Com. v. Del Valle

• Decision Date: 28 February 1968
• Citation: 353 Mass. 684,234 N.E.2d 721
• Parties: COMMONWEALTH v. Hipalito DEL VALLE (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 721

234 N.E.2d 721

353 Mass. 684

COMMONWEALTH v. Hipalito DEL VALLE (and a companion case ¹).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1968.

Decided Feb. 28, 1968.

Lazar Lowinger, Boston, for defendants.

Joseph R. Nolan, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

WILKINS, Chief Justice.

Upon these indictments for murder in the second degree the defendants were convicted. In Commonwealth v. Del Valle, 351 Mass. 489, 221 N.E.2d 922, the judgments were reversed and the verdicts set aside. Thereafter each defendant filed a motion to dismiss the indictments and a motion to challenge the array. The motions were denied. A judge of the Superior Court has reported to us certain questions of law which he deemed so doubtful and important as to require decision by this court. G.L. c. 278, § 30A (inserted by St.1954, c. 528).

The motion to challenge the array of jurors is based 'on the ground that they did not represent a fair cross section of the community by reason of having been selected by methods contrary to the state and federal Constitutions and laws, in that persons of Puerto Rican origin, qualified to vote in this state, have been consistently and deliberately excluded from regular jury service.'

The motion to dismiss the indictments is based on the grounds that they were 'returned by an unconstitutionally and illegally constituted grand jury which did not fairly represented (sic) a cross section of the community. This grand jury was selected in contravention of the Massachusetts Statutes * * * (and) Constitution and the United States Constitution in that for a long period of time persons of Puerto Rican origin, qualified to serve as grand jurors were consistently and deliberately excluded from serving as such.'

The judge reported these additional facts. The voting list in Boston is prepared from the list of registered voters. Persons eligible to vote must register at City Hall, and are required, among other things, to read five lines of the Constitution of the Commonwealth in English. The jury lists are drawn from the voting list. According to the United States census in 1960 there were 1,980 Puerto Ricans in Boston. ¹ Every person who wishes to register must complete a questionnaire which asks for information concerning his 'birthplace--city, state, and nation.' There were approximately 8,000 questionnaires completed and filed with the board of election commissioners for the years 1964, 1965, and 1966. Over a ten-year period prior to May 16, 1967, a few Puerto Ricans have completed questionnaires, although a definite number has not been fixed. 'It is not known whether Puerto Ricans have been summoned for jury duty.'

The grounds of unconstitutionality and illegality contended by the defendants are not lightly to be assumed. Akins v. State of Texas, 325 U.S. 398, 400--401, 65 S.Ct. 1276, ...