Commonwealth v. Prunty

• Decision Date: 23 May 2012
• Docket Number: SJC–09849.
• Citation: 462 Mass. 295,968 N.E.2d 361
• Parties: COMMONWEALTH v. Daniel J. PRUNTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 295

968 N.E.2d 361

COMMONWEALTH

v.Daniel J. PRUNTY.

SJC–09849.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Dec. 9, 2011.

Decided May 23, 2012.

Charles W. Rankin, Boston, for the defendant.

Thomas G. Shack, III, Assistant District Attorney (Genevieve K. Henrique, Assistant District Attorney, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & LENK, JJ.

LENK, J.

The defendant, Daniel J. Prunty, was convicted by a Superior Court jury of murder in the first degree on a theory of deliberate premeditation. The defendant was convicted also of assault and battery by means of a dangerous weapon and attempted extortion. The convictions arose from an altercation at the defendant's home on August 7, 2004, during which the defendant fatally shot the victim, Jason Wells. On appeal, the defendant argues that the judge erred both in rejecting his exercise of a peremptory challenge of a member of the venire during jury empanelment and in improperly providing a limiting instruction as to the use of prior inconsistent statements elicited on cross-examination of one of the Commonwealth's key witnesses. We conclude that there is no merit in the defendant's first claim of error. As to the second claimed error, even if it were to be assumed, without deciding, that the limiting instruction should not have been given, this did not give rise to a substantial likelihood of a miscarriage of justice. We thus affirm the convictions, and decline to exercise our power under G.L. c. 278, § 33E, to order a new trial or reduce the murder verdict to a lesser degree of guilt.

1. Background. a. Facts. Based on the evidence admitted at trial, the jury could have found the following facts. On the evening of August 6, 2004, the defendant held a party at his home in Sandwich where several individuals, including Jason Wells, the victim, were using cocaine. After the party, the defendant noticed that money, watches, and jewelry were missing. He suspected Wells.

The next day, the defendant, Wells, and Richard Ford used cocaine at the defendant's home. At some point, the defendant confronted Wells about the missing items, and an argument ensued. Wells in turn accused Rebecca Pape, a friend of Wells who had also been at the defendant's home the night before. The defendant then telephoned Pape, telling her that he knew that she had taken his “stuff” and he wanted it back. Pape, with Christopher Rose and two other individuals, drove to the defendant's home, where the argument between the defendant and Wells was ongoing.

When Wells went into the dining room and sat down, the defendant proceeded upstairs, retrieved his Ruger .22 caliber rifle, and returned to where Wells was sitting. The defendant pointed the rifle at Wells's head and cocked it, telling him, “If you don't get my stuff by sunrise, you'll never see another sunrise again.” Rose intervened, pushing the rifle away and consoling Wells, who had started to cry. Wells admitted his role in taking the defendant's property and went into the kitchen to make telephone calls to retrieve the stolen items. When Wells could not reach anyone, the defendant again pointed the gun at his head. This time, the defendant fired into Wells's head.

Pape, having witnessed the shooting, began “panicking.” The defendant told her what their story would be: Wells had shot himself while Pape and the defendant had been in the bathroom. The defendant called the Sandwich police to report an accidental shooting. When officers responded, the defendant told them that someone had “shot himself,” and led them into the kitchen where Wells was lying on the floor with a gunshot wound to the forehead. The officers detected a pulse and attempted unsuccessfully to resuscitate Wells; he was pronounced dead on arrival at a Boston area hospital.

Police questioned the defendant at the scene; he denied shooting Wells, saying that he had been talking with Pape in the hallway when the shot was fired. He admitted, however, that he had used the rifle to threaten Wells into giving his property back. He was arrested for assault and battery by means of a dangerous weapon. On August 31, 2004, the grand jury returned the three indictments. He was tried in February, 2006, and found guilty on all charges.

b. The defendant's peremptory challenge. When trial commenced on February 7, 2006, both the defendant and the Commonwealth were aware that the issue of race was likely to arise, at least tangentially, at trial.¹ During an interview with the police, the defendant had said, “This nigger came up from Hyannis and ripped me off.” ² Although the defendant denied making this statement, the Commonwealth planned to introduce it at trial. As a result, the judge allowed the defendant's motion for individual voir dire of each member of the venire concerning racial prejudice. See Commonwealth v. Young, 401 Mass. 390, 398, 517 N.E.2d 130 (1987), overruled in part on another ground, Commonwealth v. Ramirez, 407 Mass. 553, 555, 555 N.E.2d 208 (1990) (in murder cases where defendant and victim are of different races, judge must conduct such voir dire on defendant's request).

The judge decided to empanel sixteen jurors; thus, each side was entitled to sixteen peremptory challenges.³ The judge began the empanelment process by introducing the parties, describing the nature of the charges, and naming potential witnesses. The prospective jurors, as a group, were asked the general questions prescribed by G.L. c. 234, § 28, and Mass. R.Crim. P. 20(b)(1), 378 Mass. 889 (1979). Many responded in the affirmative, and the judge proceeded to an individual voir dire of each member of the venire. At the conclusion of each individual voir dire, both the prosecutor and the defendant were required to exercise any desired peremptory challenge.⁴ In the course of this process, eleven jurors were excused for cause, the defendant exercised fourteen peremptory challenges, and the Commonwealth exercised ten peremptory challenges.

Prior to the challenged empanelment of Juror 16, the judge had seated fifteen jurors. Juror 16, the first African–American member of the venire to be individually questioned,⁵was asked the same question as had been asked, in nearly identical form, of each prospective juror:

“In this matter, sir, the [d]efendant is white; the deceased was black; the witnesses may be of different races or ethnic heritage. Does this information about race and ethnic heritage affect your ability to be fair and impartial as a juror?” ⁶

Like every juror seated to that point, Juror 16 responded “no” to this question. After the judge declared Juror 16 indifferent,the defendant exercised a peremptory challenge, but the Commonwealth objected. The prosecutor stated, “he's the only African-American potential juror that we've had in this panel, and on that basis, I'm objecting.”

In response, the judge ruled that the Commonwealth had “met the requirements of a prima facie showing of impropriety” on the basis that he could recall no other prospective juror with a similar physical appearance and, having reviewed the juror's questionnaire, concluded that “there is no reason for challenge that is immediately apparent.” The judge then asked the challenging party, the defendant, whether there was a “clear and reasonably specific explanation” for exercising the challenge.

Defense counsel then provided the following rationale for the challenge ⁷:

“[T]his gentleman is a—is a school teacher with young children. Some of the people who are going to testify in this case were a relatively young age. They were in their early 20's. They were associated with drugs. They—it appears that one of them at least and perhaps a couple of them, actually three of them—I think the victim, Mr. Rose and Miss Pape had somewhat of a troubled history that's reflected during their course of telephone conversations that were recorded. That history affects how far they went in school and what they did in school. I'm informed that some of the towns down at the Cape—I don't know in particular Barnstable public schools, but certainly I'm told the Sandwich public schools, Hyannis public schools have unfortunately been impacted rather heavily—most recently the Sandwich public schools by alcohol and drug abuse. I feel like this particular type of juror would not be able to sit impartially on a case like this. As a result of his occupation, I also bring to the [c]ourt's attention that he doesn't bring a lot of diverse experience with him in terms of who his spouse is. It appears she is an administrator, also with the Barnstable public schools. I interpret that to be perhaps a principal or a vice-principal. Typically they promote or advance to that position from a teaching position. So, they have a very, very similar background in that regard. And I feel that he would not sit fairly in judgment of my client on a case like this.”

In response, the judge pointed out that two seated jurors were retired teachers, and three other jurors had minor children.⁸ In view of the circumstances, the judge found “that the proffered reason for a challenge is not bona fide, but rather is a mere sham.”

Defense counsel then offered a second reason for the challenge. He argued that certain evidence at trial would establish that the defendant “is a racist,” as demonstrated by his use of the word “nigger” on multiple occasions and his references to African–Americans as “moon pies” and “porch monkey[s].” ⁹ According to defense counsel, “comments like that certainly are going to perhaps get under the skin of somebody who might be a little bit more sensitive to that issue, particularly where that is their descent.” The judge decided to bring Juror 16 back for additional voir dire on this issue. The following exchange between the judge and Juror 16 ensued:

The judge: “If someone in the course of the evidence is accused of making racist statements, would that in any way cloud your ability to sort...