Com. v. Estremera

• Decision Date: 13 April 1981
• Citation: 419 N.E.2d 835,383 Mass. 382
• Parties: COMMONWEALTH v. Hiram ESTREMERA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 835

419 N.E.2d 835

383 Mass. 382

COMMONWEALTH v. Hiram ESTREMERA.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 3, 1981.

Decided April 13, 1981.

Thomas F. McEvilly, Leominster (John J. Curley, III, Leominster, with him), for defendant.

Daniel F. Toomey, Asst. Dist. Atty. (Richard Withstandley, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

Some time after midnight on June 21, 1979, Angel Luis Allende was shot in the face and killed by the defendant, Hiram Estremera, a police officer with the Worcester Housing Authority. The killing occurred while Allende was handcuffed and sitting in the back seat of a police cruiser driven by Estremera. The key issue at trial was Estremera's criminal responsibility. A jury found Estremera guilty of murder in the second degree. He appeals pursuant to G.L. c. 278, §§ 33A-33G, claiming error in the empanelment process, in the trial judge's instructions on malice, and in the judge's failure to instruct the jury on manslaughter. Finding no reversible error and no occasion to exercise our powers under § 33E, we affirm the judgment.

The defendant Estremera and Angel Rosario, police officers employed by the Worcester Housing Authority (authority), were on cruiser patrol at Great Brook Valley Housing Project (project) on the evening of June 20, 1979. Estremera was the driver. About 12:30 A.M., the officers noticed a car drive out of the project with a stove in the trunk. Believing the stove might be the property of the authority, they followed and stopped the car. Two men were in the car. Estremera asked the driver, Allende, for his license and registration, which were produced promptly. Estremera recognized Allende's face; he had stopped Allende in the past for motor vehicle violations and had been given a "rough time." When asked by Rosario where he had obtained the stove, Allende replied that his sister had given it to him. Estremera called for a backup, and another authority police officer, Terrance J. Ferraro, arrived in another cruiser. Ferraro's arrival somehow aggravated Allende, who began swearing viciously and accused the officers of harassing him. Allende punched Ferraro. Ferraro grabbed Allende, arrested him for assault and battery, and handcuffed his hands behind his back. Estremera patted down Allende for weapons and found an "Afro pic" (a comb) and a small knife.

Allende continued to hurl obscenities at the officers while he was being escorted to Estremera's cruiser by Ferraro and Estremera. He claimed that there would be a riot in the project and that he would burn the project down. He also threatened to kill the officers. Most of the taunts and threats were in Spanish; ¹ Estremera and Rosario are Puerto Rican, as was Allende.

Allende was put in the back of the cruiser for transport to the police station. Rosario drove Allende's car toward the station, with the unidentified passenger still inside; Estremera followed in his cruiser with Allende; and Ferraro brought up the rear. Ferraro testified that Estremera seemed normal at the time the three cars began making their way toward the police station. After driving about 100 feet, Rosario heard a sound "like a gunshot"; looking at the side-view mirror, he saw Estremera getting out of his cruiser. Ferraro testified that while driving behind Estremera, he saw Estremera swing the cruiser from the right-hand lane into the left-hand lane, jam on the brakes and get out. Ferraro pulled up behind him. Estremera opened the back door and pulled Allende's body out onto the ground. On seeing Allende's face covered with blood, Ferraro called for an ambulance. Officer Rosario heard Ferraro's voice over the radio and, after delivering Allende's car to the station, returned in his own car. Rosario testified that Estremera was crying hysterically; attempts to calm him were unavailing. Estremera said he did not know what had happened and told Rosario to "save the guy." According to Ferraro, Estremera cried, "God, don't let him die. I shot him." Ferraro said Estremera was confused, hysterical, "(o)ut of the ball park." Estremera ripped off his shirt and equipment and threw them into the street. An ambulance arrived and took the unconscious victim to the hospital, where he died minutes later. His brain had been perforated by a gunshot wound through the left eye.

Estremera's was the only testimony of the events immediately leading to Allende's death. He testified that Allende's vituperation continued unabated after the two of them were alone in the cruiser. Allende again predicted a riot in the project and threatened to kill Estremera and the other officers. Estremera became "mad" and told Allende to shut up. Estremera then heard a pop. He looked to the right where the sound had come from and, as he continued to drive, realized that he had his revolver in his right hand. He then slammed on the brakes, stopped the cruiser, stepped from it, and looked around to determine where the noise had come from. As he was getting back into the cruiser, he noticed that Allende was quiet. He opened the rear door and spoke to Allende. Allende lifted his head, and Estremera saw blood oozing from his left eye. He removed Allende from the cruiser and placed him on the pavement.

The defense claim at trial was lack of criminal responsibility. ² According to psychiatric testimony, Estremera suffered from a mental disease identified as a "cathathymic crisis within the context of a hysterical dissociation," as a result of which he was "grossly temporarily unaware" of what was going on at the time of the shooting. The defendant also introduced evidence of a radical personality change caused by a series of psychologically traumatic experiences, including a miscarriage suffered by his wife; mysterious, silent telephone calls; the stealing and burning of his car near the project; and previous riots at the project, during one of which a superior officer was seriously injured.

1. Propriety of the Empanelment Process.

The defendant attacks the judge's actions in striking certain questions to prospective jurors after the first day of empanelment and in otherwise altering the empanelment process in order to save time. Consideration of the defendant's challenges requires us to set out in some detail the particular method followed for the selection of the jury in this case.

On the day before the trial was to begin, the defendant filed a motion for leave to question prospective jurors, reciting twenty-five questions he wished to have put to each juror. The first two questions concerned the juror's relationship to the defendant and prospective witnesses. Questions 3 through 11 involved pretrial publicity and its impact, if any, upon the juror. The twelfth question involved the juror's ability to consider only evidence adduced at trial. The next seven questions were aimed at discovering any prejudice against either Puerto Ricans or police officers. Questions 20 through 25 focused on the juror's attitudes toward psychiatrists and the defense of lack of criminal responsibility. The judge allowed the motion except with respect to the twelfth question ³ and agreed to pose the questions to each juror individually.

On the first day of empanelment, seven prospective jurors were questioned individually and out of the presence of the others, ⁴ in accordance with the defendant's request. Of the seven, two were deemed acceptable and were sworn.

On the second day, concerned that the previous day's proceedings had resulted in the selection of only two jurors, the judge decided to alter the empanelment process in order to save time. He announced his intention to pose questions relating to pretrial publicity to the entire venire collectively. Furthermore, none of the questions dealing with attitudes toward psychiatrists and the defense of lack of criminal responsibility were to be posed any longer. The defendant objected to these alterations.

a. Questions on criminal responsibility. The defendant claims that the striking of questions revolving around the defense of lack of criminal responsibility ⁵ constituted both a denial of due process and an abuse of discretion. He cites two cases from other jurisdictions for the proposition that it is prejudicial error to refuse to permit voir dire examination of prospective jurors on subjects relating to the defense of insanity, when the defendant has given notice of such defense. ⁶ The cases cited are not constitutionally based and contain little or no reasoning in support of their conclusions. We have recently reaffirmed that "(q)uestions not aimed at 'revealing racial bias or any similarly indurated and pervasive prejudice' are not constitutionally required" on voir dire. Commonwealth v. Rhoades, --- Mass. ---, --- ^a, 401 N.E.2d 342 [383 Mass. 388] (1980), quoting from Commonwealth v. Bailey, 370 Mass. 388, 399, 348 N.E.2d 746 (1976). We cannot say that whatever prejudice might exist against psychiatrists is sufficiently "indurated and pervasive" as to result in a denial of constitutional rights if not explored before trial. Nor do we consider the refusal to ask questions such as those at issue here a violation of the statute governing jury selection, G.L. c. 234, § 28, or an abuse of the discretion afforded the judge in the jury selection process. See Commonwealth v. Dickerson, 372 Mass. 783, 794, 364 N.E.2d 1052 (1977). In fact, we have earlier considered it "a doubtful proposition that (such) questions ... need to be asked in every case involving testimony by psychiatrists and the defense of insanity." Commonwealth v. Killelea, 370 Mass. 638, 649-650, 351 N.E.2d 509 (1976) (finding no abuse of discretion in denying a defendant's motion to propound questions similar to those requested by the defendant here). The present record, as was true in Commonwealth v. Shelley, --- Mass. ---, --- - --- &...