COMMONWEALTH vs. RONALD A. BETTENCOURT (and five companion cases [Note 1]).

REARDON, J. These cases are here on appeal under G. L. c. 278, Sections 33A-33G. The three defendants were tried together. Ronald A. Bettencourt was convicted on the charges of rape, kidnapping, and an unnatural act. Robert L. Silvia was convicted on indictments charging rape and kidnapping. David L. Frates was convicted of rape, and found not guilty on an indictment charging kidnapping. The cases arise out of bizarre and inhuman crimes, the details of which it is not necessary to recite.

The defendants have alleged essentially the same assignments of error with which we deal seriatim.

1. The defendant Frates urges violation of art. 12 of the Massachusetts Declaration of Rights and of the Fourteenth Amendment to the United States Constitution in that he was denied the effective assistance of counsel because the trial judge on March 22, 1971, refused to continue the case for three days for trial. In denying his motion for a continuance, the judge noted that "the defendant voluntarily appeared without counsel who previously represented him and after having adequate time to retain counsel," and that the denial of the motion was "in the exercise of . . . [his] discretion, it appearing to be merely dilatory and an attempt to delay trial." Frates had retained counsel at the probable cause hearing held on February 18, 1971, but had been unable to raise funds to retain this counsel for the Superior Court trial, and was indigent at that time. The court appointed counsel four hours before trial was scheduled. We are well aware that "it is required to allow the accused a reasonable opportunity to procure counsel for himself and to allow such counsel a reasonable opportunity to prepare and to present the defence." Lindsey v. Commonwealth, 331 Mass. 1, 2. Jones v. Commonwealth, 331 Mass. 169, 171. Commonwealth v. Brant, 346 Mass. 202, 204. Commonwealth v. Smith, 353 Mass. 442, 445. Whether a motion for continuance should be granted lies within

Page 518

the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case. In this instance over a month had passed from the probable cause hearing until the date set for trial. During this period Frates knew that he was obliged to secure counsel or seek the aid of the court. He did neither until the trial date itself. "It constitutes no `myopic insistence upon expeditiousness' to hold this defendant to a trial of which he had knowledge long before the day" he finally asked the court to appoint counsel for him. Commonwealth v. Smith, supra, 446. If on the day of trial defence counsel lacked any information on the case it was due primarily to Frates's lack of diligence in his own behalf. See Commonwealth v. Brant, supra, 204. Frates was no tyro before the courts, and with his knowledge of the impending trial it was not unreasonable to hold him. A reading of the transcript discloses that his appointed counsel represented him ably, calling witnesses on his behalf. The circumstances of these cases do not lead us to conclude that the judge abused his discretion.

Frates lays considerable emphasis on Rastrom v. Robbins, 440 F. 2d 1251 (1st Cir. 1971). However, the Rastrom case is clearly distinguishable, for there appointed counsel was inexperienced, the defendant demonstrated psychological abnormality, alibi witnesses had to be found, and the propriety of a pre-trial identification tested. Time was required in the Rastrom case in problems of preparation that were not present in the instant cases.

2. The defendants complain of the denial of motions to sequester witnesses. Here again the discretion of the judge carries great weight. It is within his judgment to deny such a motion. Commonwealth v. Blackburn, 354 Mass. 200, 205, and cases cited. We see no abuse of discretion here.

3. Also assigned as error by the defendants is the failure of the judge to limit the effect of testimony of

Page 519

a female witness as to what the victim told her the morning after the alleged mass rape. They contend that this witness's account should have been admitted for the limited purpose of corroboration of the victim's testimony and not as evidence of the truth of what was said. Glover v. Callahan, 299 Mass. 55, 57. There was a request by counsel for Frates that the judge so limit the effect of the testimony but he allowed it "for any purpose." The witness gave susbtantially the same testimony as that given by the victim and two other witnesses, the effect of whose testimony was limited by the judge's charge. In our view the admission of the testimony without limiting restrictions was error but the testimony was merely cumulative, and, although its admission was erroneous, it was not prejudicial. Commonwealth v. McGrath, 358 Mass. 814. Schneble v. Florida, 405 U.S. 427.

4. Error is alleged by the defendants in the exclusion, after objection, of the testimony of one Harding as to the contents of a telephone conversation between him and the victim. The defence argues that the conversation was admissible to impeach the victim's credibility. The defence offered at trial to prove that Harding would have testified that prior to the night of the crimes the victim threatened to have one of the participants "beat . . . [Harding] up." She had previously stated that before the night of the rape she had not known the participant in question. It is argued that this impeachment of her credibility was relevant to show her state of mind on the night of the crimes. While an adverse party may show that a witness has made inconsistent or conflicting statements on a fact relevant to the issue on trial (Commonwealth v. West, 312 Mass. 438, 440), it is within the judge's discretion to determine the extent to which such evidence can be introduced to show inconsistencies in the witness's testimony on collateral matters. Commonwealth v. Doherty, 353 Mass. 197, 213-214. Whether the victim knew the particular participant prior to the night in question is collateral to the

Page 520

issue of her consent to what transpired. The admission of the evidence was a matter of judicial discretion, which was not abused.

5. The defendants Bettencourt and Silvia next contend that the judge erred when he charged the jury on the defence of coercion in the following terms: "There were three of them, and he was one. [Note 2] What do you say? What do the male members of this jury think of that on the issue of whether or not they were afraid of death or serious bodily injury?" They argue that this remark prejudiced them, especially when viewed in the context of other parts of the judge's charge which, they assert, tended to support the credibility of the victim. [Note 3] We disagree. "Our decisions have consistently upheld the action of trial judges in putting before the jury possible conclusions warranted by the evidence in language that is `comprehensively strong, rather than hesitatingly barren or ineffective.' Whitney v. Wellesley & Boston

Page 521

Street Railway, 197 Mass. 495, 502." Cahalane v. Poust, 333 Mass. 689, 692-693. Accord, Commonwealth v. Binkiewicz, 342 Mass. 740, 753. Commonwealth v. White, 353 Mass. 409, 423. Harris v. United States, 367 F. 2d 633, 636 (1st Cir. 1966). The charge here by the judge did not tell "the jury in unmistakable terms that the judge thought the witnesses to whom he was referring were not telling the truth." Cahalane v. Poust, supra, 693. Rather it put before the jury "possible conclusions warranted by the evidence."

Although the defendant Frates did not raise the defence of coercion, it was not prejudicial, as he claims, for the judge to charge the jury on the law of coercion without instructing them that he had not raised that defence. In order for the jury to convict him they were required first to find that he had relations with the victim. Including him within the asserted defence of coercion did not, therefore, amount to a statement by the judge that Frates had had sexual relations with the victim. Frates was not damaged by it.

6. The defendant Silvia attacks the admission in evidence of an alleged confession by him to a State trooper on the ground that the interrogation which preceded it violated the Fifth Amendment of the United States Constitution. It is by now well known that the prosecution must show that the defendant who makes a statement to the police in the absence of counsel must knowingly and intelligently have waived his right to counsel and his privilege against self-incrimination. Commonwealth v. McKenna, 355 Mass. 313, 323. Here there was evidence that upon arrest the defendant's rights were spelled out to him. At the State police barracks thereafter he was again advised of them, whereupon he signed a waiver which was introduced in evidence. Having been informed that he might have counsel and could use the telephone, he neither asked for counsel nor for the use of the telephone. Silvia has no valid ground for complaint that he was deprived of any constitutional rights.

7. Bettencourt and Silvia allege prejudice in the joinder

Page 522

of counts and the trial together of the codefendants. As we said in Commonwealth v. Fancy, 349 Mass. 196, 204, and cases cited, whether the substantial rights of the defendants or the Commonwealth would be prejudiced by joinder lies in the sound discretion of the judge. The defendants describe several situations with considerable ingenuity in which they might be prejudiced by joinder. Their generalities and arguments on this point have no relation to the specifics of these cases. There was no abuse of discretion.

Judgments affirmed.