Com. v. Bastarache

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; WILKINS; We, therefore, ask the Attorney General of the Commonwealth, with the assistance of others of his own choosing, to prescribe procedures for the compilation of jury lists in those cities and towns that are not now using a su
Citation382 Mass. 86,414 N.E.2d 984
PartiesCOMMONWEALTH v. Mark E. BASTARACHE.
Decision Date12 December 1980

Page 984

414 N.E.2d 984
382 Mass. 86
COMMONWEALTH

v.
Mark E. BASTARACHE.
Supreme Judicial Court of Massachusetts, Franklin.
Argued Nov. 7, 1980.
Decided Dec. 12, 1980.

Page 987

[382 Mass. 87] Thomas Lesser, North Hampton (William C. Newman, North Hampton, with him), for defendant.

Stephen R. Kaplan, Asst. Dist. Atty. (Barbara A. H. Smith, Asst. Atty. Gen., with him), for the Commonwealth.

Nancy Gertner, for the Civil Liberties Union of Massachusetts & Andrew Good, Boston, for the Massachusetts Ass'n of Criminal Defense Lawyers, amici curiae, submitted a brief.

Francis X. Bellotti, Atty. Gen. and Barbara A. H. Smith, Asst. Atty. Gen., for the Attorney General and various district attorneys, amici curiae, submitted a brief.

Before [382 Mass. 86] HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

[382 Mass. 87] WILKINS, Justice.

In its broader significance, this appeal from the defendant's conviction of manslaughter concerns the legality of the composition of the grand jury that indicted him and the petit jury that tried him. In brief, the defendant[382 Mass. 88] challenges the underrepresentation of persons between the ages of eighteen and thirty-four, inclusive, on municipal jury lists from which his grand and petit juries were derived. The Appeals Court held that the Commonwealth had failed to rebut the defendant's prima facie case that "a sufficiently large and distinct group of people in Franklin County (eighteen-to-thirty-four year olds) has been substantially underrepresented in the venire from which both grand and petit jury pools are drawn." Commonwealth v. Bastarache, --- Mass.App. ---, ---, a 409 N.E.2d 796 (1980). The intended consequence of the Appeals Court decision was not only the reversal of the conviction, but also the dismissal of the indictment. We granted the Commonwealth's application for further appellate review and now express our disagreement with the Appeals Court's conclusion that the age group (eighteen to thirty-four) was underrepresented in violation of the Sixth Amendment to the Constitution of the United States. Further, we reject the defendant's challenges to the composition of the jury lists based on other grounds.

In its lesser significance, this appeal involves the defendant's various challenges to his conviction. The Appeals Court reversed the defendant's conviction on certain of these grounds. We agree that the defendant's conviction must be reversed but defer our consideration of this subject until we have disposed of the defendant's challenge to the composition of the grand and petit juries.

1. By a pretrial motion filed in the Superior Court, the defendant challenged the composition of the jury lists from which were drawn the grand jury that indicted him and the petit jury that tried him. This motion sought a dismissal of the indictments and of the jury pool, asserting a violation of the Constitution of the United States and G.L. c. 234 and G.L. c. 277. No claim was then made under any State constitutional provision. In the Appeals Court, the defendant's brief focused solely on the Federal constitutional (Sixth Amendment) point, ignoring any claim of a violation of any statute or provision of the Constitution of the Commonwealth. In his brief before this court, however, the defendant[382 Mass. 89] relies on asserted statutory violations in the method by which jury lists were compiled, and he presents, for the first time, an argument that a systematic exclusion of persons between the ages of eighteen and thirty-four violated art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. The defendant acknowledged at oral argument that, because a grand jury indictment is not required under the Fourteenth Amendment as a condition precedent to a State criminal trial (Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884)), his challenge to the composition of the jury lists from which his grand jury was chosen does not rest on Sixth Amendment

Page 988

considerations but only on the equal protection clause of the Fourteenth Amendment. 1

The facts that relate the defendant's challenge to the composition of the municipal jury lists can be summarized briefly. Figures from the 1970 United States census show that persons between eighteen and thirty-four, inclusive, represented approximately 36% of the population of Franklin County eligible for jury duty. Although the figure varied from year to year, during the times relevant to this case, only approximately 18.5% of the persons on the jury lists from which grand and petit juries were selected were within the indicated age group. From the testimony of selectmen and employees of most of the twenty-six towns (there are no cities), it is clear that there was no conscious attempt to select older citizens or to discriminate against persons under the age of thirty-five (or any other age). The judge so found. The judge also found that each jury was drawn from a jury pool representative of a fair cross section of the community and that persons under thirty-five years of age were reasonably represented in the various jury pools. [382 Mass. 90] He further found that failures to comply with statutory requirements were minimal, unintentional, and inadvertent. The judge found that there was no evidence that the selection process was other than at random, that the age group from eighteen to thirty-four did not possess any inherent characteristics which distinguished it from any other age group, and that the disparity between the number of younger persons actually included in the jury pools and the number eligible was the result of random influences on the selection process, combined with the statutory requirements for jury selection. These findings of fact cannot be ignored to the extent that they are supported by evidence. See Hernandez v. Texas, 347 U.S. 475, 478, 74 S.Ct. 667, 670, 98 L.Ed. 866 (1954).

In the face of the judge's contrary findings, the defendant makes a strong case that the disparity between 18.5% and approximately 36% is not the coincidental result of random selection. On the factual question whether the age group from eighteen to thirty-five has any inherent, common, or distinguishing characteristic or quality, beyond age itself, the defendant's case is not so compelling as to make plainly wrong the judge's finding that the group was not distinguishable from other age groupings. On the other hand, we would accept as a matter of common knowledge the view that, on certain subjects, younger people often tend to have different opinions, reactions, and impressions from older people. See Zeigler, Young Adults as a Cognizable Group in Jury Selection, 76 Mich.L.Rev. 1045, 1074-1076 (1978). We repeat, however, that there was no evidence that persons potentially selected in the various towns for jury duty were designated with any intentional bias against younger citizens. Contrast Thiel v. Southern Pac. Co., 328 U.S. 217, 221-224, 66 S.Ct. 984, 986, 90 L.Ed. 1181 (1946).

We turn first to a description of the statutory procedure by which persons are placed on a municipal jury list. 2 Any [382 Mass. 91] person qualified to vote for representatives to the General Court, whether a registered voter or not, is liable to serve as a juror, except that certain persons are exempt. G.L. c. 234, § 1, as amended through St.

Page 989

1978, c. 478, § 265. 3 Among the "exempt" persons, persons seventy years of age or over, and persons having custody of and being responsible for the daily supervision of a child under fifteen years of age, may elect not to have their names placed on the list of jurors. The statute makes clear that as to these persons, the choice is theirs, and they should not be denied the right to [382 Mass. 92] make a choice whether to serve. 4 Once a person has served as a juror, he or she is not liable to be drawn or to serve again within three years after the end of his or her service (except in Nantucket and Dukes counties where there is a two-year exemption). G.L. c. 234, § 2.

Section 4 of G.L. c. 234, as amended through St. 1980, c. 177, provides, as to towns, that each year before July first the board of selectmen shall "prepare a list of such inhabitants of the ... town, qualified as provided in section one, of good moral character, of sound judgment and free from all legal exceptions, not exempt from jury service under section one or two, as they think qualified to serve as jurors." Because the process of selection of jurors involves choices by community representatives, the system used in this State has been called a "key man" system. Section 4 prescribes various procedures by which the selectmen may determine that a person is qualified for jury duty, including the distribution of a questionnaire to be answered under oath. Section 4 provides further that such lists (except in Nantucket and Dukes counties) shall include no less than one juror for every one hundred inhabitants and no more than one for every sixty inhabitants. No person's name shall appear on the jury lists for more than three successive years. 5 Before August first in each year, a printed list is to be prepared and delivered to the selectmen, the town clerk, and clerks of court. G.L. c. 234, § 5. The selectmen are then to cause the name of each person on the jury list to be [382 Mass. 93] written on a separate "ballot" and placed in a box to be kept by the town clerk. G.L. c. 234, § 7. When an order for

Page 990

jurors is issued, the selectmen in the town, meeting publicly, draw the appropriate number of "ballots" from the box. G.L. c. 234, §§ 17, 19. 6

The defendant's basic statutory argument rests on the contention that under G.L. c. 234 the selection procedure followed in compiling jury lists must be based on principles of randomness. He argues that the impartial procedures prescribed by G.L. c. 234 to be followed in drawing prospective jurors' "ballots" from the box maintained by...

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120 practice notes
  • Barber v. Ponte, No. 84-1750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 18, 1985
    ...Because, however, the state appeals court, relying on Massachusetts Supreme Judicial Court's decision in Commonwealth v. Bastarache, 382 Mass. 86, 414 N.E.2d 984, 993 (1980), found that underrepresentation of young people on the venire did not constitute ground for relief and a number of ot......
  • Com. v. Bourgeois
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 16, 1984
    ...852 [83 S.Ct. 90, 9 L.Ed.2d 86] (1962)." Commonwealth v. Cruz, 373 Mass. 676, 692, 369 N.E.2d 996 (1977). See Commonwealth v. Bastarache, 382 Mass. 86, 106, 414 N.E.2d 984 (1980) (autopsy photographs). See also Commonwealth v. Reid, 384 Mass. 247, 260-261, 424 N.E.2d 495 (1981); Commonwealt......
  • Com. v. Nadworny
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 11, 1985
    ...the body as altered in the course of an autopsy, which this court has said may present special problems. Commonwealth v. Bastarache, 382 Mass. 86, 106, 414 N.E.2d 984 (1980). The fact that photographs may be inflammatory does not bar their admission if they possess evidentiary value on a ma......
  • Commonwealth v. Garabedian
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 25, 1987
    ...of photographs, even though gruesome and inflammatory, if they possess evidential value on a material matter. Commonwealth v. Bastarache, 382 Mass. 86, 105-106 (1980). Commonwealth v. Stewart, 375 Mass. 380, 385 (1978). There was no error. The photographs were clearly "relevant to extreme a......
  • Request a trial to view additional results
120 cases
  • Barber v. Ponte, No. 84-1750
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 18, 1985
    ...Because, however, the state appeals court, relying on Massachusetts Supreme Judicial Court's decision in Commonwealth v. Bastarache, 382 Mass. 86, 414 N.E.2d 984, 993 (1980), found that underrepresentation of young people on the venire did not constitute ground for relief and a number of ot......
  • Com. v. Bourgeois
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 16, 1984
    ...852 [83 S.Ct. 90, 9 L.Ed.2d 86] (1962)." Commonwealth v. Cruz, 373 Mass. 676, 692, 369 N.E.2d 996 (1977). See Commonwealth v. Bastarache, 382 Mass. 86, 106, 414 N.E.2d 984 (1980) (autopsy photographs). See also Commonwealth v. Reid, 384 Mass. 247, 260-261, 424 N.E.2d 495 (1981); Commonwealt......
  • Com. v. Nadworny
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 11, 1985
    ...the body as altered in the course of an autopsy, which this court has said may present special problems. Commonwealth v. Bastarache, 382 Mass. 86, 106, 414 N.E.2d 984 (1980). The fact that photographs may be inflammatory does not bar their admission if they possess evidentiary value on a ma......
  • Commonwealth v. Garabedian
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • February 25, 1987
    ...of photographs, even though gruesome and inflammatory, if they possess evidential value on a material matter. Commonwealth v. Bastarache, 382 Mass. 86, 105-106 (1980). Commonwealth v. Stewart, 375 Mass. 380, 385 (1978). There was no error. The photographs were clearly "relevant to extreme a......
  • Request a trial to view additional results

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