# Petition — Butterworth v. Walker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0861%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 937 ## Text “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, v. 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, v. 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). 2 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. — 3 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. 4 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. 5 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. 6 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. 7 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). 8 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. 9 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. 10 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. ll 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. 12 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- 13 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). 14 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 la Appendix A. DECISIONS OF THE SUPREME JUDICIAL COURT OF 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 2a 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 3a 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] da 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). 5a 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. 6a 370 Mass. 548 553 7a 554 370 Mass. 548 Commonwealth v. Walker. 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. 8a 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 9a 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. 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, v. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0861%3A1. Public record. Not legal advice.