Com. v. Slaney

• Decision Date: 10 March 1966
• Citation: 215 N.E.2d 177,350 Mass. 400
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Maurice J. SLANEY, Jr., et al. 1

Page 177

215 N.E.2d 177

350 Mass. 400

COMMONWEALTH v. Maurice J. SLANEY, Jr., et al. ¹

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 3, 1966.

Decided March 10, 1966.

H. Hoover Garabedian, Worcester, for Slaney.

Francis X. Murphy, Boston, for Lambert.

Manuel Morse, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK, and REARDON, JJ. KIRK, Justice.

The grand jury indicted the defendants on charges stemming from an attempted armed robbery of a liquor store in Worcester on February 29, 1964. The indictments charged each defendant with unlawful possession of a revolver, assault while armed with a dangerous weapon with intent to rob, and three counts of assault with a dangerous weapon. The defendant Slaney filed a plea in abatement, alleging that the selection of the grand jurors was not according to law and unconstitutional. The plea was overruled. Before trial, both Slaney and the defendant Lambert moved to suppress evidence. After hearing, the motions were denied. The jury found the defendants guilty on all charges. All proceedings were subject to G.L. c. 278, §§ 33A--33G. The cases are here solely on Slaney's assignment of error in the denial of his plea in abatement and on his and Lambert's assignments of error in the denial of their motions to suppress.

Slaney's plea in abatement rested on the alleged exclusion from the grand jury of two classes of people. The plea first contended that the jury were drawn only from lists of actually registered voters and not, as directed by G.L. c. 277, § 3, and c. 234, §§ 1, 4, from lists of those qualified to vote. An affidavit of Slaney's counsel alone supports this contention. No testimony or proof was offered at the hearing on the plea concerning the methods of selection employed by the jury registrars and selectmen in Worcester County with respect to the grand jury which indicted the defendant. Nor, even assuming that the selection did not conform to the specific statutory directive, did the defendant demonstrate, either by affidavit or at the hearing, that the alleged exclusion of nonregistered but still qualified voters impaired the fundamental fairness of the jury's proceedings against him.

The plea next contended that no person under twenty-five was on the jury list from which the panel which indicted the defendant was drawn. Slaney was twenty-five years old when indicted, and the alleged exclusion of qualified voters between the ages of twenty-one and twenty-five is said to have been unconstitutionally discriminatory and a denial of equal protection of the laws. This, according to his counsel, was the defendant's 'basic point' in making the plea.

It is not enough merely to aver unconstitutional discrimination. When challenging the composition of a jury, the defendant has the burden of proving (Akins v. State of Texas, 325 U.S. 398, 400, 65 S.Ct. 1276, 89 L.Ed. 1692) that the absence of a certain class from a jury list resulted from an 'arbitrary and systematic' policy of exclusion, Hoyt v. State of Florida, 368 U.S. 57, 59, 82 S.Ct. 159, 7 L.Ed.2d 118, directed against an 'identifiable group in the community which may be the subject of prejudice.' Swain v. State of Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759.

Slaney failed to meet the standards of proof required. His counsel's affidavit was again the only support offered to prove an exclusion. He asserted but did not prove the absence of persons under twenty-five. Conceding, arguendo, the truth of the assertion, we do not think that the allegedly excluded class is the kind contemplated by the Swain and other cases which involved racial or political bases of discrimination. Further, even assuming that persons under twenty-five indeed constitute such a group, the record fails to demonstrate that their exclusion resulted from a systematic policy rooted in prejudice. There was no error in overruling the plea in abatement either on statutory or constitutional grounds. See King v. United States, 346 F.2d 123, 124 (1st Cir.).

We consider next the motions to suppress certain evidence. It is incumbent on the excepting party to show that he has been harmed by the ruling of the judge. Commonwealth v. Warner, 173 Mass. 541 548, 54 N.E. 353. Nowhere in the record before us does it appear that the evidence sought to be suppressed at the hearing before trial was offered by the Commonwealth at the trial, or, if offered, was admitted over the objections and exceptions of either defendant. Compare Commonwealth v. Jacobs, 346 Mass. 300, 310--311, 191 N.E.2d 873. We do not omit the point even though the Commonwealth has not raised it. We prefer to consider the merits.

Slaney's motion on its face failed to specify the evidence sought to be suppressed and the grounds for suppression. The motion, which merely asked 'for an order suppressing certain evidence which the prosecution intends to introduce against him,' was patently inadequate, and could have been denied for that reason alone. The transcript of evidence at the hearing on Slaney's motion shows the practical necessity of insisting upon the requirement that motions to suppress be specific lest they become illegitimate probes of the Commonwealth's evidence. Commonwealth v. Kiernan, 348 Mass. 29, 201 N.E.2d 504. COMMONWEALTH V. ROY, MASS., 207 N.E.2D 284.^A On the other hand, Lambert's motion adequately indicated the evidence sought to be suppressed--identification of the defendant in a lineup while at the police station before formal arrest--and the reason for the suppression, namely, that Lambert was illegally in custody when identified, with the alleged result that the evidence of identification thus obtained was tainted with the original illegality and so was inadmissible. Only the judge's persistent inquiry, and not Slaney's motion, eventually disclosed that Slaney sought to suppress the same evidence for the same reasons as did Lambert.

The fundamental question is the same for both cases: Were the defendants illegally detained when they were identified as participants in the crime? The evidence heard by the judge consisted exclusively of oral testimony. We have read it all. The two hearings had much in common in the sequence of events. In each there was also a conflict of testimony between the police and the defendants. In each also there were numerous inconsistencies in the testimony of the particular defendant. The judge's denial of the motions to suppress imports a finding that at all relevant times the particular defendant was not unlawfully detained.

We summarize the pertinent testimony. At 9 A.M. on March 5, 1964, three police officers went to Lambert's cottage type dwelling where he lived with his father and mother. It was raining or sleeting at the time. They were admitted by the mother, who called Lambert from his bedroom. The police told Lambert they would like to have him come to the detective bureau and talk about his whereabouts on Saturday night and also about what happened to his leg causing him to limp. In the presence of his father, who was ill, and his mother, Lambert agreed to go along. He dressed and put on a jacket. An officer told him twice to put on his raincoat which was hanging on a post near the door. Lambert did. There was no touching of Lambert's person by the police except when Lambert slipped on the front steps of his house. Lambert acknowledged that this was an act of helpfulness. Lambert sat in the front seat of the unmarked cruiser and was driven to the station house, where he was told to take his 'usual spot' in the interrogation room on the second floor where he was asked some questions about a robbery. He refused to answer them. People were walking in and out of the room.

About 10:15 A.M. on the same day, two of the three officers who had accompanied Lambert to the police station went to Slaney's dwelling, which was the first floor of a three story tenement. They were admitted by his mother. Slaney came from his bedroom. The police asked him to come to the detective bureau on a police matter. Slaney agreed to go with them. It was suggested that he wear a hat. He put on a hat and, before leaving with the police, told his mother to call his lawyer if he did not come back in a little while. At the station he spent some time in the large office of the detective bureau and later went to the interrogation room.

It is conceded that at the time the officers went to the dwellings of the defendants they had no warrant and no probable cause to arrest either one. The transcript shows that the defendants made no outward sign of unwillingness to accompany the officers There was testimony from the defendants, however, of gestures, acts and tones of voice of the officers which, they testified, had the effect of intimidating them both at their homes and at the station. The officers denied any hostile gestures, acts or harsh tones. The defendants' testimony, in summary, consisted of statements indicating fears of police reprisal if they did not cooperate. The defendants, however, did not manifest such fears either at their homes or at the station. Neither defendant made any incriminating statement to the police. Whatever interrogation there was...