Com. v. McAlister

• Decision Date: 12 June 1974
• Citation: 365 Mass. 454,313 N.E.2d 113
• Parties: COMMONWEALTH v. James McALISTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 113

313 N.E.2d 113

365 Mass. 454

COMMONWEALTH v. James McALISTER.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 1, 1974.

Decided June 12, 1974.

William P. Homans, Jr., Boston, for defendant.

John T. Gaffney, Asst. Dist. Atty. (James M. McDonough, Legal Asst. Dist. Atty., Boston, with him) for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

The defendant was convicted of murder in the first degree, armed robbery, and unlawful possession of a firearm. There was no recommendation by the jury that the death penalty be not imposed. A sentence of life imprisonment was imposed on the armed robbery conviction and a sentence of from two and one-half to four years on the firearm conviction. The defendant's appeal is before the court pursuant to G.L. c. 278, §§ 33A--33G.

Only a brief summary of the evidence presented at trial is required. The principal witness for the Commonwealth was Florence Piper, whose testimony was substantially as follows. She was acquainted with the defendant on February 26, 1971, and on that date she was with him in the Shanty Lounge in Boston until about 10:30 P.M., at which time they left the lounge and took a taxicab presumably to attend a party. She noticed that the cab driver, who had told them he was unfamiliar with the area, seemed to be taking them in the wrong direction. The defendant then said, 'They are just trying to take our money.' He next gave the driver other directions and then ordered him to stop. At this point the defendant put a gun through an opening in the partition between the front and back seats and shot the driver in the head. The defendant proceeded to climb into the front seat where he searched the driver. Hearing the driver moan, he returned to the rear seat where he shot the driver twice more in the same fashion. He went back to the front seat and handed Piper some articles, including a money clip which he had taken from the driver. On seeing a man emerge from the building in front of which the cab was parked, the defendant said he would kill him also but, on Piper's protest, agreed not to do so, saying 'All right, but I don't need no witnesses.' The man who had left the building got into a car and drove up beside the cab. There was a short conversation between the two men, after which the second man left. Piper and the defendant then took another cab to Louie's Lounge, where the defendant wiped blood off his clothes and Piper's. Piper gave the defendant the articles taken from the driver. He returned the money, twenty-six one dollar bills, and left the lounge temporarily, saying he intended to dispose of the other items. Later in the evening Piper divided the money evenly with the defendant. After leaving Louie's Lounge, Piper and the defendant went to another bar, from there to the home of Piper's brother, and finally to the defendant's apartment. A few days later the defendant said to the witness that she 'had seen him wipe somebody off the face of the earth and that he would do the same thing to . . . (her).'

There was also evidence from one .otis B. Cash, Jr., who testified that he was at the location described by Piper as the scene of the shooting that night, heard gunshots, and had a discussion with a man in a taxicab whom he identified as the defendant. Cash stated that there was a woman in the back seat and a man slumped over in the driver's seat and that the defendant had told him that all three had been to a party. There was further evidence that the body of Robert G. Foster was found in the taxicab he operated at the same location that evening. There were three gunshot wounds in the body, one in the head and two in the neck. There was expert testimony that a fingerprint found on the door handle of the taxicab was that of the defendant.

The defendant testified that he had spent the evening at the Shanty Lounge with Piper and that while there he had consumed a cup of black coffee. Shortly after finishing the coffee, he began to hear buzzing sounds, saw flashing lights and shadows, and felt an aching in his head. He recalled leaving the lounge with Piper in a taxicab but remembered nothing further until he was in Louie's Lounge later that night. The defendant also presented expert psychiatric evidence that the symptoms described by the defendant were consistent with a reaction to LSD. There was rebuttal testimony by an expert psychiatric witness for the Commonwealth who had examined the defendant on April 2, 1971. He stated that at that time the defendant had told him that he remembered the events of the night in question nut that he had felt drugged. In response to a hypothetical question, this witness testified that the actions of the defendant alleged by the Commonwealth appeared to be purposeful and not a toxic reaction.

The defendant argued three assignments of error. We discuss each.

1. Error is alleged in the excusing for cause of prospective jurors because of their answers to questions on their opinions on the death penalty. Since the case was tried prior to the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), there appeared to exist at that time a possibility that conviction of the defendant would result in imposition of a death sentence. In these circumstances it was proper to inquire of the veniremen pursuant to G.L. c. 278, § 3, whether they held opinions which might preclude them from finding the defendant guilty.

The principal argument of the defendant is that, in excluding those potential jurors ¹ who on voir dire revealed opinions which they felt would preclude them from a finding of guilty even if otherwise convinced by the evidence beyond a reasonable doubt, the resulting jury was 'conviction prone.' A similar argument has been made before the Supreme Court of the United States. In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the court held that the exclusion for cause of veniremen who held a fixed opinion against the death penalty resulted in a jury which was unfair to the defendant in its determination of the proper punishment. Given the ruling in Furman v. Georgia, supra, and our disposition of the death sentence imposed in this case, that holding is plainly irrelevant. However, the court was also asked to decide whether the exclusion of jurors opposed to capital punishment resulted in jurors who possessed social and personal characteristics which made them more likely to be favorably disposed to the prosecution in a criminal case. Thus it is argued that such a 'death-qualified' jury would be biased not only on the question of punishment but on the question of guilt or innocence as well. The Supreme Court refused to accept this contention. In dicta in the Witherspoon case, and by a specific holding in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), the court indicated that there was not sufficient evidence to support the theory that jurors who were not opposed to capital punishment would be less than fair on the separate question of guilt or innocence. The court found the empirical studies presented to it unconvincing although it indicated that if more persuasive evidence were adduced of the claimed correlation the argument might be received more sympathetically. Witherspoon v. Illinois, supra, 391 U.S. at 516--518, 88 S.Ct. 1770; Bumper v. North Carolina, supra, 391 U.S. at 545, 88 S.Ct 1788. Since the decisions in the Witherspoon and Bumper cases, this court has been presented on several occasions with arguments challenging the fairness of juries from which were excluded for cause veniremen with varying attitudes against the death penalty. In each case we have rejected these arguments, e.g., Commonwealth v. Sullivan, 354 Mass. 598, 608--609, 239 N.E.2d 5 (1968), cert. den. 393 U.S. 1056, 89 S.Ct. 697, 21 L.Ed.2d 698 (1969), denial of habeas corpus affirmed, Sullivan v. Scafati, 428 F.2d 1023 (1st Cir. 1970); Commonwealth v. Connolly, 356 Mass. 617, 621--623, 255 N.E.2d 191 (1970), cert. den. 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970); Commonwealth v. Mangum, 357 Mass. 76, 77--80, 256 N.E.2d 297 (1970); Commonwealth v. Bumpus, --- Mass. ---, - ---, ^a 290 N.E.2d 197 (1972), judgment vacated on other grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d 407 (1973); Commonwealth v. Lussier, --- Mass. ---, --- - ---, ^b 305 N.E.2d 499. We reaffirm those holdings. Nothing we have seen persuades us that the exclusion for cause of the jurors in this case deprived the defendant of a jury which could fairly and objectively determine his guilt or innocence on the evidence in conformity with their sworn oath. G.L. c. 278, § 4.

The questions put by the trial judge to the veniremen in this case dealt not with their general attitudes toward capital punishment but with the influence of those attitudes on their ability to appraise the evidence fairly. The trial judge explained to each potential juror the alternative punishments possible for murder in the first degree and then inquired substantially as follows: 'If you should be sworn as a juror in a case where the penalty might be death and you should be convinced by the evidence beyond a reasonable doubt of the guilt of the defendant, have you an opinion that would prevent or preclude you from doing your sworn duty of finding a defendant guilty?' ² This formulation, taken largely from G.L. c. 278, § 3, does not exclude any juror merely because of his attitude on the death penalty. It is entirely possible that a potential juror might have deeply held conscientious scruples against capital punishment and still be able to answer honestly the quoted question in the negative. The judge's questioning was carefully directed only at the ability of the potential jurors to act objectively on the basis of the evidence. In fact the judge declared indifferent two, and...