is the proper inquiry, the trial judge’s comment, in the context

of the entire charge, plainly did not encourage, invite or sug-

gest that the jury violate their oath and find the petitioner

guilty because of the availability of appellate review on his

behalf. Thus, applying the Cupp standard to this instruction,

I conclude that the reference to the mechanics of appeal did

not have the effect of prejudicially weakening the jurors’ sense

of their responsibility to find the facts and objectively deter-

mine guilt or innocence. Cf. Dunn v. Perrin, 570 F.2d 21, 25

(1st Cir. 1978), cert. denied, ___ U.S. ___., 98 S.Ct. 3102, 57

L.Ed.2d 1141 (1978). Accordingly, I rule that the charge did

not deny petitioner his constitutional rights to due process of

law and a fair trial by an impartial jury.

45a

PRISONER'S Dock

Petitioner’s second contention is that he was unconstitu-

tionally compelled to appear before the jury in the “prisoner’s

dock.” Absent unusual circumstances, it is the customary

practice in Massachusetts that defendants in criminal cases sit

in a dock. E.g., Commonwealth v. Walker, supra, 350

N.E.2d at 695. The dock is a box approximately four feet

square and four feet high. It is open at the top so that the de-

fendant’s head and shoulders can be seen when he or she is

seated. The dock is placed typically at the center of the bar

enclosure which separates the spectators’ section from that

portion of the courtroom reserved for trial principals. The

dock is usually fifteen to twenty feet behind counsel table, and

is sometimes on a raised platform. Thus, the dock is generally

closer to exits than counsel table.

At a pretrial hearing, the court offered the following reasons

for placing petitioner in the dock and denying his motion to sit

at counsel table:

Tue Court: . . . You have got an attorney who is going

to be sitting with you, and I will give you all the time you

want to walk back and forth to your client to have any

discussions that you want with him, but I would prefer

not to have a defendant in a murder case sit at the counsel

table.

Petitioner objected timely. On appeal, petitioner contended

that forcing him to sit in the dock deprived him of his rights to

a fair and impartial trial, the presumption of innocence, non-

suggestive eye-witness identifications, due process of law, and

unrestricted access to counsel. The Supreme Judicial Court,

noting that these same arguments had been presented and re-

46a

jected in other appeals, reaffirmed that “it is within the sound

discretion of the trial judge whether to grant a defendant’s re-

quest to sit at counsel’s table or elsewhere.” Commonwealth

v. Walker, supra, 350 N.E.2d at 695-96, citing Common-

wealth v. Bumpus, 362 Mass. 672, 680, 290 N.E.2d 16. (1972)

(murder, armed robbery convictions), citing Commonwealth

v. Jones, 362 Mass. 497, 500-01, 287 N.E.2d 599 (1972) (armed

robbery, jury-waived trial). I am mindful of the crimes

charged, the defendant’s “reputation,” the court’s assurance

of ample time to consult with counsel, and the “crucial” ac-

complice identification testimony that was “presumably” un-

affected by petitioner’s courtroom location. The Supreme Ju-

dicial Court held that the trial judge committed no arbitrary

or unreasonable action demonstrating an abuse of discretion.

350 N.E.2d at 696.

Petitioner’s position here against the use of the dock is now

grounded upon the presumption of innocence and the due-

process right to a fair trial. Conceding as “impossible” any ef-

fort to show actual prejudice to these rights petitioner con-

tends, on the one hand, that no such showing is necessary, and

on the other, speculates as to the range of prejudicial infer-

ences a jury might deduce from observing this defendant con-

fined in the dock. Petitioner also claims that discretionary use

of the dock is per se constitutionally infirm because the prac-

tice is arbitrary and furthers no essential state policy.

In my judgment, the prisoner’s dock is an anachronism in a

modern criminal trial which could have been abandoned years

ago. But it overstates the case to label the dock as “atavistic”

or to characterize it as “closely analogous” to the unconstitu-

tional practice of compelling defendants to stand trial before a

jury while dressed in identifiable prison garb. Estelle v.

Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126,

rehearing denied, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d

1194 (1976).

oe -

47a

Unlike the practice discussed in Estelle v. Williams, supra,

at 505, 96 S.Ct. 1691, a discretionary requirement to have a

defendant sit in a designated spot such as the dock can serve

several essential state policies: (1) it identifies the accused per-

son to the jury, see Commonwealth v. Bumpus, supra, 362

Mass. at 680, 287 N.E.2d 599; (2) it minimizes the danger of

harm to the public, court, counsel, jurors, and witnesses,

Commonwealth v. Walker, supra, 350 N.E.2d at 696 n.18;

and (3) it encourages the maintenance of courtroom order and

decorum without the use of such drastic measures as shackling,

handcuffing, or gagging, id.; see Commonwealth v. Boyd, 246

Pa. 529, 534, 92 A. 705 (1914). While it is true that other pro-

cedures or better-trained personnel might achieve the same

goals, that fact does not render use of the dock unconstitu-

tional. As an instrument of physical segregation, the dock is

no less distinctive or identifiable than the frequent practice of

requiring a defendant to sit on one side of counsel table or at

one end of the front public bench. Thus, I conclude that the

custom of segregation in the dock is not unconstitutional per se

because, as a general practice, it presents neither a “constant

[implicit] reminder of the accused’s condition . . . [so as to] af-

fect a juror’s judgment . . . [or] is so likely to be a continuing

influence throughout the trial that . . . an unacceptable risk is

presented of impermissible factors coming into play.” Estelle

v. Williams, supra, 425 U.S. at 504-05, 96 S.Ct. at 1693.

Petitioner’s speculations concerning the impact of the dock

on the jurors are, admittedly, unsupported in the record, and,

in any event, are dispelled by his own mockery of the dock as

an ineffective security device to corral the dangerous. For

these reasons, as well as those stated by the Supreme Judicial

Court, Commonwealth v. Walker, supra, 350 N.E.2d at 696,

I rule that petitioner’s discretionary segregation in the dock

neither diluted his presumption of innocence nor denied him a

fair and impartial trial. Alternatively, if placement in the

48a

dock could be viewed as having the probability of encouraging

the jury to view the petitioner as violent, dangerous, and fac-

tually guilty of the crimes charged, see Estelle v. Williams,

supra, 425 U.S. at 504, 96 S.Ct. 1691, such an impression was

cumulative and thus harmless error because testimony offered

on behalf of petitioner suggested that he was prone to commit

violent crime, and that due to his alleged mental disease he

was unable to conform his conduct to the law. Indeed, the

nature of petitioner’s defense forced him to concede that he ac-

tually committed the offense. Allowing petitioner to sit else-

where than the dock would not have altered this testimony or

appreciably tempered its effect on the jury. Therefore, even if

there was any constitutional impairment of the presumption of

innocence or the fairness of the trial, I rule it was harmless be-

yond a reasonable doubt.

PEREMPTORY CHALLENGES

Prior to empanelling the jury, the judge at petitioner's trial

ruled that defendant must personally exercise his peremptory

challenges. Counsel objected to the requirement that peti-

tioner speak, on the ground that it might interfere with the in-

sanity defense by impressing the jurors with petitioner’s com-

petency. In accordance with the ruling, the defendant spoke

in open court during the voir dire, stating to the court and

each juror, either “I am content,” or “I challenge.” Later, in

the portion of his final argument rebutting Walker’s insanity

defense the prosecutor stated:

Ask yourself about this particular defendant. What do

you think? Do you think he knew what he was doing

when he stood up there and said, “I am content with this

juror? I am content with this juror? I am content with

49a

this juror?” Do you think he knew what he was doing

then?

On appeal, petitioner argued that the compelled personal

exercise of peremptory jury challenges, as well as the prosecu-

tor’s prejudicial and confusing reference to the exercise in his

summation, violated the defendant’s privilege against self-in-

crimination and his right to a fair and impartial jury. The Su-

preme Judicial Court rejected both claims of error. The Court

held “sound” the long-standing practice in the Common-

wealth of requiring one accused of first-degree murder “after

consultation with his attorney, personally to announce his con-

tentment or dissatisfaction with prospective jurors .. .”,

Commonwealth v. Walker, supra, 350 N.E.2d at 689, citing

Commonwealth v. Millen, 289 Mass. 441, 476-77, 194 N.E.

463, cert. denied, 295 U.S. 765, 55 S.Ct. 924, 79 L.Ed. 1706

(1935). See generally Swain v. Alabama 380 U.S. 202, 212-20

& n.9, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). A defense of in-

sanity at the time of commission of the offense did not

derogate from the wisdom of or the protection afforded by the

practice. Id. 350 N.E.2d at 689-90. Although the Court criti-

cized the prosecutorial comment as ill-advised, it believed any

adverse effect was cured by instructions to the jury.

In the instant application, petitioner does nothing more

than repeat, though with some embellishment, the Fifth,

Sixth, and Fourteenth Amendment objections he raised earli-

er. Petitioner’s contentions that the prosecutor’s argument

impaired his rights to confrontation and to make peremptory

challenges are totally without merit. Donnelly v. DeChristo-

foro, 416 U.S. 637, 643 n.15, 94 S.Ct. 1868, 40 L.Ed.2d 431

(1974). Petitioner also asserts that requiring him to appear to

make substantial decisions before the jurors incriminated him,

because it assisted the Commonwealth’s proof of an ultimate

50a

element of its case, namely his sanity at the time of the offense.

See Commonwealth v. Kostka, 350 N.E.2d 444, 451, 452

(Mass. 1976). That argument is overstated. An intelligent

and knowing peremptory challenge by a defendant is most

probative of that defendant’s competency at the time of trial

to consult with his lawyer and to rationally, as well as factual-

ly, understand the proceedings against him. See Dusky v.

Ohio, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per

curiam). The central issue at this trial, however, was peti-

tioner’s sanity at the time of the offense, some seven months

earlier. Although it is conceivable that a juror could infer past

sanity from a demonstration of present competency, the logi-

cal leap is a substantial one. Indeed, the unlikelihood of such

an inference underlay a much earlier rejection by the Supreme

Judicial Court of essentially the same argument: To compel

the defendants personally to challenge jurors at a trial for

which they were found by preliminary examination to be com-

petent and presumed to be competent, added nothing by way

of evidence to the ultimate issue of their responsibility for the

crime committed. Commonwealth v. Millen, supra, 289

Mass. at 477, 194 N.E. at 480. In any event, a similar infer-

ence from a display of speech and thought processes could easi-

ly be drawn from petitioner’s failure to disrupt the trial with

bizarre behavior, from his obvious ability to consult with his

attorney, and to have numerous whispered conversations with

his attorney, and from his apparent comprehension of the

nature of the proceedings. Thus, acceptance of petitioner’s

argument would necessitate isolating every defendant assert-

ing an insanity defense from the jury’s view so that no poten-

tially adverse inferences could be drawn from any rational de-

meanor or conduct on the part of defendant during the trial.

Such a procedure is unwarranted, and, if compelled, would

probably be violative of the Confrontation Clause. Finally,

the exercise of the challenges does not fall within the terms of

5la

the Fifth Amendment privilege, because the testimonial or

communicative content of the words spoken is not probative of

anything incriminating. See generally United States v.

Dionisio, 410 U.S. 1, 5-7, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

The second prong of petitioner’s argument is that the prose-

cutor’s comment on the exercise of the challenges was fun-

damentally unfair, prejudiced his right to an impartial jury,

and transformed the prosecutor into a witness not subject to

cross-examination. It is highly improper for a prosecutor to

refer in his closing argument to matters outside of the evi-

dence, or to go beyond the fair inferences from the evidence.

In this case, the prosecutor did both: The peremptory chal-

lenges were not evidence, nor could there be any fair inference

that the requirement, of the actual exercise of personal

challenges, was probative of sanity at the time of the offense.

At a minimum, this prosecutor breached recognized standards

of professional conduct. See, e.g., A. B. A. Standards Relat-

ing to the Prosecution Function and the Defense Function

(Approved Draft, 1971), Standards 5.8(a), 5.9.

The question presented here, however, is whether this un-

fair prosecutorial argument amounted to the denial of a con-

stitutional right. As in Donnelly v. DeChristoforo, 416 U.S.

637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), rev’g, 473

F.2d 1236 (1st Cir. 1973), the prosecutor’s comment is essein-

tially challenged on due process grounds. Though preceden-

tial only as a plurality opinion, Donnelly counsels a distinction

between ordinary, albeit improper trial error of a prosecutor,

and the sort of egregious prosecutorial misconduct that

amounts to a denial of constitutional due process. Id. at

647-48 & n.23, 94 S.Ct. 1868. Such an analysis is most appro-

priately applied to summations, for as the Court observed:

Isolated passages of a prosecutor’s argument, billed in ad-

vance to the jury as a matter of opinion not of evidence,

52a

do not reach the same proportions [as using false evi-

dence]. Such arguments, like all closing arguments of

counsel, are seldom carefully constructed in toto before

the event; improvisation frequently results in syntax left

imperfect and meaning less than crystal clear. While

these general observations in no way justify prosecutorial

misconduct, they do suggest that a court should not light-

ly infer that a prosecutor intends an ambiguous remark to

have its most damaging meaning or that a jury, sitting

through lengthy exhortation, will draw that meaning

from the plethora of less damaging interpretations. . . .

[H]ere there was neither the introduction of specific mis-

leading evidence important to the prosecution’s case in

chief nor the nondisclosure of specific evidence valuable

to the accused’s defense. There were instead a few brief

sentences in the prosecutor’s long and expectably horta-

tory closing argument which might or might not suggest

to a jury that the respondent had unsuccessfully sought to

bargain for a lesser charge. We find nothing in Brady [v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963) ] to suggest that due process is sc easily denied. Id.

at 646-47, 94S.Ct. at 1873. See also Cupp v. Naughten,

supra, 414 U.S. at 146-47, 94 S.Ct. 396.

Although the trial court did explain to the jury the nature of

and the reason for defendant’s personal exercise of the per-

emptory challenges, petitioner would ascribe constitutional

error to the court’s failure to specifically instruct the jury to

disregard the improper argument on the subject. That con-

tention must be rejected. Both counsel and the court had ad-

monished the jury that none of the argument by the lawyers

constituted evidence. Moreover, the court instructed that:

“Evidence is what you get from the lips of witnesses under

53a

oath together with any exhibits... .” By implication, any-

thing that the jury observed prior to the testimony of the first

witness was neither evidence nor a predicate for the drawing

of inferences. Unlike the arguments in the cases cited by peti-

tioner, these remarks were not highly inflammatory, were not

cumulative of other serious error, and did not unduly confuse

the issue of mental responsibility at the time of the offense,

considering the charge as a whole. Cf. United States v.

Williams, 523 F.2d 1203, 1207-08, 1209-10 (5th Cir. 1975);

United States v. Schwartz, 325 F.2d 355, 357-58 (3d Cir.

1963). Thus, they did not intrinsically demand a specific

curative instruction, and, under the broad standards of Don-

nelly and Cupp, did not offend due process in light of all the

circumstances of this case.

PRESUMPTION OF SANITY

Petitioner’s final contention is that the trial court’s instruc-

tions unconstitutionally reduced the Commonwealth’s burden

of proof on the issue of sanity. The following three portions of

the instructions are claimed to be violative of the Due Process

Clause:

1. “Now, the defense has raised the issue of legal men-

tal capacity to commit a crime. Generally, when a per-

son is charged with a criminal offense and there is no evi-

dence introduced concerning his mental condition, under

such circumstances it is to be presumed that the person

charged with the crime was of sufficient mental capacity

to commit it. We assume under those circumstances, as I

just recently indicated, that the man has the mental ca-

pacity to commit a crime. The law states that in such

cases there is a presumption that a person is sane”;

54a

2. “In assessing a defendant’s mental responsibility for

crime, the jury should weigh! the fact that a great major-

ity of men are sane and the probability that any particu-

lar man is sane. Now this assessment is to be made in

each case in the light of the evidence introduced, the cir-

cumstances that you have heard. The jury are the sole

judges of the credibility and weight of all evidence on the

issue of insanity. That includes the testimony of those

who gave opinions as to legal mental capacity.

The opinion of such a witness is not a required conclu-

sion. The jury may believe, but is not compelled to be-

lieve, any such testimony or opinion given by an expert.

. . . [I]t is for the jury to determine whether or not the

fact that a great majority of men are sane and the proba-

bility that any particular man is sane may be deemed to

outweigh the evidential value of any expert testimony

that he is insane.”

3. “The Commonwealth must prove that the defend-

ant was reasonably sane beyond a reasonable doubt. . ..”

On appeal, petitioner first argued that the instruction that

the probability of defendant’s sanity might outweigh contrary

expert evidence unconstitutionally reduced or shifted the pros-

ecution’s burden of proof. But the Supreme Judicial Court

held that since the jury was told emphatically (and repeatedly)

that the Commonwealth must prove sanity beyond a reasona-

‘In his brief, petitioner’s quotation of this last instruction substitutes the

word “weight” for the word “weigh.” The official transcript, at 1673, uses

the word “weigh.” This Court, like the Supreme Judicial Court, Common-

wealth v. Walker, supra, 350 N.E.2d at 699, will rule on the basis of the pre-

cise language set forth in the transcript.

55a

ble doubt,* there was no reversal of the prosecution’s burden.

Commonwealth v. Walker, supra, 350 N.E.2d at 699-700.

The court reasoned further that the judge’s instruction did not

permit a sanity finding based solely on the presumption be-

cause the jury had been instructed to consider “all the evi-

dence.” Accordingly, the jurors might have considered proba-

tive of sanity such evidence of petitioner’s planned and intelli-

gent criminal conduct as was supplied by accomplice testi-

mony, eyewitness testimony, observer testimony shortly after

the crime, and the circumstances of the robbery and murder

themselves. Id. 350 N.E.2d at 700-01.

Petitioner also argued that the challenged instructions vio-

lated the due process requirements of Barnes v. United States,

412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and

Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24

L.Ed.2d 610 (1970), with respect to the use of presumptions

and inferences to establish an element of a criminal offense.

The Supreme Judicial Court rejected this contention, holding

that “since sanity is not an element of the crimes charged,”

that line of Supreme Court authority was inapposite. Com-

monwealth v. Walker, supra, 350 N.E.2d at 700 & n.26,

quoting Commonwealth v. Kostka, supra.

Petitioner then contended that the trial judge vitiated the

burden of proof by instructing the jury that in order to con-

vict, it need only find the petitioner “reasonably sane beyond a

reasonable doubt,” The Supreme Judicial Court disagreed,

holding that the trial judge had made an “unfortunate slip of

the tongue” which was remedied by “repeated references to

SE.g.:

The burden is upon the Commonwealth to prove that the defendant

was legally sane beyond a reasonable doubt and that he was legally

responsible for any criminal offense that he may have committed.

[Transcript at 1671]

56a

the correct standard of ‘legally sane beyond a reasonable

doubt.”” Commonwealth v. Walker, supra, 350 N.E.2d at

699 n.23. Finally, petitioner urged that the jury’s finding of

sanity was against the weight of the evidence and that the

presumption-of-sanity instruction, in these circumstances, im-

permissibly confused the jury. The Supreme Judicial Court

believed otherwise. Id., supra, 350 N.E.2d at 698-701.

In his application to this Court, petitioner vigorously renews

these four rejected contentions. First, petitioner argues that

the second challenged instruction allowed the jury to find the

defendant sane solely on the statistical probability that most

defendants are sane. The likelihood of this path of juror anal-

ysis is said to follow from the fact that the Commonwealth in-

troduced no expert evidence to rebut defense testimony sup-

porting insanity which was offered by petitioner’s mother, a

psychiatric counselor, a psychiatrist, and a clinical psycholo-

gist. This view of the evidence introduced at trail is overly

narrow. It ignores the principles that unrebutted expert or lay

testimony may be disbelieved by a jury because of a witness’

interest, demeanor, or unpersuasiveness, see United States v.

Dube, 520 F.2d 250, 251-52 & n.1 (Ist Cir. 1975), that the

most convincing proof of a defendant’s mental state at the

time of the offense is often his conduct immediately before,

after, and during its commission, and that the failure of the

government to introduce any affirmative evidence of sanity

does not automatically prevent a jury finding that defendant

was sane beyond a reasonable doubt, J. Moore, Moore’s Feder-

al Practice J 26.04[4], at 26-41 (1975). It is worth noting that

neither this nor any portion of the mental capacity charge in-

structed the jurors that they could rely in this case solely on the

presumption of sanity or the “mere statistical probability” of

sanity. Contrary to petitioner’s suggestive reading, the charge

also directed the jurors “to consider and look at the whole evi-

dence regarding the mental condition of the defendant. . . .

57a

[and] to determine again on all the evidence and all of the cir-

cumstances whether the defendant did or did not lack mental

capacity to commit a crime.” In this context, the “weighing”

of the presumption and the expert testimony is explainable as

an inartful but harmless-error description of the rebutting of a

presumption.

For the obvious reasons of sympathy and interest, the jury

could have discounted the probative worth of the testimony by

petitioner’s mother concerning a long pattern of uncommon

behavior. Dr. Gatti’s opinion of insanity, based as it was only

on a single interview of less than two hours some eighteen

months before the offense could well have been rejected by the

jurors because of the lack of a more substantial and up-to-date

basis of observation, and because of Gatti’s concession that

Walker’s condition did not warrant hospitalization. Dr. Sey-

mour’s opinion, though grounded in an extensive consultation,

was flawed to some degree by the date of examination, some

five months after the offense. "Cf. United States v. Dube,

supra, at 252 & n.2. Ms. Helms, who was not qualified as an

expert, added only that she he consulted with Terrell Walker

on numerous occasions and, as a result, sought to place him in

a mental hospital and refer him to Dr. Gatti.

The election by the Commonwealth to call no medical wit-

nesses in rebuttal at the conclusion of the defendant’s case, in

my judgment amounted to a tactical decision by the Common-

wealth’s counsel to risk sustaining its burden of proving sanity

beyond a resonable doubt by reliance on the cumulative effect

of the accomplice, eye witness, and subsequent witness testi-

mony of witnesses called by it, plus the testimony elicited dur-

ing the cross-examination of defendant’s witnesses.’ See id. at

3 Petitioner cites a number of cases for the proposition that judgment of ac-

quittal is demanded as a matter of law when the prosecution offers no expert

medical testimony to rebut similar defense testimony. United States v.

Smith, 437 F.2d 538, 540-41 (6tii Cir. 1970); Hartford v. United States, 362

58a

251. Ample evidence from non-medical sources, capable of

supporting the jury’s finding of sanity, United States v. Dube,

supra, at 253 & n.4, 255 (Campbell, J., concurring); Com-

monwealth v. Laliberty, 366 N.E.2d 736, 742 (Mass.1977),

suggested that petitioner planned the robbery, premeditated

the shooting, effected an escape, and instigated a conceal-

ment. The availability of such evidence for jury considera-

tion, and the Court’s proper instruction that “all the evidence”

was to be evaluated thus lead me to reject petitioner’s conten-

tion that his conviction rests on nothing more than a statistical

probability of sanity.

Petitioner’s second argument requests an adjudication of

unconstitutionality with respect to the Commonwealth’s prac-

tice of allowing the presumption of sanity to go to the jury for

its evidential value, even after the introduction of defense evi-

dence of insanity. See Commonwealth of Kostka, supra, 350

N.E.2d at 453. The overwhelming majority of the states and

of the federal Circuits follow a different rule: if a defendant

raises the defense of insanity and offers some quantum of evi-

dence in its support, the presumption of sanity drops out of the

case as a matter of law and never reaches the jury. E.g.,

United States v. Dube, 520 F.2d 250, 251 (1st Cir. 1975);

United States v. Jacobs, 473 F.2d 461, 464 (8th Cir. 1973),

cert. denied, 412 U.S. 920, 93 S.Ct. 2740, 37 L.Ed.2d 147

(1972); Hartford v. United States, 362 F.2d 63, 64 (9th Cir.

1966); cert. denied, 385 U.S. 883, 87 S.Ct. 174, 17 L.Ed.2d

110 (1966); Fitts v. United States, 284 F.2d 108, 112 (10th Cir.

1960); Commonwealth v. Vogel, 440 Pa. 1, 268 A.2d 89, 95-96

F.2d 63, 64, 67 (9th Cir. 1966); McKenzie v. United States, 266 F.2d 524,

527-28 (10th Cir. 1959); Fielding v. United States, 102 U.S.App.D.C. 167,

251 F.2d 878, 880 (1957). But see United States v. Dube, 520 F.2d 250, 251

(1st Cir. 1975). All, however, are distinguishable as federal prosecutions

governed by the nonconstitutional holding of Davis v. United States, 160

U.S. 469, 487-88, 16 S.Ct. 353, 40 L.Ed. 499 (1895).

59a

(1970). However, under the approach of Massachusetts as

well as that of the majority of jurisdictions, a reasonable-doubt

burden of persuasion on the issue of sanity rests squarely on the

prosecution and never shifts, and the jury was so charged.

E.g., Commonwealth v. Kostka, supra, 350 N.E.2d at 451.

The only difference is that under Massachusetts law the prose-

cution’s burden to prove sanity beyond a reasonable doubt

may be assisted by the presumption. Although continued evi-

dentiary use of an arguably rebutted presumption has been

criticized by legal commentators, e.g., 9 J. H. Wigmore, Evi-

dence § 2491, at 290 (3d ed. 1940), and rejected by most other

jurisdictions, but see United States v. Harper, 450 F.2d 1032,

1038-39 (5th Cir. 1971); Keys wv. United States, 120

U.S.App.D.C. 343, 345, 346 F.2d 824, 826 (1965), cert.

denied, 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108 (1965);

People v. Silver, 33 N.Y.2d 475, 482, 354 N.Y.S.2d 915, 921,

310 N.E.2d 520, 524 (1974), unpopularity, or even unique-

ness, does not necessarily equate with unconstitutionality. Cf.

Patterson v. New York, 432 U.S. 197, 211, 97 S.Ct. 2319, 53

L.Ed.2d 281 (1977); Leland v. Oregon, 343 U.S. 790, 798-99,

72 S.Ct. 1002, 96 L.Ed. 1302 (1952). The Supreme Judicial

Court is the ultimate expositor of the law of Commonwealth,

and its construction of the scope of the insanity defense and the

presumption existing under state law is binding on this Court,

since none of the exceptions to the doctrine are applicable.

Mullaney v. Wilbur, 421 U.S. 684, 691 & n.11, 95 S.Ct. 1881,

44 L.Ed.2d 508 (1975). In addition, the United States Su-

preme Court has recently cautioned lower federal courts to

ponder carefully any Due Process Clause challenges in this

area of state allocations of the burden of proof:

[W]e should not lightly construe the Constitution so as to

intrude upon the administration of justice by the individ-

ual States. Among other things, it is “normally within

60a

the power of the State to regulate procedures under

which its laws are carried out, including the burden of

producing evidence and the burden of persuasion,” and

its decision in this regard is not subject to proscription

under the Due Process Clause unless “it offends some

principle of justice so deeply rooted in the traditions and

conscience of our people as to be ranked as fundamental.”

[citations omitted]. Patterson v. New York, supra, 432

U.S. at 201-02, 97 S.Ct. at 2322.

As illustrated by the thoughtful analysis in Commonwealth v.

Kostka, supra, 350 N.E.2d at 454-58, Massachusetts carefully

distinguishes, and limits, the procedural aspect of the pre-

sumption of sanity from the substantive operation of its under-

lying facts. Only the later facts, and the possible inferences

flowing therefrom, are weighed by the jury. Id., supra, 350

N.E.2d at 454. Those very facts “are considered to be part of

the jury’s ‘common experience that most people ... are

sane.’” Id., supra, 350 N.E.2d at 454, 457-58, quoting United

States v. Dube, supra, at 255 (Campbell, J., concurring).

Thus, the implementation of the minority position in Massa-

chusetts is carefully circumscribed and always coupled with an

undiminished burden of persuasion on the prosecution to

prove the fact of sanity beyond a reasonable doubt. In my

judgment, this practice of allowing the jury only to consider

the facts underlying the presumption does not offend the fun-

damental principles of justice underlying the Due Process

Clause. Indeed, in the seminal but nonconstitutional decision

in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40

L.Ed.499 (1895), the Supreme Court specifically contem-

plated that the presumption of sanity wouid go to the jury for

its determination as to whether it had been so far impaired by

contrary evidence as to be overcome:

6la

Giving to the prosecution, where the defence is insanity,

the benefit in the way of proof of the presumption in

favor of sanity, the vital question from the time a plea of

not guilty is entered until the return of the verdict, is

whether upon all the evidence, by whatever side ad-

duced, guilt is established beyond reasonable doubt. If

the whole evidence, including that supplied by the pre-

sumption of sanity, does not exclude beyond reasonable

doubt the hypothesis of insanity, of which some proof is

adduced, the accused is entitled to an acquittal of the

specific offense charged. Id. at 487-88, 16 S.Ct. at 858.

Lastly, as to this issue the Commonwealth’s practice re-

ceives a fortiori support from more recent decisions by the

Court, which have upheld more stringent state practices plac-

ing the burden of persuasion on the issue of insanity upon the

defendant, in terms of an affirmative defense requiring a

showing by either a preponderance of the evidence or beyond

a reasonable doubt. Patterson v. New York, supra, 432 U.S.

at 206-11, 97 S.Ct. 2319; Rivera v. Delaware, 429 U.S. 877, 97

S.Ct. 226, 50 L.Ed.2d 160 (1976) (appeal dismissed for want

of a substantial federal question); Leland v. Oregon, supra,

343 U.S. at 798-99, 72 S.Ct. 1002; cf. Mullaney v. Wilbur,

supra, 421 U.S. at 703 n.31, 95 S.Ct. 1881. See also Grace v.

Hopper, 566 F.2d 507, 509-10 (5th Cir. 1978).

Petitioner’s final two arguments also must be dismissed. In

the context of the entire charge, the trial judge’s inadvertent

statement that the prosecution had only to prove petitioner

“reasonably” sane beyond a reasonable doubt did not so lessen

the Commonwealth’s burden of proof as to deprive Walker of

due process. As the Supreme Judicial Court observed, the

lengthy charge contained repeated references to the correct

standard of “legally sane beyond a reasonable doubt.” Com-

62a

monwealth v. Walker, supra, 350 N.E.2d at 699 n.23. The

slip of the tongue was so isolated that it surely did not taint the

entire trial. See Cupp v. Naughten, supra, 414 U.S. at 147, 94

S.Ct. 396. I also agree with the Supreme Judicial Court that

the portion of the charge describing the “general” operation of

the presumption in cases “where no evidence is presented by

either side on the issue of sanity” was introductory, and was

offered to facilitate juror comprehension of the later-ex-

plained, more complex operation of the presumption when an

insanity defense is raised. See Commonwealth v. Walker,

supra, 350 N.E.2d at 699. Accordingly, I am not persuaded

that these two aspects of the insanity instruction, which should

not be viewed in artificial isolation, rendered it so confusing

and incorrect as to make the errors rise to constitutional

dimension. See generally Cupp v. Naughten, supra, 414 U.S.

at 147-50, 94 S.Ct. 396; Leland v. Oregon, supra, 343 U.S. at

800, 72S.Ct. 1002. Citing Barnes v. United States, supra, and

Turner v. United States, supra.

Petitioner contends that the presumption of sanity runs

afoul of the Due Process Clause because there was a “suffi-

ciently real possibility” that the presumed fact did not follow

from the proved‘ basic fact. The Supreme Judicial Court dis-

tinguishes Barnes and Turner as concerned with the proscribed

use of inferences to establish an element of the crime charged.

Sanity, in the Supreme Judicial Court’s view, was not an “ele-

ment” of any given crime. Rather, sanity only became a nec-

essary “fact” of the crime charged in those few cases in which

an insanity defense is maintained. Commonwealth v. Walk-

er, supra, 350 N.E.2d at 700 & n.26; Commonwealth v. Kost-

ka, supra, 350 N.E.2d at 455-56 & n.16. Here petitioner chal-

lenges the significance of this distinction on the basis of the

‘The “proved” fact, i.e. that most people are sane, more accurately should

be characterized as a judicially noticed fact.

63a

holding in In Re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,

1073, 25 L.Ed.2d 368 (1970), that “the Due Process Clause

protects the accused against conviction except upon proof be-

yond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged.” But regardless of the

correctness of the state court’s distinction, to which deference

must be accorded, see, e.g., Patterson v. New York, supra, 432

U.S. at 201-02, 97 S.Ct. 2319, petitioner’s challenge fails in

light of the Supreme Court’s recent refusals to literally apply

Winship to even harsher state procedures relating to the

defense of insanity. Id. at 205-07, 210-11, 97 S.Ct. 2319;

Rivera v. Delaware, supra. See also United States v. Dube,

supra, at 255 (Campbell,

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