Com. v. Szczuka

• Decision Date: 17 April 1984
• Citation: 464 N.E.2d 38,391 Mass. 666
• Parties: COMMONWEALTH v. Gregory SZCZUKA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 38

464 N.E.2d 38

391 Mass. 666

COMMONWEALTH v. Gregory SZCZUKA.

Supreme Judicial Court of Massachusetts Essex.

Argued Nov. 7, 1983.

Decided April 17, 1984.

James B. Krasnoo, Boston, for defendant.

Dyanne Klein Polatin, Asst. Dist. Atty., for the Commonwealth.

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

LIACOS, Justice.

On January 10, 1979, two indictments charging murder in the first degree were returned against the defendant, Gregory Szczuka. The victims, Kevin Robinson and Kenneth F. Wescott, had been shot by the defendant in Topsfield on November 8, 1973, and died thereafter. On May 24, 1979, an Essex County jury returned a verdict of guilty of murder in the second degree on each indictment. Szczuka was sentenced to concurrent terms of life imprisonment at the Massachusetts Correctional Institution at Walpole. He appealed the convictions. On March 19, 1981, Szczuka filed a motion for release from unlawful restraint pursuant to Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979), which the judge treated as a motion for new trial. Upon request of counsel, the defendant's appeal from his convictions was stayed pending the decision on his motion for new trial. This motion, as later amended, was denied after hearing. The defendant appealed the denial of that motion, and we transferred that appeal to this court on our own motion. As well as urging numerous grounds for reversal, the defendant asks us to exercise our power under G.L. c. 278, § 33E, to direct the entry of verdicts of manslaughter. ¹ We affirm the convictions of murder in the second degree and the decision denying the defendant's motion for new trial.

We summarize the facts. On the evening of November 7 and in the early morning of November 8, 1973, Robinson and Wescott were at a lounge on Route 1 in Rowley with a group of friends. The group had arrived there at about 9 P.M. Robinson, Wescott, and four friends left the lounge at about 1 A.M. on November 8 and headed south on Route 1 in Robinson's automobile. They had consumed several pitchers of beer during the evening. The three male companions of the victims each testified at trial to having been "pretty much" drunk or "fairly drunk" when the group left the lounge. The fourth companion, a female, testified that she had had about four glasses of beer at the lounge and that her condition was "[f]ine" when she left. There was no testimony as to the condition of the two victims at the time.

The defendant and his cousin, Kenneth Carpenter, spent the night of November 7-8, 1973, at another bar on Route 1 in Rowley. They arrived there some time between 8 and 9:30 P.M. and left at about 1:30 A.M. Carpenter testified that they were both sober when they left; the defendant testified that he himself was "feeling good" and "had a buzz on," and a waitress who served them, a girl friend of the defendant, also testified that he was "feeling good." They, also, went south on Route 1, the defendant driving his automobile.

Up to this point, the occupants of each automobile were complete strangers to those of the other. As to what occurred as the two vehicles drove south on Route 1, the testimony of the victims' companions, of Carpenter, and of the defendant conflicted. Suffice it to say that after some "senseless antics," Commonwealth v. Keough, 385 Mass. 314, 319, 431 N.E.2d 915 (1982), on the part of one or both drivers, both of them pulled over to the side of the road. The defendant's vehicle was somewhere from ten or fifteen feet to twenty-five yards ahead of that of Robinson. The defendant and Carpenter and the five male occupants of Robinson's automobile got out. ² As the defendant left his vehicle, he reached under the seat and took out a .357 magnum revolver. He then walked toward the center of the road. It is undisputed that, as the group from the other automobile approached him, he held out the gun and shot first Robinson and then Wescott. Robinson was shot in the abdomen, and Wescott in the chest.

The defendant testified that the victims were each about four feet away from him when he fired. The distances given by the witnesses varied from three to ten feet. After they got out of the automobile, none of the victims' companions heard anyone in their group say anything, except for Robinson, who asked whether the defendant's gun was a popgun or a cap gun. ³ Their testimony was that the defendant said nothing. Carpenter did not hear anyone from Robinson's automobile say anything. He testified that he heard the defendant shout, "Get back in the car," as he pointed the gun at the advancing group. Neither Carpenter nor any of the victims' companions saw anything in the victims' hands as they approached the defendant. According to their companions, Robinson and Wescott were walking at either a normal or a fast pace; Carpenter testified that the whole group was approaching very slowly.

The defendant testified that after he got out of his automobile he waved the gun at the approaching men to show them that he had it and told them to stop. He testified that two of the men were coming toward him "rapidly," "at a fast rate of speed." He heard Robinson say, "I don't think it's real." The defendant testified that he then saw Robinson take a knife out of his belt. The defendant told Robinson to stop, began to back off, and extended the gun. He testified that he was afraid for his life. When Robinson was about four feet away, the defendant fired, and Robinson fell. The defendant testified that the second victim, Wescott, then picked up the fallen knife and came toward him. The defendant also warned Wescott to stop and get back and, when he did not do so, shot him also. ⁴

The defendant and Carpenter then got back in the defendant's automobile and drove off rapidly. Both victims were taken to Hunt Memorial Hospital in Danvers, where Wescott was pronounced dead the following evening. Robinson was later transferred to Massachusetts General Hospital, where he survived until April 5, 1974. The defendant was not identified as the assailant until December, 1978, when his wife gave the police information about the shootings.

On consideration of the whole case before us, we see no reason to exercise our power under G.L. c. 278, § 33E, either to order a new trial or to direct the entry of verdicts of manslaughter. ⁵ We turn to the defendant's more specific grounds of appeal.

1. The judge's refusal to dismiss the venire. Before jury selection, the defendant moved to dismiss the venire on the ground that the ages of the prospective jurors were so substantially disproportionate to the ages of the population of Essex County as not to represent a fair and reasonable cross section of the community. He appeals the denial of this motion as a violation of his rights under the Sixth Amendment to the Constitution of the United States and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. ⁶ The simple answer to this claim is that "classifications based on age alone do not involve identifiable or distinctive groups for Federal constitutional purposes." Commonwealth v. Bastarache, 382 Mass. 86, 100, 414 N.E.2d 984 (1980). Additionally, we note that the judge found, and the record supports his finding, that the defendant failed to establish either a substantial underrepresentation or systematic or intentional exclusion of an identifiable group. Contrast Commonwealth v. Aponte, 391 Mass. 494, 462 N.E.2d 284 (1984). The defendant did not establish the prerequisite basis of a claim of violation of the Sixth Amendment. See Commonwealth v. Bastarache, supra 382 Mass. at 96-97, 414 N.E.2d 984. There was no error.

2. The judge's refusal to ask the prospective jurors two voir dire questions requested by the defendant. The defendant appeals the judge's refusal to ask each prospective juror (1) whether he or she "would be more likely to believe the testimony of a law enforcement officer than the testimony of a civilian witness about the same subject matter," and (2) whether he or she had "any feelings about the possession of firearms or handguns which would make it difficult ... to render a fair and impartial verdict in this case." The judge did ask the prospective jurors the questions required by G.L. c. 234, § 28, first par., as well as numerous other questions relative to their impartiality. It is well settled that "[i]t is within the sound discretion of the judge whether to allow any questions other than those which are statutorily required under G.L. c. 234, § 28." Commonwealth v. Cameron, 385 Mass. 660, 667, 433 N.E.2d 878 (1982), citing Commonwealth v. Stewart, 359 Mass. 671, 677, 270 N.E.2d 811 (1971). Specifically, we decline to accept the defendant's suggestion that we overrule our decisions in Commonwealth v. Walker, 370 Mass. 548, 572, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976), and Commonwealth v. Pinckney, 365 Mass. 70, 72-73, 309 N.E.2d 495 (1974). We held in those cases that it is within the discretion of a judge whether to put a question to prospective jurors as to whether they would give greater credence to a police officer's testimony than to that of a private citizen. Cf. Commonwealth v. Nickerson, 388 Mass. 246, 249, 446 N.E.2d 68 (1983). There was no error in the judge's refusal to ask either of the above questions.

3. The judge's refusal to poll the jury to determine whether they had seen the defendant in handcuffs. On the day that the Commonwealth opened its case, the defendant moved that the judge poll the jury as to whether they had seen the defendant before coming into the courtroom that morning. The defendant's counsel stated that he was not sure whether the entire jury were already in the jury room when the defendant was brought into the courtroom in handcuffs. The judge refused to poll the jury, stating that he did not want "to make a mountain out of a molehill." He did, however, instruct the...