Com. v. Fryar

• Decision Date: 07 April 1993
• Citation: 610 N.E.2d 903,414 Mass. 732
• Parties: COMMONWEALTH v. Charles FRYAR, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 903

610 N.E.2d 903

414 Mass. 732

COMMONWEALTH v. Charles FRYAR, Jr.

Supreme Judicial Court of Massachusetts Hampden.

Argued Nov. 5, 1992.

Decided April 7, 1993.

Wendy Sibbison, Greenfield, for defendant.

Judy G. Zeprun, Asst. Dist. Atty., for Com.

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

LIACOS, Chief Justice.

The defendant, Charles Fryar, Jr., a young black man, was indicted for the murder in the first degree of Eric Palmer, a white college student, as well as for assault and battery by means of a dangerous weapon on four of Palmer's white companions. The offenses allegedly occurred in Springfield in April, 1989. On April 3, 1990, after trial by jury, Fryar was convicted of murder in the first degree and on two indictments charging assault and battery. ¹ The mandatory sentence of life imprisonment was imposed on the murder conviction; on the assault and battery convictions the trial judge sentenced the defendant to two terms of from eight to ten years to be served concurrently with the life sentence at the Massachusetts Correctional Institution at Cedar Junction. A motion for a new trial was heard in September, 1991, and denied in November, 1991.

The defendant appeals from his convictions and from the denial of his motion for a new trial. He argues numerous points of error. Because we conclude that the trial judge committed reversible error in allowing the Commonwealth to use a peremptory challenge against the sole eligible black member of the venire, we consider only that issue and the issues that are likely to recur at a new trial.

We begin with a brief statement of the facts, which we shall supplement as relevant to a particular issue. On the night of April 13, 1989, a group of students from Springfield College was out to celebrate the beginning of the college's "Spring Fling." Some students began drinking beer at an off-campus party, and then proceeded to the Apremont Triangle section of Springfield, where a number of drinking establishments are concentrated. As the hour for the closing of the bars approached, a group of nine white students, including the victim, Eric Palmer, gathered for the purpose of sharing an automobile ride back to the campus. One student had gone ahead with the intention of bringing his automobile back to the area near the bars, where the rest of the students would join him.

The same evening, four black teenagers, Charles Fryar, Jr.; his cousin, Rodney Fryar; Lester Jowers ²; and Tommy Barklow were out together. They spent a portion of the evening riding in Rodney Fryar's automobile. At some point in the evening, Charles Fryar removed a knife from the glove compartment of the automobile, and the four youths passed it around, examining it. The knife belonged to Rodney Fryar. Later, at the same time the group of college students was planning to leave the bars they had been patronizing, the four young men were also in the Apremont Triangle area. The college students approached the automobile that had come to meet them. The defendant and his friends were standing nearby as the students began piling into the automobile. One of the black youths directed a comment to the students suggesting that they would not all fit in the automobile. When all but one of the college students were inside the automobile, Lester Jowers threw a glass bottle against the automobile. The bottle shattered and pieces of glass landed inside the automobile. At this point, the college students came out of the automobile. A street brawl ensued between the two groups of young people. The brawl culminated in the stabbing death of Palmer. No one saw the stabbing.

During the confrontation, the defendant was seen swinging a dowel-like stick at some of the students. He was also seen sparring with the victim. Shortly after the brawl began, two Springfield police officers, on their way to answer an unrelated call, arrived at the scene. They observed the defendant and a student (not the victim) fighting. The defendant was moving backwards as the student and what had by then become a large crowd of students moved towards him. The officers broke up the fight between the defendant and the student, and, as they were placing the defendant in custody, the officers heard a woman scream that someone had been stabbed.

The defendant was taken to the Springfield police station. For the next several hours, the police interviewed numerous witnesses and the four black youths. At approximately 6:40 A.M. the defendant signed a statement, typed by a police officer, in which the defendant described his activities the night before. He denied stabbing Palmer. Around 7:30 A.M., the police learned that Palmer had died as a result of the stab wound. The police interrogated the defendant a second time. At approximately 10:25 A.M. the defendant signed another statement that amended his earlier statement. The second statement stated, in part: "Also I did have a knife at the fight. I had hit the guy with the stick when he had the bottle in his hand. We continued fighting and I held his coat and was punching him. I then backed away and I saw Tommy with the knife in his hand. I took the knife from Timmy [sic ]. The guy then charged at me and I stuck the knife in his stomach."

1. The peremptory challenge. All the members of jury that convicted Charles Fryar of murder in the first degree were white. Fryar argues that the Commonwealth's peremptory challenge of the sole eligible black venireperson violated arts. 1 and 12 of the Massachusetts Declaration of Rights as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. We agree. We describe the jury selection process and the facts surrounding the peremptory challenge.

Jury selection occurred over two days. Each day, the judge employed a two-part screening process. First, the judge addressed the venire as a group, after which some venirepersons came forward and were individually questioned and, in some instances, excused. Next, the judge conducted an individual voir dire of the remaining venirepersons, at which time challenges for cause and peremptory challenges were exercised by either party.

On the second day of jury selection, the judge provided certain basic information to the venire, as he had done on the first day. He listed the names of the parties and potential witnesses and attorneys, and described the nature of the case and how long he expected the trial to last. He concluded by stating:

"I am now going to ask those of you who are affected by any of this information, that is, any of you who may feel that they will be suffering a hardship if required to serve as jurors for the length of this trial, or have had some contact with any party or attorney or witness or place, or who may know of some information about the case from some source, or have anything to report to me concerning your ability to serve as an impartial juror, I'm going to ask you to let us know now. I will see you one at a time in the presence of the attorneys here at the side of the bench." (Emphasis added.)

The first venireperson to approach the bench informed the judge that one of the potential police witnesses was a close family friend, and she was excused. The second and third venirepersons to come forward stated reasons for being unable to participate for the length of the trial, and were excused. The fourth venireperson to come forward knew one of the witnesses, and was also excused. The fifth venireperson that day to come forward was Rayford Williams, the only black person in that day's panel. ³ Williams did not approach the bench to offer an excuse as to why he could not serve on the jury. Apparently responding to the judge's entreaty to report any information "concerning your ability to serve as an impartial juror," he reported that he could, in fact, serve as an impartial juror. Later that day, during the individual voir dire, Williams appeared to understand the questions posed to him and responded in an appropriate manner to each question. The judge declared Williams to be indifferent. The Commonwealth then exercised a peremptory challenge. The following colloquy occurred:

DEFENSE COUNSEL: "Your Honor, I'm going to object to the Prosecutor being allowed to use a challenge to challenge the only black face we have seen in two days.... I have seen no other black faces in the remainder of the Jury Pool. I know what the law says. I know that [Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979) ] says there has got to be a pattern. I suggest one is a pattern under the circumstances of this case."

"...

THE PROSECUTOR: "I think a pattern has to be established, and that Soares goes further and talks about several jurors being challenged before it's even incumbent upon the Court to ask for reasons for peremptory challenges. I don't think that's been established here."

THE JUDGE: "I don't see a pattern. Frankly, I was disturbed by the fact he came up inappropriately in the first group of people looking for an excuse. I'm not sure he can follow instructions, for what it's worth."

THE PROSECUTOR: "For what it's worth, that was one reason."

The prosecutor did not indicate what his other reasons were. ⁴

In this appeal, Fryar argues that the exclusion of Williams from the jury denied him his right to be tried by a jury selected by nondiscriminatory criteria as guaranteed by art. 12, Commonwealth v. Soares, 377 Mass. 461, 488, 387 N.E.2d 499 (1979), and by the equal protection clause of the Fourteenth Amendment, Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). A defendant who claims such a violation must make a prima facie showing that the prosecutor improperly removed a member or members of a discrete group from the jury. See Batson, supra at 96, 106 S.Ct. at 1723; Soares, supra 377 Mass. at 489-490, 387 N.E.2d 499. In Commonwealth...