Com. v. Stone

• Decision Date: 12 December 1974
• Citation: 320 N.E.2d 888,366 Mass. 506
• Parties: COMMONWEALTH v. Julian T. STONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 888

320 N.E.2d 888

366 Mass. 506

COMMONWEALTH v. Julian T. STONE.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 16, 1974.

Decided Dec. 12. 1974.

Lois M. Lewis, West Newton, for defendant.

Robert B. Russell, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and WILKINS, JJ.

REARDON, Justice.

The defendant was indicted for the murder of Dominic R. Cammarata in Canton on June 26, 1967, and following a trial was found guilty of murder in the first degree without a recommendation. The sentence of death was imposed on January 31, 1969. The trial judge reported the case under the provisions of G.L. c. 278, § 30, and on May 13, 1974, the single justice allowed full and direct appeal under G.L. c. 278, §§ 33A--33G.

The facts which a jury could have found are simply stated. Eleanor Cammarata, the wife of the victim, and her friend, Sandra Taylor, conceived the idea of murdering the victim, with the expectation of receiving the amount of insurance which they thought to be written on his life. One William Holden was informed of the idea, and the defendant shortly afterwards came into the conspiracy which resulted in the death of Cammarata, whose body was found in a sandpit in Canton with bullet wounds in his head and whose hands were handcuffed behind his back. We do not elaborate on the foregoing and will make reference to additional testimony as the need may arise in the treatment of the assignments of error with which we deal seriatim.

1. Assigned as error is the fact that two jurors were excluded because of their views on capital punishment at the voir dire of prospective jurors. A review of the extensive proceedings which led to the selection of the jury discloses careful treatment by the judge as he asked jurors whether their opinion on the death penalty was such that they could not make an impartial decision on the guilt of the defendant. We see no virtue in discussing once again an issue which recently received full treatment in COMMONWEALTH V. MCALISTER, --- MASS. ---, 313 N.E.2D 113 (1974)^A, except to note that a judge of large experience painstakingly interviewed the jurors to the end that they might arrive at a verdict 'uninfluenced by any personal views or opinions for or against punishment by death or by imprisonment for life.' Commonwealth v. Mangum, 357 Mass. 76, 78, 256 N.E.2d 297, 299 (1970). The defendant here suffered no deprivation of a jury which could fairly determine his guilt or innocence.

2. The defendant complains that the district attorney was allowed systematically to exclude each juror who expressed any doubt about capital punishment. Since, however, the end result of this opinion will be to vacate the sentence of death, the defendant was not prejudiced. Furthermore, the prosecutor's exercise of peremptory challenges is not subject to judicial review. 'The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.' Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965), citing Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). Commonwealth v. Talbert, 357 Mass. 146, 147, 256 N.E.2d 748 (1970).

3. Error is next assigned that the codefendant in the case below, Eleanor Cammarata, was allowed to challenge qualified jurors acceptable to the defendant while she was negotiating a plea of guilty to a lesser charge. The argument is that the trial judge learned of these negotiations during the empanelment of the jury and thereupon should have dismissed the jurors thus far chosen to allow the defendant a jury of his own choosing. There was, however, no prejudice. The defendant has the right to reject jurors but not to select them. United States v. Marchant, 25 U.S. 480, 12 Wheat. 480, 6 L.Ed. 700 (1827). United States v. Parker, 103 F.2d 857 (3d Cir. 1939), cert. den. 307 U.S. 642, 59 S.Ct. 1044, 83 L.Ed. 1522 (1939). United States v. Puff, 211 F.2d 171, 184--185 (2d Cir. 1954), cert. den. 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106 (1954). See Commonwealth v. Mangum, 357 Mass. 76, 80, 256 N.E.2d 297 (1970). In fact the defendant, who had available sixteen peremptory challenges pursuant to G.L. c. 234, § 29, had five remaining after the entire jury were empanelled. Thus no one objectionable to him served on his jury. He is not entitled to ask for more.

4. There is some argument by the defendant that at the time of his trial 'paupers' were excluded from juries in Massachusetts, and that this denied him due process. No assignment of error raised this contention and there was no objection to the ultimate jury composition below. We pass over these failures to preserve alleged rights only to remark that the issue was recently discussed in United States v. Andrews, 462 F.2d 914 (1st Cir. 1972), which involved a Federal jury selected in conformity with Massachusetts law. Suffice it to say that the judge was not convinced that 'paupers' under the peculiar definition set out in G.L. c. 51, § 1, ¹ actually constituted an 'economic class' in contravention of 28 U.S.C. § 1862 (1970), which forbids the exclusion of jurors from Federal juries on the basis of their economic status. We have the same difficulty discovering any constitutional infirmity in the jury selection but we need say no more, not only because of the failure to make the proper assignment of error but also because there was no attempt to prove below that 'paupers' under the statute constitute a distinct and identifiable class. The burden of proof in such matters is clearly with the defendant. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). Swain v. Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

5. It is assigned as error that the prosecution suppressed exculpatory evidence and denied the defendant the opportunity to confront a witness. This argument is based on evidence which might have come from one Cornelius Brewster, referred to as 'Bill, the Negro,' throughout the trial. He was allegedly privy to certain confessions made by the defendant to others who did testify. It is argued that the Commonwealth's failure to call Brewster as a corroborative witness indicates that his testimony would have been unfavorable to the prosecution. A line of cases stemming from Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), holds that suppression of evidence favorable to the accused requested by the defendant violates due process where the evidence is material to guilt or innocence. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1969); Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). However, defense counsel made no request at the trial for any information relating to Brewster. We have generally required that absent a request, and where the suppression by the prosecution is not deliberate, the evidence must meet a high standard of materiality, a substantial probability of altering the result. Commonwealth v. Earl, --- Mass ---, ---, ^b 283 N.E.2d 677 (1972). Commonwealth v. Roberts, --- Mass. ---, ---, ^c 285 N.E.2d 919 (1972). Commonwealth v. Hurst, --- Mass. ---, ---, ^d 307 N.E.2d 835 (1974). See United States v. Keogh, 391 F.2d 138, 146--148 (2d Cir. 1968). The defendant's failure to make such a request in this instance is significant for it may have stemmed from a calculated defense strategy to avoid use of the evidence. In fact, the transcript would indicate that the full identify or whereabouts of Brewster was either known to the defendant or not wanted. Furthermore, the trial judge found that Brewster had refused to be interviewed by the prosecution. The prosecution's mere failure to obtain conceivably exculpatory information from a potential witness does not constitute suppression of evidence, at least here where there is no allegation that the defendant was denied access to the witness. Compare Commonwealth v. Balliro, 349 Mass. 505, 516--518, 209 N.E.2d 308 (1965). Likewise, the failure of the prosecution to call Brewster as a witness does not violate the defendant's Sixth Amendment right of confrontation. United States v. Polisi, 416 F.2d 573, 579 (2d Cir. 1969). United States v. Bryant, 461 F.2d 912, 916 (6th Cir. 1972).

6. The defendant argues further that numerous prejudicial references were made during the trial to his criminal conduct unrelated to the trial and that the jurors were thereby prejudiced. Initially the prosecutor made reference in his opening statement to the defendant's compulsory departure to Pennsylvania 'to avoid certain authorities.' There was a prompt objection and the trial judge instructed the jury to disregard the statement. This constituted an adequate cure of whatever prejudice may have resulted. Commonwealth v. Bellino, 320 Mass. 635, 645, 71 N.E.2d 411 (1947), cert. den. 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1946). Commonwealth v. Gibson, 357 Mass. 45, 48--49, 255 N.E.2d 742 (1970), cert. den. 400 U.S. 837, 91 S.Ct. 76, 27 L.Ed.2d 71 (1970). Commonwealth v. Rucker, 358 Mass. 298, 300, 264 N.E.2d 656 (1970).

It is evident from the fact that defense counsel made no objection to questions directed to Eleanor Cammarata referring to the defendant's involvement in a prior robbery that the defense was not too concerned about the admission of this evidence. ² As we pointed out in Commonwealth v. Underwood, 358 Mass. 506, 510, 265 N.E.2d 577 (1970), it is not uncommon for defense counsel to forgo objections as part of trial tactics. See Commonwealth v. Foley, 358 Mass. 233, 236, 263 N.E.2d 451 (1970); Commonwealth v. Veal, --- Mass. ---, ---, ^e 289 N.E.2d 844 (1972); Commonwealth v. Miskel, --- Mass. ---, ---, ^f 308 N.E.2d 547 (1974). It is noteworthy that defense counsel himself elicited testimony in cross-examination from one William Holden relating to the defendant's prior criminal...