Commonwealth v. Seng, SJC-10399

• Decision Date: 12 April 2010
• Docket Number: SJC-10399
• Citation: 456 Mass. 490,924 N.E.2d 285
• Parties: COMMONWEALTHv.Vuthy SENG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

456 Mass. 490

924 N.E.2d 285

COMMONWEALTHv.Vuthy SENG.

SJC-10399

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 10, 2009.

Decided April 12, 2010.

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Leslie W. O'Brien for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, COWIN, CORDY, & GANTS, JJ.

CORDY, J.

On the evening of November 12, 1995, four children, three boys and one girl, were found in their home suffering from severe injuries. All four had been shot in the head; one also had been attacked with a large knife. Within days, the three boys died. The girl survived.

In 1995, the defendant was indicted for the murders of the three boys, G.L. c. 265, § 1; and armed assault with intent to murder the girl, G.L. c. 265, § 18 ( b ).¹ He was found guilty on all the indictments on December 9, 1997. In 2002, his convictions were set aside because of the admission in evidence of a statement obtained from him in the absence of adequate Miranda warnings. Commonwealth v. Vuthy Seng, 436 Mass. 537, 548, 766 N.E.2d 492, cert. denied, 537 U.S. 942, 123 S.Ct. 342, 154 L.Ed.2d 249 (2002). After a second jury trial, the defendant was found guilty of three charges of murder in the first degree on the theories of deliberate premeditation and extreme atrocity and cruelty as well as guilty on all the remaining charges. The defendant appealed.

We affirm the convictions and decline to grant relief under G.L. c. 278, § 33E.

1. Trial. The jury could have found the following facts based on the evidence adduced at trial.

In 1995, the defendant was living with the victims and their mother in an apartment in Lowell. The mother began asking the defendant to move out so she could reconcile with her husband. The defendant repeatedly refused, professing his love for the mother and asking her to let him stay because he had no money. On the night of November 11, 1995, the defendant awoke the mother and asked her a question that, in hindsight, was ominous. He asked her what she loved most in the world. “I love my children the most,” she replied.

The next day, November 12, the mother told the defendant that he had until the end of the month to vacate her apartment. Later on, while the mother was visiting at a friend's apartment, the defendant telephoned her and again posed his query. In response, the mother asked him not to hurt her children. She then left to return home.

The defendant had placed the telephone call from the apartment next door to the one he shared with the mother and the four victims. At the time, the victims were at home alone watching television. After making the telephone call, the defendant entered the victims' apartment, walked into the room where they were sitting, and proceeded to shoot each of the four children in the head. When the oldest boy attempted to flee, the defendant shot him in the head again and then struck him with a large knife that the family kept in the kitchen.²

Although wounded, the girl escaped through a window and ran back into the apartment building to get help. She was bleeding from the head. When her neighbor answered the door the girl struggled with her words, gestured to her head to indicate a firearm, and said “Thy,” the name she and her brothers called the defendant. Her neighbor then ran across the hallway and yelled, “Vuthy, are you crazy? Why are you killing the kids?” Eventually, the oldest child opened the door on his knees.

Police and emergency responders arrived at the apartment and took the children to nearby hospitals. Over the next several days, the three boys died as a result of their wounds. The surviving female child provided a firsthand account of the events at trial.

After shooting the victims, the defendant left the apartment. Neighbors came to his aid when they saw him stumbling in an alleyway as a result of an apparent gunshot wound to his ear. They gave him a new shirt and drove him to a friend's apartment nearby. The police found him there and arrested him.

Later, the police discovered a firearm in a trash barrel near the victims' apartment. The defendant's deoxyribonucleic acid (DNA) was found on the gun, as well as on items in the apartment.

At trial, the defendant attempted to demonstrate that law enforcement had assumed from the beginning that he was the assailant based on the story of the surviving victim. The defendant argued that the victim's perception was faulty and that she could not say for certain whether someone other than the defendant may have perpetrated the attacks.

2. Claims of error at trial. The defendant raises several grounds for reversal. First, he argues that the judge violated Rule 6 of the Rules of the Superior Court (LexisNexis 2008-2009) by requiring the defendant to exercise his peremptory challenges before the Commonwealth with regard to certain jurors during individual voir dire. He next argues that the judge erroneously allowed the Commonwealth to bolster the girl's testimony with a prior consistent statement, and erroneously denied the defendant an opportunity to read an inconsistent statement by the victim into the record as a past recollection recorded. Finally, he contends that the judge erroneously took away his right to attack the adequacy of the police investigation by admonishing the jury that they were to decide the case based on the evidence at trial, not what they saw depicted on television programs or in science fiction.

We address each of these issues in turn.

a Order of peremptory challenges. The defendant claims that he was deprived of an important advantage at trial because the judge adopted an unconventional individual voir dire procedure. Prior to jury selection, the judge explained that the procedure would follow a two-stage process. After filling out a juror questionnaire, each prospective juror would appear individually before the judge and counsel for the Commonwealth and the defendant. Based on the juror's questionnaire responses, the judge would investigate any concerns he had, and then would permit counsel to suggest further questions. Once the questioning stage concluded, the judge would give the parties the opportunity to exercise a peremptory challenge, alternating which party went first for each juror. Thus, the process was designed to proceed as follows: For the first juror, the Commonwealth would choose whether to exercise a challenge, followed by the defendant; for the second juror, the defendant would choose first, followed by the Commonwealth.³ Pursuant to Mass. R.Crim. P. 20(c)(1), 378 Mass. 889 (1979), both the defendant and the Commonwealth were afforded sixteen peremptory challenges.

The defendant argues that it was error to require him to exercise his challenges first in this fashion because the procedure deviated from the method set out in rule 6.⁴ However, by its terms rule 6 does not apply to the defendant's case. That rule, which normally requires the Commonwealth to exercise its peremptory challenges before the defendant is required to act, does not apply to empanelment conducted by means of individual voir dire. There is no rule of the Superior Court that governs such empanelments, the process being left largely to the discretion of the judge, see Commonwealth v. Sires, 413 Mass. 292, 308 n. 19, 596 N.E.2d 1018 (1992), provided it results in an impartial jury.^5,6 See United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000).

We turn now to whether there was some other error during jury empanelment that demands relief. Under G.L. c. 234A, § 74, a defect in jury empanelment does not warrant reversal unless a defendant objects to it “as soon as possible after its discovery or after it should have been discovered and unless [he] has been specially injured or prejudiced thereby.” Additionally, constitutional due process and fair trial concerns require us to confirm that the procedures did not impair the defendant's right to an impartial jury. See Ross v. Oklahoma, 487 U.S. 81, 90-91, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). See also United States v. Martinez-Salazar, supra at 313-314, 120 S.Ct. 774 (“Because the defendant [in the Ross case] received all that state law allowed him, and the fair trial that the Federal Constitution guaranteed, we rejected his due process challenge”).

The voir dire procedure was tarnished by no error, defect, or irregularity that might implicate G.L. c. 234A, § 74, let alone any prejudice-constitutional or otherwise-that requires us to reverse the convictions.⁷ First, as we have already shown, the defendant received the sixteen challenges to which he was entitled under Mass. R.Crim. P. 20(c)(1). Second, aside from rule 6 (which does not apply), there is no source for the defendant's claim that he was entitled to the advantage of the Commonwealth exercising its peremptory challenges first. Nothing in the United States Constitution or the Massachusetts Declaration of Rights establishes the right to peremptory challenges, let alone the order in which they occur. See Commonwealth v. Freiberg, 405 Mass. 282, 292, 540 N.E.2d 1289, cert. denied, 493 U.S. 940, 110 S.Ct. 338, 107 L.Ed.2d 327 (1989). Rather, peremptory challenges “are one means to achieve the constitutionally required end of an impartial jury,” United States v. Martinez-Salazar, supra at 307, 120 S.Ct. 774. Finally, we have no doubt that the voir dire procedure achieved that end here because the defendant used only fifteen out of his sixteen peremptory challenges.⁸ Had the defendant been concerned about the seating of one of the jurors, he could have challenged the juror without cause. See Ross v. Oklahoma, supra at 88, 108 S.Ct. 2273. Consequently, he cannot complain that he was prejudiced by the voir dire procedure or that it raises a substantial likelihood of a miscarriage of justice.⁹ See Commonwealth v. Alvarado, 50 Mass.App.Ct. 419, 420, 737 N.E.2d 905 (2000), quoting ...