Commonwealth v. Swenor

¶1The defendant appeals, under G. L. c. 278, §§ 33A-33G, from his convictions on six indictments, one charging him with escape from the Hampden County Jail, and the others each charging him with aiding and assisting a different fellow prisoner to escape. The defendant’s only contentions relate to (1) the trial judge’s refusal to delay the trial in order to obtain the presence of a witness who was in Federal custody, (2) his refusal to exclude testimony concerning statements made to police by the defendant, allegedly before he was given warnings pursuant to Miranda v. Arizona, 384 U. S. 436 (1966), and (3) his refusal to declare a mistrial on account of prejudicial publicity.1

¶21. The defendant was arraigned on March 1, 1973, and by March 19 had retained counsel.2 Approximately a week before the trial, which began on April 23, 1973, the defendant made known to the court his desire that one Robinson and one Capuano, both of whom he was charged with aiding to escape, be present at the trial. The Commonwealth then started proceedings to secure their presence as possible witnesses. On April 23 Robinson was present in court, but Capuano was not.

¶3Before moving for trial, the prosecuting attorney explained to the trial judge that the United States marshals, who had custody of Capuano, had advised the Commonwealth that they could not “at this time honor our habeas” to have Capuano present. The defendant then indicated that he did “not want to proceed with the trial of these ... indictments, until Mr. Capuano’s presence is assured in *67court.” The trial judge, however, ordered that the trial proceed. The prosecuting attorney suggested that, after the opening, the trial be recessed until the following morning, indicating he would meanwhile make a further attempt to have Capuano produced, and this suggestion was followed. There is no further reference in the transcript to this matter.

¶4It thus appears that the prosecuting attorney attempted to have Capuano in court for the trial, and there is no indication by the defendant of dissatisfaction with the Commonwealth’s efforts on that score. Cf. Commonwealth v. McGrath, 348 Mass. 748, 752-753 (1965). Capuano was not under the Commonwealth’s control but in Federal custody, and it was within the discretion of the Federal authorities whether to honor a writ of habeas corpus issued by a State court and make him available. Special Prosecutor of N. Y. v. United States Attorney for So. Dist. of N. Y. 375 F. Supp. 797, 802-804 (S. D. N. Y. 1974). See Commonwealth v. McGrath, supra, at 750-751, citing Ponzi v. Fessenden, 258 U. S. 254, 265-266 (1922); Ableman v. Booth, 21 How. 506, 515-516 (1858); Barber v. Page, 390 U. S. 719, 723-724 (1968). Nor does it appear that the Commonwealth could do any more than the defendant himself could have done; he apparently made no attempt of his own to have Capuano produced. See Curran v. United States, 332 F. Supp. 259, 261 (D. Del. 1971); Commonwealth v. French, 357 Mass. 356, 399, par. A-6 (1970), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U. S. 936 (1972). Under the circumstances, without any showing when Capuano might become available, it was not an abuse of discretion for the trial judge to refuse to postpone the trial.8 See Rule 34 of the Superior Court (1954); Commonwealth v. Lee, 324 Mass. 714, 716-717 (1949); Commonwealth v. Dirring, 354 Mass. 523, 530 (1968); Reiss v. *68United States, 324 F. 2d 680, 682 (1st Cir. 1963), cert. den. sub nom. Jacobs v. United States, 376 U. S. 911 (1964).

¶52. The record does not bear out the defendant’s contention that the testimony of a police officer to statements made by the defendant were inadmissible because the defendant was not warned pursuant to Miranda v. Arizona, 384 U. S. 436 (1966). The argument is beside the point; from the voir dire held during the trial and the findings made by the trial judge it appears that the statements were made while the defendant was being taken in a police automobile from Malone, New York, where he had been turned over to the Springfield police. During the ride, in the course of a general conversation, the “defendant [as the trial judge found] volunteered to tell detective Bryans something he thought was ‘funny’, something he referred to as a ‘joke’ as to how he got out of York Street jail in Springfield. The police did not try to stop defendant from telling his story —”

¶6There was not the slightest evidence at the voir dire, either from the police witness or the defendant (who also testified) that the defendant had been questioned in any way. The rule of the Mirandacase is, therefore, inapplicable. Mirandav. Arizona, 384 U. S. at 478. Commonwealth v. Glavin, 354 Mass. 69, 72-73 (1968). Commonwealth v. Frongillo, 359 Mass. 132,135-136 (1971).

¶73. On the second day of the trial, counsel for the defendant filed a motion for a mistrial on the ground that an article which had appeared in that morning’s edition of a newspaper published in Springfield (where the trial was being held) contained information detrimental to the defendant’s right to a fair and impartial trial by jury. The article asserted that “[t]he Federal Bureau of Investigation reported capturing Swenor in Florida last December. Authorities at the Hillsborough County Jail in Tampa, Fla., reported that Swenor escaped from there Jan. 27. New York state police reported arresting Swenor in upper New York State Feb. 23.”4 It also asserted that “[a]t the time *69Swenor is said to have escaped from the county jail, he was awaiting trial for four armed holdups of Springfield banks.”5 The judge said to the jury: “Now, I want to ask you, first of all, have any of you read the article? If not, I ask you not to read it. If you haven’t read it, I ask you not to read it.”6 In response to the judge’s question a total of three jurors indicated some form of exposure to the article.

¶8Five of the six Justices7 to whom this case was submitted and referred under Rules 1:17 and 1:18 of this court (1972), 1 Mass. App. Ct. 892, are of the opinion (on the authority of such cases as Commonwealth v. Eagan, 357 Mass. 585, 588-589 [1970], and Commonwealth v. Stanley, 363 Mass. 102, 103, 104-105 [1973]) that nothing in the article required the judge to grant the motion for a mistrial and that whether there was error in the denial of the motion turns on the responses made by the jurors to the ensuing questions put to them by the judge.8

¶9The first juror said that he had read the article. Following a conference with that juror at the bench, which was not taken by the stenographer, the judge (subject to the *70defendant’s exception) declared the juror impartial.9 As there is no means of knowing what transpired at the bench, there is nothing which casts doubt on the judge’s determination that the first juror would reach an impartial decision.

¶10It appears from the record that the foregoing determination was immediately followed fay another bench conference, likewise not taken by the stenographer, at the conclusion of which the judge, subject to the defendant’s exceptions, stated that he was denying the motion for a mistrial. The judge then directed his attention to the other two jurors who had responded to his original inquiry. The second juror said, “I looked at it, but I didn’t really — I didn’t go fully into it” and replied in the affirmative to the judge’s question, “Do you feel you can be impartial in this case?” The third juror said, “It was called to my attention, but I didn’t have time to read it”; the judge did not ask that juror any question. The trial was thereupon resumed without any further objection made or any exception taken by the defendant to the judge’s implied rulings that the second and third jurors were impartial.

¶11The aforementioned five Justices believe that the record suggests a situation in which counsel may have made a deliberate decision that it was in the best interests of his client to proceed without calling the article to the further attention of the jury and have concluded that no “substantial risk of a miscarriage of justice” (Commonwealth v. Freeman, 352 Mass. 556, 564 [1967]) will result from their following the usual rule of refusing to pass on exceptions not taken (Commonwealth v. Foley, 358 Mass. 223, 236 [1970]; Commonwealth v. Underwood, 358 Mass. 506, 507-512 [1970]).

¶12It follows that the defendant does not prevail on the *71assignments of error which purport to be addressed to the newspaper article.

¶13Judgments affirmed.