Commonwealth v. Benjamin

• Decision Date: 28 January 2000
• Citation: 430 Mass. 673,722 NE 2d 953
• Parties: COMMONWEALTH v. ERNEST N. BENJAMIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 673

722 NE 2d 953

COMMONWEALTH v. ERNEST N. BENJAMIN.

Supreme Judicial Court of Massachusetts, Plymouth.

November 2, 1999.

January 28, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Murray A. Kohn (Alan D. Campbell with him) for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

ABRAMS, J.

The defendant, Ernest N. Benjamin, appeals from his conviction of murder in the first degree on the theory of extreme atrocity or cruelty. He challenges the jury selection process and contends that the standard for determining extreme atrocity or cruelty is unconstitutionally vague. He also claims that the judge erred by prohibiting him from questioning a witness as to the victim's reputation for violence. He argues error in the jury instructions because the judge (a) failed to instruct the jury that words could convey information constituting adequate provocation to mitigate an unlawful homicide to manslaughter and (b) informed the jury that they could infer malice from the intentional use of a deadly weapon. Finally, he requests relief pursuant to G. L. c. 278, § 33E. We conclude that the conviction should be affirmed and that there is no reason to grant the defendant a new trial or to enter a verdict of a lesser degree of guilt pursuant to G. L. c. 278, § 33E.

We recite the evidence in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). On July 30, 1995, the victim died after being struck by four bullets and grazed by two others at approximately 8:30 P.M. in Brockton.

The victim lived in Boston, but regularly traveled to Brockton to visit his girl friend, Natasha Nelson. The victim and the defendant both sold cocaine. The defendant had purchased cocaine from the victim twice. The first time the defendant purchased cocaine from the victim, the defendant did not pay full price. At trial, the defendant indicated that the victim pressured him to pay him the amount owed. He also testified that he paid the victim in full when he made his second purchase, a few days before the victim was killed.

On the afternoon of July 30, 1995, Nelson went to a cookout in Brockton. The defendant attended the cookout, but the victim did not. The victim met Nelson across the street from the cookout. The defendant then confronted the victim and, according to Nelson's testimony, said, "You and your girl can't be out here [selling drugs] on my block." The victim denied selling drugs and began to walk away. The defendant testified that the victim then said that he was going to come back and kill the defendant. Nelson testified that she never heard the victim threaten the defendant. The defendant pulled out a gun, fired at the victim, paused, and then continued to fire. Nelson testified that the defendant had the gun, but the defendant testified that he took it from a friend. The defendant claimed that he closed his eyes as he fired. He testified that, after firing a few shots, he opened his eyes, saw the victim walking, and began firing again. The defendant testified that he meant to cause serious injury, but not to kill the victim.

After shooting the victim, the defendant saw the victim fall to the ground and ran to him. Then the defendant got into a friend's vehicle. In the vehicle, the defendant put the gun to his own head and pulled the trigger, but the gun did not fire. According to the defendant's brief, the next day the defendant learned that the victim died. The defendant then went to Puerto Rico. He returned several weeks later, turned himself into the Brockton police, and gave a statement to them.

1. The defendant raises two claims regarding the jury selection process. Before reviewing each of these claims, we note that "[w]e afford a trial judge a large degree of discretion in the jury selection process." Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995). See Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978).

a. The defendant alleges that the judge failed to follow the statutory requirements of G. L. c. 234, §§ 17 and 25. According to the defendant, jurors were called "in a predictable numerical sequence."¹ The defendant made no objection to the procedure at trial. On appeal, the defendant argues that this procedure was not neutral and resulted in the exclusion of members of the defendant's race from the jury, thereby violating the defendant's rights under the Federal and State Constitutions.

The defendant's allegation that the judge (or clerk) violated G. L. c. 234 must be considered in light of the applicability of G. L. c. 234A. Both G. L. c. 234 and G. L. c. 234A provide procedures for selecting jurors. See Commonwealth v. Ptomey, 26 Mass. App. Ct. 491, 495 (1988) (by order of Supreme Judicial Court dated December 12, 1984, G. L. c. 234A controlled jury selection of trials in Plymouth County). Section 1 of G. L. c. 234A provides that, "[w]henever any section of this chapter shall become applicable within a participating county, all provisions of law which are inconsistent with such section shall cease to be effective within such participating county." Thus, to the extent that G. L. c. 234, §§ 17 and 25, conflict with provisions in G. L. c. 234A, they are inapplicable.

General Laws c. 234, § 17, and G. L. c. 234A, § 16, address the process to be used for summoning jurors. General Laws c. 234, § 17, requires that jurors be selected from a box containing prospective jurors' names. Section 16 of G. L. c. 234A requires the office of jury commissioner to shuffle the master juror list randomly, store the final list electronically, and summon jurors in sequence from the shuffled list. Because G. L. c. 234, § 17, is inconsistent with provisions of G. L. c. 234A, it is not effective in any county in which G. L. c. 234A is applicable, including Plymouth County. Thus, the defendant's allegation that the judge violated G. L. c. 234, § 17, has no merit.

The defendant argues that the judge did not comply with G. L. c. 234, § 25. General Laws c. 234, § 25, does not apply to capital cases. General Laws c. 234, § 26, does.² We do not agree that there was error. Under G. L. c. 234A, § 16, the office of jury commissioner is required to shuffle the master list of prospective jurors randomly and to store the list electronically. The office of jury commissioner is required to summon jurors in sequence from this randomly shuffled list, G. L. c. 234A, § 16, and to provide the trial court with a list of jurors expected to appear. G. L. c. 234A, § 17. In these circumstances, there is no error in the judge's calling names in succession from the randomly shuffled list.

b. Next, the defendant notes that trial counsel suggested that the racial imbalance be remedied by empanelling the only person of the defendant's race who was in the jury pool. The prosecutor did not oppose this suggestion, but the judge did not allow it. The defendant argues that the judge's refusal constituted an abuse of discretion because it deprived the defendant of the opportunity to remedy the racial imbalance.

The defendant's complaint has no merit. A judge cannot ignore procedural requirements governing the jury selection process in an attempt to include members of a particular race on the jury. "[W]e recognize that the right to a jury representative of a cross section of the community cannot require that each jury include constituents of every group in the population." Commonwealth v. Soares, 377 Mass. 461, 481, cert. denied, 444 U.S. 881 (1979). There was no error in the judge's refusal to empanel a specific juror without regard for random selection.

3. The defendant challenges the constitutionality of G. L. c. 265, § 1, claiming that the phrase "extreme atrocity or cruelty" is vague and thus violates the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution and arts. 10 and 12 of the Massachusetts Declaration of Rights. We repeatedly have upheld this concept in the face of constitutional challenges for vagueness. See, e.g., Commonwealth v. Blake, 409 Mass. 146, 163 (1991); Commonwealth v. Freiberg, 405 Mass. 282, 288-290, cert. denied, 493 U.S. 940 (1989). For reasons we discussed fully in Commonwealth v. Freiberg, supra, G. L. c. 265, § 1, is not unconstitutionally vague. See Commonwealth v. Blake, supra at 163.

The defendant also contends that jurors must unanimously decide which Cunneen factors³ are present in a particular case to pass the constitutional hurdle. Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). "[W]e have never required that the jury unanimously agree on which of the Cunneen factors underlie their verdict of extreme atrocity or cruelty." Commonwealth v. Hunter, 427 Mass. 651, 657 (1998). For reasons discussed in Commonwealth v. Hunter, supra at 657-658, we again decline to impose the requirement of unanimity.

4. The defendant argues that evidence of the victim's reputation was improperly excluded. The kernel of the defendant's argument is that the defendant's state of mind is a key trial issue because it is determinative whether the defendant could have committed murder in the first degree by reason of extreme atrocity or cruelty. The defendant contends that evidence of the victim's reputation "corroborates" the defendant's testimony about his state of mind.

According to the defendant, his state of mind must be considered in light of his mental impairment.⁴ The defendant contends that his mental impairment was exacerbated by the victim's threat.⁵ The defendant asserts that, because of the exacerbation of his mental impairment, he had a distorted perception of and response to the victim's threat. Further, the defendant contends that, due to his distorted perceptions, he did not appreciate the risks of his actions. Thus, the defendant concludes, the jury should have had the reputation evidence to determine the defendant's state of mind when the crime was committed.

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