Commonwealth v. Mason, SJC-09070

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: BUDD, J.
• Citation: 151 N.E.3d 385,485 Mass. 520
• Decision Date: 25 August 2020
• Docket Number: SJC-09070
• Parties: COMMONWEALTH v. Daniel MASON.

485 Mass. 520
151 N.E.3d 385

COMMONWEALTH
v.
Daniel MASON.

SJC-09070

Supreme Judicial Court of Massachusetts, Suffolk..

Argued February 14, 2020.
Decided August 25, 2020.

Amy M. Belger, Holliston, for the defendant.

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

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

BUDD, J.

485 Mass. 521

A jury convicted the defendant, Daniel Mason, of murder in the first degree on theories of deliberate premeditation, extreme atrocity and cruelty, and felony-murder, as well as armed assault with intent to murder, animal cruelty, and related offenses¹ in connection with a shooting that killed Michael Lenz, injured Gene Yazgur, and killed Yazgur's dog. The defendant appeals from his convictions, arguing error on the part of trial counsel, the prosecutor, and the judge requiring a new trial.² In the alternative, he asks us to exercise our authority under G. L. c. 278, § 33E, to order a new trial. After full consideration of the record, we affirm the defendant's convictions and decline to grant extraordinary relief under G. L. c. 278, § 33E.

Background. We summarize the facts the jury could have found, reserving certain details for discussion.

Shortly before 5:30 A.M. on March 2, 2000, an intruder entered the apartment of Michael Lenz and Gene Yazgur as they slept and opened fire on them. Yazgur awoke to the sound of gunfire as the intruder shot at Lenz first. Yazgur attempted to close his bedroom

485 Mass. 522

door, but the shooter partially kicked it in and shot Yazgur through the opening. The shooter alternated between shooting at Lenz and Yazgur, as well as Yazgur's dog, for several minutes, then left the apartment. Lenz, who had been shot in his head, chest, and wrist, died approximately two hours later. Yazgur, who sustained gunshot wounds to his face, back, hand and each thigh, survived after undergoing multiple surgeries and being placed in a medically-induced coma for two and one-half weeks. Yazgur's dog was shot five times and found dead at the scene.

151 N.E.3d 391

The Commonwealth's case against the defendant was circumstantial. Yazgur observed that the shooter was a short, stocky male, but Yazgur could not see his face. At around the time of the shooting, a witness saw a man approximately five feet, six inches tall dressed in a long, black trench coat and dark hat, carrying a bag and walking on the street near the victims' home. That witness testified that a hat, coat, and two bags seized from the defendant's apartment resembled the clothing worn, and a bag carried by, the man he saw on the day of the shooting.

Less than one hour after the shooting, the defendant was driving away from the Jamaica Plain section of Boston when he hit a car in front of him. The defendant refused to give the other driver his name or driver's license, and attempted to pay for the damage in cash.³ The passenger in the other vehicle noticed two bags in the defendant's car.

Two days after the shooting, the defendant asked his roommate to say that the defendant had not left their apartment on the night of the shooting. The defendant also asked the roommate to say that he had never seen any guns or explosives in the apartment, even though he previously had seen explosives there.

The murder weapons were never recovered, but the Commonwealth presented evidence that the defendant's uncle owned two handguns matching the bullets and shell casings recovered from the scene and may have stored them in the defendant's apartment. Yazgur testified that the gunshots were "very measured," and not quick. The jury further heard evidence that the defendant was a marksman who had served in the Israeli military.

The day prior to the murder, the defendant had been served with an execution of judgment for a civil damages award of more than $100,000 for assaulting Yazgur with a knife in 1997. The

485 Mass. 523

defendant vowed that Yazgur would "never see a penny," and that the defendant would kill Yazgur first.

At trial, the defense focused on the lack of physical evidence tying the defendant to the shooting, challenged the defendant's alleged motive against Yazgur, and suggested that there had been insufficient investigation into people who might target Lenz rather than Yazgur.

Discussion. 1. Jury empanelment. The defendant alleges two errors occurred during jury selection with respect to the voir dire of prospective jurors, and a peremptory challenge used by the Commonwealth.

a. Voir dire. The defendant argues that as an observant Jew and a former member of the Israeli Defense Forces (IDF), he was entitled to have each potential juror questioned about his or her opinions on Judaism, the IDF, and the nation of Israel. In support of this contention, the defendant points to news coverage of the Israeli-Palestinian conflict during the fall of 2000 and the winter of 2001 which, he claims, was ubiquitous and polarizing. He also asserts that news coverage of the terrorist attacks on September 11, 2001, which took place three months before his trial, caused Americans to become fearful and mistrusting of the Middle East, including Israel. The defendant additionally raises the specter of racial prejudice due to his Jewish heritage. Although the defendant did not request that the judge make inquiry in these areas, he claims that the judge's failure to do so sua sponte violated

151 N.E.3d 392

his right to a fair trial. He further claims that his counsel's failure to request individual voir dire to root out potential juror bias in these areas was ineffective assistance. There was no error.

A criminal defendant is entitled to juror voir dire to identify fair and unbiased jurors as a part of the right to an impartial jury. Commonwealth v. Dabney, 478 Mass. 839, 848, 90 N.E.3d 750, cert. denied, ––– U.S. ––––, 139 S. Ct. 127, 202 L.Ed.2d 78 (2018). See G. L. c. 234A, § 67A. Where it appears that a substantial risk exists that an extraneous issue might affect the outcome of the case, a defendant is entitled to individual voir dire of prospective jurors to determine their impartiality. See G. L. c. 234A, § 67A.⁴ See also Commonwealth v. Lopes, 440 Mass. 731, 736-737, 802 N.E.2d 97 (2004). However, it is the defendant's burden

485 Mass. 524

to "show that there is some basis for finding that a substantial risk of extraneous influences on the jury exists, ... and that there is a substantial risk that jurors would be influenced by such considerations" (citations omitted). Commonwealth v. Ashman, 430 Mass. 736, 739, 723 N.E.2d 510 (2000).

Here, the defendant has failed to meet his burden to show that there was a substantial risk that jurors would be influenced by his being a former member of the IDF, or being an observant Jew, necessitating individual voir dire to assess juror impartiality. In fact, he failed to raise the issue at all during jury selection.⁵

The defendant's claim that there was an additional substantial risk of racial bias against Jews also fails. We have required judges to conduct an individual voir dire on the issue of potential bias, if requested to do so, in trials for murder, rape, and sex offenses against children where the defendant and victim are of different races. See Commonwealth v. Colon, 482 Mass. 162, 175-176, 121 N.E.3d 1157 (2019) (collecting cases). More recently we expanded the rule prospectively to include potential prejudice where the defendant and victim are of different ethnic backgrounds. Id. at 182, 121 N.E.3d 1157. Although we have yet to address whether Jewish people are members of a race, ethnicity, religion, or combination thereof, here the defendant has not asserted that

151 N.E.3d 393

he and either of the victims were of different races or ethnicities. At any rate, even where it is established that a defendant and a victim of a qualifying crime are of different

485 Mass. 525

races, "the requirement for individual voir dire arises upon the defendant's request for such inquiry; it is not automatic." See Commonwealth v. Martinez, 476 Mass. 186, 195, 65 N.E.3d 1185 (2017), quoting Commonwealth v. DiRusso, 60 Mass. App. Ct. 235, 237, 800 N.E.2d 1067 (2003).

Thus, the judge did not err or abuse her discretion in failing to include questions on Judaism, Israel, or the IDF during juror voir dire. See Commonwealth v. Morales, 440 Mass. 536, 549, 800 N.E.2d 683 (2003) ("Unless the defendant shows that there is a substantial risk that the jury would be influenced by extraneous issues, ... the judge need not ask questions aimed at discovering the existence of those factors" [quotations and citations omitted] ).

The defendant's claim of ineffective assistance of counsel for failure to request individual voir dire similarly lacks merit. In determining whether defense counsel was ineffective in defending a charge of murder in the first degree, we ask whether there was an...