Com. v. Acen

Decision Date06 January 1986
Citation487 N.E.2d 189,396 Mass. 472
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesCOMMONWEALTH v. Ricardo ACEN, Jr. (and a companion case) COMMONWEALTH v. Alberto PENABRIEL.

Fred Hewitt Smith (Cynthia Smith, Somerville, with him), for defendants.

Judy G. Zeprun, Asst. Dist. Atty., for Com.

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

LYNCH, Justice.

These appeals challenge the requirements of G.L. c. 234A, § 4 (1984 ed.), that jurors speak and understand English and that a jury be composed wholly of citizens of the United States. The defendants also challenge the notice to prospective jurors on the ground that that notice deprived the defendants of their right to a fair trial. 1

The defendants' motions to dismiss raising these issues were denied. 2 The defendant Acen was tried and convicted on two indictments charging distribution of cocaine, and the defendant Penabriel was tried and convicted of attempted robbery (unarmed). The appeals were consolidated for purposes of briefing and oral argument in the Appeals Court. We granted Penabriel's application for direct appellate review and transferred the Acen case to this court on our own motion. We affirm the judgments of conviction.

1. Trial by jury de medietate linguae. Article 12 of the Massachusetts Declaration of Rights entitles the defendants to "judgment of [their] peers, or [by] the law of the land." The defendants argue that art. 12 affords them the right to a trial by jury de medietate linguae 3 and therefore that the statutory requirements of citizenship and command of English are unconstitutional. 4

Article 12 is directly drawn from Magna Charta, c. 39, which reads 5 that "no freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed or exiled, or other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land." Whitcomb's Case, 120 Mass. 118, 120 (1876) (Gray, C.J.). See Jones v. Robbins, 8 Gray 329, 342-343 (1857). To say that art. 12 is derived from Magna Charta, however, is not to say that our Constitution incorporates the precise rights and privileges imposed upon King John by the nobles at Runnymede. Were that the case, judgment by one's peers would be an impossible attainment in our more egalitarian society, since the term "peer" at the time of Magna Charta did not refer to all Englishmen. 6 Rather we look at the words of art. 12 not "as a newly invented phrase, first used by the makers of our constitution; but we are to look at it as the adoption of one of the great securities of private right, handed down to us among the liberties and privileges which our ancestors enjoyed at the time of their emigration, and claimed to hold and retain as their birthright." Jones v. Robbins, supra at 342. Thus from Magna Charta did we receive the great fundamental principles of due process and trial by jury. See Rochin v. California, 342 U.S. 165, 168-172, 72 S.Ct. 205, 207-210, 96 L.Ed. 183 (1952); Davidson v. New Orleans, 6 Otto 97, 96 U.S. 97, 101-102, 24 L.Ed. 616 (1877); Thompson v. Utah, 170 U.S. 343, 347-348, 18 S.Ct. 620, 621-622, 42 L.Ed. 1061 (1898); Jones v. Robbins, supra at 342-343. Whatever else may be said of a jury de medietate linguae, its relative obscurity alone demonstrates it is not among those great fundamental principles. It is also clear that this form of trial was not derived from Magna Charta.

"The jury de medietate linguae, anciently allowed in England for the trial of an alien, was expressly authorized by statute...." Ex parte Virginia, 10 Otto 339, 100 U.S. 339, 369, 25 L.Ed. 676 (1879) (Field, J., dissenting). Justice Field referred, implicitly, to 28 Edw. III, c. 13 (1354) which provided the privilege of a trial by jury de medietate linguae to all aliens. 7 It is clear, however, that although 1353 is considered the traditional date of the inception of such a privilege, its lineage is considerably older. 8 The practice endured throughout some 500 years until finally repealed by 33 Vict. c. 14 (1870). 9 The statutory right to trial by jury de medietate linguae, was therefore an infrequently used part of the common law of England, around the time of the formation of this Commonwealth. See Respublica v. Mesca, 1 U.S. (1 Dall.) 73, 1 L.Ed. 42 (Pa.1783); State v. Antonio, 11 N.C. 200 (1825); People v. McLean, 2 Johns. 381 (N.Y.Sup.Ct.1807) (citing English trials by jury de medietate linguae).

Some early cases from other American jurisdictions recognized the right although no case since United States v. Wood, 299 U.S. 123, 145, 57 S.Ct. 177, 185, 81 L.Ed. 78 (1936) (which held in dictum that the "ancient rule" of trial by jury de medietate linguae "no longer obtains" under the Sixth Amendment) has acknowledged its existence. See Respublica v. Mesca, supra; People v. McLean, supra; United States v. Cartacho, 25 F.Cas. 312 (C.C.D.Va.1823) (No. 14,738); United States v. Carnot, 25 F.Cas. 297 (C.C.D.C.1824) (No. 14,726). See also LaRue, A Jury of One's Peers, 33 Wash. & Lee L.Rev. 841, 850 & n. 29 (1976). Cf. 3 W. Blackstone, Commentaries * 360-361. Even where the right has been found to exist, some jurisdictions have limited its applicability. See State v. Antonio, supra. Cf. Richards v. Commonwealth, 38 Va. (11 Leigh) 690 (1841) (use of trial by jury de medietate linguae held discretionary). See also Respublica v. Mesca, supra, 1 U.S., at 75. 10 No modern court has found the right to be of constitutional magnitude, and we decline to do so here. Even if we assume that the right was adopted as part of the common law of Massachusetts 11 (Part II, c. 6, art. 6, of the Massachusetts Constitution) and has not fallen into desuetude 12 or lapsed for lack of applicability to current conditions, the Legislature could preempt and abrogate the common law rule by G.L. c. 234A, § 4. 13

2. Claims under art. 12. In the alternative, the defendants rely on our decision in Commonwealth v. Aponte, 391 Mass. 494, 507, 462 N.E.2d 284 (1984), for the proposition that a "defendant is constitutionally entitled to a jury selection process free of discrimination against his grouping in the community." See Commonwealth v. Soares, 377 Mass. 461, 478, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), quoting Commonwealth v. Rodriquez, 364 Mass. 87, 92, 300 N.E.2d 192 (1973). In order to prevail in such a claim a defendant must demonstrate that he is a member of a "protected class." Commonwealth v. Aponte, supra, 391 Mass., at 506-508, 462 N.E.2d 284. See Commonwealth v. Soares, supra, 377 Mass., at 486, 387 N.E.2d 499 ("particular, defined groupings in the community"). See also Commonwealth v. Bastarache, 382 Mass. 86, 101, 414 N.E.2d 984 (1980). The defendants assert that individuals who cannot speak English and non-citizens form discrete groups within the community deserving of art. 12 protection.

In Commonwealth v. Aponte, supra, 391 Mass., at 507, 462 N.E.2d 284, we stated that "[t]he groups which art. 12 protects and which cannot form the basis for juror exclusion are the same classes referred to in art. 1 of the Massachusetts Declaration of Rights." See Commonwealth v. Bastarache, supra, 382 Mass., at 101, 414 N.E.2d 984; Commonwealth v. Soares, supra, 377 Mass., at 486 n. 29, 488-489, 387 N.E.2d 499. 14 The defendants do not base their claim of discrimination on membership in any such class. Their art. 12 discrimination claims therefore cannot prevail.

3. The Federal law claims. In Taylor v. Louisiana, 419 U.S. 522, 526-531, 538, 95 S.Ct. 692, 695-698, 701, 42 L.Ed.2d 690 (1975), and Duren v. Missouri, 439 U.S. 357, 359, 99 S.Ct. 664, 666, 58 L.Ed.2d 579 (1979), the United States Supreme Court held that a criminal defendant has the right, under the Sixth and Fourteenth Amendments to the United States Constitution, to "a petit jury selected from a fair cross section of the community." 15 Duren v. Missouri, supra at 364, 99 S.Ct. at 668, created a three-part test for establishing a prima facie violation of the fair cross section requirement of the Sixth Amendment: (1) the group must be a "distinctive" group in the community; (2) the venires must not fairly and reasonably represent the proportion of such persons in the community; and (3) such under representation must result from systematic exclusion of the group when juries are selected. The showing of a prima facie violation of the fair cross section requirement does not end the inquiry: the State may rebut the prima facie case, if "a significant state interest" is "manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group." Duren v. Missouri, supra, 439 U.S., [396 Mass. 479] at 367-368, 99 S.Ct. at 670-671. 16 The defendants' challenges fail under Duren and Taylor.

a. The non-English speaking requirement. In acknowledging the existence of the fair cross section requirement, the Court pointed out in Taylor, supra, 419 U.S., at 538, 95 S.Ct. at 701, that the States retain "broad discretion" and "remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions." Cf. Commonwealth v. Brown, 121 Mass. 69, 78 (1876). It is unquestionable that an ability to speak English is a relevant and important qualification for jurors. No court has ever held that "non-English speaking persons" form a distinct or protected class. Cf. United States v. Valentine, 288 F.Supp. 957, 962-966 (D.P.R.1968). In fact, the weight of authority is to the contrary. In United States v. Armsbury, 408 F.Supp. 1130, 1135 (D.Or.1976), the court held that under the Sixth Amendment and the Jury Selection and Service Act of 1968 (28 U.S.C. § 1861 et seq.): "[g]roups based solely on language, residency, or citizenship are not cognizable." The earlier case of United...

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