COMMONWEALTH vs. DAVID N. LIBBY & another.

CUTTER, J. On September 10, 1965, Libby and Paul E. Fleming were indicted for the kidnapping and rape on June 27, 1965, of a nineteen year old girl (Nancy). The evidence would warrant the jury in concluding that these defendants late on Saturday evening (June 26) picked her up by threats and force in Suffolk County and took her by automobile to a place, possibly in Norfolk County, although the evidence concerning its precise location was not clear. In a secluded spot, Fleming had intercourse with Nancy, as he admitted. Libby denied having intercourse with Nancy, but her testimony was that he did. On conflicting evidence the jury reasonably could conclude that the intercourse with each defendant was without Nancy's consent. The defendants left her with another group of young men who later turned her over to others. There was evidence that she was raped by at least two of these persons. She eventually was taken (by a person other than either defendant) to a house of a friend (a girl) about 6 A.M. on Sunday morning.

At the trial under G. L. c. 278, Sections 33A-33G, before a former judge (the trial judge) of the Superior Court and a jury, each defendant was represented by a court-appointed attorney. Libby's attorney was from the Massachusetts Defenders Committee. Fleming's attorney had formerly been associated with that committee. Each defendant was found guilty on each indictment on April 22, 1966, and thereafter was sentenced.

Libby's attorney filed a claim of appeal one day late. Fleming's attorney filed no appeal. Thereafter, each defendant filed a petition for a writ of error in the county court. These petitions were ordered stayed until motions for new trials were dealt with in the Superior Court. See

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Earl v. Commonwealth, 356 Mass. 181. See also Libby v. Commonwealth, 357 Mass. 779.

The single justice appointed new counsel to act for the defendants in these and subsequent proceedings. [Note 1] A motion for a new trial then was filed by each defendant as to each conviction and was heard (see G. L. c. 278, Section 29, as amended through St. 1966, c. 301; Commonwealth v. Gedzium, 261 Mass. 299, 301-307) by a second Superior Court judge (the motion judge) because the trial judge by then was no longer a member of the Superior Court. The case is before us on each defendant's appeal (G. L. c. 278, Sections 33A-33G) from the denial of those motions concerning which the motion judge filed a careful memorandum.

1. The motion judge, as we read his memorandum and the transcript of the hearing on the motions for new trial, dealt broadly with the issues of law presented by the motions to determine whether there was reversible error at the original trial or other reason for a new trial to avoid a miscarriage of justice. It may be that our review of the rulings of the two judges need not be as comprehensive, an issue which we do not decide. In view of the change of judges (dealing with the cases in the Superior Court), we (as a matter of discretion) have reviewed the original trial record on the same basis as if appeals (presenting the assignments of error now argued) had been claimed seasonably in the Superior Court. We conclude that the rulings of each judge were correct and that at trial there was no reversible error.

2. The defendants now contend that the prosecution did not establish that venue for trial of the indictments was in Suffolk County. This contention is without merit. The conflicting evidence warranted the conclusion, not only that the alleged rapes took place in Suffolk County, but that Nancy was taken by force from Suffolk County to the place of the attacks upon her, wherever that place was, a fact sufficient to place venue in Suffolk County under our statutes. [Note 2]

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In any event, no question about venue appears to have been raised at or before trial. That issue, of course, has no bearing upon whether the alleged attacks in fact occurred.

3. Each defendant on cross-examination was asked whether he was married. Fleming's attorney did not object to the question but saved an exception, on the ground of relevance, to a later question about the number of Fleming's children. Libby answered over the objection of his attorney, who saved no exception. Each defendant on direct examination had testified that he either had, or attempted to have, intercourse with Nancy, and that a third man named "Ralph," who was with them on the night in question, did so too. The penalty for adultery (G. L. c. 272, Section 14), of course, is more severe than that for fornication (c. 272, Section 18). Neither defendant, with respect to these questions, raised any issue that he might be incriminating himself as having committed adultery or that the inquiry might otherwise be prejudicial. There had been reference (without objection) to Fleming's wife in earlier testimony. There was also later reference to her. No emphasis appears to have been laid on the fact of each defendant's marriage.

The trial judge, in his discretion, could have excluded the testimony as tending to confuse the issues, and possibly as giving the jury opportunity to punish the defendants, not for rape, but for marital infidelity. [Note 3] Even had there

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been more direct objections and appropriate exceptions, it would not have been prejudicial error to admit the answers. As to Fleming, the answer was merely cumulative. By taking the stand in his own defence, Libby submitted himself to all reasonable cross-examination. See Commonwealth v. Galvin, 310 Mass. 733, 748. Cf. Jones v. Commonwealth, 327 Mass. 491, 493-497. That submission ordinarily should extend at least to basic or routine facts concerning his background such as marital status. Admission of the incidental testimony about the marital status of the defendants seems to us to be harmless error, if error at all.

4. The motion judge, after reviewing the trial judge's charge to the jury, correctly ruled that, "with respect to the substantive offence of rape" and the definition of proof beyond a reasonable doubt, the charge "stated the traditional requirements of proof with clarity." No exception was saved to the charge on the elements of the crime of rape, which had been defined simply and incisively. The principal argument made with respect to the charge on "reasonable doubt" is that the judge used, as an illustration of the meaning of the term, the considerations which might affect jurors in making important decisions in their own lives. He had previously pointed out to the jury that the civil case requirement of proof by a fair preponderance of the evidence did not apply in a criminal case and had explained, in usual terms, what constitutes proof beyond a reasonable doubt. Nothing in his further explanation varied from reasonable and frequently employed methods of charging on this subject.

5. The motion judge ruled that there was no credible evidence at the original trial and at the hearing on the motions for a new trial, "which establishes either negligence or . . . [incompetence] of the" defendants' attorneys at trial. As the motion judge pointed out, both "counsel were

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seasoned . . . criminal trial lawyers." Examination of the record indicates that defence counsel did as much as they could in the circumstances. Each of the attorneys who represented a defendant at trial testified at length at the hearing before the motion judge. He concluded, as do we, that "nothing . . . indicated that the defendants did not receive adequate, competent, and skillful representation at . . . trial" [Note 4] of a "difficult" matter.

We perceive no inadequacy in counsel's pre-trial investigation. The testimony of witnesses at hearings in the Dorchester District Court was available to, and used by, original defence counsel. The transcript of pre-trial hearings in which they participated was available. At one of these (March 14, 1966), Nancy herself testified in some detail. Some questions and answers at prior hearings were introduced in evidence.

In the circumstances disclosed by the defendants' own testimony, original defence counsel cannot be said to have made an inadequate search for witnesses. Their own clients said they did not know the last name of the third man "Ralph" who had been with them, or anything about him. The only other witnesses to the alleged events (according to the defendants) were Nancy and the defendants. The admitted criminal events were over when the second automobile came along. The defendants testified that they knew none of its occupants with whom they left Nancy.

In the circumstances the tactics of counsel during the trial cannot be said to have been inappropriate.

Order denying motions for new trial affirmed.