Commonwealth v. Hassey

668 N.E.2d 357, 40 Mass. App. Ct. 806, 1996 Mass. App. LEXIS 744
CourtMassachusetts Appeals Court
DecidedJuly 24, 1996
DocketNo. 95-P-1201
StatusPublished
Cited by9 cases

This text of 668 N.E.2d 357 (Commonwealth v. Hassey) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Hassey, 668 N.E.2d 357, 40 Mass. App. Ct. 806, 1996 Mass. App. LEXIS 744 (Mass. Ct. App. 1996).

Opinion

Kass, J.

Following recross-examination of a defense witness by the prosecutor, the trial judge launched into a penetrating examination of that witness about why he had not previously gone to the police with his exculpatory information. By the time the judge had done with the witness, it was likely he left the impression with the jury that he thought the witness a liar. It was error on the part of the judge to have conducted the examination because an insufficient basis had been established for it and because the examination exceeded what are generally the limits for judicial intervention in the questioning of witnesses. In the context of the [807]*807entire record of the trial, we do not think the error was harmless and we, therefore, reverse the defendant’s conviction of rape.1

Bryan J. Hassey, the defendant, was charged with the rape of the victim, whom we shall call Myra, in her home on the morning of November 7, 1992. Hassey’s defense was that their sexual encounter was consensual and affectionate, consistent with previous meetings. Myra’s version of the events was that the only consistency was that the defendant had already once — during the previous August — forced himself on her, although she had chosen on that occasion not to lodge a complaint against him.

The Commonwealth’s case rested primarily on: (a) the testimony of Myra and (b) the observations and fresh complaint testimony of (i) the police officer who responded to a call from Myra, (ii) a nurse on the rape crisis team at South Shore Hospital who treated Myra, and (iii) a rape investigator for the Hull police department. There was physical evidence such as a torn nightshirt and photographs of a seriously disordered bathroom (that was the room in which the sexual act took place) from which the jury could infer that what had occurred between Myra and Hassey had been tumultuous. In response, the defense paraded a series of witnesses who testified to a cordial relationship between the complainant and the defendant. Hassey took the stand in his own behalf to so state and to meet the torn clothing and damaged bathroom evidence with the explanation that it reflected his and Myra’s exuberant passion. Several defense witnesses testified as well to expressions of ire with Hassey on Myra’s part because he had ruined the engine in her car. He had promised to pay for repairs but had failed as persistently to produce any money as he had vowed so to do. The defense strategy was to establish that Myra harbored a bias against Hassey for that reason and to have the jury draw the inference that Myra had contrived the charge of rape as an act of vengeance.

One of the witnesses called to so testify was Leonard Spurrell, who had worked with both Myra and Hassey and was a friend of Hassey’s of twelve years’ standing. On direct [808]*808examination, Spurrell claimed personal knowledge of multiple acts of sexual intercourse between Myra and Hassey and that Myra had told him, Spurrell, that because she had not received any money from him “she would try to get him any way possible she could.” Cross-examination, redirect examination, and recross-examination that followed was devoted to probing inconsistencies or papering them over, depending on whether the prosecutor or defense counsel was the interrogator. When those rounds of questioning had concluded, the trial judge, over the objection of defense counsel, proceeded on a line of inquiry that the prosecutor had not followed. To convey the flavor of the judge’s examination of Spurrell, we set it out in full:

The Court: “I have a couple of questions, Mr. Spurrell. You have been friendly with this defendant for ten or twelve years; is that right?”
The Witness: “Yes.”
The Court: “He’s one of your best friends?”
The Witness: “Yes.”
The Court: “When you learned he was accused of — when did you learn he was accused of rape?”
The Witness: “I think it was August. I hadn’t seen him for a while.”
The Court: “Did you go to see him right away after that?”
The Witness: “He was in prison.”
The Court: “Well, did you get in any contact with him?”
The Witness: “No, I didn’t.”
[Defense Counsel]: “Judge, may we be heard.”
[809]*809The Court: “Have you been in contact with him since that time?”
The Witness: “Yes.”
The Court: “When did you get in contact with him for the first time?”
The Witness: “Probably two or three weeks after he was released on bail.”
The Court: “And when was that?”
The Witness: “I don’t recall the date.”
The Court: “Well, did you talk with him about this serious charge?”
The Witness: “He told me what he was being charged with here.”
The Court: “You heard about what he was being charged with before he told you?”
The Witness: “Yes.”
The Court: “And what did you do when you heard about that charge?”
[Defense Counsel]: “Objection, your Honor.”
The Witness: “Nothing.”
The Court: “You didn’t do a thing?”
The Witness: “No, I didn’t.”
The Court: “You didn’t go down to the Hull Police Department and say, My friend is wrongfully charged with rape and the woman that’s charged him with rape has said she wants to get even with him?”
[810]*810The Witness: “No.”
The Court: “Objection is noted.”

The judge thought Spurrell was lying and said as much at sidebar shortly after this interrogation.

Of course a trial judge may question witnesses to clarify the evidence, eradicate inconsistencies, avert possible perjury, and develop trustworthy testimony. Commonwealth v. Festa, 369 Mass. 419, 422-423 (1976). Commonwealth v. Dias, 373 Mass. 412, 416-417 (1977). Commonwealth v. Paradise, 405 Mass. 141, 157 (1989). Commonwealth v. Jiminez, 22 Mass. App. Ct. 286, 292-293 (1986). In exercising their duty to direct and clarify the evidence, judges may not, however, weigh in, or appear to do so, on one side or the other; the judge must avoid the appearance of partisanship. Commonwealth v. Festa, supra at 422. Commonwealth v. Campbell, 371 Mass. 40, 45 (1976). Commonwealth v. Marangiello, 410 Mass. 452, 461 (1991). The rule is one of reason. Commonwealth v. Campbell, supra at 45. Commonwealth v. Dias, supra at 416. “[Ejxtensive examination of witnesses by the judge during trial is not to be encouraged. [Citation omitted.] The possibility of prejudice arises especially in a criminal case where the judge’s questions may unintentionally have the effect of impeaching the defendant or defense witness.” Commonwealth v. Fitzgerald, 380 Mass.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Val D'laurent.
Massachusetts Appeals Court, 2026
CARE AND PROTECTION OF DORETTA & others.
101 Mass. App. Ct. 584 (Massachusetts Appeals Court, 2022)
In re Adoption Leroy
102 N.E.3d 427 (Massachusetts Appeals Court, 2018)
Nager v. Shiels
95 N.E.3d 300 (Massachusetts Appeals Court, 2017)
Adoption of Norbert
986 N.E.2d 886 (Massachusetts Appeals Court, 2013)
Commonwealth v. Velez
929 N.E.2d 984 (Massachusetts Appeals Court, 2010)
OneBeacon Insurance Group v. RSC Corp.
868 N.E.2d 644 (Massachusetts Appeals Court, 2007)
Commonwealth v. Watkins
823 N.E.2d 404 (Massachusetts Appeals Court, 2005)
Commonwealth v. Alves
741 N.E.2d 473 (Massachusetts Appeals Court, 2001)
Commonwealth v. Roberts
740 N.E.2d 176 (Massachusetts Supreme Judicial Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
668 N.E.2d 357, 40 Mass. App. Ct. 806, 1996 Mass. App. LEXIS 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hassey-massappct-1996.