Com. v. Kendrick

• Decision Date: 29 June 1988
• Docket Number: No. 87-300,87-300
• Citation: 26 Mass.App.Ct. 48,522 N.E.2d 1006
• Parties: COMMONWEALTH v. Lugene KENDRICK.
• Court: Appeals Court of Massachusetts

Page 1006

522 N.E.2d 1006

26 Mass.App.Ct. 48

COMMONWEALTH v. Lugene KENDRICK.

No. 87-300.

Appeals Court of Massachusetts,

Essex.

Argued Oct. 23, 1987.

Decided May 17, 1988.

Further Appellate Review Granted June 29, 1988.

Eric Brandt, Jamaica Plain, Committee for Public Counsel Services, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for Com.

Before ARMSTRONG, PERRETTA and FINE, JJ.

PERRETTA, Justice.

At his trial in July, 1986, on an indictment charging him with possession of cocaine with the intent to distribute that substance in July, 1985, the defendant advanced a theory of defense that the Commonwealth's case was one of mistaken identity. It appears that immediately upon graduating from the police academy, the identifying officer was assigned to an undercover narcotics investigation being conducted in four areas of Lynn, one of which was Mall Street. Within a short time span, the officer made about seventy-five drug purchases from some thirty different people, including the defendant. After his purchase from the defendant, the officer was unable to select the defendant's picture from a photographic array. Two months later, the officer saw the defendant, who commented to him about the quality of the earlier purchased cocaine. The officer returned to the police station and selected the defendant's picture from a second array. The sole issue on appeal is whether the defendant was deprived of a fair trial by reason of pretrial publicity. We conclude that the defendant laid a sufficient preliminary foundation to warrant at least one of the remedial measures that he requested. As the judge denied all those requests, we reverse the conviction.

1. The Publicity.

On April 9, 1986, the grand jury returned the present indictment, and the matter was scheduled for trial on July 11, 1986. Three days prior to trial, the defendant sought a change of venue by motion in which it was alleged that "publicity in Essex County newspapers concerning the details of this case, details of his subsequent arrest on new charges, detailed articles concerning the defendant's family, its history and activities in Lynn" would impair the fairness of his trial which was to be held in Newburyport. Copies of numerous newspaper articles were attached to the motion. The articles had appeared in newspapers which had been published or circulated, or both, in Essex County between June 16 and June 29, 1986. The captions were in dark, boldface print and were worded, as would be expected, to catch the reader's eye. Although a hint of humor might be found in the captions, the articles themselves paint a damaging picture of the defendant.

a. "Dog doesn't bite, but suspect does." On June 16, a Lynn newspaper, the Daily Evening Item (Lynn Item), reported that ten police officers went to the 23 Mall Street apartment of the defendant (identified by name) to arrest him for armed robbery. When the police tried to arrest the defendant in his kitchen, a struggle ensued. Two of the officers and the defendant were on the floor scuffling when someone sent a pit bulldog into the kitchen to assist the defendant. When the dog declined to get involved in the melee, the defendant bit the two officers, who thereafter sought medical treatment.

b. "Suspect bit'em, claim two cops. Pit bull stands by during affray." This article appeared in the Lynn Item the next day. It again described the fight in the kitchen and went on to describe the defendant's conduct at his arraignment on the armed robbery charges, to which charges of assaulting a police officer had been added. The reader of this article was informed that the defendant, while restrained in the prisoners' dock, became disruptive and destructive. He disputed his record of defaults, insisting that he was being confused with his brother. As reported in this article, "court sources" stated that the "Kendricks [sic ] brothers frequently manage to upset court proceedings by concealing their true identities and posing as one another."

It was further noted in the article that the defendant's Mall Street address was "home to an estimated 10 pit bulls," some of which "belong to the Kendrick family." Earlier that month, one of the ten dogs had been "seized ... for allegedly mauling a Lynn mailman," and a second "was confiscated ... a few days later." ¹

c. "Pit bull owner accused of biting two Lynn policemen." On June 18, the Peabody Times picked up the account of the defendant's fight with the police and the pit bull's failure to render assistance. This article explained that "[p]it bulls historically have been bred as killers and animal experts say a person never knows when the dog will attack." ²

d. "Evidence of pit bull fighting found. Mall Street families evicted." On June 28, the Lynn Item reported that four families were evicted from 23 Mall Street for failure to pay rent. Although the defendant's name did not appear in this article a reader of the previous articles reasonably could suspect a connection between the article and the defendant. As related in this account, those responsible for the eviction process were accompanied to the premises by a "special tactical weapons team clad in black fatigues." Once on the premises, the team discovered a pit bull fighting arena, dog stalls, and a number of sick and bruised pit bulls.

If there is any notion that the defendant's unfavorable public image would fade prior to his trial in the instant case, we come forward to June 29 and that week's edition of the North Shore Sunday, a paper having a circulation of 110,000. A photograph of the Kendrick family (not in its entirety) appears on the front page under the following caption:

e. " 'The Worst Family in Lynn.' " To the immediate right of the caption and in smaller print, appears: "That's what city officials call the Kendricks. 'I don't know what's worse, them or the pit bulls,' says one."

Directly beneath the photograph, the family's four-page saga opens with: "The veteran Lynn cop mulled over many years of experience with the notorious Kendrick family, then concluded, 'They're not a family, they're a crime wave.' "

As the article spreads over the pages, there are other captions (such as "The family that nobody wants") and photographs. The defendant appears in one entitled "Hanging Out On Mall Street." Under this picture, the article reports that "[b]oth neighbors and police blame the Kendricks for most of the problems--from noise to drug dealing--in the neighborhood."

There are about twenty-seven family members, and most of them live in Lynn. The article describes a wide range of social services and assistance given to the various family members. There is an inset captioned "The people who tried to help." It appears that a Lynn Redevelopment Authority employee and a member of the Council of Churches, and perhaps others, were interviewed for the article. In any event, we learn from the inset that housing placements for the Kendrick family met with neighborhood resistance. In one instance, a house designated for the family burned down before they could move into it. As reported in the article, a "widely accepted story is that neighbors torched it to keep the Kendricks away." Another placement met with similar consequences. After the Kendrick family moved into their appointed house, it too burned down. The family dog was "shot dead in the middle of the street and the doors had been nailed shut from the outside."

Twelve family members, including the defendant, were the subjects of individual biographical sketches, short paragraphs detailing criminal records, divorces, number of children receiving assistance, arrest records, etc. The defendant's biographical sketch is not as impressive as some of the others. However, prior to the individual histories and near the picture of the defendant "hanging out on Mall Street," it is stated that the defendant has a record of twenty-six arrests, that the Mall Street area near the defendant's residence "was like a McDonald's drive-thru for drug buyers last summer [1985]," and that "[s]everal Kendricks ... were arrested on drug charges after a raid at 23 Mall St. late in the summer."

2. Requests for Relief from Prejudicial Publicity.

The indictment charging the defendant with the unlawful distribution of cocaine was returned, as previously mentioned, on April 9, 1986. Throughout April, May, and June, 1986, various motions were filed, heard, and ruled upon. Trial was set for July 14. On July 8, defense counsel filed a motion for change of venue and attached the articles to the motion.

At the hearing on the motion on July 10, defense counsel pointed to the content and extent of the publicity, noting that the defendant's first name was one which "could very definitely stick out in a person's mind," that the jury pool consisted of people "from the entire county," and that the defendant even had merited mention on Paul Harvey's national radio broadcast news show. Viewing the articles as focused more on pit bulls than on the defendant, and being skeptical that the publicity "got to Newburyport," where the trial was to be held, the judge denied the motion.

When the case was called for trial the next day (July 11), defense counsel filed a motion to exclude from the jury pool "all persons living in the greater Lynn area." That motion was also denied.

Next came a motion to propound questions individually to prospective jurors. Of the nine requested questions, only one is here pertinent. It reads: "Do you read any, or all of the following newspapers on a regular basis: North Shore Sunday; The Lynn Item; The Peabody Times; The Newburyport News; The Boston Herald. Have you seen articles or columns regarding the defendant and or his family?" The judge announced that he would make inquiry of the jurors, collectively, "in some of these matters" but that he would not use the "precise language" requested by the defendant. Two questions which reasonably could be viewed as...