Com. v. Hutchinson

• Decision Date: 05 August 1985
• Citation: 395 Mass. 568,481 N.E.2d 188
• Parties: COMMONWEALTH v. Elizabeth HUTCHINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 188

481 N.E.2d 188

395 Mass. 568

COMMONWEALTH v. Elizabeth HUTCHINSON.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Feb. 5, 1985.

Decided Aug. 5, 1985.

Steven J. Rappaport, Boston, for defendant.

Pamela L. Hunt, Asst. Dist. Atty. (Ellis M. Enlow, Asst. Dist. Atty., with her) for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant was convicted of the murder in the first degree of Brandy Blair Mallett, a child almost four years old, and was sentenced to life in prison. The Commonwealth contended at trial that the defendant beat Brandy to death. The defendant claimed that Brandy died from accidentally falling down a flight of stairs. The defendant's appeal was entered directly in this court. ¹

The defendant argues that the trial judge impermissibly seated three jurors whom the defendant had peremptorily challenged. Secondly, the defendant asserts that the judge erred in denying her motion for a required finding of not guilty of murder in the first degree. Her argument in support of that assertion, however, does not really focus on the legal sufficiency of the evidence to warrant the finding of murder in the first degree. Rather, it focuses on why this court should exercise its power under G.L. c. 278, § 33E (1984 ed.), to reduce the verdict to murder in the second degree. Finally, the defendant argues that, in light of certain deficiencies in the judge's instructions to the jury, and in light of improper conduct of both counsel throughout the trial, we should exercise our power under G.L. c. 278, § 33E, to order either a new trial or the entry of a verdict of manslaughter. We reject the defendant's arguments, and we affirm the judgment below.

1. Empanelment of the jury. Sixteen jurors were empanelled. In empanelling the jury, the judge examined each prospective juror individually for possible bias, and he immediately declared whether or not he found that juror to be indifferent. If he found a juror not to be indifferent, the juror was excused. If he found a juror to be indifferent, the juror was then immediately subject to peremptory challenge by the parties. If neither party challenged a juror, the juror was seated.

After twelve jurors had been seated, the defendant peremptorily challenged a woman. The prosecutor informed the judge at the side bar that the defendant had exercised fourteen peremptory challenges and that thirteen of the persons challenged (the correct number was twelve) were women. Citing 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), the prosecutor asked the judge to seat the juror despite the defendant's peremptory challenge. After hearing both counsel, the judge found that "there has been a pattern of exclusion of females from the jury, females that otherwise appear to the Court to be indifferent and competent to sit without prejudice or bias and would be impartial jurors." The judge seated the juror, and the selection process continued. The judge excused the next prospective juror, and the defendant peremptorily challenged the juror after that, another woman. Again relying on Commonwealth v. Soares, supra, the prosecutor moved that the juror be seated, and, after hearing both counsel, the judge seated the juror. The Commonwealth challenged the next two prospective jurors, a male juror was seated, and then the defendant peremptorily challenged another woman. After a hearing, the judge again allowed a motion by the prosecutor to seat the juror.

The defendant argues that the judge failed to follow the guidelines set forth in Commonwealth v. Soares, supra, for identifying impermissible peremptory challenges, and that, as a result, she was denied her right to a trial before an impartial jury guaranteed by the Federal and State Constitutions. Those assertions are without merit. First of all, as we shall see, the record does not demonstrate that the judge failed to follow the guidelines announced in Soares. Secondly, even if the judge had failed to follow those guidelines, that would not of itself result in a denial of the defendant's right to a trial before an impartial jury. Neither the Federal nor the State Constitution guarantees a criminal defendant the right to exercise peremptory challenges. Commonwealth v. Reid, 384 Mass. 247, 253-254, 424 N.E.2d 495 (1981).

DB1[2, 3] In Soares, supra, 377 Mass. at 489 n. 35, 387 N.E.2d 499, we recognized that a criminal defendant's right of peremptory challenge, as important as it surely is, is nevertheless limited by the Commonwealth's right to insist on a jury that fairly represents the community. There is a "presumption of proper use of peremptory challenges. That presumption is rebuttable, however, by either party on a showing that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership." Id. at 489-490, 387 N.E.2d 499. Here, when the Commonwealth presented its first Soares motion, the jury consisted of four women and eight men (a fifth woman had been seated and then excused), the defendant had peremptorily challenged twelve women and only two men, the defendant's last eleven peremptory challenges had been exercised against women, and the defendant had challenged the last three women declared indifferent by the judge. The judge found that a pattern of excluding women had been established, thus rebutting the presumption of proper use of peremptory challenges. The facts recited above warranted that conclusion.

The judge having determined that the presumption of the proper use of the defendant's peremptory challenges had been rebutted, the burden shifted to the defendant to demonstrate that the peremptory challenges objected to by the Commonwealth were not based solely on the sex of the jurors. Soares, supra at 491, 387 N.E.2d 499. The defendant claims that she was not given an opportunity to sustain her burden, but the record does not support her claim. After the Commonwealth presented its first Soares motion, the judge and counsel for both sides fully discussed the motion, the Commonwealth's reason for advancing it, and the defendant's contentions in opposition to it. The defendant took the position that no pattern of exclusion had been established, and that all of her peremptory challenges were "based on the questions and the responses on voir dire, and for no other reason." Counsel gave no specifics. When the Commonwealth made its second Soares motion, the judge inquired as to the reasons for the defendant's peremptory challenge, and defense counsel responded: "It has nothing to do with the fact that she is a female alone. It has to do with the defendant's right to exercise her peremptory challenge in a fashion that would provide for a jury which she feels accurately reflects a cross-section of the community." Counsel provided no more detailed explanation. The judge also invited defense counsel to explain his peremptory challenge which gave rise to the Commonwealth's third Soares motion, but defense counsel declined to offer any explanation. We conclude that the judge followed the procedure set out in Soares for determining whether the defendant's peremptory challenges were proper, and that the evidence warranted the judge's determination in that regard.

The defendant argues that, even if the judge correctly determined that she improperly exercised her peremptory challenges, the judge acted impermissibly by seating the three challenged jurors. Relying on Soares, supra at 491, 387 N.E.2d 499, she asserts that the only appropriate remedy was dismissing the jurors already selected, quashing the remaining venire, and starting anew. In Soares, the Commonwealth's impermissible challenges resulted in a denial of the defendants' right to be tried by a jury fairly representative of the community. Therefore, we concluded that the appropriate remedy for that wrong included dismissal of the jurors thus far selected and the quashing of the remaining venire "since the complaining party is entitled to a random draw from an entire venire--not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges" (emphasis added). Id. at 491, 387 N.E.2d 499. But here, the complaining party is the Commonwealth, not the defendant. Nothing in Soares suggests that a defendant, whose misuse of peremptory challenges proves unsuccessful, is entitled to select a new jury from a new venire. In Commonwealth v. Reid, 384 Mass. 247, 255, 424 N.E.2d 495 (1981), we rejected the precise argument made here, stating that "[s]uch a limitation on the trial judge's ability to respond in these circumstances would place in the hands of litigants the unchecked power to have a mistrial declared based on their own misconduct. It would be a reproach to the administration of justice were we to sanction such a result."

2. Motion for a required finding of not guilty of murder in the first degree. As we stated early in this opinion, the gravamen of the defendant's argument is not that the evidence was legally insufficient to warrant a conviction of murder in the first degree. As the evidence we recite below demonstrates, that argument would be without merit. See Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979). Instead, the defendant asks us to conclude, as did the majority of the court in Commonwealth v. Cadwell, 374 Mass. 308, 372 N.E.2d 246 (1978), that her "criminal involvement was not of the nature that judges and juries, in weighing evidence, ordinarily equate with murder in the first degree." Id. at 318, 372 N.E.2d 246, quoting Commonwealth v. Williams, 364 Mass. 145, 152, 301 N.E.2d 683 (1973). The defendant requests that, on the basis...