8 Mass. App. Ct. 910

October 3, 1979

The defendant appeals from a conviction of rape, claiming improper closing argument by the prosecutor and erroneous instructions to the jury.

1. It was not beyond the limits of tolerable closing argument for the prosecutor to suggest consciousness of guilt from evidence of the defendant's temporary disappearance following commission of the crime. Commonwealth v. Hoffer, 375 Mass. 369, 377-378 (1978). Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978). The prosecutorial conduct was neither flagrant nor persistent. Commonwealth v. De Christoforo, 360 Mass. 531, 536-538 (1971). Commonwealth v. Borodine, 371 Mass. 1, 10-11 (1976), cert. denied, 429 U.S. 1049 (1977). Compare Commonwealth v. Redmond, 370 Mass. 591, 595-597 (1976), where the "prosecutor repeatedly and deliberately sailed unnecessarily close to the wind" and speculated about matters not in evidence, and Commonwealth v. Burke, 373 Mass. 569, 574-577 (1977), where the comment and suggested inference touched on matters not in evidence. In addition, the defendant's counsel did not take an express exception to the prosecutor's argument, although he did so inferentially, and the judge responded that he would attend to it in his instructions to the jury. In his instructions, the judge advised the jury that closing arguments of counsel were not evidence. In the circumstances, where only an isolated incident during closing argument was involved, this was sufficient. Commonwealth v. Blaikie, 375 Mass. 601, 611-612 (1978). Following the judge's instructions, the defendant's attorney neither made any objection nor advised the court as to what instruction he might desire. In such circumstances, nothing comes to this court for review as matter of right. Commonwealth v. Myers, 356 Mass. 343, 346 (1969). Commonwealth v. Earltop, 372 Mass. 199, 203 (1977). Commonwealth v. Fitzgerald, supra at 416.

2. The failure by the defense to object at the trial to any of the judge's instructions to the jury defeats the remaining points which the defendant seeks to raise on appeal. Commonwealth v. Earltop, supra, and Commonwealth v. Fitzgerald, supra. We have examined the entire record and by no stretch of the imagination is this a case where counsel's omission on this score should be overlooked because of "a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

Judgment affirmed.


8 Mass. App. Ct. 910

October 3, 1979

This is an appeal from the denial of the defendant's motion for a new trial.

Page 911

As the defendant's conviction has been affirmed by the Supreme Judicial Court, see Commonwealth v. Lovett, 374 Mass. 394 (1978), the single issue before this court is whether the judge properly denied that motion. There was no error.

The only contention based on an assignment of error now argued on appeal (see Commonwealth v. Watkins, 375 Mass. 472, 474 n.2 [1978]) is that the trial judge was biased and prejudiced against the defendant's trial counsel. At the hearing on the motion, the defendant, who was the only witness, testified and introduced in evidence various portions of the trial transcript.

Upon careful review of the entire record we are unable to discern any bias on the part of the trial judge toward the defendant or his counsel. Viewing all the evidence presented at the motion hearing in a light most favorable to the defendant, which we are not required to do, the most that can be said is that the record reflects "the difficulties he [the judge] has encountered in scheduling trials for the numerous defendants represented by [the defendant's trial] lawyer and how that situation [might cause] . . . delay in the trial of the present case." Commonwealth v. Dabrieo, 370 Mass. 728, 739 (1976). The fact that approximately four years prior to the instant trial the judge had restricted the appearances of the defendant's trial counsel in criminal matters in order to assure his presence in then pending cases does not advance the defendant's cause, as such action is often necessary, and "is certainly within [the judge's] power." Id. See also Commonwealth v. Festo, 251 Mass. 275, 277 (1925).

In short there was no showing at the motion hearing that the judge's actions or rulings during trial prejudiced the defendant in any legal sense or were in any way improper.

Order denying motion for new trial affirmed.