Commonwealth v. Cero

• Decision Date: 30 June 1928
• Citation: 264 Mass. 264,162 N.E. 349
• Parties: COMMONWEALTH v. CERO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 264

162 N.E. 349

COMMONWEALTH

v.CERO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1928.

Appeal from Superior Court, Suffolk County; Louis S. Cox, Judge.

Gangi Cero was convicted of murder in the first degree, and he appeals. Affirmed.W. R. Scharton and M. Palais, both of Boston, for appellant.

J. A. Scolponeti, Asst. Dist. Atty., of Boston, for the Commonwealth.

PIERCE, J.

On June 15, 1927, the defendant, Gangi Cero, was indicted charged with murder in the first degree of one Joseph Fantasia. On November 15, 1927, he was set at the bar and tried before a judge of the superior court and a jury. He was found guilty of murder in the first degree on November 17, 1927. The case is before this court upon a claim of appeal, the assignment of errors being based on certain exceptions to the judge's refusal to allow the defendant's motion to challenge the array of jurors, and also to his refusal to allow the defendant the right to introduce evidence, through questions to the jurors drawn, tending to prove that they were not indifferent and impartial. These assignments of error are numbered in the record of appeal 1, 2, 3, and 4.

Before the jury were empaneled counsel for the defendant made the following statement to the court:

‘May it please the court: I now respectfully challenge the entire array of jurors which are about to be drawn to try the case of Commonwealth v. Gangi Cero; and the grounds I will state as follows: That the jurors as required by law were drawn by the election commissioners and duly notified. It has come to my attention that after their notification of having been drawn as jurors and properly listed as jurors for the November sitting of the criminal session of Suffolk county, each and every one of those jurors was visited by police officers at their homes, or in their respective precincts, or otherwise, or where they resided, and were interrogated as to their qualifications; as to their family relations, as to records, their religion, as to matters concerning them individually. And that later on the police, after such investigation of said jurors, made a report in writing and submitted said report to the district attorney. I contend that such proceeding is against the law and is a violation of the constitutional rights of the defendant to have a fair, unprejudiced and impartial trial by his peers, a trial without intimidation, fair and impartial, as guaranteed him by the Massachusetts Bill of Rights, the Massachusetts Constitution, and the Constitution of the United States. And I therefore challenge the whole array of jurors and ask the court to preserve my rights, and if your honor will permit, to have this challenge apply to each and every juror as drawn, so I will not interrupt the proceedings of the court.’

At the close of the statement the judge and counsel for the defendant had the formal conference which follows:

The Judge: ‘Have you finished?’

Counsel: ‘Yes, your honor.’

The Judge: ‘The jurors are properly drawn, and I will save your rights.’

This ruling is the basis of the defendant's exception numbered 1.

The following then took place:

Defendant's Counsel: ‘I make a motion and ask the district attorney-’

The Judge: ‘You said you had finished. We will proceed now with the impaneling of the jury.’

Defendant's Counsel: ‘I ask the district attorney to produce before you now the proof of my assertion, and bring before the court the police reports as to each and every juror, and that be the proof I desire to offer.’

The Judge: ‘I took your word that you said you had finished. If you want to make any request of the district attorney that is not for me to pass upon until the time arrives, unless there is some refusal or something of that sort.’

Defendant's Counsel: ‘Then you will require me to make my challenge to each and every juror as drawn, and to ask each juror if he has been visited by the police officer, who inquired about his qualifications.’

The Judge: ‘I don't propose to permit you to interrogate any juror. I will conduct the examination as to the questions under the statute.’

Defendant's Counsel: ‘Your honor will save my exception, that it is in violation of the statute, because no police officer has any right to question the juror as to his qualifications.’

This exception is numbered 2. The judge then said:

‘There is nothing before me, as I have said. You will now proceed.’

Defendant's Counsel: ‘Your honor will save my rights.’

The Judge: ‘As I said before, you presented your motion and I asked you if you had concluded, and you replied you had, and I am proceeding on that reply.’

Defendant's Counsel: ‘Then I ask the district attorney to take the witness stand, to show the jurors have been interrogated by the police officer.’

The prisoner was then set at the bar to be tried and the clerk said to him:

‘Gangi Cero, you are now set at the bar to be tried, and these good men whom I shall call are to pass between the commonwealth and you upon your trial. If you would object to any of them you shall do so as they are called and before they are sworn. You have a right to challenge twelve of their number without assigning any reason therefor, and so many of the others as you have good cause to challenge.’

Although the record on the subject is silent we assume the name of each juror was drawn from a box in accordance with the provisions of G. L. c. 234, § 26. The record discloses that the judge under G. L. c. 234, § 28, examined each juror, after he had taken the oath, to learn whether he was related to either the prisoner at the bar or to the deceased, whether he had any interest in the case, whether he had expressed any opinion or was conscious of any bias or prejudice in the case, whether his opinions were such as to preclude him from finding a person guilty of an offense punishable by death, and if he would find a person guilty if the evidence satisfied him beyond a reasonable doubt of the guilt. At the close of the examination of the first juror called, the judge declared the juror stood indifferent. The clerk then said:

‘Prisoner, look upon the jurors; juror, look upon the prisoner.’

The district attorney said: ‘Satisfactory to the commonwealth.’

Counsel for the defendant then said: ‘I understand your honor will not permit me to ask the question whether this juror has been interrogated by the police?’

The judge replied: ‘I have passed upon that question.’

Defendant's Counsel: ‘I desire you to ask this question of the juror, whether or not he has been interrogated by the police.’

The Judge: ‘I won't ask him any more questions.’

Defendant's Counsel: ‘Your honor will allow me an exception to that.’

This is exception 3. The juror was then challenged by the defendant. Except that counsel for the defendant did not again ask to examine each juror whether he had been interrogated by the police, nor request the judge so to do, the same procedure was observed in the examination of the jurors on their voir dire until the panel was complete.

[1] The exceptions numbered 1 and 2, in so far as they relate to the refusal of the judge to give any recognition to the defendant's challenge to the array of jurors, must be overruled. There is not a word, not a phrase, in the statement of counsel for the defendant which, if proved, would have the slightest evidential value in establishing that the list of jurors was not prepared according to law of that the jurors were not legally drawn therefrom. Commonwealth v. Walsh, 124 Mass. 32;Commonwealth v. Sacco, 255 Mass. 369, 417, 151 N. E. 839.

[2][3] The third exception, which we assume runs through the examination on voir dire of all the jurors, is based upon the refusal of the judge to permit the defendant to examine each juror whether he had been interrogated by the police, and to the refusal of the judge to ask any further question than the statutory questions. It is provided by G. L. c. 234, § 28:

‘Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein; and the objecting party may introduce other competent evidence in support of the objection. If the court finds that the juror does not stand indifferent in the case, another shall be called in his stead.’

It was said in Commonwealth v. Burroughs, 145 Mass. 242, 243, 13 N. E. 884, 886:

‘While the statute [Pub. Sts. c. 170, § 35] permits, after the statutory questions have been propounded, the party to a suit to introduce any other competent evidence, it was not intended to give him the right to submit the juror to an inquiry in the nature of a cross-examination, in order to ascertain if he could not thereby elicit something tending to show bias or prejudice on the part of the juror. The other competent evidence which he may of right introduce is that obtained from other sources than from an examination of this character. Undoubtedly the presiding judge, if he deems it desirable in determining whether a juror stands as impartial, may himself examine or permit an examnation of the juror beyond the inquiries provided for expressly by the statute; but beyond these statutory provisions the whole matter of such examination is left to his sound judgment and judicial discretion.’

After the passage of St. 1887, c. 149, which enacted that the examination of jurors provided for by Pub. Sts. c. 170, § 35, ‘may be made by the parties or their attorneys under the direction of the court,’ it was said by Holmes, J., in Commonwealth v. Poisson, 157 Mass. 510, at page 512, 32 N. E. 906, 907:

‘It would be unfortunate if all control of such an examination should be taken from the court, and we do not interpret the St. of 1887, c. 149, as having that effect. On the contrary, the power given by the...