COMMONWEALTH vs. DARRYL L. MURRAY.

GOODMAN, J. The defendant appeals (G. L. c. 278, Sections 33A-33G) from his conviction of unarmed robbery. The victim, a twenty-one year old woman, testified at trial that the defendant and a male companion seized her as she descended the stairs at the Prudential subway station on the evening of September 21, 1974. The two men took $9.38 (consisting of a five dollar bill, three one dollar bills, and change) from her wallet and fled. Police of the Massachusetts Bay Transportation Authority were notified and arrived at the scene shortly thereafter. The victim accompanied the police officers in their cruiser as they searched the vicinity. The victim spotted the defendant and his companion inside a sandwich shop about four blocks from

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the scene of the crime. The officers and the victim entered the shop; the victim again identified the two males as her assailants. The officers asked the two to empty their pockets; they did so, producing a five dollar bill, three one dollar bills, and some change. The two males were then placed under arrest.

1. One of the police officers testified that while the defendant was in a cell at the police station he said to the officer, "How about giving me some money for cigarettes? I had that cigarette money when I made the hit." The officer testified that he then gave the defendant sixty cents of the money which had been taken from him earlier. During cross-examination the following colloquy occurred:

COUNSEL FOR THE DEFENDANT: "So you were going to give this girl what was left and say that belonged to her. Is that what you were going to do?"

THE PROSECUTOR: "Objection."

THE COURT: "[To counsel for the defendant] Whatever his reasons . . . this is what he said, and this is what he did. I join with you in your outrage over this lady's money being given to him for cigarettes. Will you go on to something else." Counsel for the defendant then moved for a mistrial, arguing that the court's comments suggested to the jury that the money found on the defendant had belonged to the victim and thus that the court had expressed its opinion that the defendant was guilty of the offense charged. The motion was denied. Shortly thereafter, the cross-examination of the witness was completed. The trial judge then addressed the jury as set out in the margin. [Note 1] Again, during

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his charge the trial judge instructed the jury that "if through any indication or acts on my part, you might feel I lean a certain way, you are to disregard any thought that I have any opinion in this case, because I haven't It's not my job." [Note 2]

It is clear that the trial judge realized the impropriety of his remark to the defendant's counsel and took great pains to impress upon the jury that they should disregard it. We cannot say that these emphatic and repeated admonitions were not sufficient to accomplish that purpose. Commonwealth v. Leventhal, 364 Mass. 718 , 723-724 (1974). See Commonwealth v. McLaughlin, 352 Mass. 218 , 226-228, cert. den. sub nom. McLaughlin v. Massachusetts, 389 U.S. 916 (1967); Commonwealth v. Fleming, 360 Mass. 404 , 409 (1971); Commonwealth v. Haley, 363 Mass. 513 , 520-522 (1973). Cf. Commonwealth v. Borges, 2 Mass. App. Ct. 869 (1974).

2. The defendant testified in his own behalf and produced two alibi witnesses. Prior to the imposition of sentence, and after reviewing the defendant's record, the trial judge remarked: "I don't see a flicker of hope for him." The prosecuting attorney recommended six to nine years at Walpole, and the judge then sentenced the defendant to that term saying, "I am not punishing this boy one minute for trying his case, but I am punishing him for coming up here and lying and for his whole attitude." [Note 3]

The sentencing judge may take into consideration a

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large variety of factors, including the defendant's demeanor at the trial (see Commonwealth v. Celeste, 358 Mass. 307 , 309-310 [1970]) -- although it often happens that the information set out in a probation report will provide the judge with a better picture of the defendant than the judge's own observations during the course of the trial. See Scott v. United States, 419 F. 2d 264, 271 (D.C. Cir. 1969). But the considerations are not unlimited. See Commonwealth v. Franks, 369 Mass. 608 , 609 (1976); S.C. 365 Mass. 74 , 78, 82 (1974). And, "punishing him for coming up here and lying" seems to us improper. In effect, the sentence includes a punishment for perjury though the defendant had not been indicted for perjury (see Jones v. Robbins, 8 Gray 329 , 342-345 [1857]) and though no such charge had been proved at a criminal trial. The point has been well put in Judge Craven's separate opinion in United States v. Moore, 484 F. 2d 1284, 1288 (4th Cir. 1973): "Since the offence of perjury is properly punishable in a separate criminal proceeding, to allow a summary adjudication of guilt by the court denies the defendant every constitutional and procedural safeguard to which he is entitled and which is inherent in indictment and trial. This is judgment by hunch -- without accusation and without opportunity to defend."

Further, such a practice must inevitably chill a defendant's right to testify in his own defense. Indeed, it puts a particularly heavy burden on a claim of alibi by which a defendant most unequivocally places his credibility at issue. Judge Bazelon, in the Scott case, 419 F. 2d at 269, puts the matter thus: "Of course a defendant has no constitutional right to lie, however much we may sympathize with his too human temptation. But the defendant does have a right to testify in his own defense. In doing so, he risks the jury's disbelief. If he in fact fails to convince the jurors, conviction and punishment will follow. If the Government for whatever reason concludes that prosecution for perjury is appropriate, he risks punishment for that as well. To allow the trial judge to impose still further punishment

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because he too disbelieves the defendant would needlessly discourage the accused from testifying in his own behalf." The Scott case has been cited with approval in Poteet v. Fauver, 517 F. 2d 393, 396 (3d Cir. 1975), State v. Poteet, 61 N. J. 493, 496 (1972), People v. Anderson, 391 Mich. 419, 423 (1974), People v. White, 130 Ill. App. 2d 775, 778 (1971), and People v. Ortiz, 22 Ill. App. 3d 788, 797 (1974).

Compare LeBlanc v. United States, 391 F. 2d 916, 917-918 (1st Cir. 1968), in which the court remanded for resentencing because the trial judge, after the defendant had been found guilty and before imposing sentence, asked the defendant whether he was in fact guilty. The court held that this was an improper inquiry because it might jeopardize the defendant's appellate and other postconviction rights. We think the analogous burden on the defendant's right to testify in his own behalf arising from the danger that a trial judge might determine that the defendant was lying should likewise preclude the use of that determination in sentencing. We see little difference between a greater sentence imposed because a defendant refused to expiate, by confessing before sentencing, what the trial judge considered a false claim of innocence and a greater sentence imposed specifically for what the trial judge believed was lying during the trial. Both practices would burden a defendant's rights. And though the rights involved are somewhat different we cannot say which are more worthy of protection. See the Poteet cases (61 N. J. at 495-496; 517 F. 2d at 395-396), in which the vice of a greater sentence because a defendant has not confessed after trial is treated as corollary to the vice of a greater sentence because the trial judge believed the defendant has committed perjury. But compare Thomas v. United States, 368 F. 2d 941 (5th Cir. 1966), and United States v. Nunn, 525 F. 2d 958, 960-961 (5th Cir. 1976), in which the Fifth Circuit appears to have treated these sentencing considerations separately.

The Second Circuit in United States v. Hendrix, 505

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F. 2d 1233 (2d Cir. 1974), cert. den. 423 U.S. 897 (1975), has, with other courts, [Note 4] refused to follow the Scott case. But even in the Hendrix case, the court held that a sentencing judge should not take into consideration his belief that a defendant was lying unless the judge had made the determination beyond a reasonable doubt. This may go part way in answering Judge Craven's objection, quoted above, that sentencing on the basis of such a belief is "judgment by hunch"; it does not meet the point that a defendant is entitled to a determination beyond a reasonable doubt by a jury and not by a judge. [Note 5] Nor, in our view, does it sufficiently obviate the burden thus put on the right to testify.

Although "it is not a function of this court to review an otherwise lawful sentence which is within the limits of the applicable statutory provisions . . ., where it appears as it does here that a defendant was sentenced for a crime other than that of which he was convicted it is within the appellate power of this court to vacate the sentence and to take steps necessary to correct the error." Commonwealth v. Franks, 365 Mass. 74 , 81 (1974); S. C. 369 Mass. 608 (1976). See Commonwealth v. Eaton, 2 Mass. App. Ct. 113 ,

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119 (1974). Accordingly, we remand the case to the Superior Court for resentencing.

So ordered.