Com. v. Fryar

• Decision Date: 13 June 1997
• Citation: 425 Mass. 237,680 N.E.2d 901
• Parties: COMMONWEALTH v. Charles FRYAR, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 901

680 N.E.2d 901

425 Mass. 237

COMMONWEALTH v. Charles FRYAR, Jr.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Feb. 4, 1997.

Decided June 13, 1997.

Wendy Sibbison, Greenfield, for defendant.

Elizabeth Dunphy Farris, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and LYNCH, O'CONNOR, FRIED and MARSHALL, JJ.

LYNCH, Justice.

The defendant was convicted of murder in the second degree and on two indictments charging assault and battery by means of a dangerous weapon. ¹ On appeal the defendant claims that: (1) the process for selecting the grand and petit jury venire in Hampden County was unconstitutional; (2) the jury instructions regarding malice, the Commonwealth's burden of proof, and the judge's refusal to instruct on involuntary manslaughter were improper; and (3) there were various errors with regard to evidentiary rulings. We granted his application for direct appellate review. We now affirm the convictions.

We begin with a brief statement of the facts, which we shall supplement as relevant to a particular issue. Around 2 A.M. on April 14, 1989, a street fight broke out between a group of black youths and a group of white college students outside a bar in downtown Springfield. The brawl culminated in the stabbing death of a student. No one saw the stabbing. However, witnesses observed the defendant swinging a stick and sparring with the victim. The defendant was taken into custody, confessed to stabbing the victim, and was indicted by a Hampden County grand jury on May 10, 1989. For a more detailed recitation of the facts see Commonwealth v. Fryar, 414 Mass. 732, 734-735, 610 N.E.2d 903 (1993) (Fryar I ).

1. Grand and petit jury venires. The judge conducted an evidentiary hearing on the defendant's challenge to the jury venire selection process and found the following facts.

The procedures used for selecting the grand and petit jury venires were comparable. Each municipality in Hampden County conducted an annual census by mailing a postcard census form to every known residence. ² The recipient was responsible for returning the census form. The local board of registrars (registrars) used the census results, supplemented by recent additions to the voter registration records, to compile "street lists" with the names of eligible jurors.

The street lists were not completely accurate because some residents failed to respond. Holyoke and Springfield, communities with the highest minority concentration in Hampden County, experienced the highest nonresponse rate. The registrars compiled a list of residences from which no response had been received. Members of the local police force were sent to these residences to gather census information.

The street lists were then transmitted to the office of jury commissioner. In creating the jury venires the Commissioner calculates the ratio of the population of a given municipality to the population in the judicial district. See G.L. c. 234A, §§ 10-16. This calculation is used in determining potential jurors to be drawn from the municipality. The Commissioner randomly selects that number of prospective jurors from each municipality's street list and sends a jury summons to the address listed on the street list.

According to a 1990 census, Blacks and Hispanics comprised 15.4% of the eligible jurors in Hampden County. The defendant claims, based on visual observation and surnames from the jury lists, that Blacks and Hispanics represented 7.3% of the petit jury venire. No information was available on the racial composition of the grand jury venires. ³

The judge found that "the jury selection process currently used in Hampden County is free from discrimination against any group, including African Americans and Hispanics. Further, both Blacks and Hispanics are represented on juries within constitutionally acceptable parameters." He explained "[t]here is an attempt to generate as accurate a census as possible, including follow-up visits to those residences which do not respond. There is also an attempt to redeliver mail which is undeliverable. Admittedly, and unfortunately, the system is not perfect.... There may be a number of factors, many of which may be societal, which render police officers a less than optimum choice to do the census follow-up.... Any underrepresentation of minority groups is neither intended nor does it rise to the level of constitutional violation. It is not a product of the jury selection system itself."

The defendant claims that Black and Hispanic citizens were systematically marginalized in Hampden County grand and petit juries. According to the defendant, the underrepresentation is systematic because the two urban areas with the highest concentration of Blacks and Hispanics in the county--Springfield and Holyoke--used ineffective census gathering techniques. He argues that the efforts by police to contact those who failed to respond to census requests were ineffective in minority neighborhoods. As a result, Blacks and Hispanics were underrepresented on the street lists, which in turn caused underrepresentation on the jury venire. Furthermore, the defendant contends that inaccuracies on the street lists caused a higher proportion of undeliverable jury summonses in minority areas. The defendant argues that the grand jury's indictments and the petit jury's convictions violated his rights under art. 12 of the Massachusetts Declaration of Rights and the Fourteenth and the Sixth Amendments to the United States Constitution. We disagree.

In reviewing the judge's ruling that the grand and petit juries were constitutional we must determine whether the evidence supports the judge's factual findings and whether the findings warranted the rulings of law. Commonwealth v. Aponte, 391 Mass. 494, 504, 462 N.E.2d 284 (1984).

Under art. 12 there is no distinction between the equal protection analysis ⁴ for grand juries and the Sixth Amendment analysis ⁵ for petit juries as exists in Federal law. See Commonwealth v. Aponte, supra at 506, 462 N.E.2d 284; Commonwealth v Soares, 377 Mass. 461, 478, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). A criminal defendant is constitutionally entitled to a jury selection process free of systematic discrimination against his grouping in the community. See Commonwealth v. Aponte, supra at 507, 462 N.E.2d 284; Commonwealth v. Bastarache, supra at 101-102, 414 N.E.2d 984; Commonwealth v. Soares, supra at 478-479, 481-482, 387 N.E.2d 499. The method of drawing jury lists must produce a fairly numerous and representative body of impartial residents. Commonwealth v. Aponte, supra. "[T]he ultimate touchstone of constitutionality is whether the system as a whole and in a general sense is or is not calculated to produce as triers a fair cross-section of the populace." Commonwealth v. Peters, 372 Mass. 319, 322, 361 N.E.2d 1277 (1977).

The defendant failed to show minority underrepresentation on the grand jury. The defendant provided no information at all about the racial and ethnic makeup of the grand jury venire when he was indicted. Due to the total lack of evidence regarding the racial composition of the grand jury, the defendant was unable to prove "disproportionate underrepresentation over a significant period of time." Commonwealth v. Bastarache, supra at 96, 414 N.E.2d 984. Although the defendant may have been hampered by the lack of reliable information, he must do more than assert the claim to make out a prima facie case of underrepresentation. See Commonwealth v. Tolentino, 422 Mass. 515, 520-521, 663 N.E.2d 846 (1996).

The defendant's evidence in regard to petit jury venires was based on visual observation and surname analysis. However, "[t]his court has observed that visual observations alone are not a reliable guide to the true makeup of a jury venire." Id. at 520, 663 N.E.2d 846. See Commonwealth v. Colon, 408 Mass. 419, 438 & n. 11, 558 N.E.2d 974 (1990) (rejecting visual assessment of minority representation in jury venires as insufficient to establish statistically significant disparity of representation). Surname analysis seems an equally unreliable indication of racial and ethnic identity. Nevertheless, even if we were to conclude that the defendant's evidence was reliable, the statistics do not show that minority underrepresentation was substantial.

As noted above, Blacks and Hispanics constituted 15.42% of the population of eligible jurors in Hampden County and 7.33% of the venire. A criminal defendant is not constitutionally entitled to a proportionate number of his race on the jury venire. See Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829-30, 13 L.Ed.2d 759 (1965); Commonwealth v. Aponte, supra at 507, 462 N.E.2d 284. The majority of courts have looked to the absolute disparity test to determine whether underrepresentation of a group is substantial. ⁶ See Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); United States v. Hafen, 726 F.2d 21, 24 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); United States v. Clifford, 640 F.2d 150, 155 (8th Cir.1981); United States v. Armstrong, 621 F.2d 951, 956 (9th Cir.1980). In order to calculate the absolute disparity between a group's representation in the population and its representation in the jury venire one simply subtracts the latter percentage from the former. In this case, where Blacks and Hispanics form 15.42% of the eligible jurors in Hampden County and account for only 7.33% of the jury venire, the absolute disparity is 8.09 percentage points. The courts that have adopted the absolute disparity measure have ruled that a less than ten percentage point disparity can never be substantial. See Swain v. Alabama, supra at 208-209, 85 S.Ct. at 829-30 (purposeful racial discrimination not satisfactorily established by showing that...