Com. v. Susi

• Decision Date: 09 May 1985
• Citation: 394 Mass. 784,477 N.E.2d 995
• Parties: , 48 A.L.R.4th 1145 COMMONWEALTH v. Frank J. SUSI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 995

477 N.E.2d 995

394 Mass. 784, 48 A.L.R.4th 1145

COMMONWEALTH v. Frank J. SUSI.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Jan. 7, 1985.

Decided May 9, 1985.

Brownlow M. Speer, Boston, Committee for Public Counsel Services, for defendant.

Karen J. Kepler, Asst. Dist. Atty. (Margot Botsford, Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

LIACOS, Justice.

On August 30, 1983, a Middlesex County grand jury indicted the defendant, Frank J. Susi, for armed robbery and two counts of assault by means of a dangerous weapon. A jury found him guilty on the indictments, and he was sentenced to the Massachusetts Correctional Institution at Concord for a term of twenty years. ¹ The defendant filed a notice of appeal, and we transferred the case to this court on our own motion.

At about midnight on the night of November 21, 1982, a robbery occurred at a restaurant in Watertown. Three restaurant employees, Kevin Mark Dennis, Richard Binell, and Marie Sweeney, described the robber to a police officer who arrived at the restaurant shortly after the robbery occurred. Several days later, Dennis and Binell identified a photograph of the defendant as that of the perpetrator. Dennis, Sweeney, and a police officer also created a composite drawing of the robber.

In June, 1983, the defendant was arrested. When asked to identify the perpetrator from among persons present at the defendant's probable cause hearing, Binell identified the defendant, but Dennis identified someone other than the defendant. ²

At trial, Dennis and Binell identified the defendant and testified extensively concerning variances between the physical appearance of the robber and that of the defendant as depicted in photographs selected shortly after the robbery, and of the appearance of the defendant at the time of the probable cause hearing and at the trial. The defendant submitted photographic evidence of his appearance at the time of the alleged offense. The man whom Dennis identified as the robber at the probable cause hearing appeared as a defense witness and stood beside the defendant so that the jury could compare their physical appearances.

Also at trial, defense counsel sought to admit the composite drawing, together with an accompanying description of the robber. The words "large teeth" appeared in the description. Neither Dennis nor Binell recalled having given the police officer a description of the robber's teeth. The trial judge sustained the prosecutor's objection to the written description on the ground of lack of foundation, and only the composite drawing was admitted in evidence. Subsequently, the police officer who had arrived at the restaurant after the robbery testified that one of the three employees had described the robber as having "large, even, white teeth." The police officer did not remember which employee had given the description of the teeth. The trial judge permitted the defendant to show his teeth to the jury.

The defendant first argues that the trial judge erred in denying his challenge for cause of a juror who was blind. The defendant contends that this denial was an abuse of discretion and constitutional error because the case against him was one of eyewitness identification; viewing and visually comparing the physical evidence was of major importance. The defendant asserts that, because of this error, he was forced to expend a peremptory challenge to obtain a panel of jurors capable of viewing the physical evidence. The subsequent exhaustion of his peremptory challenges required that he later accept a juror whom he otherwise would have challenged. The defendant argues that reversal is required without a showing of prejudice. We agree that there was error and that the defendant need not show actual prejudice. Hence, we reverse the conviction.

Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution, applied to the States through the due process clause of the Fourteenth Amendment, guarantee to the criminally accused the right to a trial by an impartial jury. Commonwealth v. Soares, 377 Mass. 461, 478-480, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Commonwealth v. Bellino, 320 Mass. 635, 638-642, cert. denied, 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1947). Jones v. Robbins, 8 Gray 329, 341-342 (1857). Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447 L.Ed.2d 491 (1968). See G.L. c. 263, § 6, and G.L. c. 278, § 2 (jury trials in the Superior Court). Cf. King v. Grace, 293 Mass. 244, 246-247, 200 N.E. 346 (1936) (art. 11 requires trial before impartial judges). The failure to grant a defendant a fair hearing before an impartial jury violates even minimal standards of due process. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). "Fundamental to the right of an 'impartial' jury is the requirement that jurors be competent and qualified. '[T]rial by jury necessarily requires a jury which is able to comprehend and intelligently resolve the factual issues submitted to its verdict.' Rabinowitz v. United States, 366 F.2d 34 [, 92] (5th Cir.1966). (Coleman, J., concurring in part and dissenting in part)." State v. Berberian, 118 R.I. 413, 418, 374 A.2d 778 (1977). See also Commonwealth v. Brown, 231 Pa.Super. 431, 435-436, 332 A.2d 828 (1974) (construing United States Constitution and corresponding provision of Pennsylvania Constitution); Peters v. Kiff, 407 U.S. 493, 501, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972) (due process requires that jurors be mentally competent during trial). Cf. Jordan v. Commonwealth, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912) ("[D]ue process implies a tribunal both impartial and mentally competent to afford a hearing").

It is well settled that G.L. c. 234, § 28, gives a trial judge discretion to exclude potential jurors because of a relationship to a party, Bigelow v. Sprague, 140 Mass. 425, 429, 5 N.E. 144 (1886); an interest in the case, Commonwealth v. O'Neil, 6 Gray 343, 346 (1856); an opinion concerning the case, Commonwealth v. Subilosky, 352 Mass. 153, 158-160, 224 N.E.2d 197 (1967); bias or prejudice, Commonwealth v. Buzzell, 16 Pick. 153, 155 (1834); or for other grounds, Commonwealth v. Stewart, 359 Mass. 671, 677, 270 N.E.2d 811 (1971). See also Lias v. United States, 51 F.2d 215, 217 (4th Cir.1931) ("The trial court is invested with a wide discretion in determining the competency of the jurors, and the court's judgment in this respect will not be interfered with except for an abuse of ... discretion"); Lyda v. United States, 321 F.2d 788, 791 (9th Cir.1963). Implicit in § 28 is the notion that the discretion to exclude jurors extends to those not competent to serve because of physical disabilities. Indeed, the Legislature has recognized that not all eligible jurors will be able physically to serve. See G.L. c. 234A, § 4, par. 4.

In addition, we have granted criminal defendants a new trial where jurors have been exposed to publicity concerning the case, thereby violating the defendant's fundamental right to a fair trial. See, e.g., Commonwealth v. Crehan, 345 Mass. 609, 188 N.E.2d 923 (1963). A defendant is "entitled to have the case decided only upon the evidence that was introduced at the trial." Commonwealth v. Stanley, 363 Mass. 102, 104, 292 N.E.2d 694 (1973), quotingCommonwealth v. Barker, 311 Mass. 82, 88, 40 N.E.2d 265 (1942). See also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, supra. Similarly, a case should not be decided on less than all proffered evidence. See Note, Due Process: The Deaf and the Blind as Jurors, 17 New Eng.L.Rev. 119, 126-127 (1981).

We believe that, in the circumstances of this case, the trial judge abused her discretion in denying the defendant's challenge for cause of a blind juror. The issue of identification was the predominant issue at trial. The jury were asked to view and to compare a drawing and photographic evidence, to compare the physical appearances of witnesses, and to compare the appearance of the defendant with his appearance in photographs and with a composite drawing. A mere description of the physical evidence would not have conveyed adequately the subtleties which would be apparent on a visual comparison. ³ Cf. Jones v. New York City Transit Auth., 126 Misc.2d 585, 588, 483 N.Y.S.2d 623 (N.Y.Civ.Ct.1984) ("when a significant portion of the evidence in a particular case is physical, the blind individual should clearly be excluded from serving as a juror"). Accord Note, supra at 145. "The presence of a juror [incapable of comparing the physical evidence] precludes a verdict by all jurors." Commonwealth v. Brown, supra 231 Pa.Super. at 436, 332 A.2d 828. A defendant is entitled to a unanimous verdict. Mass.R.Crim.P. 27, 378 Mass. 897 (1979).

Our holding is not contrary to the policy expressed in G.L. c. 234A, § 3, that physically handicapped persons should serve as jurors except where the court finds such service not feasible. We read § 3 as creating a presumption of competency which must then be evaluated on a case-by-case basis. ⁴ While G.L. c. 234A, § 3, prohibits a visually impaired juror from being disqualified per se, we believe that G.L. c. 234, § 28, requires that the trial judge remove a juror when a defendant's right to a fair trial would be threatened by that juror's service. ⁵

We conclude that the judge erred in refusing to excuse the juror for cause. As a result of the judge's error, the defendant expended one of his peremptory challenges. Later, when the defendant had exhausted his peremptory challenges, he was forced to accept a juror whom he otherwise would have challenged peremptorily. ⁶ The defendant is unlike the defendants in Commonwealth v. Amazeen, 375 Mass. 73, 83-84, 375 N.E.2d 693 (1978), and Commonwealth v. Tropeano...