Com. v. Duteau

• Decision Date: 07 August 1981
• Citation: 384 Mass. 321,424 N.E.2d 1119
• Parties: COMMONWEALTH v. Dana T. DUTEAU. (and eleven companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1119

424 N.E.2d 1119

384 Mass. 321

COMMONWEALTH v. Dana T. DUTEAU. (and eleven companion cases ¹ ).

Supreme Judicial Court of Massachusetts, Franklin.

Argued May 7, 1981.

Decided Aug. 7, 1981.

Stephen R. Kaplan, Asst. Dist. Atty., for the Commonwealth.

Thomas T. Merrigan, Greenfield, for Dana T. Duteau (Donald A. Beaudry, Springfield, for William J. Griffith, with him).

Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

Each of the defendants in these cases was indicted in the past nineteen months for various crimes ² allegedly committed in Athol, a town which is geographically within Worcester County. The indictments were all returned by grand juries sitting in neighboring Franklin County and neither the Franklin County jury pool nor any pool from which these indicting grand jurors were chosen contained any residents of Athol. Before their respective trials each defendant moved to dismiss the indictments against him, arguing either that a Franklin County grand jury had no power to indict for crimes committed in Athol, or that, if it did have the power so to indict, the exclusion of residents of Athol from the grand jury pool violated the defendants' rights under Massachusetts statutes, and the Federal and State Constitutions. ³ In April, 1981, a judge of the Superior Court sitting in Franklin County reserved and reported to the Appeals Court (pursuant to Mass.R.Crim.P. 34, 378 Mass. --- (1979)) three questions pertaining to the defendants' motions to dismiss. We granted their motions for direct appellate review.

The questions reported are as follows: "(1) Are these indictments valid under the Declaration of Rights and the General Laws, notwithstanding that they have been returned by the Franklin Division Grand Jury but arise out of crimes allegedly committed in Athol in Worcester County and have been returned by a grand jury drawn from a pool inclusive of no jurors drawn from Athol or Worcester County? (2) If the answer to the first question is in the affirmative, can these indictments lawfully be tried by a Franklin Division traverse jury drawn from a pool inclusive of no jurors selected from the Town of Athol? (3) Should the Superior Court order the Clerk henceforth to send writs of venire facias to the Town of Athol to provide jurors for future sittings of the Franklin Division of the Superior Court Department of the Trial Court?" We conclude that the indictments are valid, but also that the defendants should be tried by a Franklin County traverse jury drawn from a pool which includes residents of Athol, and that henceforth residents of Athol should be included in the jury pool for all sittings of the Superior Court in Franklin County. Accordingly, we answer questions one and three, "Yes," and question two, "No."

1. Question one. This first question, which concerns the validity of the indictments returned against the defendants, raises two issues put forth in the defendants' motions to dismiss. As noted above, the first is whether a grand jury sitting in Franklin County has the power to indict for crimes allegedly committed in Athol. The second is whether that jury, if they do have the power so to indict, is a valid jury under G.L. c. 277, § 3, and the Massachusetts and United States Constitutions, when neither the pool from which the indicting grand jury was drawn nor any other Franklin County grand jury contained any residents of Athol. We shall address these issues in turn.

Massachusetts has generally followed the common law rule that an indictment must be found, and the trial must take place, in the county where the crime occurred. See Commonwealth v. Handren, 261 Mass. 294, 296-297, 158 N.E. 894 (1927); K. B. Smith, Criminal Practice and Procedure § 45, at 28 (1970). Thus in the usual case a grand jury from Franklin County would have no power to indict for crimes occurring in Athol, located in Worcester County. But under the English common law the general rule of countywide districts applied only if parliament made no contrary provision; and our Legislature is similarly empowered to amend the general rule, in the absence of some constitutional limitation. See Commonwealth v. Parker, 2 Pick. 550, 554 (1824). See generally Commonwealth v. Collins, 268 Pa. 295, 300, 110 A. 738 (1920). ⁴

We think that St. 1979, c. 343 ⁵ (amending G.L. c. 218) is such a contrary legislative provision. We conclude that it transfers Athol from Worcester County to Franklin County for the trial of civil and criminal cases in the Superior Court, and thus authorizes a Franklin County grand jury to indict for crimes committed in Athol. Sections 1 and 2 of that statute moved the town of Athol from the jurisdiction of the First District Court of Northern Worcester to that of the District Court of Eastern Franklin; § 3 provided that "(f)or the purposes of all civil and criminal matters related thereto, the town of Athol shall be considered to be within the jurisdiction of the county of Franklin." The amendment does appear in chapter 218 of the General Laws, the chapter pertaining to District Courts. See G.L. c. 218, § 1. General Laws c. 212, which deals with the Superior Court has not been amended. Yet each county of the Superior Court is divided into the various territorial districts of the District Court. Hence, it is conceivable that the Legislature thought that a change in the District Court to which Athol was assigned was sufficient to alter as well that town's Superior Court assignment. Moreover, the statement in § 3 of St.1979, c. 343, is a broad one; since the "thereto" apparently refers to Athol, the statement seems to alter more than just Athol's District Court placement. Most importantly, by St.1980, c. 231, § 1 (amending G.L. c. 12, § 13), the Legislature transferred responsibility for the prosecution of crimes occurring in Athol from the district attorney for the middle district, made up of Worcester County, to the district attorney for the northwestern district, made up of Franklin and Hampshire counties. ⁶ If St. 1979, c. 343 had only the narrow goal of moving Athol from the jurisdiction of one District Court to another, the result, in combination with St.1980, c. 231, would be the very peculiar situation of the district attorney from the northwestern district handling all criminal cases out of Athol, conducting any probable cause hearings for these cases in the District Court for Northern Franklin, but traveling to the Superior Court in Worcester County for indictment and trial of the same cases. Jury of six appeals would apparently move to Franklin County even under the narrow interpretation of the statute, thus adding to the anomaly. ⁷ We conclude, therefore, that St.1979, c. 343, must have also had the broader purpose of including Athol within Franklin County for the purpose relevant here, the prosecution of criminal cases in the Superior Court. ⁸

As to whether any State constitutional provision limits in any way significant here the power of the Legislature to redraw a grand (or trial) jury district, art. 13 of the Declaration of Rights of the Constitution of the Commonwealth does provide that "(i)n criminal prosecutions, the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty, and property of the citizen." But in Commonwealth v. Parker, supra at 552-556, the court gave art. 13 a very nonrestrictive reading, noting that "the word 'vicinity' (as used in art. 13) is not technical, with a precise legal meaning, as the word 'county,' " and that art. 13 was "merely declaratory of the sense of the people, that the proof of facts in criminal prosecutions should be in the vicinity or neighbourhood where they happen" id. at 552; and it concluded therefore that art. 13 was probably not designed to restrain the power of the Legislature. Even if there were some limitation derived from art. 13 on the redrawing of grand jury districts by the Legislature it does not come into play here when the change involves a town abutting the other county. See Opinion of the Justices, 372 Mass. 883, 896-898, 363 N.E.2d 652 (1977) (legislative proposal authorizing Chief Justice of the Supreme Judicial Court to transfer trial of criminal cases from one county to an adjoining county does not violate art. 13, citing Parker ). Likewise no provision of the Federal Constitution seems to limit, in ways relevant to this case, the power of the Legislature to alter the boundaries of a grand jury's jurisdiction. ⁹ We conclude, therefore, that the grand jury for the Superior Court in Franklin County has the power to indict for crimes allegedly occurring in Athol.

We turn to the defendants' claim that the fact that neither the indicting grand jury nor any other Franklin grand jury was drawn from jury pools that contained any residents of Athol violated the defendants' rights under G.L. c. 277, § 3. That section provides that "(g)rand jurors shall be drawn, summoned and returned in the same manner as traverse jurors," thus applying for grand juries the selection rules for traverse juries; and G.L. c. 234, § 10, dealing with the selection of traverse juries, directs that such jurors should be summoned from the cities and towns within a county in proportion "as nearly as may be" to the cities' and towns' respective populations. Given our conclusion that St.1979, c. 343, transferred Athol to Franklin County for the purpose of the prosecution of Superior Court criminal cases, the defendants quite correctly assert that the grand juries which indicted them were selected in a manner contrary to these statutory guidelines. But, as pointed out in Commonwealth v. Best, 180 Mass. 492, 493, 62 N.E. 748 (1902), the point of this apportionment provision is merely to equalize among county residents the duty of serving as jurors and not to give a defendant a basis for challenging an indictment, unless he can show at least some prejudice. The...