Reddick v. Com.

Decision Date29 August 1980
Citation381 Mass. 398,409 N.E.2d 764
PartiesLeslie A. REDDICK v. COMMONWEALTH.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John J. Regan, Boston, for Leslie A. Reddick.

Betty Arnquist, Sp. Asst. Dist. Atty. (Michael J. Traft, Asst. Dist. Atty., with her), for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

By a petition for a writ of error, filed in May, 1979, Leslie A. Reddick, whom for convenience we shall call the defendant, challenges his June, 1970, conviction of murder in the first degree. We affirmed that conviction on direct appeal in Commonwealth v. Reddick, 372 Mass. 460, 362 N.E.2d 519 (1977). He now advances arguments that were not raised in that appeal, although each of them might have been. He challenges the jury selection process, asserting that the prosecutor used his peremptory challenges to exclude blacks from the jury contrary to the defendant's rights under the Constitution of the Commonwealth. He further argues that the judge's charge to the jury was deficient in certain respects; most particularly, he claims that it unconstitutionally imposed on him the burden of proving that he acted in self-defense and with reasonable provocation. We affirm the conviction.

The defendant argues that, at his 1970 trial, over timely objection, the prosecutor improperly used peremptory challenges to exclude all but one black person from the jury and that the jury selection procedures of COMMONWEALTH V. SOARES, --- MASS. ---, 387 N.E.2D 499A cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), should be applied retroactively so as to invalidate his conviction. In the Soares case, this court held that the exercise of peremptory challenges to exclude blacks from the jury, "solely on the basis of bias presumed to derive from (their) membership in the group," contravened the defendants' right to a trial before a jury of their peers as guaranteed by art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. Id. at ---, 387 N.E.2d at 516.

Without deciding the point, we shall assume that the prosecutor's challenges to all black veniremen, except the one black who sat on the jury, were made solely on the basis of their race. The issue then becomes whether the rule announced in the Soares opinion should be applied to this trial that took place almost nine years before the Soares opinion was released.

We think the Soares principle should not be applied retroactively, at least in this case where race was not a factor in the trial. 1 See Commonwealth v. Lumley, 367 Mass. 213, 216, 219-220 & n.5, 327 N.E.2d 683 (1975). Citing a number of opinions, most of which we discuss subsequently, the court in its Soares opinion anticipated today's holding by stating that "(t)he rule adopted today applies to the defendants in these cases and to the defendants in all cases now pending on direct appeal where the record is adequate to raise the issue." Id. at --- n.38, 387 N.E.2d at 518 n.38. 2 See Commonwealth v. Walker, --- Mass. ---, --- - --- b, 397 N.E.2d 1105 (1979).

The reasons why a newly created constitutional principle should be applied to cases on direct appeal but not automatically to cases of postconviction or collateral attack are well articulated in Linkletter v. Walker, 381 U.S. 618, 627-629 & 636-640, 85 S.Ct. 1731, 1736-1737 & 1741-1743, 14 L.Ed.2d 601 (1965); Mackey v. United States, 401 U.S. 667, 677-695, 91 S.Ct. 1160, 1172-1181, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring); and Desist v. United States, 394 U.S. 244, 258-263, 89 S.Ct. 1030, 1038-1041, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). We apply these same considerations in deciding whether the State constitutional principle announced in the Soares case should be applied retroactively.

In Linkletter v. Walker, supra, the Court stated that a newly announced change in law would be given effect in cases on direct review, but that the effect of such rules on final judgments being collaterally attacked depended on a number of considerations. The most important consideration is the extent to which the new rule is designed "to improve the 'integrity of the factfinding process.' " Hankerson v. North Carolina, 432 U.S. 233, 243, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306 (1977). Desist v. United States, supra, 394 U.S. at 257, 89 S.Ct. at 1038. (Harlan, J., dissenting). Linkletter v. Walker, supra, 381 U.S. at 629, 85 S.Ct. at 1737.

The United States Supreme Court has given full retroactive effect to a newly created constitutional rule in relatively few instances. In V. v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972), and Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the Court made completely retroactive the rules in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), respectively. These cases involved the reasonable-doubt standard of proof in criminal trials and, accordingly, were governed by the Court's rule that " '(w)here the major purpose of the new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule (is) given complete retroactive effect.' " Hankerson v. North Carolina, supra, 432 U.S. at 243, 97 S.Ct. at 2345, quoting from V. v. City of New York, supra 407 U.S. at 204, 92 S.Ct. at 1952. Accord, Commonwealth v. Stokes, 374 Mass. 583, 587-590, 374 N.E.2d 87 (1978).

The United States Supreme Court has also given full retroactive effect to rules involving an indigent's right to the advice of counsel at trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)), and an accused's right to exclude an involuntary confession from trial (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)). The assistance of counsel at trial is a right that pervades the entire criminal proceeding (Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966)), and the exclusion of involuntary confessions is a procedure that affects the reliability of jury verdicts "because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature." Id. at 729, 86 S.Ct. at 1778. Thus, both of these new constitutional rules "affected 'the very integrity of the fact-finding process' and averted 'the clear danger of convicting the innocent.' " Id. at 727-728, 86 S.Ct. at 1778.

The case before us is of a different character. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966). 3 Whatever impropriety may have been involved in the prosecutor's use of peremptory challenges, there is no showing that the jurors who were actually chosen were incapable of reaching an impartial verdict. In this case, where racial tensions were not involved, there is no basis for concluding that the prosecutor's conduct resulted in a biased jury on the issue of guilt or that the risk of conviction was substantially increased. See DeStefano v. Woods, 392 U.S. 631, 633-634, 88 S.Ct. 2093, 2095, 20 L.Ed.2d 1308 (1968); Witherspoon v. Illinois, 391 U.S. 510, 517-518, 88 S.Ct. 1770, 1774, 20 L.Ed.2d 776 (1968). The integrity of the fact-finding process was not affected in the case before us.

There are factors in addition to the effect on the fact-finding process that bear on the propriety of making a newly announced constitutional principle retroactive. The Supreme Court has considered (a) the purpose of the new rule, (b) the extent of reliance by law enforcement authorities on the old rule, and (c) the effect that retroactive application would have on the administration of justice. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).

The purpose of the principles announced in the Soares case would not be served by applying them retroactively in a case of the kind now before us. The rule of the Soares case was designed, in major part, to deter counsel from influencing the composition of juries by peremptorily challenging persons solely because of their membership in a particular group. Making the Soares principle retroactive would not better accomplish the goal of improving future jury selection. See DeStefano v. Woods, 392 U.S. 631, 634, 88 S.Ct. 2093, 2095, 20 L.Ed.2d 776 (1968); Linkletter v. Walker, 381 U.S. 618, 636-637, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601 (1965). To the extent that the Soares principle was intended to deal with the unfairness of the prosecutor's action in the trial of that case, where racial tensions may have influenced the jury verdict, the principle has no application here, where the trial had no such tensions.

The rule announced in the Soares case was not "clearly foreshadowed" by prior case law. See Desist v. United States, 394 U.S. 244, 257, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). Thus, both counsel and judges fairly relied on this court's pronouncements in pre-Soares cases for dealing with objections to peremptory challenges claimed to be racially motivated. See, e. g., Commonwealth v. Mitchell, 367 Mass. 419, 420, 326 N.E.2d 6 (1975); Commonwealth v. King, 366 Mass. 6, 8-9, 313 N.E.2d 869 (1974), cert. denied sub nom. McAlister v. Massachusetts, 419 U.S. 1115, 95 S.Ct. 794, 42 L.Ed.2d 814 (1975). See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). It would hardly be fair to require clairvoyance on the part of prosecutors when no such standard is imposed on defense counsel. See Commonwealth v. Stokes, 374 Mass. 583, 588, 374 N.E.2d 87 (1978).

The retroactive application of the Soares rule would adversely affect the administration of justice. See Commonwealth v. Lumley, 367...

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