Com. v. Soares

Decision Date08 March 1979
Citation387 N.E.2d 499,377 Mass. 461
PartiesCOMMONWEALTH v. Edward J. SOARES (and three companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Walter J. Hurley and Robert T. Capeless, Jr., Boston, for Edward J. Soares.

Richard K. Latimer, Boston, for Richard S. Allen.

Wallace W. Sherwood, Boston, for Leon Easterling.

Thomas J. Mundy, Jr., and Dennis J. Curran, Asst. Dist. Attys., for the Commonwealth.


LIACOS, Justice.

The defendants Soares, Allen, and Easterling were indicted for the murder in the first degree of Andrew Puopolo, as well as for other charges resulting from a street brawl that occurred in the early morning of November 16, 1976. A jury returned guilty verdicts of murder in the first degree as to each defendant, and the mandatory sentence of life imprisonment was imposed. In addition, Easterling was convicted of assault and battery on Thomas Lincoln by means of a dangerous weapon, for which he received a sentence of from eight to ten years to be served from and after the expiration of the sentence imposed in the murder conviction. Soares was indicted for assault and battery by means of a dangerous weapon on Stephen Saxon and Thomas Lincoln; he was convicted of simple assault and battery on each indictment. Both charges were filed. Allen was indicted for an assault and battery by means of a dangerous weapon on Thomas Lincoln. He was acquitted on this charge.

In these appeals pursuant to G.L. c. 278, §§ 33A-33G, the defendants assign and argue numerous errors. In light of the view we take of this case, we consider only those assignments pertaining to the denial of the defendants' motions for directed verdicts, and the prosecution's use of peremptory challenges. We hold that there was no error in the denial of the motions for directed verdicts. We hold, however, that there was sufficient evidence to create a prima facie case that the use of peremptory challenges by the prosecution was designed to exclude persons from the trial jury on the basis of race, and the failure of the trial judge to allow a hearing on this issue deprived the accused of their constitutionally protected right to a trial by a jury fairly drawn from the community. Consequently, we reverse.

We consider first the defendants' claims for directed verdicts. Within our discussion of each issue we will summarize the pertinent facts.

1. Motions for Directed Verdicts.

At the close of the Commonwealth's case and again after the defense rested, each defendant moved for directed verdicts on all charges related to the stabbing death of Andrew Puopolo. The judge denied the motions and noted the defendants' exceptions. Only the judge's denial of their motions on that part of the indictments charging murder in the first degree is before us. 2 The issue raised by these motions is whether the evidence viewed in the light most favorable to the Commonwealth was sufficient to permit the jury to infer the essential elements of murder in the first degree. See Commonwealth v. Sandler, 368 Mass. 729, 740, 335 N.E.2d 903 (1975). For the purpose of resolving this issue, we consider only the evidence introduced during the Commonwealth's case in chief. Commonwealth v. Kelley, 370 Mass. 147, 150, 346 N.E.2d 368 (1976). We summarize that evidence.

On the evening of Monday, November 15, 1976, the Harvard College football team "broke training" with a dinner at the Harvard Club on Commonwealth Avenue in Boston. Alcoholic beverages were available before, during, and after the meal and formal ceremony. At approximately midnight, about fifty football players went to the "Naked I," a bar on Washington Street in Boston's "Combat Zone." At closing time (2 A. M.), the football players left the "Naked I" in various groups to share transportation back to Cambridge. Chester Stone, the equipment manager of the football team, had offered to drive six team members back to Harvard College in the team's equipment van, which was parked in a lot at Boylston Street and Head Place. This group included Malcolm DeCamp, Russell Savage, Kwame Alatunji, Gordon Graham, Mitchell Witten, and Charlie Kaye. Stephen Saxon had arranged to provide transportation for teammates James Boland, Thomas Lincoln, Scott Coolidge, and Andrew Puopolo. His car was parked on Boylston Street near the establishment known as the Copper Skillet.

As Stone and the accompanying students headed toward the van, they encountered two black women on Boylston Street. Sexual favors were discussed. The two women accompanied the group to the van. The women stayed at the van momentarily. When they had left, Charlie Kaye found that his wallet was missing. Suspecting that the women had taken it, he and his teammates jumped from the van and pursued them. At the entrance of Bumstead Court, an alley off Boylston Street and adjacent to the Carnival Lounge, their path was blocked by a black man, codefendant Allen, the "bouncer" at the Carnival Lounge. The football players returned to their van, got in and pulled up to Boylston Street. About this time, Saxon and those he was to drive home were on their way to Saxon's car.

As the van proceeded east on Boylston Street, one of the football players inside the van saw one of the black women walking west on Boylston Street. He shouted, "There she goes." One of the players jumped out of the van to pursue her. The van pulled into an alleyway next to the Silver Slipper Bar, and the rest of the football players jumped out to give chase. The woman was stopped by three other football players who were standing on Boylston Street. She screamed and ran toward the Tremont Street intersection. The football players from the van and those standing on Boylston Street began running after her. The black woman reached the intersection of Tremont and Boylston Streets as Saxon caught up to and grabbed her. She fell to the pavement. Saxon pulled her to her feet. When she regained her footing she ran away, southward, down Tremont Street toward LaGrange Street. Suddenly, codefendant Soares, a black man, interceded and knocked Saxon down. Saxon got to his feet as his teammates ran up and confronted Soares. Soares kicked at the nearest, Lincoln, and backed away. Soares backed further across Tremont Street toward the bordering Boston Common sidewalk. The football players advanced toward him.

From the corner diagonally opposite (southeast) codefendant Allen shouted, "You came to the Zone, you got burned. Now clear out of here. Get the hell out of here." The football players continued their advance on Soares. Soares backed up over the curb onto the sidewalk to the front of an MBTA kiosk. He took off his jacket and defied the encircling football players, saying, "Come on. I've been waiting for this." One of the football players, Lincoln, said, "Let's get out of here. This is silly because he doesn't have a wallet." From across Boylston Street a black man in a leather coat (codefendant Easterling) ran forward brandishing a knife, followed by a second man. Stone, standing behind the football players, saw Easterling and shouted, "Get out of here. There's a guy coming over with a knife." Coolidge, facing Soares at a distance of about five or six feet, heard Stone's warning, and assumed it pertained to Soares. He looked down and saw something shining at or near Soares's hand; he could not say, however, that Soares then or later held a knife.

Easterling ran up to Lincoln and stabbed him in the arm and in the abdomen. At this point most of the football players around the MBTA kiosk, and in the intersection, turned and ran back down Boylston Street toward the van. Coolidge helped Lincoln toward Saxon's car.

As to what happened at this point there was conflicting evidence given by the prosecution witnesses. Lincoln testified that as Coolidge helped him walk about fifteen yards down Boylston Street, he looked back up Boylston Street toward the intersection. He observed a white man in a red jacket (who was not identified at the trial), Soares, Easterling, and Allen gather in the intersection and then follow the football players. Coolidge testified that while at Saxon's car he saw these four men talking, but he stated that he did not recall anything being said. Boland, backing up to the car with Puopolo at the time, stated that there were three to four blacks following just fifteen feet behind him, but he did not testify to any conversation. Witten, just beyond Saxon's car, turned and saw a group of six or seven men, Soares and Allen among them, following the students, just ten to fifteen yards behind the returning group of football players. Saxon stated that he did not see the man in the red coat at the intersection or passing his car. Dutton testified that the man in the red coat was at the Washington Street end of Boylston Street, just before the students returned. Lincoln and Witten testified that the group following them shouted various threats and taunts, including "We're going to cut you white m f ," and "We're going to get you now." As the pursuing group reached Saxon, Boland, and Puopolo they passed around them, without incident. When the pursuers reached the van parked in the alley along the side of the Silver Slipper Bar there were about fifteen football players present.

The unidentified man in the red jacket then opened the van door and amid shouts pulled Charlie Kaye, a very big man, out by his tie. General pushing and shoving began, followed by fighting in the parking area next to the van. Soares punched Kaye, and moved about, challenging various football players to fight him. Andrew Puopolo ran down from Saxon's car to the van. Saxon and Boland followed and were confronted by Easterling at the rear of the van. Easterling had his knife out and was asking, "Where you coming from m f ?"

Puopolo became involved in a fight at the right...

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