Com. v. Connor

• Decision Date: 21 August 1984
• Citation: 392 Mass. 838,467 N.E.2d 1340
• Parties: COMMONWEALTH v. Myles J. CONNOR, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1340

467 N.E.2d 1340

392 Mass. 838

COMMONWEALTH v. Myles J. CONNOR, Jr.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Jan. 13, 1984.

Decided Aug. 21, 1984.

Earle C. Cooley, Boston (Lisa G. Arrowood, Boston, with him), for defendant.

Paul V. Buckley and James M. McDonough, Sp. Asst. Attys. Gen. (Matthew L. McGrath, III, Sp. Asst. Atty. Gen., with them), for the Commonwealth.

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

HENNESSEY, Chief Justice.

The defendant was tried on two indictments charging murder in the first degree for the murders of Susan Webster and Karen Spinney, two indictments charging kidnapping for the kidnappings of Webster and Spinney, one indictment charging him as an accessory after the fact to the murder of Ralph Cirvinale, and one indictment charging him as an accessory after the fact to assault with intent to kill Anthony DeVingo. The defendant's motions to dismiss the indictments were denied. A jury found the defendant guilty on all indictments. The defendant then filed motions for required findings of not guilty or in the alternative a new trial, pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), which were denied. The defendant later filed a motion for a new trial, pursuant to Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). After a hearing before the trial judge, that motion was also denied. The defendant appeals from his convictions and the denials of the motions. We conclude that the motions for dismissal of the indictments and for required findings of not guilty were properly denied, but we also conclude that the defendant must have a new trial. We reverse.

On the evening of February 21, 1975, Thomas Sperrazza, John Stokes, Spinney, and Webster drove to a bar in Roslindale. Webster and Sperrazza went into the bar; Stokes and Spinney remained in the car. In the bar Sperrazza quarrelled with DeVingo. When Sperrazza and Webster left, DeVingo followed and Sperrazza shot him. DeVingo was wounded and Cirvinale, who was behind him, was killed. Sperrazza and Stokes dragged Webster into the car and fled. Sperrazza was later convicted of the murder of Cirvinale and of assault with intent to murder DeVingo. See Commonwealth v. Sperrazza, 372 Mass. 667, 363 N.E.2d 673 (1977).

Sperrazza and Stokes confined Spinney and Webster against their will and drove them to various locations, eventually arriving at an apartment in Quincy. There, sometime during the night, Spinney and Webster were stabbed to death. Their bodies were buried in a wooded area in Northampton, where they were discovered about two and one-half years later. Sperrazza was convicted on two indictments for kidnapping and two for murder in the first degree. See Commonwealth v. Sperrazza, 379 Mass. 166, 396 N.E.2d 449 (1979).

1. Limitation of the Cross-examination of Diane Wazen.

The Commonwealth's case was almost entirely dependent on the testimony of Thomas Sperrazza, as corroborated to some extent by the testimony of Diane Wazen. Sperrazza testified that the defendant came to the Quincy apartment, decided that Spinney and Webster would have to be killed, told Sperrazza how to kill Spinney, and orchestrated the disposal of the bodies and other evidence. Wazen, one of the occupants of the apartment, corroborated Sperrazza's version when she testified that sometime during the early morning hours of February 22 she telephoned her apartment and the defendant answered.

The principal thrust of the defense was an attack on the credibility of these two witnesses. The defendant extensively cross-examined Wazen, impeached her testimony with criminal convictions, and showed her possible bias by questioning her with respect to benefits she had received under the Federal witness protection program. In addition, the defendant wished to examine the witness regarding pending criminal charges against her. The judge excluded this line of questioning.

The defendant was entitled as of right to question the witness about the pending criminal charges in order to show her motive in cooperating with the prosecution. See, e.g., Commonwealth v. Martinez, 384 Mass. 377, 380, 425 N.E.2d 300 (1981); Commonwealth v. Dougan, 377 Mass. 303, 310, 386 N.E.2d 1 (1979); Commonwealth v. Ahearn, 370 Mass. 283, 287, 346 N.E.2d 907 (1976); Davis v. Alaska, 415 U.S. 308, 317-318, 94 S.Ct. 1105, 1110-1111, 39 L.Ed.2d 347 (1974). This is not a case in which it is clear that the witness had made statements consistent with his testimony before the charges arose. Compare Commonwealth v. Haywood, 377 Mass. 755, 758-763, 388 N.E.2d 648 (1979). The defendant made it clear to the judge that the questioning was intended to show bias, not to impeach the witness's general credibility. See Commonwealth v. Martinez, supra. The Commonwealth argues that because there was extensive inquiry into the witness's bias in general, it was within the judge's discretion to exclude this specific inquiry. See Commonwealth v. Donahue, 369 Mass. 943, 951, 344 N.E.2d 886, cert. denied, 429 U.S. 833, 97 S.Ct. 96, 50 L.Ed.2d 97 (1976). But the bulk of the inquiry into bias related to past benefits received by the witness. The receipt of such benefits might have inspired gratitude, but the pendency of criminal charges might have inspired hope of lenity and fear of punishment if such lenity were not obtained. As a source of human motivation, gratitude pales beside hope and fear. In the circumstances, the defendant was entitled to the inquiry he sought.

The judge's restriction of the cross-examination of Wazen was erroneous. Because of this error, the defendant was limited in arguing the witness's motive to lie. The prosecutor, on the other hand, relied on her testimony in his summation and emphasized her lack of any motive to lie. Because the erroneous ruling tended to bolster the credibility of the Commonwealth's witnesses and to impair the defendant's attack thereon, we cannot say that the error was harmless. Reversal is, therefore, required.

2. Discharge of a Deliberating Juror.

We conclude that, independently of the error discussed above, the judge's improper discharge of a deliberating juror requires reversal of the defendant's convictions.

The jury were sequestered. On the eleventh day of trial, the judge received a letter from the foreman of the jury stating that the behavior of one of the jurors was eccentric and antisocial and that some of the other jurors had complained about his inadequate personal hygiene. The judge did not show the letter to counsel but informed them that he had received it and that it concerned a juror's social habits. After reports from the court officers of complaints by other jurors and the hotel staff, the judge, after informing counsel of his intentions, privately admonished the juror to improve his hygiene.

During the remainder of the trial the judge received continued reports of problems with the juror's hygiene and, in addition, "repeated reports that this juror would not associate with or speak to other jurors, and that on more than one occasion throughout the trial he had stated that he would not deliberate." The judge was told by an attorney that the juror's father was concerned about his son's ability to fulfil his responsibilities as a juror. The judge also received a call from a woman who said she was the juror's mother, complaining about the jury service of her son, but the judge declined to discuss the matter with her. None of this was related to counsel.

After closing arguments but before the judge's charge to the jury, the judge was informed that the juror would not deliberate. The judge conferred with the juror in the lobby, in the absence of counsel. The judge asked the juror whether he would deliberate, and the juror responded that although he could abide by his oath, he would prefer not to deliberate because of the personalities of the other jurors. The judge related the substance of the conversation to counsel. The prosecution asked that the juror be excused. Defense counsel, after conferring with the defendant, asked that the juror not be excused. The judge then recalled the juror to the lobby and, again in the absence of counsel, asked the juror for his views on the problem. The juror stated his belief that the other jurors would decide the case on the basis of emotion rather than reason and that he could not assist them in reaching a fair verdict because they were unreceptive. The juror was not excused and went on to become a deliberating juror. ¹

After eleven hours of deliberation the judge received a note from the foreman stating, "A particular juror says he cannot keep the oath." The judge informed counsel that he intended to bring the juror to the lobby and inquire whether the juror could keep the oath. Defense counsel requested that the court inquire more deeply into the facts and circumstances relevant to the juror's conclusion. The juror was escorted to the lobby and, in the presence of counsel, the judge read him the oath and asked him whether he could fulfil the obligation imposed by it. The juror replied negatively and was immediately discharged. Defense counsel objected to the discharge and moved for a mistrial. The motion was denied and an alternate juror was seated.

The discharge of a deliberating juror is a sensitive undertaking and is fraught with potential for error. It is to be done only in special circumstances, and with special precautions. Great care must be taken to ensure that a lone dissenting juror is not permitted to evade his responsibilities. See United States v. Lamb, 529 F.2d 1153, 1156 (9th Cir.1975). Thus a judge must hold a hearing adequate to determine whether there is good cause to discharge a juror. Commonwealth v. Haywood, 377 Mass. 755, 769-770, 388 N.E.2d 648 (1979). ² However, because the inquiry may well lead to a conclusion that the juror cannot be discharged, the judge must scrupulously avoid any questioning that may affect the juror's...