Com. v. Aldoupolis

Citation457 N.E.2d 268,390 Mass. 438
PartiesCOMMONWEALTH v. Alexander ALDOUPOLIS. (and four companion cases 1 ).
Decision Date16 November 1983
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
1

Stephen Hrones, Boston, for Alexander Aldoupolis.

Thomas Butters, Boston, for Richard Dovel.

P.J. Piscitelli, Brockton, for Mark Savoy.

William Pritchard, Holbrook, for John Strickland.

Joseph R. Welch, Randolph, for Robert J. Tarr.

Gerald M. Kirby and Charles J. Hely, Asst. Dist. Attys., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN, LYNCH, and O'CONNOR, JJ.

LIACOS, Justice.

Subsequent to our decision in Aldoupolis v. Commonwealth, 386 Mass. 260, 435 N.E.2d 330 (1982), the defendants were allowed to withdraw guilty pleas previously entered in prosecutions for rape and other offenses which allegedly occurred in Norfolk County. The empanelling of jurors commenced on April 4, 1983, in the Superior Court in Norfolk County. The attempt to obtain an impartial venire in Norfolk County was unsuccessful, and the defendants moved for, and were granted, a change of venue to Hampden County. As a result of their concern over the substantial expense and inconvenience of conducting a trial in a distant locality, the defendants sought to empanel a jury in Hampden County but to conduct the trial in Norfolk County. The judge, apparently doubting his power to grant the request of the defendants, allowed their motion to reserve and report a question of law to the Appeals Court on an agreed statement of facts. Mass.R.Crim.P. 34, 378 Mass. 905 (1979). We allowed the defendants' application for direct appellate review.

The question reported is: "Whether, with the consent of all the co-defendants, a jury may be empaneled in another county, i.e., Hampden, to which the trial of the defendants has been transferred because of inability to secure a fair and impartial group of jurors in the county where the indictments were returned, i.e., Norfolk, and said jury returned to Norfolk County under sequestration for the purpose of hearing the trial on the merits."

On May 23, 1983, this court issued the following order: "On the record presented by the reservation and report, we herewith authorize and direct the empanelment of the jury in Hampden County, and the trial on the several indictments to take place in Norfolk County. Opinion to follow." This opinion is given in explanation of that order. Although the order we issued rests on the authority of this court, see G.L. c. 211, § 3, we think it would be helpful to discuss the question of the authority of a Superior Court judge, should similar circumstances arise in the future. We note that, although the question reported does not explicitly ask who has such power, the record indicates a concern by the Superior Court judge as to the scope of his authority. 2

The facts agreed on by the parties are summarized as follows. The empanelling of the jury commenced in the Superior Court in Norfolk County on April 4, 1983. The judge questioned 107 individuals from a Norfolk County venire and made preliminary findings concerning the effect of prior publicity on the ability of the defendants to obtain an impartial jury. The judge found that 103 of the 107 prospective jurors were aware of the background of the case, and approximately one-third of them knew that the defendants had previously pleaded guilty to the charges for which they were currently being tried. Consequently, the judge granted the defendants' renewed motions for a change of venue and for a mistrial on the basis that they could not obtain an impartial jury in Norfolk County, and ordered the transfer of the case for trial to Hampden County.

The defendants then expressed their concern over the substantial expenses that they would incur if the trial were to be held in Hampden County. All of the defendants, their families, and their attorneys reside, or maintain their offices, in Norfolk, Plymouth, and Suffolk Counties. Almost all of the witnesses for the Commonwealth and the defendants reside in Norfolk or Plymouth County. Because the trial was anticipated to last approximately three weeks, the defendants were concerned about the travel and lodging expenses for themselves and their families, as well as for their counsel and witnesses. 3 The defendants also believed that a Hampden County trial would impede the ability of their counsel effectively to represent them, given the difficulty in completing and transporting the necessary paperwork to Hampden County from their offices located at the other end of the State.

The parties acknowledged that the Commonwealth would incur no greater expense should the jurors be sequestered in Hampden County or Norfolk County. Furthermore, the Commonwealth recognized that all parties concerned would incur substantial expense and inconvenience if the cases were tried in Hampden County. 4 Based on these concerns, the defendants moved for a reservation and report.

We confront for the first time the issue whether a jury in a county other than where the crimes allegedly occurred may be empanelled for the purpose of hearing a trial in the county of indictment, provided that the defendants consent. We conclude that, in the circumstance of a case such as this, such a procedure may be adopted. We further conclude that a judge of the Superior Court has authority under the common law to issue such an order.

In answering the question reported, we need not consider the effect of art. 13 of the Massachusetts Declaration of Rights, which prescribes that a criminal trial must take place in the vicinity where the alleged offense occurs and where the indictment was returned. See Commonwealth v. Handren, 261 Mass. 294, 297, 158 N.E. 894 (1927); Crocker v. Justices of the Superior Court, 208 Mass. 162, 167, 94 N.E. 369 (1911). See also U.S. Const. art. 3, § 2, cl. 3. The defendants have waived their constitutional right to demand a trial in the locality by moving for a change of venue. See United States v. Angiulo, 497 F.2d 440, 441 (1st Cir.1974) (upon defendant's motion to transfer venue of trial, trial judge may use discretion and transfer case to district where no part of alleged offense occurred); United States v. Marcello, 280 F.Supp. 510, 520 (E.D.La.1968), aff'd, 423 F.2d 993 (5th Cir.1970), cert. denied, 398 U.S. 959, 90 S.Ct. 2172, 26 L.Ed.2d 543 (1970) (once defendant moves for venue change, decision concerning where to transfer within discretion of trial judge). Although the Commonwealth also may have the right to demand that the prosecution of a defendant take place before a jury drawn from the vicinity where the crime occurred, 5 the government has not sought to invoke this right. The Commonwealth has furthermore relinquished this right by consenting to the defendants' motion for the venue transfer. Cf. Sebastian v. Carroll, 353 Mass. 465, 468, 233 N.E.2d 208 (1968) (in civil case, plaintiff waives venue where defendant has removed action to different county and plaintiff proceeds to trial without raising issue).

We consider first the authority of a judge of the Superior Court to empanel a jury from another county to sit for trial in the county where the indictment is returned.

1. Authority of the Superior Court. The Commonwealth contends that a Superior Court judge lacks the common law or statutory authority to order the transfer of a jury from a foreign county to hear trial in the county of indictment. The Commonwealth argues that the wording of Mass.R.Crim.P. 37(c), 378 Mass. 914, 915 (1979), prescribes that when a judge has ordered a change of venue in a case "[t]he clerk of the transferee court shall make immediate entry of the case upon the docket of that court and shall so notify the clerk of the transferor court so that the case may be closed on the docket of that court. The prosecution shall continue in the transferee court." We construe rule 37(c) as setting forth the procedure to be followed when a trial judge has decided that a change of venue is the proper action to take in ensuring a defendant a fair trial. The rule does not limit in any way the authority of a trial judge to issue alternative orders to secure a defendant a fair and impartial trial in the interest of justice. Cf. Crocker v. Justices of the Superior Court, supra 208 Mass. at 180, 94 N.E. 369 (when change of place of trial ordered, criminal indictment remains unchanged as to venue, and all proceedings on it, except trial, should be in county where indictment obtained). 6 A judge of the Superior Court is not precluded, by rule 37(c), from importing a foreign jury as a substitute for the change of venue order so as to ensure a defendant an impartial trial in a convenient forum. 7

The Commonwealth also advances the argument that the power of a Superior Court judge to order a trial is limited to the times and places of its regular sittings within the same county as set forth in G.L. c. 212, § 14. 8 See Commonwealth v. Handren supra 261 Mass. at 298, 151 N.E. 894. 9 However, the transporting of a jury from Hampden County to Norfolk County will not affect the ability of the trial judge to conduct his trial at Norfolk County during a statutorily prescribed sitting. General Laws c. 212, § 14, is thus inapplicable to the issue here. We note also that G.L. c. 212, § 14, does not curtail the liberal statutory authority of a Superior Court judge under G.L. c. 213, § 5, to transact any court business and direct the entry of any order in an action pending in the same court in another county.

Although it could be argued that a Superior Court judge sitting in one county could order the empanelment of a trial jury for another county, we need not decide whether c. 213, § 5, provides such authority to a judge on the Superior Court. 10 We conclude instead that the common law vests the Superior Court with the authority to issue such an order when necessary to further the administration of justice. It is...

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