Com. v. Pope

• Decision Date: 13 July 1984
• Citation: 467 N.E.2d 117,392 Mass. 493
• Parties: COMMONWEALTH v. Riley J. POPE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 117

467 N.E.2d 117

392 Mass. 493

COMMONWEALTH v. Riley J. POPE.

Supreme Judicial Court of Massachusetts Worcester.

Argued March 5, 1984.

Decided July 13, 1984.

Joan Rines Needleman, Boston (Andrew D. Nebenzahl, Boston, with her), for defendant.

Lynn Morrill Turcotte, Asst. Dist. Atty., for the Commonwealth.

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

LIACOS, Justice.

In April, 1981, a Worcester County grand jury returned four indictments against the defendant, Riley J. Pope, which charged indecent assault and battery on two complainants, assault with intent to rape a third complainant, and rape by unnatural sexual intercourse of a fourth complainant.

Pope had a trial on the indictments before a jury sitting in the Superior Court in Worcester County. The trial judge allowed the defendant's motion for a required finding of not guilty on one of the indecent assault and battery indictments when the alleged victim did not appear to testify. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The jury acquitted Pope on the other indictment for indecent assault and battery. The judge declared a mistrial and dismissed the indictment for assault with intent to rape when the jury could not return a verdict on this indictment. The jury found the defendant guilty on the rape indictment. The judge sentenced him to a term of from seven to twenty years at the Massachusetts Correctional Institution at Walpole.

The defendant appeals from his conviction of rape, and from the denial of his motion for a new trial. He also appeals from the denial of his posttrial motions for funds and for the appointment of a master. G.L. c. 261, § 27D. On appeal, the defendant alleges several errors by the judge which he claims, considered cumulatively, denied him due process of law and a fair trial, and thus warrant a reversal of his conviction. Specifically, the defendant claims that the judge improperly refused to enforce a witness sequestration order and erroneously denied his motions to sever the indictments, to permit an attorney-conducted voir dire of prospective jurors or to ask them specific questions, to conduct a pretrial evidentiary hearing on jury selection practices in Worcester County, and to allow the defendant funds to prepare a postconviction challenge to the juries which indicted and convicted him. The defendant also contends that the judge improperly denied his motion for a new trial, which was based on the alleged unconstitutionality of the jury selection procedures and the ineffectiveness of his trial counsel. ¹ We transferred the case to this court on our own motion. We affirm his conviction and the denial of the posttrial motions.

We review only those portions of the evidence presented at trial which are relevant to the defendant's allegations of error. On January 17, 1981, the defendant, with his wife, attended a mini-convention of the Copper Craft Guild, a company which sells copper products for home use. Mrs. Pope was a member of the Guild. Following the day's business activities, the defendant and his wife attended the convention banquet. After the dinner, between 10 P.M. and 1 A.M., Pope and his wife went to the hotel lounge where they joined a group of other conventioneers. One conventioneer, Mrs. K, testified that while she and Pope were dancing with other people he pinched her on the buttocks several times.

When the lounge closed at approximately 1 A.M., the defendant and his wife returned to their room. They changed into swimming suits, went to the pool, and then returned to the room at 2 A.M. The defendant then changed and went alone to a party at the room of Ms. P, another conventioneer. ² At approximately 1:45 A.M., conventioneers Mrs. G and her husband conversed with the defendant on the balcony adjoining the room. When Mrs. G's husband left the balcony, Pope began rubbing his hands up and down her body. Mrs. G tried to push him away. Pope then took out his penis, put it in between her legs, and told her to "put it in." Mrs. G's husband returned to the balcony moments thereafter, and Pope backed off, laughing, to the other side of the balcony. ³

Later Mrs. T, another Copper Craft Guild member, went to the pool area, accompanied by Pope. Pope watched her swim for a while and then told her that hotel security personnel wanted the pool cleared. Mrs. T resisted while Pope pulled her out of the pool by her arms. Mrs. T then proceeded up the back stairwell toward the party in Ms. P's room, and Pope followed. Pope grabbed her from behind as she went to knock on the room door. Pope forcibly dragged her down a hallway and onto a stairway landing where he beat her and forced her to perform fellatio. The chief security officer at the hotel observed Pope and Mrs. T, and when he told them that they had to leave, Mrs. T jumped up sobbing and clutched his arm. The officer noted that Mrs. T had been beaten about the face, and he took her back to Ms. P's room. ⁴

1. Denial of motion for a new trial. The defendant contends that the judge erroneously denied his motion for a new trial based, inter alia, on the unconstitutional jury selection procedures in effect in Worcester County at the time of his indictment and trial, and his trial counsel's ineffectiveness in handling these claims. ⁵

In deciding whether to grant a motion for a new trial, the question whether "justice may not have been done" at trial is left largely to the discretion of the judge who presided over the case. See Commonwealth v. McCarthy, 375 Mass. 409, 414, 378 N.E.2d 429 (1978) (citing Mass.R.Crim.P. 30[b], 378 Mass. 900 [1979], and its predecessor, G.L. c. 278, § 29).

Before trial the defendant's trial counsel had submitted a motion to dismiss, based on the allegedly illegal grand jury selection process in Worcester County. At that time, trial counsel failed to file, with the motion to dismiss, an affidavit or memorandum of law, as required by the Rules of Criminal Procedure. See Mass.R.Crim.P. 13(a)(2) and (4), 378 Mass. 871 (1979). ⁶ Counsel presented no evidence in support of the pretrial motion, and the judge denied it based on the absence of the affidavit and because its allegations were unproved. In the motion for a new trial, the defendant claimed that trial counsel's incompetency in handling the jury selection issues deprived him of his right to effective assistance of counsel.

The defendant's appellate counsel submitted an affidavit in support of the motion for a new trial which merely restated the allegations presented in that motion. The affidavit did not present any facts within counsel's knowledge to substantiate these allegations except to refer to newspaper and magazine articles criticizing the composition and selection process of juries in Worcester County and other counties. ⁷

After the hearing, in his memorandum and order, the judge detailed several of the misstatements and unsupported or unproven allegations in the motion for a new trial and the affidavit. The judge also concluded that the issue regarding jury selection could not be raised after trial. He therefore denied the defendant's motion. The judge ruled correctly. We have held that challenges to the composition of a grand or petit jury must be raised only by a pretrial motion to dismiss the indictment or the venire. See Commonwealth v. Rodriquez, 364 Mass. 87, 91, 300 N.E.2d 192 (1973); Commonwealth v. Aponte, 391 Mass. 494, 510 n. 23, 462 N.E.2d 284 (1984). See also Mass.R.Crim.P. 13(c), 378 Mass. 871 (1979); Mass.R.Crim.P. 20(a), 378 Mass. 889 (1979); G.L. c. 277, § 47A. A motion for a new trial cannot be utilized to launch a substantive factual inquiry into the merits of such claims. See Commonwealth v. Underwood, 358 Mass. 506, 510-511, 265 N.E.2d 577 (1970). Since the defendant presented no pretrial motion challenging the petit jury selection process ⁸ and no affidavit, memorandum of law, or other evidence in support of his motion to dismiss, based on the grand jury selection procedure, he may not seek a new trial based on these claims.

We also conclude that the judge correctly denied the defendant's motion for a new trial based on the claim of ineffective assistance of counsel. In deciding whether the defendant demonstrated that he was denied his right to effective assistance of counsel in this Commonwealth, we must "determine 'whether there has been serious incompetency, inefficiency, or inattention of counsel ... falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, ... whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.' " Commonwealth v. Street, 388 Mass. 281, 285, 446 N.E.2d 670 (1983), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). We will not reverse a conviction on this basis unless the defendant shows "that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977).

The defendant argues that his trial counsel's failure to accompany his motion to dismiss with an affidavit or a memorandum of law as required by Mass.R.Crim.P. 13(a)(2) and (4), and his failure to present any evidence in support of this motion, reflect a quality of professional conduct significantly less than that expectable from an "ordinary fallible lawyer." Commonwealth v. Saferian, supra. ⁹ Even if we were to assume this to be true, the defendant has failed to demonstrate any basis for the claim of illegality in the Worcester County jury selection procedures. For the defendant to establish a prima facie case of an unconstitutional grand jury selection procedure, he should have presented evidence showing that, during the time he was indicted, a nonrandom selection procedure was operating in Worcester County, which procedure resulted in a systematic, disproportionate underrepresentation of his protected class in the grand...