Com. v. Mangum

• Decision Date: 27 February 1970
• Citation: 357 Mass. 76,256 N.E.2d 297
• Parties: COMMONWEALTH v. Roy MANGUM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 297

256 N.E.2d 297

357 Mass. 76

COMMONWEALTH v. Roy MANGUM.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 1, 1969.

Decided Feb. 27, 1970.

Albert L. Hutton, Jr., Boston, for defendant.

John T. Gaffney, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and QUIRICO, JJ.

QUIRICO, Justice.

The defendant was tried on an indictment charging him with the crime of murder in the first degree. The jury found him guilty of murder in the second degree, and the mandatory punishment of 'imprisonment in the state prison for life' was imposed on him. G.L. c. 265, § 2. The case was tried subject to G.L. c. 278, §§ 33A--33G, and it is here on the defendant's appeal.

The case is before us on the alleged errors by the trial judge in (1) excusing ten prospective jurors after questioning them and deciding that they did not stand indifferent and (2) denying two motions by the defendant for directed verdicts of not guilty, one filed after both sides had rested, and the other within five days after verdict as permitted by G.L. c. 278, § 11. Other errors previously assigned were expressly waived and we do not deal with them.

The ten prospective jurors who the defendant alleges were improperly excused were questioned on oath by the trial judge along the following lines:

(a) Each was asked the question prescribed by G.L. c. 234, § 28, to determine 'whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein.' The statute concludes that 'If the court finds that the juror does not stand indifferent in the case, another shall be called in his stead.' It has been the practice in this Commonwealth for many years to put these questions to jurors in capital cases.

(b) Each was asked whether he had any opinion which would prevent or preclude him from finding a defendant guilty of a crime punishable by death, if the juror should be convinced by evidence beyond a reasonable doubt that the defendant was guilty of such a crime. This type of question is required for compliance with G.L. c. 278, § 3, which provides that persons who have such opinions 'shall not serve as a juror on the trial of an indictment for such crime.'

(c) Each was asked whether he had any opinion which would prevent or preclude him from recommending life imprisonment for a defendant found guilty of first degree murder. This type of question is appropriate in view of the provision of G.L. c. 265, § 2, as amended by St.1951, c. 203, that '(w)hoever is guilty of murder in the first degree shall suffer the punishment of death, unless the jury shall * * * recommend that the sentence of death be not imposed, in which case he shall be punished by imprisonment in the state prison for life.' It has been the practice to put this type of question to prospective jurors in capital cases in this Commonwealth, at least since this court suggested in Commonwealth v. Ladetto, 349 Mass. 237, 245, 207 N.E.2d 536, that it would be 'a wise exercise of discretion' to do so. See Commonwealth v. Nassar, 354 Mass. 249, 255, 237 N.E.2d 39.

The defendant contends that the trial judge found the ten prospective jurors not indifferent and excused them for the sole reason that they had views or opinions against capital punishment. A careful reading of the transcript does not support this contention. It shows a thorough interrogation by an experienced judge engaged in an effort to seat impartial jurors who could hear the evidence with an open mind and then deliberate and arrive at a verdict uninfluenced by any personal views or opinions for or against punishment by death or by imprisonment for life. In no instance was a prospective juror declared not indifferent and excused solely because of views or opinions on the matter of punishment. Nine of the ten jurors in question gave answers which indicated clearly and unequivocally that they had opinions which precluded them from reaching a verdict based on the evidence and the law applicable thereto. No purpose would be served in reviewing the questions put to them and their answers thereto.

The defendant's brief treats specifically with the questions put to the tenth juror on the matter of capital punishment and her answers thereto. ¹ Her answers are by no means typical of those of the other nine. She was either unable or unwilling to state, and in any event she did not state, that she had no opinion which would preclude her from finding a defendant guilty of a crime punishable by death if convinced by the evidence beyond a reasonable doubt that he was guilty. The trial judge properly decided that she was not indifferent and excused her. The impartiality or indifference of a prospective juror under interrogation is an attribute which must appear affirmatively. If the juror is unable or unwilling to say whether he could or could not judge the case on its merits, he should not be allowed to serve. Ladetto v. Commonwealth, Mass., 254 N.E.2d 415. ^a State v. Mathis, 52 N.J. 238, 248, 245 A.2d 20.

Since there was no exclusion of prospective jurors solely because they were opposed to capital punishment, this case does not come within the constitutional rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Even if the exclusions had been for that reason, the rule of that case would not apply, because by its terms, and by the limitations imposed by Bumper v. North Carolina, 391 U.S. 543, 545, 88 S.Ct. 1788, 20 L.Ed.2d 797, it applies only to cases where the death penalty was imposed. It has been similarly limited in several of our decisions. Commonwealth v. Nassar, 354 Mass. 249, 257, 237 N.E.2d 39. Commonwealth v. Sullivan, 354 Mass. 598, 608, 239 N.E.2d 5. Commonwealth v. Francis, 355 Mass. 108, 111, 243 N.E.2d 169. Commonwealth v. Carita, Mass., 249 N.E,2d 5. ^b Commonwealth v. Connolly, Mass., 255 N.E.2d 191. ^c

The defendant advances the further argument in his brief that even through the constitutional rule of the Witherspoon case may not apply, 'a death-oriented jury such as was condemned by * * * (the Witherspoon case) insofar as the imposition of the death penalty is concerned and such as the defendant was stuck with in this case, is not the kind of fair and impartial jury of his peers by which he is entitled to have been tried under the Constitution of the United States and the Constitution of the Commonwealth of Massachusetts.' This argument, although not further developed in the brief, sounds like a contention that the defendant was denied his constitutional rights to due process of law or equal protection of law under the Fourteenth Amendment of the United States Constitution, or that he was denied the benefit of the law of the land under art. 12 of the Declaration of Rights of Massachusetts. This argument does not apply to this case. The ten jurors in question were excluded because they did not stand indifferent, not because they had views or opinions for or against particular kinds of punishment. Neither party has the right to insist that such persons be allowed to serve as jurors. If this were a case where jurors had been excluded solely because of such opinions on punishment, the defendant would have the burden of showing that the exclusion resulted in his being tried by a jury who were more likely to convict, or more 'prosecution-prone' than a jury from whom such persons were not excluded. This is not such a case; and the defendant has made no such showing. For this additional reason, he cannot prevail vail on this contention. See Witherspoon v. Illinois, 391 U.S. 510, 516--518, 88 S.Ct. 1770; Bumper v. North Carolina, 391 U.S 543, 545, 88 S.Ct. 1788; Commonwealth v. Connolly, Mass. 255 N.E.2d 191. ^d In the Connolly case, which was decided after the present case was argued, the defendants advanced this same constitutional argument. What we said there on this issue on January 28, 1970, applies to this case.

We now consider the allegations of error in the denial of the defendant's two motions for directed verdicts of not guilty. No additional evidence was presented after the denial of the first such motion. Thus both motions present the same question of the sufficiency of the Commonwealth's evidence to warrant the jury in returning a verdict of guilty of murder in the second degree. We summarize the evidence.

For about a year prior to her death on March 9, 1967, Mary Prisinzano (the deceased) who was thirty-six years of age lived in a second floor five room apartment at 4 Willis Terrace, in the Roxbury section of Boston, with her three sons and a daughter. The landlord was Edward Matlin who lived in the first floor apartment of the same building until he moved to California in December, 1966. When he moved he left his Chevrolet station wagon and the keys to it and to his apartment with the deceased. Shortly thereafter the defendant with two ladies (one called 'Lou' and the other 'Roberta') and five children moved into the first floor apartment.

The occupants of the first and second floor apartments visited in each of the apartments almost daily. Some of them played cards together, and engaged in drinking in the defendant's apartment on occasions. The defendant borrowed money from the deceased on many occasions. The deceased allowed the defendant to use the landlord's station wagon about three to five times a week.

About 3:30 P.M. on March 8, 1967, when the deceased's daughter Kathy, then about fifteen years old, was returning home from school, she saw the defendant seated with Lou and Roberta in a car across the street from her home. When she entered the first floor hallway of the building she saw that the only door leading from the hall to the defendant's first floor apartment was closed and padlocked. There was another door from the hall to that apartment, but it had been boarded up and could not be used. There was no one in that apartment...