Com. v. Brown

• Decision Date: 03 February 1981
• Citation: 416 N.E.2d 218,11 Mass.App.Ct. 288
• Parties: COMMONWEALTH v. Richard Charles BROWN, Jr.
• Court: Appeals Court of Massachusetts

Page 218

416 N.E.2d 218

11 Mass.App.Ct. 288

COMMONWEALTH v. Richard Charles BROWN, Jr.

Appeals Court of Massachusetts, Hampden.

Argued Oct. 16, 1980.

Decided Feb. 3, 1981.

Patricia A. O'Neill, Boston, for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, ROSE and PERRETTA, JJ.

ROSE, Justice.

The defendant appealed from a conviction, following a jury trial, of armed robbery. On April 4, 1979, before the defendant's appeal was docketed in this court, he filed a motion for a new trial based on the holding in Commonwealth v. Soares, --- Mass. --- ^a, 387 N.E.2d 499 (1979), cert. denied 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1980). ¹ Following a hearing held on May 2, 1979, the motion judge, who was not the trial judge, filed a memorandum declining to act on the motion and the case was reported to us on the record. The defendant raises two issues: 1) whether the prosecutor improperly used his peremptory challenges systematically to exclude members of a particular racial group from the jury that ultimately convicted the defendant and; 2) whether the trial judge erred in overruling the defendant's repeated objections to the prosecutor's cross-examination of alibi witnesses relating to their failure to report their information to the police.

The Commonwealth presented its case through two white witnesses: the victim of the robbery and the Springfield police officer who presented trays of mugshots to the victim for identification of his two black assailants, one of whom he identified as the defendant. The victim testified that on April 18, 1978, at 9:00 P.M., while he was attending the Gasland gasoline station in Springfield, two black men approached the cash booth where he was sitting. The taller of the two, later identified as the defendant, displayed a gun and demanded that the victim step behind the fence adjacent to the station and surrender his money to the men. Moments later, a car drove up and someone shouted "police, halt," causing the two to flee with the approximately fifty dollars they had taken from the victim. Although the lighting was good near the booth, it was poor behind the fence.

The defendant presented two alibi witnesses, his stepsister, Willabelle Brown, and her friend, James McCans, Jr. Both testified that the defendant was visiting with them at his stepsister's home during the robbery and left with McCans at approximately 10:00 P.M. On cross-examination, over defense counsel's objections and exceptions, the prosecutor asked both witnesses repeatedly whether either of them had told the police that the defendant had been with them. Brown explained that she had not because the police had not asked her and that she had told the defendant's lawyer. When asked the question for the third time, she answered that she did not know the defendant was in jail. McCans responded to the questions similarly, explaining his inaction at one point by answering that the defendant had been arrested several times before.

1. Improper Use of Peremptory Challenges:

In Commonwealth v. Soares, supra, the court held that art. 12 of the Massachusetts Declaration of Rights ² precludes the exercise of peremptory challenges by the prosecution or the defense counsel to exclude members of discrete groups, solely on the basis of bias thought to derive from the individual's membership in the group. The court concluded that there was sufficient evidence to create a prima facie case that the use of peremptory challenges by the prosecutor was designed to exclude persons from the jury on the basis of race and that the failure of the trial judge to allow a hearing on the issue deprived the defendant of his constitutionally protected right to a trial by a jury fairly drawn from the community. The court made this rule retroactively applicable to all defendants, such as Brown, whose cases were then on direct appeal. Brown contends that through the prosecutor's use of peremptory challenges to exclude all three of the three available blacks from membership in the jury that convicted him, he too was deprived of the right to a trial by a jury fairly drawn from the community. When asked by the court to explain this use of peremptory challenges, the prosecutor responded by accusing defense counsel of improperly challenging all of the available white jurors.

We deal first with the Commonwealth's argument that since the defendant defaulted on the second day of his three- day trial, he is beyond the jurisdiction of this court and cannot be heard to complain of errors at his trial under the doctrine announced in Commonwealth v. Rezendes, 353 Mass. 228, 230 N.E.2d 647 (1967). We reject this argument, for Rezendes applies only to defendants who voluntarily absent themselves from the jurisdiction of appellate courts, thereby waiving their appellate rights. ³ We decline to extend this rule to defendants appealing from errors of law that allegedly occurred during trials from which they defaulted.

We are, therefore, presented squarely with the question of whether the defendant's art. 12 right to a trial before a jury of his peers was violated. The importance of this right cannot be overstated. In Commonwealth v. Ricard, 355 Mass. 509, 512, 246 N.E.2d 433 (1969), the court noted that "(a) fair jury is one that represents a cross-section of community concepts." The key objective sought to be furthered by the requirement of a representative cross-section of the community is the assurance of a diffused impartiality. Commonwealth v. Soares, supra --- Mass. at --- ^b, 387 N.E.2d 499. Public confidence in the fairness of the criminal justice system and community participation in the administration of justice are also critical by-products of juries composed of a representative cross-section of the community. People v Wheeler, 22 Cal.3d 258, 270-272, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Thiel v. Southern Pacific Co., 328 U.S. 217, 227, 66 S.Ct. 984, 989, 90 L.Ed. 1181 (1947) (Frankfurter, J., dissenting). Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 696, 42 L.Ed.2d 690 (1975).

As the Soares court noted, however, the goal of diffused impartiality is not necessarily synonymous with absolute proportionality. --- Mass. --- ^c, 387 N.E.2d 499 (1979). Apart from the administrative difficulties inherent in achieving absolute proportionality, the proper use of peremptory challenges may result in juries that diverge from absolute proportionality and yet achieve diffuse impartiality. "Toward the end of 'eliminat(ing) extremes of partiality on both sides,' and of assuring the parties 'that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise,' ... peremptory challenges may be used to eliminate prospective jurors whose unique relationship to the particular case raises the spectre of individual bias." COMMONWEALTH V. SOARES, ID. AT --- , 387 N.E.2D 499,^D quoting from Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835,13 L.Ed.2d 759. Indeed, the use of peremptory challenges to remove jurors with interests relating to the particular case, a process that may incidentally skew the population mix of the jury, serves to promote "the impartiality of the jury without destroying its representativeness." People v. Wheeler, supra 22 Cal.3d at 276, 148 Cal.Rptr. 890, 583 P.2d 748.

While the proper use of peremptory challenges can augment the goal of diffuse impartiality, the improper use of such challenges can and has promoted the opposite. It was for this reason that the court in Soares concluded: "(i)f the constitutional mandate of a jury which fairly reflects a cross-section of the community is to signify more than hollow words in this Commonwealth, we cannot permit the peremptory challenge to be exercised with absolute and unbridled discretion." COMMONWEALTH V. SOARES, SUPRA AT --- - --- , 387 N.E.2D 499.^E It was the improper use of the peremptory challenge to exclude members of discrete groups solely on the basis of a bias presumed to be derived from that individual's membership in the group that the court in Soares condemned.

In examining the case before us, we are guided by the test set forth in Soares for determining whether peremptory challenges have been employed properly. The test begins with a presumption of the proper use of peremptory challenges. This presumption, however, is rebuttable by either party on a showing that "(1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership." COMMONWEALTH V. SOARES, SUPRA AT --- , 387 N.E.2D 499.^F If the complaining party rebuts the presumption of the proper use of peremptory challenges, the burden then shifts back to the allegedly offending party to demonstrate, if possible, that the group members were not struck on account of their group affiliation. It is with this test that we examine the defendant's contention that a pattern of conduct developed at his trial whereby several black prospective jurors who were challenged peremptorily were so challenged because they were black, and that the prosecutor failed to demonstrate that the prospective jurors were not struck on account of their group membership.

The defendant and his codefendant, both black, were convicted of armed robbery of a white man by a jury from which all three of the three eligible blacks had been excluded. During the seating of the jury, from a total of forty in the venire, the prosecutor exercised six peremptory challenges. Three of the challenged jurors were black, two white, and one hispanic. ⁴ Through his use of these challenges, he excluded one hundred per cent of the available black jurors, and only slightly more than eight per cent of the prospective white jurors. ⁵ The difficulty in determining whether a pattern...