Commonwealth v. Williams

• Decision Date: 11 June 1979
• Citation: 378 Mass. 217,391 N.E.2d 1202
• Parties: COMMONWEALTH vs. REESE WILLIAMS, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

378 Mass. 217

391 N.E.2d 1202

COMMONWEALTH vs. REESE WILLIAMS, JR.

Supreme Judicial Court of Massachusetts, Middlesex.

January 2, 1979.

June 11, 1979.

COPYRIGHT MATERIAL OMITTED

Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, WILKINS, & LIACOS, JJ.

Willie J. Davis for the defendant.

James W. Sahakian, Assistant District Attorney (William L. Pardee, Assistant District Attorney, with him) for the Commonwealth.

LIACOS, J.

The defendant was indicted for murder in the first degree, and was found guilty of that crime by a jury in May, 1973. We recite briefly the evidence on which the jury could have based its verdict.

The victim, Andrew Fillios, with other members of his family, owned and operated the Pearl Food Market, a neighborhood grocery store located on Pearl Street in Cambridge. On September 14, 1971, at approximately 8 P.M., Fillios and an employee, Richard Kelly, were tending the store and operating its two cash registers when James Cargianes, Fillios's brother-in-law and one of the store's part owners, stopped by. Sometime earlier in the evening one Harold Adams and the defendant, Reese Williams, both armed, had set out to rob the Pearl Market. Soon after Cargianes's arrival, the robbery began. Adams trained his gun on Fillios who was standing by the cash register; Williams pressed the barrel of his gun into Cargianes's neck. Adams ordered Fillios to give him money. When Fillios reached toward the pocket of his pants, Adams shot him. Fillios fell to the floor. On the command of Adams, Williams took money from Fillios's pockets and from the cash register. The two men then backed out of the store, training their guns on those remaining. Later that evening, Fillios was pronounced dead.

Both Adams and Williams were indicted for murder in the first degree and went to trial together. The first two witnesses for the prosecution were Cargianes and Kelly. Each testified that he had made photographic identifications of the two defendants as the two gunmen; each made positive in-court identifications. At this point in the trial, there was a recess. Before the trial resumed, the trial judge accepted a plea by Adams of guilty to so much of the indictment as charged murder in the second degree. When the jury returned, the judge simply instructed them that the case against Harold Adams had been disposed of. The case against Williams continued.

In its case in chief, the prosecution presented three additional witnesses. A pathologist and a chemist testified as to the cause of Fillios's death. The third witness was Dominic Scalese, a detective in the Cambridge police department. After a voir dire on the issue of voluntariness, Scalese testified that the defendant made an oral statement admitting his role in the crime.

The defendant's theory of defense was that someone else was the second gunman. This was the substance of the testimony of the defense's two chief witnesses — the confessed principal Harold Adams and the defendant himself.

After the verdict of guilty and the imposition of the mandatory sentence of life imprisonment without parole, counsel filed a timely claim of appeal pursuant to G.L.c. 278, §§ 33A-33G.¹ Before us, the defendant assigns and argues numerous errors which we discuss below. Finding neither error nor an occasion to use our powers under G.L.c. 278, § 33E, we affirm.

1. Racial Composition of the Venire.

After examination of two prospective jurors and empanelment of one, Williams, through counsel, asked the judge whether there were blacks in the venire from which the jury would be chosen. The judge had directed that a special panel of fifty be set aside. On request, the judge instructed a court officer to examine the panel and to report how many of its members were black. The officer reported that apparently none of the fifty was black. The judge declined to strike the panel on the ground that the special panel of fifty had been drawn at random from a venire of 150 persons, some of whom may have been black and all of whom had been chosen at random. Williams excepted, and submitted a written motion for mistrial claiming that the manner in which jurors had been summoned had resulted in the systematic exclusion of blacks. Additional veniremen were drawn from the larger group when the panel of fifty had been exhausted without a jury having been empanelled. At the conclusion of empanelment, the judge denied the motion and noted for the record that one of the fifty-eight veniremen examined was black. Williams duly excepted, assigns as error the judge's rulings, and argues the issue before us.

The defendant contends in essence that the presence of only one black in a venire of fifty-eight denied him the right to a jury drawn from a fair and representative cross-section of the community. We recently had occasion to consider under our own Constitution the scope of that guaranty as it related to the use of peremptory challenges. Commonwealth v. Soares, 377 Mass. 461 (1979). The issues involved in Soares, while related to the issues raised here, are distinct.

In order to establish a prima facie challenge to the composition of the venire, a defendant "must show (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group from the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364 (1979). See Commonwealth v. Peters, 372 Mass. 319, 321-324 (1977); Commonwealth v. Slaney, 350 Mass. 400, 402 (1966). The defendant here relies solely on the judge's observation that only one of the fifty-eight member venire was black. Although the defendant alleges exclusion of an undeniably distinctive group, he has offered no evidence that the representation was disproportionate to the number of blacks in Middlesex County or, more significantly, that underrepresentation was systematic. See Commonwealth v. Williams, 364 Mass. 145, 149 (1973) (challenge to venire rejected in the absence of a showing of systematic exclusion even though only one of 121 persons examined was black).

The defendant impliedly concedes that he has not made the requisite showing but advances a novel argument relying on the Supreme Court's decision in Ham v. South Carolina, 409 U.S. 524 (1973). The defendant contends that when race is a factor, as in Ham, then a defendant challenging the composition of the venire is relieved of his burden to show systematic exclusion. The defendant argues that race was a factor in his trial because (1) the case involved the murder of a white man by a black man, (2) the witnesses for the prosecution were white while those for the defense were black, (3) the case for the prosecution depended on the identification by white witnesses of a black defendant, and (4) in order to lend credibility to that identification, the prosecution "qualified" its white witnesses as experts in the identification of blacks.

Even if we were to accept the legal premise of the defendant's argument, the facts fall short of demonstrating that the defendant was a special target for racial prejudice. As this court noted in Commonwealth v. Lumley, 367 Mass. 213, 215 (1975), "racial issues infected the entire Ham trial.... Bias formed the heart of the defense. The defendant rightfully contended that bias, official and covert, was the sole cause and foundation for the prosecution. The defendant fought bias in his civil rights activities, undoubtedly known to jurors drawn from the locality. Any latent bias harbored by the jurors would likely have been activated by the case and would have defeated the defendant's efforts to achieve acquittal." It is not enough that the defendant is black and the victim white. Id. at 218, citing Commonwealth v. Bumpus, 365 Mass. 66, 67 (1974). See Ristaino v. Ross, 424 U.S. 589 (1976). It is also not enough that "the defendant took the stand and that his credibility as opposed to that of white witnesses was the crux of the case." Commonwealth v. Pinckney, 365 Mass. 70, 73 (1974). Furthermore, we decline to accept the defendant's allegation that race was interjected into the trial when the prosecutor "qualified" his white witnesses as "experts"² in identifying blacks. On this record then, we cannot say that due to the racial composition of the special venire the defendant was denied his rights to due process or a fair trial.

2. Motion to Suppress.

In a pretrial motion, the defendant moved to suppress statements that he allegedly made soon after his arrest. The prosecution planned to offer the alleged statements through the testimony of the arresting officer, Detective Scalese. As the prosecution approached the point in the trial at which it intended to elicit evidence of the statements, the judge held a voir dire.

Scalese testified to two separate conversations during which the defendant made incriminating statements. The defendant was arrested in an apartment in the Roxbury section of Boston, booked first in Boston, then in Cambridge. At the time, the defendant was almost nineteen years old. On the way to the Cambridge police station, Williams allegedly told Scalese that, after he had learned that the police were looking for him, he fled to New York, assumed a different identity, and collected welfare. Sergeant Petersen, present when this conversation took place, corroborated this testimony. After being booked at the Cambridge police station, Williams allegedly told Scalese that on the night of the incident he met Adams in Boston, and that Adams had a gun and told him of a store they could rob. The two went to Cambridge by subway and entered the store. Within a matter of minutes, Adams shot a man wearing eyeglasses who had stood by the cash register.³ Adams then went through the victim's pockets and he, Williams, ran out...