Com. v. Caldwell

• Decision Date: 26 July 1994
• Docket Number: No. 93-P-843,93-P-843
• Citation: 634 N.E.2d 124,36 Mass.App.Ct. 570
• Parties: COMMONWEALTH v. Michael CALDWELL.
• Court: Appeals Court of Massachusetts

Page 124

634 N.E.2d 124

36 Mass.App.Ct. 570

COMMONWEALTH v. Michael CALDWELL.

No. 93-P-843.

Appeals Court of Massachusetts,

Hampden.

Argued Feb. 8, 1994.

Decided May 31, 1994.

Further Appellate Review Granted July 26, 1994.

Alan Jay Black, Springfield, for defendant.

Elizabeth Dunphy Farris, Asst. Dist. Atty., for the Comm.

Before DREBEN, JACOBS and GILLERMAN, JJ.

GILLERMAN, Justice.

Two women in their early twenties were abducted in downtown Springfield at approximately 3:00 A.M. on August 18, 1985, as they entered the automobile of one of the women. ¹ A man surprised them from behind and, displaying a knife, ordered them into the front seat. Holding the knife between their heads, he drove through Springfield until he came to Blunt Park, near American International College. Once there, one of the women was raped repeatedly, and both women were forced to perform a variety of sexual acts, all of which lasted about one and one-half hours. After the rapes, the assailant attempted to leave the scene with the two women, but the automobile would not start. The assailant and the two women then walked toward Putnam High School; he said his grandmother lived nearby. The group walked together for approximately one mile--about twenty minutes--during which time, as the day grew lighter, both women intermittently looked at their assailant. ² Eventually the assailant walked away from the women at a fork in the road, and the two women went to the home of one of the women's relatives. They immediately called the police and provided a detailed description of the perpetrator. ³

Eight months later, the defendant was convicted on the thirteen indictments with which he was charged: three counts of aggravated rape; three counts of indecent assault and battery; assault with intent to commit rape; two counts of kidnapping; assault and battery with a dangerous weapon; assault with a dangerous weapon; threatening to commit a crime; and operating a motor vehicle without authority. He was sentenced to fifteen to twenty years on the aggravated rape charges, with all other sentences to run concurrently. On appeal, he argues that the judge erred in (1) allowing the Commonwealth to exercise peremptory challenges that removed four black prospective jurors; (2) denying his motion to suppress; (3) giving a missing witness instruction; and (4) allowing the Commonwealth to lead and impeach its own witness. We conclude that the jury selection was defective, depriving the defendant of his constitutional rights. There must be a new trial. See Commonwealth v. Johnson, 417 Mass. 498, 505, 631 N.E.2d 1002 (1994).

1. Jury selection. The defendant is black, and both the complainants are white. The prosecutor exercised peremptory challenges to excuse six prospective jurors, including four black individuals-- prospective jurors 4-1, 4-2, 4-5, and 5-1. The defendant objected on the ground that all the black prospective jurors had been challenged, but the judge allowed all four challenges, and no black person sat as a juror or as an alternate on the final panel.

The applicable standards of review are familiar. "The use of peremptory challenges to exclude prospective jurors solely because of bias presumed to derive from their membership in discrete community groups is prohibited both by art. 12 [of the Declaration of Rights of the Massachusetts Constitution], see Commonwealth v. Soares, 377 Mass. 461, 486-488, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), and the equal protection clause [of the Federal Constitution], see Batson v. Kentucky, 476 U.S. 79, 84-88, 106 S.Ct. 1712, 1716-18, 90 L.Ed.2d 69 (1986). Under these decisions, once the party contesting a peremptory challenge rebuts the ordinary presumption that the challenge was properly used by making a showing of an improper basis for the challenge, the challenging party must provide, if possible, a neutral explanation establishing that the challenge is unrelated to the prospective juror's group affiliation. See Commonwealth v. Soares, supra, 377 Mass. at 491, 387 N.E.2d 499; Batson v. Kentucky, supra, 476 U.S. at 97-98, 106 S.Ct. at 1723-1724. Evidence of a pattern of challenges of members of the same discrete group as the defendant is sufficient to rebut the presumption of proper use of challenges." Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991).

If the presumption of regularity is rebutted, the judge must decide whether the reasons offered by the party whose challenge is at issue are "bona fide reason[ ] [rather than] sham excuse[s] belatedly contrived to avoid admitting facts of group discrimination." Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993). The reasons must be "personal to the juror and not based on the juror's group affiliation." Commonwealth v. Young, 401 Mass. 390, 401, 517 N.E.2d 130 (1987), and they must be "clear and reasonably specific," Commonwealth v. Mathews, 31 Mass.App.Ct. 564, 568, 581 N.E.2d 1304 (1991). An infraction of the right to an impartial jury can never be treated as harmless error. Commonwealth v. Hyatt, 409 Mass. 689, 692, 568 N.E.2d 1148 (1991). However, we do not substitute our judgment for that of the trial judge if there is support for his decision in the record. Commonwealth v. DiMatteo, 12 Mass.App.Ct. 547, 552, 427 N.E.2d 754 (1981).

Here the Commonwealth's peremptory challenges excluded all black jurors, rebutting the presumption of regularity, see Commonwealth v. Harris, 409 Mass. at 464, 567 N.E.2d 899, and the judge implicitly so found. See Commonwealth v. Mathews, 31 Mass.App.Ct. at 569, 581 N.E.2d 1304. We must review the record of the proceedings regarding prospective jurors 4-1, 4-2, 4-5, and 5-1 to determine whether the Commonwealth's challenges were bona fide.

a. Prospective juror 4-1. The prosecutor told the judge that he objected to 4-1 because of "my perception of her reactions to the questions you posed to her" during the individual voir dire. The prosecutor explained: 4-1 "was equivocating about those answers regarding police officers...." The judge said that he saw no reason to reject the challenge to 4-1, thereby accepting the reasons proffered by the prosecutor.

The record does not support the judge's conclusion. The prosecutor may have been objecting to the prospective juror's demeanor, and we assume that, in particular cases, the exercise of a peremptory challenge based on demeanor alone may be acceptably neutral. See, for example, Commonwealth v. Burnett, 36 Mass.App.Ct. 1, 4, 626 N.E.2d 900 further appellate review granted, 417 Mass. 1104, 634 N.E.2d 120 (1994) (judge agreed that the juror was "hostile and argumentative"). While the "true flavor" of the voir dire is not easily discerned, ibid., we nevertheless cannot agree that the statements of this juror revealed anything other than close attention to the questions asked of her.

The following exchange occurred between this prospective juror and the trial judge:

JUDGE: "[G]enerally speaking do you think that police officers tend to be more truthful than persons in other professions?

JUROR 4-1: "What other professions?"

JUDGE: "Anything in the whole world, like bank examiners. That's what you do for a living?"

JUROR 4-1: "Yes."

JUDGE: "More truthful?"

JUROR 4-1: "I don't know. I really haven't had that much experience."

JUDGE: "Do you think they're any less truthful?"

JUROR 4-1: "Any less truthful? They should be more truthful but I'm not saying that they are."

JUDGE: "How do you feel about it?"

JUROR 4-1: "Well, I believe I would have to hear what they have to say before and [sic] disregard what they are and then make up my mind."

JUDGE: "Would you be able to disregard what they are?"

JUROR 4-1: "If I had to make a decision, I would like to and just hear what the content of what they have to say more so than what they are."

JUDGE: "Okay."

This colloquy leaves us with the clear impression--not of equivocation, as the prosecutor argued--but of a conscientious person who intelligently and thoughtfully focuses on the question asked and replies in a precise manner. Commonwealth v. Soares teaches that "peremptory challenges may [continue to] be used to eliminate prospective jurors whose unique relationship to the particular case raises the spectre of individual bias." Id., 377 Mass. at 485, 387 N.E.2d 499. No such spectre appears with regard to this prospective juror, and the challenge should not have been permitted.

b. Prospective juror 4-2. During the voir dire of this prospective juror (with the last name of Solivan), the prosecutor approached the bench and told the judge that "the officer sitting with me in the jury selection ... may have had dealings with members of her family. If she is the same Sullivan [sic] that used to live in the North End of Springfield. It is a section about a mile from where she lives now. He believes he has had dealings with members of her family." The judge then asked the prospective juror: "Mrs. Sullivan [sic], did you live in the North End of Springfield at some time or other?" The prospective juror replied, "Yes, I did." No further questions were put to this prospective juror.

On the basis of this colloquy, the Commonwealth argues to this court that the peremptory challenge was justified because the prosecutor appropriately brought to the judge's attention that this prospective juror may not have answered the individual voir dire questions truthfully. A majority of the panel disagrees. ⁴

The fact that the judge established that prospective juror Solivan lived in the North End "at some time or other" did nothing to eliminate the vagueness in the prosecutor's proffered explanation for the challenge. Absent is any suggestion of what the officer may have meant by "dealings," or with which member of the Solivan family he may have dealt. It is left entirely to conjecture whether the "dealing" was brief and innocuous, or something worthy of attention, and we are...