424 : To Rise Up
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At the trial of rape indictments, certain remarks of the judge to which the defendant did not object, regarding the safety of certain physical exhibits and the availability of gloves for the jurors' use if they should want to examine the exhibits, did not rise to a ground for reversal of the verdicts. [310-311]
reported that the defendant was acting up and had injured himself. At a lobby conference, the parties agreed to adjourn for the day. The next morning, the judge ordered a number of additional security measures which are the subject of this appeal. Following trial, the jury convicted the defendant on four of the five indictments. The Appeals Court reversed the judgments and set aside the verdicts on three grounds: (1) Although the trial judge acted within his discretion in admitting in evidence the victim's statements that the defendant had told her he had tested positive for AIDS, the judge should have given the jury a cautionary instruction "to minimize or possibly to dissipate the prejudice or fear likely to arise from the testimony." Commonwealth v. Martin, 39 Mass. App. Ct. 658, 664 (1996). The defendant had not requested such a cautionary instruction. (2) The security measures were excessive and, in light of what the Appeals Court termed "the AIDS issues," were especially prejudicial. That court concluded that "[o]n this record, perhaps some security restraints were justified. But, the placing of leg irons on the defendant and the physical separation of the defendant from his counsel was excessive and, therefore, error." Id. at 668-669. The court also observed that the judge's instructions to the jury did not mention the special restraints, although this court had stated in Commonwealth v. Brown, 364 Mass. 471, 476 (1973), that "[w]hen special restraints are imposed, the judge's charge to the jury should seek to quell prejudice by reasoning and warning against it." See Commonwealth v. Martin, supra at 669 n.7. (3) At the close of trial, the judge told the jury that he would not send the rape kit and the bags of clothing into the jury room unless the jury requested them, and that in that case he would provide the jury with gloves to handle this material. The Appeals Court found that these remarks were prejudicial and improperly supported the victim's testimony that the defendant had AIDS. Id. at 670.
Id. at 476. But we went on to say that "changes are needed," id. at 479, because of the "inadequate . . . procedure often followed in dealing with the issue of security at trial," id. at 478, specifically noting problems which arise if there is no record denoting the judge's reasons for implementing security measures and the facts buttressing the judge's reasoning. Addressing this problem, we concluded:
"It should be possible in some cases at least for the prosecution, the defence, and the custodial authority, without participation by the judge, to consider and agree in advance on any unusual security measures that need to be taken during trial. In the absence of agreement, we think that a judge who contemplates approving such measures should state his reasons (including recommendations received from the custodial authority) in the presence of counsel and defendant, and out of the presence of veniremen or jury, and provide an opportunity for counsel to make their objections known. If fact questions arise, they should be thrashed out. The hearing may be informal, and ordinary rules of admissibility need not be observed, but a record should be made." (Footnote omitted.)
The defendant offered no objection to these statements at the time they were made. He now argues that these statements exacerbated the prejudice that might arise from the victim's testimony regarding the defendant's prior statement that he had AIDS and that the judge invaded the province of the jury by implicitly vouching for the victim's credibility. In evaluating this claim it is important to recall that the rape kit included laboratory items, which -- like the bags of clothing -- were unlikely to be of much help to the jurors in their deliberations. The implication the defendant now draws from the judge's remarks does not rise to a ground for reversal, especially in the absence of an objection.
[Note 1] If the AIDS issue came as a surprise in the midst of the trial, which does not appear likely, defense counsel might have sought a continuance to obtain such rebutting testimony if none was then available.
Since the planet Mercury is so close to theSun and moves along its orbit 1.5 to 2 times faster than Earth, itflits from side to side of the Sun so as to be seen only just beforesunrise or just after sunset. Its mothlike rapid motion and briefappearances and disappearances are probably why the ancientsassociated it with the wingfooted messenger of mythology. Bycontrast, Venus comes closer to Earth, moves farther from the Sun inthe evening and morning skies, appears placid and brilliant, and isperhaps the most beautiful object in the skies. " Mistress of theHeavens" said the Babylonians, while the Romans associated the planetwith the goddess of beauty, Venus.
Because Mercury and Venus orbit the Sun withinEarth's orbit, they are termed inferior planets. As seen from theEarth, inferior planets appear to move close to the ecliptic (theapparent yearly path of the Sun relative to the star sphere, which isalso the plane of the Earth's orbit projected against the stars), andto move backward and forward, oscillating to either side of the Sunand never far from it in the sky. The maximum angular distance toeast or west of the Sun is termed elongation. At eastern elongation,Mercury and Venus are seen in the evening sky as evening starsbecause they appear to follow the Sun in its daily motion acrossEarth's sky owing to the rotation of the Earth (Fig. 1-2). At westernelongation, they are ahead of the Sun and are seen as morning starsbefore sunrise.
Mercury is intrinsically a relatively darkobject. Like the Moon it does not reflect much of the sunlightfalling upon it-it is said to have a low albedo-so it does not appearvery bright in the sky. Moreover, Mercury can rise before or setafter the Sun by only 2.5 hours at the maximum, so it is rarely seenin the dark sky, but usually only in the twilight glow. Because ofits rapid orbital motion the planet cannot be seen for much longerthan two weeks around the time of each elongation. The averageinterval between Mercury's appearance as an evening and a morningstar is 44 days.
The major differences among the terrestrialplanets may have arisen because these planets formed at differentdistances from the Sun and thus consisted of different materials fromthe beginning. For example, Mercury might have formed from materialsrich in iron, whereas Venus formed from silicate-rich materials.Earth may have accreted in a region of the primordial nebula wherethere were water-containing materials, while Venus did not. 59ce067264