Com. v. Little

• Decision Date: 03 February 1981
• Citation: 384 Mass. 262,424 N.E.2d 504
• Parties: COMMONWEALTH v. Thomas M. LITTLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 504

424 N.E.2d 504

384 Mass. 262

COMMONWEALTH v. Thomas M. LITTLE.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 3, 1981.

Decided Aug. 5, 1981.

John P. White, Jr., Boston (Richard Fell, Hyde Park, with him), for defendant.

John Kiernan, Asst. Dist. Atty. (Kevin Connelly, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

In the early morning hours of February 25, 1979, Stephen Martin was stabbed to death, and Charles Martin, Stephen's brother, was the victim of an assault and battery by means of a dangerous weapon. The defendant, Thomas Little, was indicted for murder in the first degree in Stephen Martin's death, and after trial by jury was convicted of murder in the second degree. Little was also convicted of assault and battery by means of a dangerous weapon on Charles Martin. ¹ Little appealed, and we transferred the case to this court on our own motion. On appeal Little challenges (1) the propriety of seating a black venireman on the jury over his objection, (2) the jury instructions, and (3) the trial judge's denial of his motion for a new trial based on newly discovered evidence. The defendant asks that we exercise our power under G.L. c. 278, § 33E, ² to order a new trial or to direct the entry of a verdict of a lesser degree of guilt. We find no error. We conclude that the convictions should be affirmed and that we should not exercise our power under § 33E in favor of the defendant.

We summarize the evidence. At approximately 1:10 A.M. on February 25, 1979, Charles Martin was walking near D'Amato's Lounge in Cleary Square, Hyde Park, when two men seized him, threw him onto the hood of a parked automobile, put a knife to his throat, and repeatedly struck him in the face. Little was identified by two witnesses as the person holding the knife to Charles Martin's throat. Charles yelled for help, and then lost consciousness.

Charles Martin's brother Stephen approached the automobile where the two men were holding Charles. Little turned, lunged at Stephen, and was observed striking him three or four times. Stephen Martin fell backward, his shirt covered with blood. Little was the only person seen near Stephen Martin at the time; a person sitting in a car nearby yelled that she had seen Little stabbing Martin.

Little was seen dropping a "shiny" object in the street, kicking the object, and then picking it up. Prior to arresting Little, a Boston police officer saw him throw a knife into a trash receptacle. Shortly thereafter, Little was placed in a police wagon with Charles Martin. A sheath found in the police wagon bore the same markings as a knife recovered from the trash can.

There was defense evidence that the defendant had been drinking heavily during the afternoon and evening hours of February 24, 1979, and that Little had not fought with anyone that evening. Members of the motorcycle club to which Little belonged testified that some other unknown individual had stabbed Stephen Martin.

The misuse of peremptory challenges. Little claims that the judge erred in seating a black juror over his objection. The Commonwealth objected to Little's exclusion of black jurors through peremptory challenges. The judge asked the defendant to explain his use of peremptory challenges. ³ Defense counsel candidly admitted that he was using his peremptory challenges to exclude blacks from the petit jury. He asserted that due to ongoing racial tension in the city of Boston, the presence of blacks on the jury might prejudice the defendant's right to a fair trial. The judge then sustained the Commonwealth's objection and ordered that the challenged black juror be seated. Little moved for a mistrial, which was denied.

The defendant claims on appeal that his right to due process of law was denied since he could not freely exercise his right to employ peremptory challenges. In 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), "we reexamined this right and prohibited its misuse to eliminate jurors solely because of their membership in discrete groups." Commonwealth v. Allen, --- Mass. ---, ---, ^a 400 N.E.2d 229 (1980). See COMMONWEALTH V. REID, --- MASS. ---, 424 N.E.2D 495 (1981)^B. We also stated that the Soares principle applies to a defendant as well as the Commonwealth. See Commonwealth v. Reid, supra at ---, ^c 424 N.E.2d 495. Soares, supra 377 Mass. at 489-490 n.35, 387 N.E.2d 499.

The fact that the defendant and the victim were of the same race and that the challenged jurors were of a different race does not detract from the Commonwealth's right to be protected from the improper use of peremptory challenges by defendants. "(C)ommon group membership of a defendant and those jurors excluded is not a prerequisite to assertion of the right (to a representative jury)." Commonwealth v. Soares, supra at 490, 387 N.E.2d 499. Underlying Soares is the belief that the "diversity of opinion among individuals, some of whose concepts may well have been influenced by their group affiliations," is essential to a fair and impartial trial, and that "(n)owhere is the dynamic commingling of the ideas and biases of such individuals more essential than inside the jury room." Soares, supra at 486-487, 387 N.E.2d 499. The judge correctly denied Little's attempt to eliminate diversity of opinion on the petit jury. There is no error.

The instructions to the jury. The defendant challenges the judge's instructions to the jury on malice and proof beyond a reasonable doubt. Since the defendant failed to object at trial, we review the challenged instructions to determine whether the charge as given created "a substantial risk of a miscarriage of justice." Commonwealth v. Sellon, --- Mass. ---, --- n.18, ^d 402 N.E.2d 1329 (1980), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). Commonwealth v. Fitzgerald, 376 Mass. 402, 425, 381 N.E.2d 123 (1978).

In support of his contention, Little "parses the charge and attacks it piecemeal. We, however, view the charge in its entirety since the adequacy of instructions must be determined in light of their overall impact on the jury." Commonwealth v. Sellon, supra at ---, ^e 402 N.E.2d 1329. Commonwealth v. Garcia, --- Mass. ---, --- n.12, ^f 399 N.E.2d 460 (1980). Commonwealth v. Godin, 374 Mass. 120, 130, 371 N.E.2d 438 (1977), cert. denied, 436 U.S. 917, 98 S.Ct. 2263, 56 L.Ed.2d 758 (1978). Commonwealth v. Rodriguez, 370 Mass. 684, 690-691, 352 N.E.2d 203 (1976), and cases cited.

A. Reasonable doubt. There is no merit in the defendant's challenge to the jury instructions dealing with proof beyond a reasonable doubt. ⁴ The language of the charge faithfully tracks the language of Commonwealth v. Webster, 5 Cush. 295, 320 (1850). The defendant asserts that in this part of the charge the judge improperly used a trivializing reference to examples taken from the jurors' lives. See Commonwealth v. Garcia, --- Mass. ---, --- - ---, ^g 399 N.E.2d 460 (1980); Commonwealth v. Ferreira, 373 Mass. 116, 128-130, 364 N.E.2d 1264 (1977). The defendant misreads the charge. At no time in his explanation of reasonable doubt did the judge refer to an example from everyday life. See note 4 supra. An example is used in that part of the charge dealing with the jurors' responsibility to draw reasonable inferences from the evidence. The judge specifically prefaced that passage by saying, "Let's talk about the concept of circumstantial evidence and inferences for just a moment." ⁵ The use of such an example to illustrate the concept of a reasonable inference does not run afoul of the principles set forth in Ferreira and Garcia, supra. No reasonable juror could have understood the use of an example to explain inferences as being applicable to the requirement of proof beyond a reasonable doubt.

B. Malice aforethought. Little objects to that portion of the charge on malice aforethought as burden shifting. The charge, however, squarely places the burden of proof on the Commonwealth. In effect, the defendant's quarrel is with the definition of "malice aforethought" rather than with the precise words used by the judge. "Malice aforethought" is a "very technical and somewhat misleading expression of the law," Commonwealth v. Madeiros, 255 Mass. 304, 309, 151 N.E.2d 297 (1926), and the simplification of the term "is doubtless desirable," Commonwealth v. Starling, --- Mass. ---, ---, ^h 416 N.E.2d 929 (1981). Nonetheless, "(m)odernization of jury instructions on the subject, however desirable, would savor of statutory revision, a Legislative prerogative." Id. Taken as a whole, the instructions in this case were based on traditional and acceptable language concerning reasonable doubt and malice aforethought. There is no error in the charge.

The motion for a new trial. On March 11, 1980, the defendant filed a motion for a new trial on the ground of newly discovered evidence. See Mass.R.Crim.P. 30, 378 Mass. --- (1979). Little based the motion on an affidavit given to Little's defense counsel on January 4, 1980, by Leo McDonough, a friend of Little's and a member of the motorcycle club to which Little belonged. McDonough stated that he, not Little, had stabbed the victim. After holding an evidentiary hearing at which McDonough testified, see COMMONWEALTH V. STEWART, --- MASS. ---, 418 N.E.2D 1219 (1981)^I, the judge denied the motion in a written memorandum of opinion.

The judge found that McDonough's testimony was both internally inconsistent and "constantly at variance" with the testimony elicited at Little's trial, and that McDonough was attempting to manufacture his own defense. The judge stated that "(t)his court does not believe the testimony of Mr. McDonough" and that "(t)he contradictions in McDonough's testimony and his demeanor on the witness stand lead the court to conclude that he has fabricated his testimony in...