Com. v. Tropeano

• Decision Date: 08 February 1974
• Citation: 364 Mass. 566,306 N.E.2d 811
• Parties: COMMONWEALTH v. Alan TROPEANO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 811

306 N.E.2d 811

364 Mass. 566

COMMONWEALTH v. Alan TROPEANO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 8, 1974.

Decided Feb. 8, 1974.

David M. Skeels, Boston, for defendant.

William F. Linnehan, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY, and KAPLAN, JJ.

TAURO, Chief Justice.

The defendant Alan Tropeano, having been found guilty in the Superior Court of drunkenness, indecent assault and battery on a child under fourteen years, and breaking and entering a dwelling house in the nighttime with intent to commit rape, appeals pursuant to G.L. c. 278, §§ 33A--33G, urging two grounds for reversal. First he contends that he was denied due process of law as a result of the trial judge's refusal to inform him of the nature and content of an in-court, private conversation between the judge and a prospective juror who had requested to speak with the judge after inquiry had been made whether any juror had a personal interest in the case. The judge ruled that the juror stood indifferent, but refused to inform the defendant of the basis of the juror's concern, or the reasons for his ruling. The defendant then exercised one of his peremptory challenges and the juror was excused. The second argument goes to the sufficiency of the evidence upon which the defendant was found guilty of breaking and entering a dwelling at nighttime with intent to commit rape.

The judge's refusal to make known his private conversation with the prospective juror constituted error. Commonwealth v. Robichaud, 358 Mass. 300, 264 N.E.2d 374 (1970). See Commonwealth v. Snyder, 282 Mass. 401, 185 N.E. 376 (1933); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Schoultz v. Florida, 106 So.2d 424 (Fla.1958). We believe, however, that in light of the defendant's exercise of a peremptory challenge whereby the juror was excused, such error was 'harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In oral argument, the defendant acknowledged that despite having used a peremptory challenge with respect to the juror in question, he still had a sufficient number of peremptory challenges available for use with respect to other jurors if they had been needed. Thus, the defendant was not subsequently forced to accept a juror he would have otherwise challenged peremptorily. At best, the defendant's argument is that he was forced, as a result of the judge's action, to challenge a juror who might very well have been impartial. But even if that were the case, we fail to see how the defendant was prejudiced as a result. Since the juror (challenged by the defendant) was replaced by one acceptable to him, the defendant's right to an impartial jury was not impaired to the extent of requiring a new trial.

We turn now to the sufficiency of the evidence upon which the defendant was found guilty of breaking and entering a dwelling house in the nighttime with the intent to commit rape. The pertinent evidence is summarized. The victim, an eight year old girl (at the date of trial), and her two young brothers were in the care of a baby sitter during the evening of the alleged attempted rape. The baby sitter testified that within an hour following the mother's departure for the evening, the defendant and a friend came to the apartment requesting permission to consume the cans of beer they had with them. The baby sitter, who knew the defendant and was aware that he was acquainted with the mother and her children, allowed them to come in. Moments later, the baby sitter discovered the defendant in the little girl's bedroom, sitting on the edge of her bed, talking to her. The baby...