Com. v. Peters

• Decision Date: 05 April 1977
• Citation: 372 Mass. 319,361 N.E.2d 1277
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1277

361 N.E.2d 1277

372 Mass. 319

COMMONWEALTH v. Raymond S. PETERS.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Jan. 3, 1977.

Decided April 5, 1977.

Donald H. Barnes, Mashpee, for defendant.

Philip A. Rollins, Dist. Atty. (Gary A. Nickerson, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

The defendant appeals pursuant to G.L. c. 278, §§ 33A--33G, from judgments of conviction entered on verdicts of guilty of murder in the second degree (the indictment having charged murder in the first degree), assault with intent to murder, and assault by means of a dangerous weapon. Two points are argued: (1) that the trial judge erred in denying a defense motion to quash the jury venire on grounds of its unconstitutional composition (or to extend time to enable counsel to establish the claimed grounds); (2) that the judge erred in an instruction to the jury with respect to manslaughter (to which, however, no objection or exception was taken).

We reconstruct the facts as they could appear to the triers. In early afternoon of February 10, 1975, a car driven by Lawrence Hendricks, III, with the defendant (his cousin) and Robert Lopes as passengers, pulled up at the driveway of a house in Mashpee. In or near the driveway were John Amado (the murder victim), Catherine Sullivan (the assault victim), David Bonito, and two young children. Lopes approached Amado and talked with him about buying from Lopes a tape player or 'deck.' The defendant came over. After a brief conversation between the defendant and Amado (the content was unproved), the two fell to fighting with their fists, with some evidence that the defendant struck the first blow. During the encounter the defendant said he was going to get Amado for what happened to his (the defendant's) brother at a party in New York where the brother had taken an overdose of drugs.

After the men disengaged (possibly in response to words from Hendricks), the defendant went to the passenger side of the car. He was then seen to be holding a holster and a gun, evidently taken from the car. Amado had walked to the driver's side of the car where he spoke to Hendricks who was still in the driver's seat. Amado apparently saw the defendant armed. He crouched down alongside the car. The defendant put his foot in the well of the car and boosted himself to the roof. Amado said, 'Let's talk this over,' but the defendant said, '(T)here's nothing to talk over . . ..' Firing over the roof or while clambering down on the driver's side, the defendant struck Amado in the mid left thigh, inflicting a flesh wound. Amado began to exclaim and swear. The defendant fired at least two more shots, one striking Amado in the rear of the head, another entering his mouth. He died instantly.

Crossing to the entrance of the house, where Miss Sullivan was standing, the defendant said, 'We have to get rid of you because we don't want you to fink to the pigs.' He struck her in the head four times with the revolver in his hand and then shot her in the face, blinding her right eye.

Hendricks meanwhile had started up the car. The defendant pointed the gun at Hendricks and warned him not to leave. The defendant boarded the back of the car. Lopes had seated himself in the front. Hendricks drove off. Hendricks asked the defendant why he had done it. The defendant said it was because of his brother, something had happened in New York with his brother, they killed his brother in New York.

As to the defendant's criminal responsibility or the extent of it, the only issues that could be raised with any show of plausibility were self-defense, 'transport of passion,' and the influence of alcohol or drugs. On the latter point, the defense in cross-examining Hendricks elicited testimony that the defendant had been drinking and taking drugs that morning, and that on the drive ending at the scene all in the car had drunk wine and smoked marihuana. There was testimony of a police officer called by the defense that Miss Sullivan, at the hospital, had said the defendant was shooting wild, into the trees and everything, but the officer also testified that Miss Sullivan was under sedation and incoherent at the time, and she denied from the stand that she had made such a statement.

1. On the morning of the day set for trial, November 17, 1975, the defendant made several motions addressed to the details of the trial. He also moved to quash the venire on the stated grounds that 'the jury . . . (did) not adequately represent: 1. Persons under the age of twenty-five in the county. 2. Persons of minority racial and cultural classification in the county. 3. Wage earners as opposed to proprietors in the county. 4. Unemployed persons within the county.' He further moved in effect for a continuance to gather additional evidence on the subject.

Although we need not rest on the proposition, the motion may well have been insufficient on its face as failing to disclose a cognizable basis for challenging the venire. Underrepresentation of the age group has been held not to be such a basis. See Commonwealth v. Lussier, 364 Mass. 414, 423--424, 305 N.E.2d 499 (1973); Commonwealth v. Therrien, 359 Mass. 500, 507, 269 N.E.2d 687 (1971). The reference to race and culture was amorphous and lacked even moderate clarity: there was no statement of the minority or minorities intended and, while the record characterizes the defendant (and the murder victim as well) as 'black,' counsel resisted saying in argument in our court that he was pointing to the black minority (or limiting himself to it), and he did not commit himself as to any other minority. Cf. Hernandez v. Texas, 347 U.S. 475, 478--480, 74 S.Ct. 667, 98 L.Ed. 866 (1954). As to the economic classes, it seems the Supreme Court of the United States has not yet held that underrepresentation of a class defined in those terms is a constitutional vice in jury selection (see Fay v. New York, 332 U.S. 261, 291--293, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947); but see Labat v. Bennett, 365 F.2d 698, 720--727 (5th Cir. 1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334 (1967)), ¹ although in regulating Federal juries the Court would quash venires from which 'common laborers' were systematically excluded. See Thiel v. Southern Pac. Co., 328 U.S. 217, 225, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). If, however, the ultimate touchstone of constitutionality is whether the system as a whole and in a general sense is or is not calculated to produce as triers a fair cross-section of the populace (see Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)), a motion like the present may get by as a statement of claim.

The pleading was not important except as an index to the substance, and here the defendant failed conspicuously. The proof he tendered consisted, first, of the list of seventy-eight persons making up the venire. From the list with short catchphrases about the individuals, one could not draw reliable inferences about the composition of the venire for the present purpose. The prosecutor volunteered that he knew one person to be a 'black Indian.' ² In his brief, the defendant now says two were minority persons, but he leaves it at that. No evidence was offered as to the composition of any past venire. The only other evidence offered was a paper put out by the Cape Cod Planning and Economic Development Commission in 1975, evidently based largely on 1970 census figures, which provided some rudimentary information about Barnstable County. It indicated that the 'Negro' component of the population was 2.2%, and 'other' nonwhite 1.1% (2 out of 78 is 2.56%). The economic information was quite fragmentary. It is plain, then, that all the evidence taken together not only did not establish purposeful, systematic exclusion of any group from juries; ³ it did not come near making a prima facie case calling on the Commonwealth to furnish an explanation. See Castaneda v. Partida, --- U.S. ---, 94 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Hernandez v. Texas, supra, 347 U.S. at 479--482, 74 S.Ct. 667.

Counsel for the defendant asked for a chance to improve his case by calling as witnesses the selectmen of the several towns who were charged by statute (G.L. c. 234, § 4) with the selection of prospective jurors; but counsel conceded that he had no basis for charging intentional discrimination on their part, and he offered not even a tendentious theory as to what he might prove through them. In the absence of even minimal substantiation (Commonwealth v. Rodriquez, 364 Mass. 87, 92, 300 N.E.2d 192 (1973)) of the charges ...