Commonwealth v. Heywood

• Decision Date: 30 January 2020
• Docket Number: SJC-12724
• Citation: 138 N.E.3d 1020,484 Mass. 43
• Parties: COMMONWEALTH v. Lawrence L. HEYWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 43

138 N.E.3d 1020

COMMONWEALTH

v.Lawrence L. HEYWOOD.

SJC-12724

Supreme Judicial Court of Massachusetts, Suffolk..

Argued September 9, 2019.

Decided January 30, 2020.

Joseph Maggiacomo, III, Quincy, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Emily L. Levenson, of Maryland, & Richard M. Glassman for National Federation of the Blind & others.

Jonathan M. Albano, Boston, for Boston Bar Association.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

The defendant, Lawrence L. Heywood, was convicted of assault and battery causing serious bodily injury in violation of G. L. c. 265, § 13A (b ), in connection with an incident in which the defendant, without warning, punched the victim in the face.He now appeals, claiming that it was error for a blind individual to serve on the jury.The defendant further argues that the evidence presented at trial was insufficient to support a finding of serious bodily injury.

We transferred the defendant's appeal to this court on our own motion.We discern no error with respect to the seating of the blind juror.Additionally, we conclude that the Commonwealth presented sufficient evidence for a jury to find that the defendant's action resulted in the victim suffering serious bodily injury.We therefore affirm the defendant's conviction.¹

Background.We summarize the facts the jury could have found, reserving some details for later discussion.The defendant and the victim knew each other through an adult basketball team.At a league event in May 2015, while the victim was talking to another individual, the defendant, without warning, punched the victim in the right cheek, just below his eye.As a result, the victim suffered a fractured orbital bone and cheekbone, and retinal bleeding.He required surgery to repair the structure of his face, which involved inserting two titanium plates into his face to hold the bones in place.To avoid "significant discomfort" in cold temperatures due to the titanium plates, the victim must apply warm compresses to his face.As a result of either the assault or the subsequent surgery, the victim also suffered nerve damage to his cheek; consequently, he can "barely feel" the right side of his face.

Discussion.1.Juror competency."A criminal defendant is entitled to a trial by an impartial jury pursuant to the Sixth Amendment to the United States Constitutionandart. 12 of the Massachusetts Declaration of Rights."Commonwealth v. Williams, 481 Mass. 443, 447, 116 N.E.3d 609(2019)."Fundamental to the right of an ‘impartial’ jury is the requirement that jurors be competent and qualified"(citation omitted).Commonwealth v. Susi, 394 Mass. 784, 786, 477 N.E.2d 995(1985)."The failure to grant a defendant a fair hearing before an impartial jury violates even minimal standards of due process."Id.

Here, during the jury voir dire, juror no. 6 indicated to the judge that, although he was blind, his disability would not be an impediment to serving as a juror, and that he could access the evidence if a fellow juror described photographic evidence to him.After determining that jury service would not otherwise be a hardship, the judge empanelled juror no. 6 without objection.

The defendant argues that his right to a fair and impartial jury was violated because the blind juror was unable to see the physical evidence, and had to have the documentary evidence read to him.The defendant faults the judge for failing to strike the juror for cause, and faults his trial counsel for failing to object to the empanelment of the juror.

As an initial matter, we note that the defendant failed to object contemporaneously to the seating of the juror who the defendant now claims was unqualified to serve.Where a defendant has been denied an impartial jury, and the issue is properly preserved, the error is structural and requires reversal without a showing of actual prejudice.SeeWilliams, 481 Mass. at 454, 116 N.E.3d 609;Commonwealth v. Hampton, 457 Mass. 152, 163, 928 N.E.2d 917(2010).However, "[w]here a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived."Commonwealth v. McCoy, 456 Mass. 838, 842, 926 N.E.2d 1143(2010).SeeCommonwealth v. Zakas, 358 Mass. 265, 268, 263 N.E.2d 446(1970).Therefore, any error is reviewed for a substantial risk of a miscarriage of justice.SeeCommonwealth v. Marinho, 464 Mass. 115, 118, 981 N.E.2d 648(2013).Here, there was no such risk, as the defendant's claim lacks merit.

"We afford a trial judge a large degree of discretion in the jury selection process."Commonwealth v. Vann Long, 419 Mass. 798, 803, 647 N.E.2d 1162(1995), and cases cited.SeeCommonwealth v. Lopes, 440 Mass. 731, 736, 802 N.E.2d 97(2004)("The scope of voir dire rests in the sound discretion of the trial judge ...").This discretion extends to a judge's determination whether a juror is competent to serve.SeeSusi, 394 Mass. at 787, 477 N.E.2d 995.An abuse of discretion is a "clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives"(quotations and citations omitted).L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930(2014).The judge did not abuse her discretion in finding juror no. 6 competent to serve despite the juror's blindness.

During jury empanelment, the judge conducted an individual voir dire of juror no. 6 to evaluate the juror's ability to serve.The juror responded affirmatively when the judge asked him if he would "feel comfortable" with having another juror describe the photographic evidence and, with regard to testimony from witnesses, whether he would be able to "follow along" without assistance.The judge satisfied herself that the juror was competent and qualified to serve.

This decision was entirely appropriate.Because the identification of the perpetrator was not in question, the jury had to determine only whether the victim suffered serious bodily injury.As the injuries suffered by the victim were not visible at the time of trial, the ability to see the victim's face during his testimony was not essential to reaching a verdict.Similarly, because of the internal nature of the injuries and subsequent surgery, photographs of the victim's face taken close in time to the assault would not have assisted the jury in determining whether the victim suffered serious bodily injury as defined by G. L. c. 265, § 13A (c ).On the other hand, the juror had appropriate access to the testimony of the victim and the medical records, which were directly relevant to the question whether the victim suffered serious bodily injury.²Here, the medical records, rather than the photographs, provided the critical evidence upon which the jury could find serious bodily injury.Because in this instance the photographic evidence would not have materially assisted the jury in determining serious bodily injury, seating juror no. 6 was well within the judge's discretion.ContrastSusi, 394 Mass. at 786, 477 N.E.2d 995(empanelment of blind juror constituted reversible error where identification of perpetrator was contested, and ability to compare visually physical evidence was required).

Further, the judge's voir dire inquiry to determine juror no. 6's competency to serve was mandated by G. L. c. 234A, § 3, which ensures that the right to participate in jury service is extended to all eligible citizens, including those with physical disabilities.The statute provides in pertinent part:

"All persons shall have equal opportunity to be considered for jury service.All persons shall serve as jurors when selected and summoned for that purpose except as hereinafter provided.No person shall be exempted or excluded from serving as a grand or trial juror because of race, color, religion, sex, national origin, economic status, or occupation.Physically handicapped persons shall serve except where the court finds such service is not feasible.The court shall strictly enforce the provisions in this section."(Emphases added.)

G. L. c. 234A, § 3.

This statutory protection against discrimination in jury selection dovetails well with a defendant's right to a fair jury of his or her peers, an essential component of which is being able to select jurors from a fair and representative cross section of the community.SeeBatson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986);Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690(1975);Commonwealth v. Soares, 377 Mass. 461, 478, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110(1979).Because a cross section of the community necessarily includes, among others, citizens with disabilities,³the defendant's right to a fair jury trial and the protection against discrimination in jury selection work in tandem.

General Laws c. 234A, § 3, creates a presumption of competency for all jurors, including those with disabilities, who then must be evaluated on a case-by-case basis to determine whether service is "feasible."SeeSusi, 394 Mass. at 788, 477 N.E.2d 995.Here, the judge's individual voir dire and subsequent seating of juror no. 6 followed the case-by-case determination specifically required by G. L. c. 234A, § 3.See generallyAdjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 848-849, 120 N.E.3d 297(2019)(if litigant requests accommodation for disability and court determines litigant has disability, court shall provide reasonable accommodations determined on case-by-case basis).

We note that such case-by-case determinations may also be required by Title II of the Federal Americans with Disabilities Act of 1990 (ADA), which provides:

"[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation

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