Com. v. Young

• Decision Date: 30 December 1987
• Parties: COMMONWEALTH v. Allen YOUNG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 130

517 N.E.2d 130

401 Mass. 390

COMMONWEALTH v. Allen YOUNG.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 8, 1987.

Decided Dec. 30, 1987.

Willie J. Davis, Boston, for defendant.

Paul Connolly, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

On May 23, 1984, a Suffolk County grand jury indicted the defendant, Allen Young, a black man, for the murder in the first degree of Angel Luis Ortiz, a person of Hispanic origin. Prior to trial, the defendant filed a motion for the individual voir dire of the venire. The trial judge, after hearing argument, denied the motion. Later, during the course of the jury selection process, the defendant made two motions challenging the prosecutor's use of peremptory challenges. The motions were denied. The trial commenced on March 20, 1985. On April 5, 1985, the jury found the defendant guilty of murder in the first degree on the theory of deliberately premeditated malice aforethought and also on the theory of felony-murder.

In this appeal, the defendant argues that (1) the judge's denial of his motion for individual voir dire violated G.L. c. 234, § 28, and the defendant's State and Federal constitutional right to be tried by an impartial jury, (2) the judge's denial of the defendant's motion for a hearing on the prosecutor's use of peremptory challenges to exclude black persons from the jury violated his State and Federal constitutional rights, (3) the judge's admission in evidence of hearsay statements violated the defendant's State and Federal constitutional rights to confront the witnesses against him, (4) the evidence was insufficient as matter of law to prove beyond a reasonable doubt that the defendant committed murder in the first degree under either the theory of felony-murder or of deliberately premeditated malice aforethought, ¹ (5) the judge's failure to discharge a deliberating juror and to declare a mistrial violated the defendant's constitutional right to a trial before an impartial jury, and (6) a miscarriage of justice would occur if the verdict of guilty were allowed to stand.

We summarize the evidence put before the jury. On the evening of November 25, 1983, the defendant went to the home of a friend, Rick Johnson, and watched a boxing match on television. After the boxing match, the defendant and Johnson drove to the George Washington Carver Grand Lodge (Lodge), a black social and community organization of which both the defendant and Johnson were members. The defendant was employed at Boston City Hospital as a security guard and had been at work prior to leaving to watch the boxing match. He was dressed in his security uniform consisting of dark trousers with a stripe down each pant leg, an outer jacket, and a police-style cap with a badge on it.

Johnson and the defendant arrived at the Lodge around 10:30 p.m., but they remained in the automobile in the parking lot for approximately twenty minutes. Thereafter, the defendant entered the den portion of the Lodge, a part of the Lodge reserved for members and their guests. Johnson, who was the head of security for the Lodge, remained in the automobile, watching the parking lot. Later, Johnson also entered the den area. The other portion of the Lodge building was rented for a dance that evening to an Hispanic group.

During most of the evening, the defendant sat at the bar in the den and talked with friends. Some time around 2 a.m. on November 26, 1983, Willie Young, a female acquaintance of the defendant, asked him to escort her to her automobile. The defendant followed her to her automobile shortly thereafter, and the two sat in the vehicle listening to music. About this same time, the dance in the Lodge ended.

While sitting in her automobile, she noticed a young man walking across the street toward the Lodge, carrying a case of beer. She asked the defendant to inquire of the man carrying the case of beer how much he wanted for it. The man responded, "$15." She told the defendant that was too much, and that she knew where she could get it for $12.99. The defendant and Willie Young remained in the automobile for a few more minutes, and then the defendant left the automobile and walked toward the Lodge.

At approximately this time Jose F. Liriano, a musician who had been playing at the dance, was in the unlit parking lot of the Lodge loading his equipment in his automobile. Liriano saw three people. Angel Luiz Ortiz (the victim) and another person (who has not been identified) were struggling with a security guard over a case of beer. Liriano heard Ortiz say, "[H]e took my box of beer which is mine." Liriano then heard the security guard say, "[T]ake it," as he let Ortiz have the beer. Immediately thereafter, Liriano saw the security guard pull a gun from his left side and shoot Ortiz. ² Liriano did not see the security guard's face. He testified, however, that "someone said, 'look, that guard shot at him, killed him,' " and that "[t]hey were saying, 'that security guard, that security guard killed Angel.' " ³ After the shooting, Liriano saw the security guard walk toward the street in front of the Lodge.

Victor Vazquez was at the Lodge helping to manage the dance. Hearing a shot, Vazquez left the Lodge and went out to the parking lot. Vazquez saw ten to twelve people standing around the victim and asked the people "what happened." Vazquez testified that Liriano said, "That security guard killed that boy." ⁴ Someone in the group surrounding Ortiz pointed at the security guard. Vazquez followed the security guard out of the parking lot and watched him get in the passenger seat of an automobile. He, too, never saw the face of the security guard, but, as the automobile drove by him, he saw the security guard in the automobile. He wrote the registration number of the automobile in the palm of his hand. The registration number which Vazquez recorded was that of an automobile registered to Willie Young.

Willie Young testified that, after the defendant left her automobile, he returned about five minutes later and asked her to drive him home. She dropped the defendant off at the corner of Seaver Street and Blue Hill Avenue in Boston. The defendant walked the rest of the way home and got his van. He returned to the Lodge and spoke to one of the police officers at the scene of the shooting.

The remainder of the Commonwealth's case consisted of testimony by several police officers of statements made to them by the defendant. Sergeant Vincent Donohoe of the Boston police department testified that the defendant said that he had heard about the shooting when someone from the Lodge had called him at his home. Detective Edward Doyle of the Boston police department testified that the defendant said that Willie Young was "lying" when told that Willie Young said she drove him away from the Lodge. Detective Peter J. O'Malley of the Boston police department testified that the defendant told him three stories. First, the defendant said that he went to the Lodge and left alone before it closed. Next, the defendant admitted being in Willie Young's automobile and leaving with her. Third, the defendant said he was in Willie Young's automobile when he heard a gunshot. The defendant said that he went to investigate and saw two men get in a Thunderbird automobile and "take off."

The defendant took the stand on his own behalf. His testimony largely parallels that of the Commonwealth's witnesses to the point where the defendant and Willie Young were sitting in her automobile. He testified, however, that no one came by carrying a case of beer, and no inquiry as to the price of a case of beer was made. The defendant said he heard a gunshot while he was sitting in Willie Young's automobile and proceeded to investigate. He went to the parking lot and asked the people standing around the victim what was happening. People responded, "Me no savy. Me no speak English." The defendant saw two automobiles, one a Thunderbird, leaving the parking lot. The defendant observed the last four digits of the registration number of a third automobile as it left the parking lot. He got into Willie Young's automobile and asked her to follow the third automobile. By the time the defendant got to Willie Young's automobile, the third automobile was out of sight. The defendant denied making many of the statements attributed to him by the police officers.

The victim died of a gunshot wound to the head. A .32 caliber bullet was retrieved from the victim's body. The defendant had a license for, and owned, a .38 caliber handgun. Johnson, Willie Young, and other witnesses testified that throughout the entire evening they never observed the defendant with a gun or a holster.

1. Individual voir dire. The defendant contends that the judge's denial of his motion to examine individually each prospective juror for possible racial bias and prejudice violated G.L. c. 234, § 28, and the defendant's constitutional right to be tried by an impartial jury. ⁵ The defendant claims that, because this was a violent crime and the defendant and the victim were of different racial groups, there was a significant possibility that the jurors would be biased. Although the judge denied the defendant's motion for an individual voir dire, she told the prospective jurors that there would be some Hispanic and black witnesses, and some black witnesses who were members of the Masonic Lodge. Three prospective jurors indicated that they would be prejudiced against Hispanics or blacks, and they were excused.

The second paragraph of G.L. c. 234, § 28, ⁶ on which the defendant relies, requires a judge to examine a juror individually and outside the presence of the other members of the venire, if it appears to the judge that the juror may be affected by an extraneous issue, such as race. The judge's actions will be upheld unless she has abused her discretion. Commonwealth v. Hobbs, 385 Mass....