Brunson v. Com.

• Citation: 369 Mass. 106,337 N.E.2d 895
• Parties: Barbara BRUNSON et al. v. COMMONWEALTH.
• Decision Date: 18 November 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 895

337 N.E.2d 895

369 Mass. 106

Barbara BRUNSON et al.

v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1975.

Decided Nov. 18, 1975.

Barbara A. Shapiro, Roxbury (Margaret A. Burnham, Boston, with her), for plaintiffs.

D. Lloyd Macdonald, Asst. Dist. Atty., for the Commonwealth.

William A. Nelson & Malvine Nathanson, Boston, for Massachusetts Defenders Committee, amicus curiae, submitted a brief.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

QUIRICO, Justice.

This is a complaint by Barbara Brunson and Stephen Ware asking this court 'to issue a writ of general superintendence' under G.L. c. 211, § 3, as amended by St.1973 c. 1114, § 44. The primary relief sought by the plaintiffs is the dismissal of indictments pending against them because of alleged constitutional and statutory irregularities in the preparation of the annual jury lists for the city of Boston. These lists are the principal source of members of venires for grand jurors and traverse jurors in Suffolk County. ¹ The alternative relief sought by the plaintiffs, in the event the indictments are not dismissed, is to strike the venires of traverse jurors drawn from Boston's 1973 annual jury list, to refrain from further use of that list, and to 'reconstitute the (Boston) Jury List in a nondiscriminatory manner.'

The complaint was submitted to a single justice of this court on the basis of the pleadings and a statement of agreed facts, without evidence. The single justice reserved and reported the case to this court without decision. For reasons discussed below, we hold that this is not presently an appropriate case for the exercise of our power under G.L. c. 211, § 3, for the 'general superintendence of all court of inferior jurisdiction.'

The following is a summary of the pertinent proceedings in the Superior Court. The plaintiff Barbara Brunson was indicted in September, 1973, for the crime of possession of heroin with intent to distribute it; the plaintiff Stephen Ware was indicted in March, 1974, for the crimes of armed robbery and assault with intent to commit robbery. The crime charged against Brunson is in no way related to those charged against Ware, and the two persons will be tried separately, when tried.

As to each indictment the defendant named therein filed a motion asking that the indictment be dismissed on the ground that the grand jury which returned it 'was selected in violation of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.' The motions also asked, in the alternative, that the court 'strike the array of traverse jurors' drawn or to be drawn for the trial of the indictments. The basic grounds for the motions were substantially the same as those on which the plaintiffs now seek relief by their complaint to this court. After a hearing at which oral testimony and other evidence was received, a judge of the Superior Court denied the motions and the plaintiffs duly excepted thereto. The judge also denied a motion by the plaintiffs that he make an interlocutory report to this court for appellate review of his rulings denying the motions to dismiss the indictments and for other relief. G.L. c. 278, § 30A, added by St.1954, c. 528.

The indictments were scheduled for trial in December, 1974. The motions described above were heard in the Superior Court on December 2, 1974, and denied on December 10, 1974. The cases have not yet been tried on their merits.

The statement of agreed facts submitted to the single justice relates principally to the manner in which Boston's annual jury lists, required by G.L. c. 234, § 4, as amended, were prepared for the several years in question, with particular emphasis on the representation thereon of women and persons in certain age brackets. We summarize the agreed facts only to the extent necessary for the purposes of this opinion. Certain other material presented to us is not properly before us, and we therefore do not consider it. ²

Each year the election department of the city of Boston adds about 5,000 new names to its jury list. These names remain on the list for three years unless the persons are called in that period for jury service. The basic source of those 5,000 new names each year is the annual list of residents of the city who are seventeen years of age and over. That list has about 450,000 names on it, and the number is reduced to about 330,000 by eliminating the names of all persons exempted from jury service by G.L. c. 234, § 1, and those who are over sixty-eight years of age. The list is again reduced to about 30,000 names by drawing 'a certain proportion of names from each ward of the City.' ³ This is done by a computer which is programmed to draw two men for every woman. The list is then again reduced to approximately 20,000 names by eliminating the names of all persons who have served as jurors within the last three years, who are presently on the jury list, or who have disabilities which preclude them from serving, the resulting list also having 'a certain proportion of names from each ward.' ³ Each of the 20,000 persons whose names are on this list are then given notice to appear at the office of the election commission. After giving the breakdown for the number of men and women thus notified to appear in the years 1963 (15,100 men and 2,590 women), 1967 (21,950 men and 7,200 women), and 1972 (16,225 men and 5,850 women), the statement of agreed facts reads: 'Women were intentionally underrepresented by the Election Department in these years.' Only about 8,000 to 10,000 appear, fill out required questionnaires, and are interviewed by a member of the commission who determines whether the person is qualified for jury service. This process results in the selection of the 5,000 new names ultimately to be added to the jury list in that year.

Women constituted 54.7% of the population of Suffolk County according to the 1970 United States Census, and 54.5% of the persons on the 1973 Boston resident list. They constituted 26.6% of the persons on Boston's 1973 annual jury list from which 88% of the traverse jurors for Suffolk County were drawn for the court year from September, 1973, through June, 1974. They constituted 29.5% of the traverse jurors for Suffolk County for that court year, and 30% for the month of December, 1974.

The parties also agreed on statistics apparently intended to demonstrate that persons in several age groups were underrepresented on Boston's 1973 annual jury list and in the number of persons summoned to serve as grand jurors and traverse jurors in Suffolk County for the 1973--1974 court year. However, no argument is made in the plaintiffs' brief as to this point, and we therefore treat any issue based thereon as waived. S.J.C. Rule 1:13,351 Mass. 738 (1967).

1. Relief under G.L. c. 211, § 3. General Laws c. 211, § 3, gives this court power of 'general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided' (emphasis supplied).

Basically the plaintiffs are challenging the manner in which the grand jurors who returned the indictments against them were selected, and the manner in which the jurors before whom they are to be tried will be selected. Such challenges are expressly provided for in G.L. c. 277, § 47A, inserted by St.1965, c. 617, § 1, the pertinent part of which is the following: 'The pleadings in criminal proceedings shall be the indictment or complaint, and the pleas of not guilty, guilty and nolo contendere. All other pleas, and demurrers, challenges to the array and to the manner of selection of grand or traverse jurors, and motions to quash are hereby abolished, and any defenses and objections, which could have been raised before trial by one or more of them prior to October fourth, nineteen hundred and sixty-five, shall be raised only by motion to dismiss or by a motion to grant appropriate relief . . .. Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion. Defenses and objections based on defects in the institution of the prosecution of in the indictment or complaint, other than a failure to show jurisdiction in the court or to charge an offense, may be raise only by motion before trial' (emphasis supplied).

As already noted above, the plaintiffs, presumably acting under G.L. c. 277, § 47A, filed motions to dismiss the indictments returned by the grand jury, and to 'strike the array of traverse jurors and direct the clerk to issue new venires for jurors to be drawn from a constitutionally prepared list,' and the judge denied the motions on December 10, 1974. On the same date the judge also denied the plaintiffs' request that he report his ruling to this court for interlocutory review under G.L. c. 278, § 30A. This left the plaintiffs in the position where the only appellate review available to them on the denial of their motions to dismiss would be after trial of their cases on the merits, and as a part of the appeal from any other rulings made before or during trial.

On December 13, 1974, the plaintiffs filed their present complaint for relief under G.L. c. 211, § 3. The parties and the single justice then handled the matter with dispatch as indicated by the following sequence of events. The parties filed their statement of agreed facts on December 20, and their statement of agreed contents of the record on December 27, 1974. The single justice reserved and reported the case to the full court on January 14, 1975, and on the same date the clerk of this court for Suffolk County gave counsel for the plaintiffs notice of the assembly of the record on appeal. These steps reflected the desire of both sides to the controversy to obtain an early decision on the issues by the full court, the plaintiffs being concerned primarily with the...