Com. v. Scanlan

• Decision Date: 14 February 1980
• Citation: 9 Mass.App.Ct. 173,400 N.E.2d 1265
• Parties: COMMONWEALTH v. Luke F. SCANLAN.
• Court: Appeals Court of Massachusetts

Page 1265

400 N.E.2d 1265

9 Mass.App.Ct. 173

COMMONWEALTH v. Luke F. SCANLAN.

Appeals Court of Massachusetts, Hampshire.

Argued Oct. 19, 1979.

Decided Feb. 14, 1980.

William C. Newman, Northampton, for defendant.

Stephen R. Kaplan, Asst. Dist. Atty. (Bernard J. Whalen, Jr., Asst. Dist. Atty., with him), for the Commonwealth.

Before GOODMAN, ROSE and KASS, JJ.

KASS, Justice.

From conviction on thirteen counts of breaking and entering a building in the nighttime with intent to commit a felony and nine counts of larceny in a building, the defendant Scanlan appeals pursuant to G.L. c. 278, §§ 33A-33G. These offenses occurred over a period of twenty-six months, during which Scanlan served as a police officer in Northampton. Scanlan raises issues concerning selection of the jury, the failure to suppress certain evidence, and misconduct by certain members of the jury. As to the last issue, this appeal is from the denial of a motion for a new trial.

1. Jury selection. Scanlan moved before trial to dismiss the indictments on the ground that the process by which the grand jury and petit jury pools were selected intentionally and systematically excluded a disproportionate number of women and persons between the ages of eighteen and thirty-nine. For purposes of the hearing on that motion the parties filed a statement of agreed facts incorporating the transcript of evidence, exhibits, briefs, and the decision in Commonwealth v. Blutstein, a Superior Court case in Hampshire County (Docket Number 10939) in which, about two years earlier, identical challenges to selection of the jury had been made. In that case the judge after extensive hearings ruled that "(t)he defendants have failed to sustain the burden of proving that in the selection of . . . jurors . . . there was a systematic or a deliberate or a purposeful or a consistent discrimination against or exclusion of women as a group, or of persons under the age of . . . 39 as a group. . . ." As to the status of those findings we shall have more to say later in our consideration of the contention that the jury pool contained disproportionately few persons below the age of forty.

(a) Underrepresentation of women. The contention that women were insufficiently represented in the grand jury and traverse jury pools edges to the brink of frivolity. Fifteen of the twenty-three members of the jury which indicted Scanlan were women. Of the jurors summoned to jury duty in Hampshire County in 1975-1976, women constituted 42.5%; in 1976-1977 44.1%; and in 1977-1978 44.6%. The defense posits (and we accept for purposes of analysis) that in these periods women composed 55% of the population of Hampshire County and argues from that figure that they are underrepresented in the jury pool. While Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), struck down a statute that exempted a woman from jury duty unless she volunteered in writing to serve, the court warned that the decision was not to be read as imposing a "requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population." Id. at 538, 95 S.Ct. at 702. While a true cross section is the ultimate ideal, it is by no means the constitutional mandate. United States v. Butera, 420 F.2d 564, 572 (1st Cir. 1970). See Commonwealth v. Soares, --- Mass. ---, --- ^a, 387 N.E.2d 499 (1979), cert. denied, --- U.S. ----, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). The constitutional policies are, in the final analysis, qualitative, not quantitative, and a requirement of precise arithmetical equivalences would assure a duel of statisticians as an overture to any trial. What is to be avoided is distortion. For example, in Taylor v. Louisiana, supra, 419 U.S. at 524, 95 S.Ct. at 694, women made up two thirds of one percent and zero percent of the jury pool in successive years, a deviation so extreme as to signal systematic exclusion.

(b) Underrepresentation of persons under age forty. On appeal, the defendant focuses not on whether the class he selected, those aged eighteen to thirty-nine, was in fact systematically underrepresented, but whether it constitutes a cognizable group for purposes of a constitutional challenge to the jury selection process. The trial judge ruled that it was not a cognizable group, noting the arbitrary limits of that age grouping and that within any age group there will be vast variation in attitudes, viewpoints and experiences. ¹

However, we need not resolve the question whether the eighteen to thirty-nine class is a cognizable group since the judge, having reviewed the Blutstein record and affidavits submitted by counsel in the instant case, found no factual basis for the proposition that persons under the age of forty were in fact underrepresented on either panel in Hampshire County. That finding is entitled to substantial deference by an appellate court. Commonwealth v. White, 374 Mass. ---, --- ^b, 371 N.E.2d 777 (1977), aff'd 439 U.S. 280 (1978). Commonwealth v. Taylor, 374 Mass. ---, --- ^c, 374 N.E.2d 81 (1978). Having ourselves reviewed the Blutstein materials, which are detailed and extensive, we have no difficulty in concluding that they support the judge's finding.

Of at least equal significance were the judge's findings that the jury selectors in Hampshire County "made conscientious efforts to acquire women and young people for jury service;" that "(i)n almost all of the towns, jury selection was done at 'random' without 'distinction as to sex or age;' " and that "jury selection procedures were fair, balanced and designed to produce a representative jury and grand jury." Neither the Constitution of the United States nor of Massachusetts, as we earlier observed in connection with the defendant's claim of underrepresentation of women in the jury pool, requires that each jury actually chosen represent a cross section of the population. United States v. Butera, 420 F.2d at 567-568. The constitutional mandate is that the jury selection procedures be fair and non-discriminatory. Thiel v. Southern Pac. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). Thus, even if a challenging party persuades a judge that a jury or jury pool is statistically askew, that aberration must be the result of a selection system rigged to exclude identifiable groups. ² If the jury selection system is reasonably designed to yield a fair cross section of the population, the system is valid even if it is less than perfect. Swain v. Alabama, 380 U.S. 202, 209, 85 S.Ct. 824, 830, 13 L.Ed.2d 759 (1965). It is the burden of the government to establish the fairness of the system, if the jury pool is statistically distorted. United States v. Butera, supra at 570.

The defendant argues that the Blutstein transcript and exhibits were offered solely to aid the judge in deciding the question of law, but this is not what appears from the record. ³ When those materials were submitted by defense counsel, the following colloquies took place:

MR. NEWMAN (defense counsel): "To the extent that the Court might find it useful or instructive to review any part of that record, the defense certainly has no objection to the Court's reviewing that; but certainly, on the other hand, we are not advising the Court to do so if the Court would feel comfortable in adopting Judge Tisdale's (the judge in Blutstein ) findings."

THE COURT: "Now, do you want to argue or just leave it to me to read all this information and briefs and records and so forth; and decide the motion one way or the other?"

MR. NEWMAN: "That would be sufficient with the defense, your Honor."

Obviously the judge thought he was to make a finding whether persons under forty had in fact been systematically excluded from the jury pool, because he made precisely such a finding. The defense made no objection to that finding of fact or motion to strike it from the judge's decision.

2. Motion to suppress physical evidence. Before trial, the defendant unsuccessfully sought to suppress a sledge hammer used to force entry in several of the burglaries. The defendant's attack is directed at the reliability of the informant cited in the affidavit upon which the search warrant was issued. That affidavit, in turn, led to seizure of the sledge hammer. The informant's reliability, the defendant urges, was not adequately substantiated because: (a) polygraph test results were improperly used to establish reliability; (b) the affidavit did not set forth promises, rewards, and inducements made to the informer in exchange for his information; and (c) there were no other facts corroborating the informant's reliability. In addition, he argues that the affidavit failed to establish probable cause because the information in the affidavit was stale. There was no error.

The two-pronged test developed by the United States Supreme Court for evaluating affidavits used as a basis for search warrants requires that the affidavit set forth some of the underlying circumstances from which the affiant concluded that the informant was reliable and some of the underlying circumstances from which the informant concluded that the defendant was engaged in criminal activity. See Aguilar v. Texas, 378 U.S. 108, 112-116, 84 S.Ct. 1509, 1512-1515, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 415-416, 419, 89 S.Ct. 584, 588-589, 590, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Commonwealth v. Stewart, 358 Mass. 747, 750, 267 N.E.2d 213 (1971); Commonwealth v. Fleurant, 2 Mass.App. 250, 252, 311 N.E.2d 86 (1974). In applying this test to a particular affidavit, the affidavit is to be interpreted in a common sense fashion and not subjected to hypertechnical scrutiny. Stewart, supra 358 Mass. at 750, 267 N.E.2d 213. It must be examined as a whole, Commonwealth v. Moran, 353 Mass. 166, 170, 228 N.E.2d 827 (1967), to determine if probable cause existed to issue...