Com. v. Harris, 89-P-170

• Decision Date: 31 July 1990
• Docket Number: No. 89-P-170,89-P-170
• Parties: COMMONWEALTH v. Stacey HARRIS.
• Court: Appeals Court of Massachusetts

Page 884

555 N.E.2d 884

28 Mass.App.Ct. 724

COMMONWEALTH v. Stacey HARRIS.

No. 89-P-170.

Appeals Court of Massachusetts Middlesex.

Argued Jan. 11, 1990.

Decided June 27, 1990.

Further Appellate Review

Granted July 31, 1990.

Willie J. Davis, Boston, for defendant.

Judy G. Zeprun, Asst. Atty. Gen., for the Com.

Before BROWN, DREBEN and KASS, JJ.

DREBEN, Justice.

A Northeastern University student Ignatio St. Rose was stabbed to death after a fraternity party at the Massachusetts Institute of Technology. The defendant was charged with murdering the victim and, after a jury trial, was convicted of murder in the second degree.

In these appeals from his conviction and from the denial of his motion, under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), for the entry of a verdict of guilty of manslaughter or for a new trial, the defendant makes the following claims: (1) the prosecutor, in violation of art. 12 of the Declaration of Rights of the Massachusetts Constitution and of the equal protection clause of the United States Constitution, used a peremptory challenge to exclude a black woman from the jury solely because of her race; (2) the trial judge abused his discretion in denying the defendant's rule 25(b)(2) motion that a finding of guilty of the lesser charge of manslaughter be entered; (3) the defendant is entitled to a new trial because extraneous matters affected a juror's decision; (4) impermissible conduct of the prosecutor created a substantial possibility that the verdict was influenced by sympathy for the family of the victim; and (5) a certain hearsay statement was improperly admitted in evidence and was so prejudicial that a new trial is required. We affirm the defendant's conviction and also the denial of his motions for the entry of a finding of guilty of a lesser offense and for a new trial.

1. Peremptory Challenge.

During the empanelment of the jury, the prosecutor used one of his peremptory challenges to exclude a black woman. The defendant's counsel objected, pointing out that she was the only black person on the panel. The judge asked the prosecutor for his reasons. The latter responded as follows:

"First of all, Your Honor, I would note that this is not a black on white crime ... [both the victim and the defendant were black] She reminds me, frankly, of the defendant's mother who collapsed hysterically at the arraignment and I assume will be here continually through the trial. I'm just afraid that that would affect her ability--the resemblance that I find between her and the mother would affect her ability to sit impartially. She is also from Cambridge and there is going to be a young woman I understand is going to testify for the defense from Cambridge. Even though she says she does not know her, I'm afraid she might tend to believe that woman more who is going to represent a different view of the evidence, I assume a different view of the evidence, than witnesses who are going to be called on behalf of the Commonwealth.

"There is certainly no pattern of challenging jurors because of race. It's the only black on the panel at this point."

The defendant objected on the grounds that, despite the prosecutor's disclaimers, the only reason for the challenge was that the woman was black. He said, "the only resemblance [to the defendant's mother] is that she's black," and the witness from Cambridge also is black. The only reason "you think this [juror] might relate to her [is] because [the witness is] black."

The judge ruled:

"I'm not going to prevent the challenge. It's not a pattern. I think it's unfortunate that the one black juror isn't--one black potential juror won't end up sitting as a juror on this particular case. I think that's regrettable, but there is not a pattern and the government submits sufficient reason that I don't think that I should bar the peremptory challenge. It should only be done under certain carefully articulated circumstances. As I say, I feel it's unfortunate, but I'm not in a position to block it."

On the next day of trial--the jury had not yet been sworn--the prosecutor informed the judge that although the Commonwealth's position was that the peremptory challenge was exercised with appropriate reasons, he would not object to a request that the judge, in his discretion, discharge the jury and begin again simply to avoid any appearance of impropriety. The defendant rejected the offer "for the simple reason that there is no guarantee that a new panel will produce any blacks, considering the situation in Middlesex County." The judge put on the record that he had ruled in the lobby that he would not start a fresh empanelment. While expressing his "personal regret that ... the one individual who was black was excluded though a peremptory challenge," he was "satisfied" with the Commonwealth's reasons.

"One of the reasons was the Commonwealth desired to strike individuals who lived in Cambridge. I carefully monitored the Commonwealth's challenges during the empanelment process, and all but one Cambridge person were in fact challenged by the Commonwealth. For those reasons, as I said, I'm not going to interfere with the process."

In this appeal, the defendant argues that no other reason but race explains the prosecutor's challenge. He points to the fact that, when the jury were finally selected, the panel included a white male who lived in Cambridge, another who worked there, and two female jurors of the approximate age of the defendant's mother. Moreover, he claims that the judge incorrectly thought, because only one juror was involved, that he had no authority to require the prosecutor to rescind the challenge as there was no evidence of a pattern of discrimination.

The judge's remarks, which we have quoted at length, show that he rejected a finding that the prosecutor was challenging the juror solely on the ground of her "group membership." See Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499 (1979), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). He was satisfied that a neutral reason was legitimately proffered and he monitored the other challenges to potential members of the jury. All Cambridge residents except one were excluded. Contrast People v. Hall, 35 Cal.3d 161, 168-169, 197 Cal.Rptr. 71, 672 P.2d 854 (1983). Although the judge referred to the absence of a pattern, ¹ this is not a case where "a single invidiously discriminatory governmental act" was "immunized" by the absence of "a consistent pattern". See Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986).

Both the Soares and Batson opinions expressed confidence in the ability of trial judges to decide: (1) if there is a prima facie case of discrimination, Soares, 377 Mass. at 490, 387 N.E.2d 499; Batson, 476 U.S. at 97, 106 S.Ct. at 1723, in other words whether the presumption of the propriety of the peremptory challenge has been rebutted; and (2) whether there is a neutral explanation for the challenge pertaining to the individual qualities of the prospective juror. See Soares, 377 Mass. at 491, 387 N.E.2d 499; Batson, 476 U.S. at 98 and n. 21, 106 S.Ct. at 1724 and n. 21, but see Batson, at 103-104, 106 S.Ct. at 1726-27, Marshall, J., concurring. We must, therefore, give deference to the judge's decision. Although other judges might have reached a different conclusion or might have questioned the prosecutor more fully, we find no abuse of discretion here. ² "Sorting out whether a permissible or impermissible reason underlies a peremptory challenge is the function of the trial judge, and we do not substitute our judgment for his if there is support for it on the record." Commonwealth v. Legendre, 25 Mass.App.Ct. 948, 949, 518 N.E.2d 872 (1988), quoting from Commonwealth v. DiMatteo, 12 Mass.App.Ct. 547, 552, 427 N.E.2d 754 (1981).

We acknowledge the dissent's position that not very strong reasons seem to make the grade. See, e.g., Commonwealth v. Lattimore, 396 Mass. 446, 448, 486 N.E.2d 723 (1985), S.C., 400 Mass. 1001, 507 N.E.2d 754 (1987) (peremptory challenge upheld "based on the fact that the juror was wearing a gold earring and the prosecutor did not 'like his looks' "). A better rule might require a ground that would "approximate" a challenge for cause once an objection based on race is made to a peremptory challenge. The present law, however, is otherwise. Both the United States Supreme Court and the Supreme Judicial Court have held that the reasons need not approximate the grounds required by a challenge for cause. Soares, 377 Mass. at 491, 387 N.E.2d 499. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

2. Rule 25(b)(2) Relief.

The defendant recognizes that his motion for either the entry of a finding of guilty of manslaughter or for a new trial on the ground that the verdict of second degree murder was against the weight of the evidence is a matter presented to the sound discretion of the trial judge. As pointed out in Commonwealth v. Woods, 382 Mass. 1, 8, 413 N.E.2d 1099 (1980), "A trial judge's response to a new trial motion based on weight is understood to be discretionary. This entails the possibility that there may be such an abuse of discretion in a denial that an appellate court should correct the mistake on appeal [citation omitted]. Yet, granted that the possibility exists, 'it has repeatedly been stated that occasions when this court can do so'--set aside the action of the trial judge in refusing a new trial--'are exceedingly rare.' Hartmann v. Boston Herald Traveler Corp., 323 Mass. 56, 61 (1948)." ³

An examination of the evidence indicates that this is not the rare case. Inside the building, during the party, an argument erupted about taking a photograph. Angry words were exchanged and the defendant produced a knife. A number of persons were escorted outside the building and the defendant was asked to leave. Thereafter, outside on a plaza, the defendant and others engaged in a fight during the course of...