Com. v. Auguste
| Decision Date | 30 December 1992 |
| Citation | 414 Mass. 51,605 N.E.2d 819 |
| Parties | COMMONWEALTH v. Samuel J. AUGUSTE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Stephen Hrones, Murray A. Kohn with him, Boston, for defendant.
Roger L. Michel, Jr., Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.
On June 12, 1990, a jury convicted the defendant, Samuel J. Auguste, of murder in the first degree and of two separate armed robberies. The defendant appeals his convictions, arguing that at the empanelment the trial judge failed to question adequately jurors who had expressed concerns about their impartiality. We agree that the judge failed in his duty to question the venire adequately. We reverse. We discuss briefly issues likely to arise at a retrial.
There was ample evidence introduced at trial to justify the defendant's convictions. The defendant does not argue otherwise. On November 26, 1989, Gesner Junior Louisville (Junior) witnessed the murder of Joseph R. Bruno (Bruno), a relative of Junior, at Bruno's home in the Dorchester section of Boston, where Junior had been living for about six months. The assailants, wielding at least one firearm, murdered Bruno during their robbery of Junior.
The day after the murder, Roussel Theodat (Theodat), who played cards at Bruno's house frequently and was a friend of Bruno's, told police that he had been robbed of $1,200 and a gold ring at the same address on November 20, 1989. The defendant was convicted of the armed robberies of Junior and Theodat, and the murder of Bruno.
1. Jury empanelment. At the beginning of the jury empanelment phase of the defendant's trial, the judge asked that any jurors who answered affirmatively any of the questions required by G.L. c. 234, § 28 (1990 ed.), to approach the sidebar. The judge also asked that "any members of the panel aware of any reason, whatsoever, why you could not stand indifferent or impartial" make themselves known. A substantial fraction of the full venire indicated that for a variety of reasons they might not be able to judge the evidence impartially. The judge's basis for determining whether a juror was impartial depended on the juror's answer to the following question: "Do you think you could listen to the evidence here, and if you determine that this defendant is not guilty, you will say he is not guilty?" (or a minor variation thereof). See, e.g., Appendix. Defense counsel repeatedly objected to the judge's questioning of the prospective jurors as to their impartiality because the questions suggested the correct answers. Defense counsel requested that further questions be asked of each juror to determine whether there was a basis for either excusing the juror or a challenge for cause. The judge repeatedly denied defense counsel's requests. The defendant challenged those jurors for cause whom the judge refused to question any further, and whose answers indicated that there might be a reason either to excuse the jurors or challenge the juror for cause. The defendant exhausted his sixteen peremptory challenges, expending nine of them removing jurors who had expressed concerns as to their impartiality in these sidebar conferences.
General Laws c. 234, § 28 (1990 ed.), requires a judge, on "motion of either party ... [to] examine on oath a person who is called as a juror therein, to learn whether he ... has expressed or formed an opinion, or is sensible of any bias or prejudice" toward a defendant or in a case. Section 28 further requires that, if it appears that a juror may not stand indifferent (due to factors extraneous to the case, such as community attitudes or bias for or against certain classes of persons), "the court shall ... examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters which may, as aforesaid, cause a decision or decisions to be made in whole or in part upon issues extraneous to the issues in the case."
The defendant contends that the judge allowed a number of persons to be seated as potential jurors even after the jurors expressed grave doubts about their impartiality. In support of his argument, the defendant points to a number of instances when jurors were determined to be indifferent in spite of the jurors' expressed reservations about their impartiality. One example:
[Defense counsel challenged for cause.]
Another example:
. . . . .
[Challenged for cause by the defense.]
The defendant asserts that the judge's examination of potential jurors violated his right to a fair trial. We agree. The defendant argues that he was forced to exhaust his peremptory challenges on some potential jurors who might have been challenged for cause or excused. Two disputed jurors remained on the panel after the defendant had exhausted his peremptory challenges. See Commonwealth v. Wood, 389 Mass. 552, 451 N.E.2d 714 (1983) ().
The Commonwealth relies on our cases which generally uphold a judge's exercise of discretion. "Our general rule has been that '[i]n the absence of action or inaction which constitutes a denial of constitutional rights ... or which constitutes an error of law, such as an abuse of discretion, we will not interfere with the trial judge in the jury selection process.' " Commonwealth v. Dickerson, 372 Mass. 783, 794, 364 N.E.2d 1052 (1977), quoting Commonwealth v. McKay, 363 Mass. 220, 223, 294 N.E.2d 213 (1973). See, e.g., Commonwealth v. Ascolillo, 405 Mass. 456, 541 N.E.2d 570 (1989); Commonwealth v. Lattimore, 396 Mass. 446, 486 N.E.2d 723 (1985). See also Commonwealth v. Sheline, 391 Mass. 279, 290-291, 461 N.E.2d 1197 (1984) (). The Commonwealth highlights a number of factors that, it contends, demonstrate the difficult task the judge faced in seating a willing jury, including the high percentage of the total venire that expressed doubts about their own impartiality, probable juror vacation plans, the subject matter of the trial, and pleasant summer weather on the days of jury empanelment. 1 Although we recognize that many factors may influence a juror's desire not to serve, and agree that a judge has broad discretion in determining impartiality, we disagree with the Commonwealth's assertion that the judge's probing of prospective jurors was sufficient to insure impartial jurors were empanelled.
The problem with the judge's inquiry is that it avoided the very issue which the judge is required to investigate, i.e., whether the...
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