Com. v. Hamilton

Decision Date05 December 1991
Citation411 Mass. 313,582 N.E.2d 929
PartiesCOMMONWEALTH v. Floyd HAMILTON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Kevin P. Curry, Boston, for defendant.

Nijole Makaitis, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The defendant appeals from his convictions of murder in the first degree and armed robbery. 1 The defendant argues that (1) his right to an impartial jury was violated by the prosecution's improper exercise of peremptory challenges, as well as the trial judge's allegedly unconstitutional remedy for that improper exercise; (2) the judge erred in concluding that the defendant waived his right to remain silent and his right to counsel before answering certain questions of police officers; (3) the judge erred in refusing to excise portions of a tape recording of his interrogation which the defendant introduced in evidence; (4) the judge in admitting evidence of the defendant's arrest and the revolver that he was carrying at that time, four months after the crimes; (5) the jury verdict of not guilty on the indictment charging unlawful carrying of a shotgun invalidates the two guilty verdicts and (6) the judge's instructions to the jury were constitutionally deficient. 2

There was evidence that on the evening of May 23, 1984, Bienvenido DeJesus (DeJesus), the brother of the murder victim, Efrain DeJesus (victim), met Joseph Pope outside of DeJesus's home where he resided with his wife, their two children, and the victim. After Pope asked DeJesus whether the victim was at home, DeJesus entered his home and told the victim that Pope was asking for him. While DeJesus went into the upstairs bathroom to bathe his two children, the victim left the house. DeJesus observed the victim, Pope, and the defendant pass by the open bathroom door on their way to the victim's room. A few moments later, DeJesus noticed that the same three men moved past the bathroom to a small room from which the victim occasionally sold cocaine.

DeJesus then heard the footsteps of more than one person going downstairs. About a minute after that, he heard the victim yell out, "Oh no, not this. You are going to have to shoot," and then he heard sounds of a shuffle, a gunshot, and his brother yell out, "Compe." As DeJesus started out of the bathroom, Pope placed a gun at his head and pulled him into the small room. He then demanded that DeJesus give him everything that he had. DeJesus complied and placed his money on a table.

The defendant came back up the stairs, knelt on one knee in the hallway, pointed a shotgun at DeJesus, and said to Pope, "Let's go." Pope grabbed the money, and both men then ran down the stairs and out of the house. DeJesus then picked up his crying children and went down the stairs. He saw the victim lying at the bottom of the stairs in a pool of blood. According to the medical examiner, the victim died of a shotgun wound to the heart and the left lung.

1. The defendant's right to an impartial jury trial. The defendant is black. He contends that the prosecutor's peremptory challenges violated the Massachusetts and Federal Constitutions, and that the judge's remedy for these violations was also unconstitutional and violated G.L. c. 234, § 26B (1990 ed.). Two of the seven peremptory challenges made by the prosecutor resulted in the exclusion of black jurors. Only one out of the final sixteen members of the jury was black. When the jury were to be reduced to twelve members, the judge, sua sponte, set aside, along with the foreperson's juror card, the juror card of the black juror in order to ensure that he would be a member of the jury and not an alternate.

Both art. 12 of the Massachusetts Declaration of Rights, see Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), and the equal protection clause of the Fourteenth Amendment to the United States Constitution, see Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986), prohibit the exercise of peremptory challenges to exclude jurors solely by reason of their race. While there is a presumption of the proper use of peremptory challenges, that 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." Soares, supra 377 Mass. at 490, 387 N.E.2d 499. See Batson, supra 476 U.S. at 97, 106 S.Ct. at 1723 (pattern of exclusion of black jurors is prima facie showing of discrimination). Once the judge determines that the party opposing the peremptory challenges has rebutted the presumption of their proper use, the burden then shifts to the other party to demonstrate neutral reasons for the challenges. Soares, supra 377 Mass. at 491, 387 N.E.2d 499. Batson, supra 476 U.S. at 97, 106 S.Ct. at 1723. That burden, however, does not rise to the level of the grounds required by a challenge for cause. Soares, supra. Batson, supra.

In this case, because the prosecution disproportionately excluded sixty-seven per cent of the prospective black jurors and only fourteen per cent of the available whites, the defendant established a prima facie rebuttal of the presumption. See Soares, supra 377 Mass. at 490, 387 N.E.2d 499 (exclusion of ninety-two per cent of prospective black jurors as contrasted with thirty-four per cent of available whites indicated that blacks were being challenged because of their race). At that point, however, the burden then shifted to the prosecution "to justify the challenge[s] with a persuasive neutral reason unrelated to the defendant's group membership." Commonwealth v. Harris, 409 Mass. 461, 468, 567 N.E.2d 899 (1991).

The prosecutor advanced persuasive neutral justifications for his two challenges. The prosecutor's basis for challenging the first black juror was that she lived in a neighborhood in which the prosecutor had investigated a multiple homicide. The prosecutor challenged the second black juror because of her demeanor and her inconsistent responses to questions. Each of the prosecutor's bases for his peremptory challenges was a neutral explanation and pertained to the individual qualities of the prospective jurors and not to their group association. See Soares, supra 377 Mass. at 491, 387 N.E.2d 499 (rationale must pertain to juror's individual qualities); Batson, supra 476 U.S. at 98, 106 S.Ct. at 1724 (prosecutor "must articulate a neutral explanation related to the particular case to be tried"). Contrary to the defendant's assertion, the judge's removal of the black juror's card was not indicative of his determination that the prosecution had not met its burden of justification for its challenges, but instead was indicative of his attempt to ensure that the defendant had a representative jury.

The defendant next argues that the removal of the black juror's card was per se prejudicial. Because the defendant found this procedure acceptable at trial and did not object, we review the judge's actions under G.L. c. 278, § 33E (1990 ed.), to determine if there was grave prejudice or a substantial likelihood of a miscarriage of justice. Commonwealth v. Stewart, 398 Mass. 535, 543-544, 499 N.E.2d 822 (1986). The removal of a juror's card from the alternate selection process, while inconsistent with the procedures within G.L. c. 234, § 26B (1990 ed.), is not, by itself, prejudicial. See Commonwealth v. Bellino, 320 Mass. 635, 638-642, 71 N.E.2d 411 (no prejudice to defendant in exempting foreman from discharge), cert. denied, 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1947); Commonwealth v. Paiva, 16 Mass.App.Ct. 561, 564, 453 N.E.2d 469 (1983) (no substance to claim that excluding forelady from alternate jurors' selection was prejudicial to defendant). We believe that, where a defendant fails to object to a procedural defect, as in the present case, then that defendant has the burden of presenting some proof of prejudice. See G.L. c. 234A, § 74 (1990 ed.) (no mistrial for irregularity in juror selection where no objection and no prejudice). That is not the situation here, where the judge's procedure actually improved the representativeness of the jury.

2. The defendant's waiver of his right to counsel and his right to remain silent. Cambridge police arrested the defendant on an unrelated matter and notified the Boston police department. The defendant agreed to speak with Boston police officers. After reading the Miranda warnings to the defendant from a printed card, Detective Peter O'Malley questioned him about the victim's murder on May 23, 1984. After the defendant described his activities on that evening for approximately five to ten minutes, he agreed to Detective O'Malley's suggestion that his statement be tape recorded. At the beginning of the recording, Detective O'Malley and the defendant had a discussion about the defendant's right to an attorney and his right to remain silent. At that point, the defendant commented that he had "been waiting to see [an attorney], but one hasn't come down yet," and then he asked, "But I couldn't have one now though?" After the defendant made these remarks, Detective O'Malley continued the interrogation and obtained a complete statement from the defendant.

Although the motion judge ruled that the government did not prove beyond a reasonable doubt that the defendant waived his rights under the Fifth Amendment to the United States Constitution or his right to cut off questioning after the tape recorder was turned on, the judge was satisfied that the statements made by the defendant before the tape recorder was turned on, after being advised of his Fifth Amendment rights, were made freely, voluntarily and without a denial of assistance of counsel....

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