Com. v. Rodriquez

• Decision Date: 06 August 1973
• Citation: 300 N.E.2d 192,364 Mass. 87
• Parties: COMMONWEALTH v. Hector Santiage RODRIQUEZ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 192

300 N.E.2d 192

364 Mass. 87

COMMONWEALTH v. Hector Santiage RODRIQUEZ et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 7, 1973.

Decided Aug. 6, 1973.

John F. Buckley, Worcester, for Hector Santiago, Rodriquez

James L. Clifford, Worcester, for Rogelio Felix Rodriquez, Jr.

Stanley J. Jablonski, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

The defendants Hector Santiago Rodriquez (Hector) and Rogelio Felix Rodriquez, Jr. (Felix), indicted for the murder in the first degree of William Alonzo Johnson, and jointly tried, were severally found guilty of that crime, but with recommendation that the penalty of death be not imposed. From the judgments of conviction, the defendants appeal under G.L. c. 278, §§ 33A--33G. Their argued assigned errors range from the composition of the jury, through the admission of various pieces of evidence, to the giving of the charge set out in Commonwealth v. Tuey, 8 Cush. 1, 2--3, when it appeared that the jury were having trouble reaching a verdict. We find no error, nor, upon an appraisal of the whole record, do we find occasion to disturb the convictions or sentences under § 33E. We have, however, some comments to make about the future use of the Tuey charge.

The facts were in outline as follows. About 1 A.M., March 23, 1971, a Volkswagen car with Johnson driving and James Glass as passenger drew up at a curb on Wellington Street, Worcester, alongside a hedge between two houses, Nos. 44 and 46. The men had come from Providence that night. Glass observed Felix coming away from a car parked a short distance ahead. Felix entered No. 46. After a few minutes' conversation between Johnson and Glass, Glass left the car and entered No. 46. He met Felix in the front hallway and saw him stick a shiny revolver in his belt. Glass asked whether he could 'cop', that is, buy narcotics. Felix said yes, but asked if that was Johnson's car outside and who was in the car. Glass said the car was Johnson's but the man in the car was 'Terry.' Hector emerged from a door on the right and joined Felix and Glass. Hector had a dark gun. Felix said that they had been held up last week, that Johnson was one of those who did it and they were going to get him. With Glass between them Felix and Hector walked out of the house and toward Johnson's car. Glass, falling a little behind, tried to signal to Johnson, who had kept the motor running, to drive away, but Johnson may not have caught the signal; he did not drive off. As Felix and Hector approached the car, Johnson leaned over, rolled down the window, and said, 'Felix, what's happening?' Felix, looking into the car, said 'Yeah, this is the one,' or words to that effect, and said something to Hector in Spanish. Hector stuck his gun through the open window, two clicks or misfires were heard, then two or three shots. Felix and Hector turned back into No. 46. As Felix passed by Glass, he said 'That'll teach the . . . from sticking us up.'

During the shooting Glass was perhaps ten to twenty feet from the car. He now ran to the car, saw Johnson bleeding. Johnson said, 'Help me, Glass.' The car rolled backward at an angle from the curb, coming to rest across the street against a parked car.

The shots had been heard by police officers in a car nearby and they were on the scene almost at once. Others soon arrived. After a word with Glass, the police stationed men at the front and back of No. 46. Detective O'Connor went into the building. In the front hallway he met the manager, Albert J. LaPrade. LaPrade had keys to apartment 1, on the right on that floor, and offered to let the police in. Instead Detective O'Connor knocked on the door. Felix opened up. He said he had been asleep and hadn't heard anything. Detective O'Connor asked Felix whether he could look around and Felix said, 'Sure, you can look around any place you want.' Looking down the bathroom window opening on an airshaft running from roof to cellar, Detective O'Connor saw a shiny revolver at the bottom of the shaft. This was recovered--a nickel-plated .32 caliber Harrington & Richardson revolver.

Glass testified it resembled the weapon he had seen Felix put in his belt. Carlos Torres Lopez, who resided in the set of rooms with Felix and Hector, testified that he had seen Hector with a similar shiny gun some five months before the shooting, and LaPrade testified he had seen Hector brandishing such a gun the Sunday before the shooting.

Johnson had been taken to the hospital. One bullet had passed through the right side of his jaw and had lodged in his neck. Another had entered his right upper chest, emerged under his left armpit, and lodged in the door on the driver's side of the Volkswagen. Hemorrhage in the chest cavity was the probable cause of Johnson's death which occurred at 2 A.M. Questioned by a police officer, Johnson had said that Felix shot him (a natural mistake on Johnson's part, as it was Felix he had seen at the window of the car). He described Felix accurately and said his partner Glass, whom he also described, would be able to identify Felix.

Later that morning, at 4 A.M., Carl Harvey Mitchell, walking his dogs, found in the hedge between Nos. 44 and 46 a dark .38 caliber special Smith & Wesson revolver, with a live round and two discharged rounds in the cylinder, and two discharged rounds nearby. According to a police firearms expert, the four cartridge cases found in the hedge were fired from that .38 caliber special revolver; so was the spent bullet recovered from the car; the condition of the lead fragment recovered at the autopsy from Johnson's neck was consistent with its being .38 caliber ammunition and with its having been fired from a weapon of that type.

Lopez testified that both Felix and Hector had complained to him of being held up by Johnson; Hector said he wanted to kill Johnson because he had been robbed too many times. Lopez said that he had himself seen Hector robbed by Johnson at knife point five days before the March 23 shooting, and that on March 22, as he and Hector were standing outside No. 46, Johnson came by in a car and shot at them. Lopez said that Johnson, with others, was involved in many holdups of narcotics dealers. ¹

1. The jury. (a) After all fourteen jurors had been selected and sworn and the jury thus empanelled, counsel for the defendants raised the objection that the jury was an unconstituional body because there were no persons of Puerto Rican origin or blacks on the special venire or the portion of the general venire ² from which the petit jury was chosen--the defendants being Puerto Rican and the victim black. The judge thought the challenge should have been made before any juror was sworn. We agree that the challenge came too late (cf. Commonwealth v. Slaney, 350 Mass. 400, 401--402, 215 N.E.2d 177; Commonwealth v. Del Valle, 353 Mass. 684, 685--686, 234 N.E.2d 721); ³ it could not be claimed that counsel did not know or could not have ascertained before the interrogation of veniremen began what was the system of drawing venires from the general public.

Further, the bare assertion that the particular jury pools contained no Puerto Ricans or blacks raises no constitutional question. '(A) defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn.' Swain v. Alabama, 380 U.S. (b) Although no objection was taken on the point at trial, the defendants now say that the judge did not go far enough in probing the jury about racial prejudice. In his remarks to the venires the judge dealt with bias and prejudice in terms that went beyond the statute, G.L. c. 234, § 28, for he spoke not merely of bias and prejudice in general, but of racial prejudice in particular. In the interrogation of prospective jurors, the judge hewed more or less to the general statutory formula, but the jurors may well have connected the questions to the judge's earlier and stronger remarks to the venires. The defendants argue, however, that the admonitions and questions to the jurors were not sufficiently pointed at racial prejudice in the given context to satisfy Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46. We have interpreted the Ham case to require this intensive treatment by the judge of the question of prejudice only when the circumstances of the particular case highlight that question, and when, in addition, counsel, making the judgment that examining the jurors on that line would be helpful, asks the judge to carry out such an interrogation. COMMONWEALTH V. ROSS, MASS., 296 N.E.2D 810;^A COMMONWEALTH V. RYLES, MASS., 296 N.E.2D 816.^B Here there was no request by counsel, and so far as appears there were no tendentious circumstances in the case beyond the fact that the defendants were Puerto Rican.

                85 S.Ct. 824, 829, 13 L.Ed.2d 759.  A defendant is constitutionally entitled to a jury selection process free of discrimination against his grouping in the community--a quite different thing.  It is true that the fact of a drastic departure from proportionality over a period of time may provide evidence of discriminatory exclusion.  Carter v. Jury Commn. of Greene County, 396 U.S. 320, 327--328, 90 S.Ct. 518, 24 L.Ed.2d 549; Alexander v. Louisiana, 405 U.S. 625, 627--628, 629--631, 92 S.Ct. 1221, 31 L.Ed.2d 536.  4  But here not even such a charge was made.  We need hardly add that any timely substantiated representation that the jury selection system is biased against any identifiable group would deserve the most careful attention
                

2. The police search. The defendant Hector apparently protests, in effect, that Detective O'Connor's entry upon and inspection of the bathroom, eventuating in the discovery of the shiny .32 caliber revolver, was illegal. On voir dire, much was made of...