Com. v. Torres

• Decision Date: 19 May 2008
• Docket Number: No. 07-P-281.,07-P-281.
• Citation: 71 Mass. App. Ct. 723,886 N.E.2d 732
• Parties: COMMONWEALTH v. Gilberto TORRES.
• Court: Appeals Court of Massachusetts

886 N.E.2d 732

71 Mass. App. Ct. 723

COMMONWEALTH v. Gilberto TORRES.

No. 07-P-281.

Appeals Court of Massachusetts, Hampden.

Argued December 11, 2007.

Decided May 19, 2008.

Andrew S. Crouch, Boston, for the defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Present: COWIN, BROWN, & KAFKER, JJ.¹

COWIN, J.

The defendant, Gilberto Torres, was convicted by a Superior Court jury of distribution of a class A substance, see G.L. c. 94C, § 32(b), and commission of a drug offense in a school zone, see G.L. c. 94C, § 32J. He thereafter pleaded guilty to a subsequent offender portion of the distribution charge. On appeal, he asserts that the convictions were infected by error in three respects: (1) ineffective assistance of trial counsel resulted in the seating of two jurors who should have been removed by peremptory challenges; (2) there should have been a mistrial because of the behavior of a problem juror; and (3) evidence that the drug transaction took place within 1,000 feet of a school should have been excluded because the Commonwealth failed to establish that the device used to measure the distance was accurate. We affirm the judgments.

The Commonwealth proceeded on the theory that the defendant participated as a joint venturer in a drug sale by locating a seller at the request of a potential buyer. The defendant claimed mistaken identity, contending that it was his brother who was present at the time. Apart from the issue of measurement with respect to the school zone charge, the defendant does not challenge the convictions on the grounds of sufficiency of the evidence. We therefore set forth facts only as necessary in connection with our discussion of each of the claims on appeal.

1. Ineffective assistance of counsel. The defendant argues that missteps by his counsel during jury selection prejudiced him by resulting in the seating of two potentially hostile jurors who could, and should, have been challenged. To vacate a conviction on the ground of ineffective assistance of counsel, a defendant must demonstrate that his attorney's performance fell measurably beneath what is standard for an ordinary fallible lawyer, and that his action or inaction deprived the defendant of a substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Here, the defendant contends that his counsel's lack of familiarity with the jury selection process resulted in deprivation of his constitutional right to be tried by an impartial jury.

The relevant events unfolded as follows.² After excusing several potential jurors for various reasons, and with the defendant's counsel asserting no challenges for cause, the judge declared the venire indifferent and fourteen jurors were seated. The prosecutor stated that she was satisfied with the jury, at which point defense counsel exercised two peremptory challenges and the challenged jurors were replaced. It was not until this point in the process that defense counsel indicated that he wished to challenge two jurors (no. 11 and no. 28) for cause because each had a close relative in law enforcement. Although the judge informed counsel that the time for the exercise of challenges for cause had passed, he agreed to conduct a voir dire of each juror, following which defense counsel stated that he was satisfied, and the judge found each to be impartial and ordered them seated. Defense counsel did not exercise a peremptory challenge of either juror despite having four peremptory challenges that he had not employed.

On appeal, the defendant essentially concedes that he had no basis for removal for cause with respect to either of the jurors in question. The husband of juror no. 11 previously had been chairman of the board of selectmen of Brimfield. The board acts in the capacity of police commissioner of the municipality, a function that is one of many imposed upon that town's selectmen. Juror no. 28's father was a police officer in Chicopee. The crime charged took place in neither Brimfield nor Chicopee, but in Holyoke. Furthermore, it is generally understood that employment in a law enforcement capacity on the part of a juror or a relative is not by itself a ground that justifies a challenge for cause. See Commonwealth v. Ortiz, 50 Mass.App.Ct. 304, 308, 737 N.E.2d 482 (2000), citing Commonwealth v. Ascolillo, 405 Mass. 456, 460-461, 541 N.E.2d 570 (1989). It follows that defense counsel's lack of familiarity with the order in which challenges are asserted had no effect with respect to his challenges for cause; the judge considered the challenges on the merits and acted well within his discretion in denying them.

Thus, the defendant's complaint about his counsel's handling of jury selection comes down to nothing more than a claim that he was prejudiced by the fact that counsel did not use available peremptory challenges to remove the two jurors who had survived his challenges for cause. Counsel's lack of experience and confusion with respect to the order in which challenges were to be asserted had no bearing on this, and the defendant was not prejudiced by any such failing. The defendant had unexpended peremptory challenges and an opportunity to exercise them, and the question is whether his decision not to challenge the two jurors at that time constituted ineffective assistance of counsel.

Whether to exercise a peremptory challenge of a particular juror is a question of strategy addressed to the judgment of the defendant and his counsel. Where counsel is alleged to have provided ineffective assistance by virtue of a tactical or strategic judgment claimed to have been erroneous, that judgment must have been "manifestly unreasonable" before there will be relief from a conviction. Commonwealth v. Myers, 51 Mass.App.Ct. 627, 632, 748 N.E.2d 471 (2001), quoting from Commonwealth v. Adams, 374 Mass. 722, 728, 375 N.E.2d 681 (1978). The Supreme Judicial Court has applied the concept of ineffective assistance of counsel to the withholding of peremptory challenges as follows: "The defendant contends that failure of defense counsel to challenge these two jurors amounted to ineffective assistance of counsel. We disagree. In response to the judge's questions regarding their ability to be impartial, each juror expressed a belief that he or she would be able to be fair and impartial throughout the trial. Since defense counsel was satisfied that the jurors could be impartial, there was no reason to challenge the jurors." Commonwealth v. Mello, 420 Mass. 375, 396, 649 N.E.2d 1106 (1995). That is the case here.

2. The problem juror. The defendant asserts that it was error for the judge to deny his motion for a mistrial following a poll of the jury in which a juror responded, "Not guilty." Because of the unusual circumstances, we recite the facts in some detail.

Juror no. 14 gave notice that she might create difficulties when she raised her hand, apparently in an effort to speak, during defense counsel's closing argument. No action was taken at that time, and after instructions, the jury retired to deliberate. In about one-half hour, the judge received a notice from the jury room stating: "On this jury there is an individual unable to deliberate in a coherent and logical manner on this issue. I seek your guidance." The juror referred to was subsequently identified as juror no. 14. With the agreement of both parties, the judge interviewed the jury foreman in the presence of the defendant and both counsel. Despite the efforts of the judge to discourage the divulging of any jury deliberations, the foreman reported first that juror no. 14 was "of the mind, because of past experience with police, that all police are bad, so it doesn't matter what they say," and then that the juror "doesn't believe that is heroin because she can't see it ... and anyone can sign that sheet." The judge managed to cut off any further revelations, subsequently acknowledging that "I have gained some information that probably shouldn't have been brought to my attention."

The judge proceeded to engage counsel in a discussion regarding what, if any, steps to take. The exchange was interrupted by a court officer who reported that, when he entered the jury room to request that the foreman step out (prior to his interview by the judge), juror no. 14 stated: "Are you going to release me yet? I'm going home yet?" Again with the agreement of counsel, the judge recalled the jury, read them the note, and instructed them "to give this case your full, fair consideration, to speak to your other jurors, to listen to them, and to engage in a dialogue."³ As the judge concluded his remarks, juror no. 14 raised her hand; the judge stated that he was unable to speak with a juror individually, and directed the jury to resume deliberations.

In little more than one hour, the judge received two more notes from the jury room. The first, signed by the foreman, stated: "Your Honor, we have a juror who feels the criminal justice system is corrupt. The juror cannot comprehend the evidence before them. The juror does not even want to be here and wants to be excused. We are not trying to sway the decision of this juror. However, this person cannot agree to the writing on the State Massachusetts documents. We feel that the two alternate jurors, either one, can understand the evidence before us. We ask that an alternate juror who can comprehend the evidence be swapped with this juror in question."

The second note was signed by juror no. 14. Apart from certain writing that was incomprehensible, the note stated: "I don't want to stay on the jury . . . . Not guilty, I want to go home. May I never go through this again. Now I got to, got to ... home. Guilty. So I bring in ... so I bring in to go home." Based on the disclosure that the juror refused to consider the testimony of police officers, the prosecutor requested that the juror be discharged, citing, among other authorities, G.L. c....