Com. v. Core

• Decision Date: 03 June 1976
• Citation: 370 Mass. 369,348 N.E.2d 777
• Parties: COMMONWEALTH v. Michael CORE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 777

348 N.E.2d 777

370 Mass. 369

COMMONWEALTH

v. Michael CORE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 5, 1976.

Decided June 3, 1976.

Winston Kendall, Roxbury, for defendants.

Kathleen M. Curry, Asst. Dist. Atty, for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

REARDON, Justice.

The defendants Michael Core and Charles Hall were indicted for trespassing, assault and battery, and robbery. The case was taken subject to G.L. c. 278, §§ 33A--33E. The defendants were tried before a jury in the Superior Court in Suffolk County, were found guilty of all offenses charged, and were sentenced. Each defendant has made an assignment of errors which we will treat seriatim.

1. The defendant Hall assigns as error the denial of his motion to dismiss the indictments returned against him and to strike the traverse jury venire on the grounds of the underrepresentation of women and persons twenty to twenty-four years of age on Boston's jury list, and in the number of persons summoned to serve as grand jurors and traverse jurors in Suffolk County. There was no error in the denial of this motion. .

With respect to the underrepresentation of women on the grand jury, the indictments against Hall were returned on December 5, 1974, prior to the decision of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), held that as a matter of Federal law the Taylor case was to be given prospective effect only. Subsequently we have indicated that in our own cases the rule of the Taylor case would not be applied retroactively to invalidate indictments such as those against Hall returned prior to January 21, 1975. Commonwealth v. Daggett, --- Mass. ---, --- - ---, ^a 343 N.E.2d 409 (1976). Brunson v. Commonwealth,-- - Mass. ---, --- - ---, ^b 337 N.E.2d 895 (1975). THERE was, therefore, no error in the denial of the defendant's motion to dismiss the indictments based on discrimination against women in the selection of the grand jury.

With respect to the underrepresentation of women on the traverse jury venire, the record reveals that the actual venire from which the jurors in this case were selected consisted of equal numbers of men and women in compliance with interim orders of the Chief Justice of the Superior Court issued in response to the Taylor case and outlined in BRUNSON V. COMMONWEALTH, SUPRA AT --- - ---, 337 N.E.2D 895.^C Thus, although women may have been underrepresented on the jury list in effect in Suffolk County at the time of this trial, any harm to the defendant was alleviated by the manner in which the jury in this case were actually selected pursuant to the orders of the trial judge. We further are of the view that this procedure represented a reasonable measure to ensure that the defendant's rights were protected while steps were being taken to bring the jury lists into compliance with the requirements of the Taylor case.

With respect to the alleged underrepresentation of persons twenty to twenty-four years of age in the jury pools, we note that the defendant's argument is based solely on a document entitled, 'Report of Jury Study, Suffolk County.' This document was prepared in connection with another case, that of BRUNSON V. COMMONWEALTH, SUPRA ---, 337 N.E.2D 895;^D, ¹ and while the defendant has attached it as an appendix to his brief, this report was never offered or admitted in evidence or otherwise made a part of the record of this case and is, therefore, not properly before us. ²

We conclude therefore that the defendant has failed to demonstrate that his Sixth Amendment right to a jury drawn from a fair cross-section of the community has been infringed by sex or age discrimination in the selection of either the grand jury which indicted him or the petit jury which convicted him.

2. The defendant Core assigns as error the denial of his motion for a pre-trial lineup. The record reveals that the defendant's asserted need for the lineup was that '(w)e believe that this case is going to turn upon whether or not the victim is able to identify the two defendants' and that the lineup was necessary in order to enable the defendant to test adequately the reliability of that identification. In fact at trial the victim Silverson was unable to identify either of the defendants as his attackers.

There was no error in the denial of the motion. The decision whether to grant such a motion is within the sound discretion of the trial judge and will not be overturned absent a showing of abuse of that discretion, not made out here. Commonwealth v. Jones, 362 Mass. 497, 500--501, 287 N.E.2d 599 (1972). See COMMONWEALTH V. JOHNSON, --- MASS.APP. ---, 316 N.E.2D 763 (1974)^E. Furthermore we fail to see how the defendant was prejudiced by the denial of his motion for a lineup to test the reliability of an in-court identification which in fact was never made.

3. Both defendants assign as error the denial of their motion 'to have certain questions directed to possible racial prejudice propounded to prospective jurors on Voir Dire.' At the commencement of trial the defendant Core moved that the judge put twenty-one questions to the jurors or, in the alternative, allow defense counsel to put those questions to the jurors. The defendant Hall made a similar motion with respect to a list of twenty-six questions (the twenty-one questions of the defendant Core's motion plus five others). The judge granted the motion in part, asking two of the requested questions: whether the prospective jurors or any members of their families had ever been victims of a crime of violence, and whether any of them was related to members of the Boston police department or any other law enforcement agency. With respect to racial prejudice, the judge called to the attention of the prospective jurors the facts that the defendants were black and that the alleged victim was white, and inquired of them collectively whether this raised any bias or prejudice in their minds which would prevent them from deciding the case fairly and impartially on the evidence and without regard to the color of either the defendants or the victim. In addition, the judge asked the statutory questions provided for in G.L. c. 234, § 28, and further inquired of the prospective jurors whether they knew the victim or the two other Commonwealth witnesses and whether they knew or were related to the defendants or the attorneys in the case.

The judge refused to put questions which in effect asked prospective jurors whether they lived in integrated neighborhoods or came into regular contact with black people; whether their children were bused to school; whether they belonged to any veterans' organization, fraternal order, or to any group which excludes blacks from membership; whether they believed that black people are naturally violent or more prone to commit crime than white people or that most young black males are hoodlums; whether they felt intimidated by black males who wear their hair in the 'Afro hair style,' or in braids; whether they believed in law and order or that the courts are too permissive; and whether they believed that police officers would not lie or would be more likely to tell the truth than civilians.

The defendants argue that they had a constitutional right to inquire specifically about racial prejudice in prospective jurors and that the denial of their motions, in part, was a derogation of that right. They rely primarily on the case of Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Attempts to define the exact dimensions of the right announced in the Ham case have engendered some controversy. In Commonwealth v. Ross, 363 Mass. 665, 671--672, 296 N.E.2d 810, 815, cert. denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), we stated that '(w)e do not believe that the Ham case announced a new broad constitutional principle requiring that questions, designed to discover possible racial prejudice, be put to prospective jurors in all State criminal trials when the defendant is black,' but rather that such questions are constitutionally required only in circumstances where the defendant is 'a special target for racial prejudice.' This view we have adhered to in subsequent cases. See Commonwealth v. Lumley, --- Mass. ---, --- - ---, ^f 327 N.E.2d 683 (1975); Commonwealth v. Pinckney, 365 Mass. 70, 72, 309 N.E.2d 495 (1974); Commonwealth v. Bumpus, 365 Mass. 66, 67, 309 N.E.2d 491 (1974); Commonwealth v. Rodriquez, 364 Mass. 87, 89--90, 300 N.E.2d 192 (1973).

The United States Court of Appeals for the First Circuit, in affirming the grant of a writ of habeas corpus to the petitioner Ross, took the rather different view that the constitutional requirements of Ham are invoked whenever a black defendant is accused of a violent crime against a white victim. Ross v. Ristaino, 508 F.2d 754, 756--757 (1st Cir.1974). Review of this decision was sought and had in the Supreme Court of the United States, and in the recent decision of RISTAINO V. ROSS, --- U.S. ---, 96 S.CT. 1017, 47 L.ED.2D 258,^G the Court reversed the judgment of the Court of Appeals and adopted an interpretation of the Ham case congruent in its essentials with that delineated in Commonwealth v. Ross, supra.

Our inquiry then as to the defendants' constitutional claim is whether there were circumstances in this case which would render the defendants special targets of racial prejudice and would thereby trigger the requirements of the Ham case. There would appear to be no such circumstances. The defendants introduced no evidence to indicate that they were the special targets of prejudice or that race had anything to do with their arrest or prosecution. Alleged bias played no part in the defense, and the defendants did not testify. There seems little but the assertion that the coincidence of black defendants and a white...