Com. v. Nassar

Citation354 Mass. 249,237 N.E.2d 39
PartiesCOMMONWEALTH v. George H. NASSAR.
Decision Date06 May 1968
CourtUnited States State Supreme Judicial Court of Massachusetts

Charles M. Burnim, Boston, for defendant.

John J. Jennings, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

In Commonwealth v. Nassar, 351 Mass. 37, 44--45, 218 N.E.2d 72 (the first Nassar case 1), we reversed Nassar's death sentence. He was again found guilty of murder in the first degree after a new trial, August 14--23, 1967. The new jury, however, recommended that the death sentence be not imposed. Nassar was sentenced to life imprisonment. The case is before us under G.L. c. 278, §§ 33A--33G, as amended. The evidence was essentially that recited in the first Nassar case, 351 Mass. 37, 39--40, 218 N.E.2d 72, with some omissions and with the addition of the testimony of a new witness mentioned below.

On September 29, 1964, Mrs. Rita Buote and her daughter Diane, then fourteen years old, drove into a filling station on Route 125 in Andover to purchase gasoline. The proprietor Irvin Hilton was on his knees in front of the lubricating bay, looking up at a man holding a gun in his hand. This man fired a shot at Hilton, who fell over on his side. Hilton was then shot three more times.

The assailant walked rapidly toward Mrs. Buote's vehicle and approached the door on the driver's side. She had locked the door. He pointed the pistol at her and pulled the trigger twice. The gun did not fire. The man started banging on the window. Mrs. Buote thought she heard him say, 'open hte door.' He stood still for a moment, and looked toward the highway. Mrs. Buote got down on the floor of the vehicle, and could not longer see the assailant. Diane crouched on the seat. When both soon rose, the assailant was gone. Mrs. Buote and Diane identified Nassar as the assailant in circumstances described below.

These events were also observed, from a more distant point, by two men, Reginald Mortimer and William King, occupants of a truck, which had been driven into the filling station while the murder was in progress. When they realized what was going on, Mortimer backed his truck and pulled out of the station. The assailant climbed into a black automobile with black and white Virginia license plates, no. 960--647, and drove in the direction of Lawrence. Mortimer and King described the assailant as approximately five feet seven to eight inches tall, about 135 pounds in weight, in his twenties or thirties, and clad in a trench coat. Neither identified Nassar as the assailant. Mortimer said that he would not be able to recognize the assailant if he saw him again. King would be able to give '(o)nly a general description,' for '(w)e were too interested in getting out of there.'

The principal issue is whether Nassar was in fact the assailant. Other evidence not summarized above, so far as relevant to matters argued, a discussed in the course of dealing with the assignments to which such evidence is pertinent.

1. Nassar contends that his attorney was improperly denied adequate opportunity to question prospective jurors, with the consequence that he was unable intelligently to exercise his right to sixteen peremptory challenges. See G.L. c. 234, § 29. 2 At the outset, the trial judge gave all the members of the venire careful, full, general instructions concerning their obligations and about the questions which would be put to them. He cautioned them against discussing or reading about the case prior to their interrogation. He put to each juror the questions required by c. 234, § 28, 3 and under our decisions. See e.g. Commonwealth v. Ladetto, 349 Mass. 237, 245, 207 N.E.2d 536. He dealt with he matter of additional questions as the names of individual jurors were drawn. In accordance (see Commonwealth v. Ventura, 294 Mass. 113, 116--118, 1 N.E.2d 30) with our long standing practice, inquiry of prospective jurors was only by the judge. A trial judge is required only to ask those questions prescribed by statute or court decision. Other questions are in his discretion. Commonwealth v. Taylor, 327 Mass. 641, 646--647, 100 N.E.2d 22; Commonwealth v. Geagan, 339 Mass. 487, 502--508, 159 N.E.2d 870, cert. den. 361, U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152; Commonwealth v. Kiernan, 348 Mass. 29, 35--36, 201 N.E.2d 504, cert. den. Gordon v. Mass. 380 U.S. 913, 85 S.Ct. 901, 13 L.Ed.2d 800; Commonwealth v. Monahan, 349 Mass. 139, 156--157, 207 N.E.2d 29; Commonwealth v. Nassar, 351 Mass. 37, 40--41, 218 N.E.2d 72. We see no occasion to alter our 'dignified, expeditous, and fair practice' (see Geagan v. Gavin, 181 F.Supp. 466, 474 (D.Mass.), affd. 292 F.2d 244, 248--249 (1st Cir.), cert. den. 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399), although in other jurisdictions a different practice may exist. Cf. e.g. United States v. Napoleone, 349 F.2d 350, 353--354 (3d Cir.); People v. Coen, 205 Cal. 596, 604--607, 271 P. 1074; People v. Delordo, 350 Ill. 148, 152--156, 182 N.E 726 (in which the judge was shown to have engaged in somewhat summary conduct); Fedorinchik v. Stewart, 289 Mich. 436, 438--439, 286 N.W. 673 (no inquiry about a statutory disqualification); Oden v. State, 166 Neb. 729, 730-- 735, 90 N.W.2d 356, 73 A.L.R.2d 1182. We think that our practice has operated fairly to defendants and has been conducive to proper, just judicial administration. We see no reason to believe that any other method would produce more impartial or more competent jurors. There is ample power in this court to review whether a trial judge has committed any abuse of discretion in refusing to put additional questions, or otherwise to test members of the venire for bias or interest. See, in this connection, the very broad scope of review of capital cases under G.L. c. 278, § 33E, as amended through St.1962, c. 453.

The trial judge in this case went to a considerable length to put suggested additional questions to prospective jurors. He exercised his discretionary power fairly and reasonably, with the consequence that a broad inquiry was made. See Commonwealth v. Subilosky, 352 Mass. 153, 157--161, 224 N.E.2d 197. Cf. Bailey v. United States, 53 F.2d 982, 983--984 (5th Cir.). He gave consideration to the possible effect of a particular news broadcast and a newspaper article. At the close of the selection of jurors, although the Commonwealth's peremptory challenges had been exhausted, Nassar has one unused. We think that the voir dire was patient, adequate, and impartial.

A related assignment of error concerned a juror, who on the voir dire answered questions in a manner wholly consistent with lack of bias. No challenge for cause was made. No suggestion was made that he be asked additional questions. No exception to his selection was saved. During trial Nassar's counsel brought to the attention of the judge a telephone call from one Brady to Nassar's mother reporting that this juror had been 'friendly with the decedent.' This occurred on August 21. Prior to the charge on August 23, Nassar's attorney reported to the judge that he had been unable to get in touch with Brady. The judge declined, when the matter was first raised, to act on hearsay information. Prior to the charge, he refused to excuse the juror when after two days there had been no substantiation of the hearsay complaint. The juror participated in the verdict, for he was not one of the four extra jurors excused by lot after the charge (see fn. 2). The judge had before him no such substantial or direct information as should have led him to take any action concerning the juror. Cf. Remmer v. United States, 350 U.S. 377, 380--381, 76 S.Ct. 425, 100 L.Ed. 435 (approach by an F.B.I. agent during trial); United States ex rel. De Vita v. McCorkle, 248 F.2d 1, 5--10 (3d Cir. in banc--alleged fraud of juror in concealing matter; opinion by majority of court), cert. den. 355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77.

2. It is asserted that Nassar may have been harmed by the exclusion from the jury of persons holding scruples against the imposition of capital punishment. 4 Nassar contends, with some exaggeration of the facts disclosed by the record (see fn. 5 below), that thereby he was deprived of a constitutional right to trial before an impartial jury representing a cross-section of the community. This contention is made, despite the circumstance that this jury recommended that he death sentence not be imposed on essentially undisputed facts establishing a brutal, cold-blooded murder by some person.

A closely related contention we recently rejected in the Ladetto case, 349 Mass. 237, 246--247, 207 N.E.2d 536. Our statutory disqualification (G.L. c. 278, § 3) of jurors, 'whose opinions are such as to preclude * * * finding a defendant guilty of a crime punishable with death,' has already been quoted (fn. 3).

During the selection of the jury, Nassar's counsel saved an exception to 'excusing * * * any person because' the judge found that the person 'does not believe in capital punishment' on the ground that excusing such a person would result in a jury more ready to convict than one which included persons opposed to capital punishment. This general exception was saved after the judge had excused from service a woman who, as counsel agreed, should have been excused in any event. In other instances, 5 exceptions were saved where the opinions concerning the death penalty of a person excused may have been at least one of the reasons for the excuse. The judge, however, took pains to ascertain whether each excused prospective juror would have been unable, because of his opinion, to act objectively.

Over a long period, it has been held proper to excuse a prospective juror from service in a capital case if his views on capital punishment would preclude him from joining in a verdict resulting in a death sentence. See cases collected in the Ladetto case, 349 Mass. 237,...

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