Com. v. Walker

• Decision Date: 30 November 1979
• Parties: COMMONWEALTH v. Thomas WALKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1105

397 N.E.2d 1105

379 Mass. 297

COMMONWEALTH v. Thomas WALKER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 11, 1979.

Decided Nov. 30, 1979.

Edward Berkin and Robert J. Doyle, Dorchester, for defendant.

Timothy P. O'Neill, Asst. Dist. Atty., (Kevin Connelly, Sp. Legal Asst. to Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

BRAUCHER, Justice.

The defendant was convicted by a jury in May, 1977, on three indictments for assault and battery by means of a dangerous weapon (an automobile), three indictments for operating a motor vehicle and going away after causing injury to a person, and one indictment for operating an automobile so that the lives and safety of the public might be endangered. On June 1, 1977, he was sentenced to concurrent terms in prison of not less than four nor more than seven years on the assault charges; the other indictments were placed on file. Subsequently, two motions for new trial were denied; on August 3, 1979, pursuant to the order denying the second motion, he was released on personal recognizance. He appealed to the Appeals Court pursuant to G.L. c. 278, §§ 33A-33G, and we transferred the case to this court on our own motion. The defendant assigns error in the jury selection process, particularly the Commonwealth's use of peremptory challenges; he also raises evidentiary issues and claims prosecutorial misconduct and ineffective assistance of counsel. We affirm the convictions.

The charges arose out of an incident in Dorchester on the night of July 4, 1976, following a violent racial confrontation between black people and white youths. There was testimony that the defendant, a black man, drove his automobile at a high rate of speed, turned it toward two young white men and a young white woman, struck and seriously injured all three, and fled the scene on foot. The main issue at trial was the identity of the driver. There was testimony that the defendant was elsewhere at the time, and three witnesses, including Kathleen Travers, a white woman, testified that the driver was a white male.

1. Jury selection procedure. The judge denied the defendant's motions for voir dire conducted by counsel and for use of "the struck method" of jury selection. ¹ But he did conduct a voir dire of prospective jurors individually, and he allowed the defendant's motion for extra peremptory challenges, granting eight for the defendant and eight for the Commonwealth. He asked a number of questions bearing on racial bias, but refused to ask additional questions submitted by the defendant. We think the procedure followed satisfied both G.L. c. 234, § 28, as amended through St.1975, c. 335, and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). See Ristaino v. Ross, 424 U.S. 589, 597, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Commonwealth v. Horton, --- Mass. ---, --- - --- ^A, 380 N.E.2d 687 (1978); Commonwealth v. Dickerson, 372 Mass. 783, 792-795, 364 N.E.2d 1052 (1977). The judge put the issue of racial prejudice before the prospective jurors in plain and unmistakable language, with follow-up questions when appropriate. He had broad discretion as to the questions to be asked, and was not required to put the "open-ended" questions requested by the defendant to permit the prospective juror to "talk out his feelings." See Commonwealth v. Grace, 370 Mass. 746, 757, 352 N.E.2d 175 (1976); Commonwealth v. Bailey, 370 Mass. 388, 399 n. 13, 348 N.E.2d 746 (1976); Commonwealth v. Core, 370 Mass. 369, 375-376, 348 N.E.2d 777 (1976).

( 3) 2. Peremptory challenges. The defendant argues that the prosecutor, by the use of his peremptory challenges, systematically excluded black jurors and thereby denied the defendant a fair trial by an impartial jury. See Commonwealth v. Soares, --- Mass. ---, --- - --- ^B, 387 N.E.2d 499 (1979). In the Soares Case, the point was raised by exceptions to each challenge of a prospective black juror and to denial of a requested hearing. Id. at --- - --- n. 8, ^C 387 N.E.2d at 508. In the present case the defendant noted for the record the prosecutor's challenges of black persons. He took no exceptions, but the point was presented to the judge by the defendant's second motion for a new trial, and the judge denied the motion on the merits. We think the record, including the proceedings on the motion, is sufficient to present the issue. See ID. AT --- N. 38 , 380 N.E.2D 518^D.

Sixty-four prospective jurors were interviewed on voir dire before the jury of fourteen were sworn. At least nine were black; the classification of a tenth, who had a Hispanic surname, was disputed. Thirty-five, including two who were black, were excused for cause. The defendant peremptorily challenged eight prospective white jurors; the prosecutor used only seven peremptory challenges, eliminating five blacks, the Hispanic, and one white. Two blacks were sworn as jurors, and both were among the twelve who rendered the verdicts.

The Soares case was a murder case and there were three defendants; under G.L. c. 234, § 29, each defendant was entitled to sixteen peremptory challenges and the prosecutor was entitled to forty-eight. In the present case the statute provided for only four such challenges for the defendant and four for the prosecutor. Cf. Mass.R.Crim. P. 20(c) (effective July 1, 1979). The defendant made a tactical decision to seek additional peremptory challenges, and was successful in obtaining eight for each side. The danger that black jurors may be effectively excluded obviously increases as the number of peremptory challenges increases. But we think the principle of the Soares case retains its force even though the defendant's tactics contribute to the result.

The opinion of the court in the Soares Case states, "We begin with the presumption of proper use of peremptory challenges." The presumption is rebuttable 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." Id. at --- - --- ^E, 387 N.E.2d at 516-517. It is for the trial judge to "determine whether to draw the reasonable inference that peremptory challenges have been exercised so as to exclude individuals on account of their group affiliation." Id. at ---, --- n. 37 ^F, 387 N.E.2d at 517, 518 n. 37.

In the present case the Soares issue was presented to the trial judge by the second motion for new trial. He had the benefit of the Soares opinion, and he recognized "the difficulty of recreating the empanelment of the jury." His conclusion was, "I do not find that there was a systematic exclusion of any discrete group."

We think we should not substitute our judgment for that of the trial judge on the record before us. Peremptory challenges in the present case of five out of seven blacks, or of six out of eight, obviously present a less compelling showing than challenges of twelve out of thirteen in the Soares case. Although it is not at all conclusive, we note the fact that one-sixth of the jurors who rendered the verdicts were black, and that approximately one-seventh of the jurors interviewed were black.

3. Stolen car report. Over the defendant's objection and exception, the judge admitted in evidence a police record of a stolen car report. The police cadet who made the record testified that it was kept in the regular course of business, and the judge admitted it as a regular business entry pursuant to G.L. c. 233, § 78. The defendant assigns error on the ground that the statements made to the police cadet by an unidentified person were inadmissible as "second level" or "totem-pole" hearsay. See Kelly v. O'Neil, 1 Mass.App. 313, 316-317, 296 N.E.2d 223 (1973); Cf. Bouchie v. Murray, --- Mass. ---, --- - --- ^G, 381 N.E.2d 1295 (1978); Commonwealth v. Alves, 6 Mass.App. ---, --- - --- ^H, 380 N.E.2d 701 (1978); Commonwealth v. Happnie, 3 Mass.App. 193, 199, 326 N.E.2d 25 (1975).

The record in question identified the same automobile that was involved in the crimes charged, gave a name, telephone number and address for the owner, and bore a date and time stamp showing 9:31 P. M. on July 4, 1976. There was evidence that the crimes charged were committed before that time. The record gave the owner's name as "Mr. McGuigan." Mrs. McGuigan testified that she was the owner, that the telephone number was hers but the address was wrong, that the defendant had possession of the car in July 1976, and was paying for it on a monthly basis, and that she made no call to the police. The prosecutor asked the jury to infer that the call was made by the defendant in an attempted cover-up.

The police cadet who testified had personal knowledge that the statements of the unidentified caller were made. The record of those statements was not offered for the truth of the matters asserted by the caller. Thus evidence of those statements did not constitute "second level" hearsay. A proper foundation was laid for the admission of the record under the statute, and the judge properly exercised his discretion to admit it.

4. Prosecutorial misconduct. The defendant asserts that the prosecutor knowingly adduced false evidence, suppressed exculpatory evidence, failed to cleanse the record of the false testimony, misled the defendant as to the substance of the exculpatory evidence, exploited the false testimony, and thus deprived the defendant of a fair trial. These matters were fully explored at a hearing on the defendant's first motion for new trial. His claims fail because they are not supported by the judge's findings.

The witness Travers testified for the defense that she saw a white man driving the car in question at a high rate of speed. On cross-examination, she added she was in the company of friends, including Mary Ann...