Commonwealth v. CaldwellCommonwealth v. Caldwell
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- Before:
- Lenk
This appeal arises from the defendant’s conviction, by a District Court jury, of distribution of a class B substance,
The facts leading up to the defendant’s arrest and conviction of distribution of cocaine within a school zone are not relevant to the issue now before us. We relate, therefore, only the facts and circumstances necessary to review the denial of the defendant’s motion for a new trial.
The defendant was tried before a District Court jury on October 31, 1995. Only three witnesses testified at trial. Two Springfield police officers and the assistant principal of the Rebecca M. Johnson School testified on behalf of the Commonwealth. The jury retired to deliberate that afternoon.
Some time later, the jury submitted a question to the judge requesting transcripts of the police officers’ testimony. Although defense counsel was willing to waive the defendant’s right to be present when the judge responded to the jury’s question, the judge decided to bring the defendant back into the courtroom so as to avoid causing potentially adverse speculation by the jurors regarding the defendant’s absence. The judge denied the jurors’ request for transcripts and dismissed the jury for the night.
The jurors resumed their deliberations at 9 a.m. on November 1, 1995. While the jury deliberated, the prosecutor informed the judge that the name of one of the deliberating jurors, Alphonso Clark, was familiar to him and that the police officers who had testified recognized the juror by both face and name. After the close of court on October 31, one of the officers obtained a copy of Clark’s criminal record which disclosed a prior conviction of possession of cocaine as well as possession of marijuana. Clark had not provided this information, as required, on his juror questionnaire.
After this information was brought to his attention, the judge asked both the prosecutor and the defense counsel if they had any recommendations as to how the situation should be handled. Defense counsel requested a colloquy with Clark to ensure that the criminal record obtained by the police in fact belonged to Clark.2 Defense counsel did not, however, request the presence of his client, who was in the lockup. The judge conducted the
At sentencing, the defendant pointed out that when he was returned to the courtroom to hear the verdict, he noticed that the composition of the jury had changed.3 The defendant asked the judge, “How come I was not brought out here when that juror was dismissed? I have a right to see all that’s going on, what’s going on here?” The judge did not address the defendant’s concern and imposed a sentence of two years on the complaint for distribution and two years on and after that sentence on the complaint for distribution within a school zone.4 The defendant filed a motion for a new trial which was denied, after a hearing, on June 7, 1996.
The sole issue in this case is whether it was reversible error for the trial judge to have conducted a voir dire hearing on the question of juror misconduct in the defendant’s absence where defense counsel, not the defendant, waived the defendant’s right to be present at the colloquy. The defendant contends that he has a fundamental right to be present when the judge conducts an inquiry about a consequential matter in the case and that the failure to include him at such an inquiry denied him his right to a fair trial. Our case law requires the judge, in such circum
“A motion for new trial is addressed to the sound discretion of the judge, and the judge’s disposition of the motion will not be reversed on appeal unless it is manifestly unjust, or unless the trial was infected with prejudicial error.” Commonwealth v. Moore, 408 Mass. 117, 125 (1990) (citations omitted). Thus, a trial judge, upon motion in writing, may grant a new trial if it appears that justice may not have been done.
The transcript of the colloquy with juror Clark is unfortunately incomplete, much of the conversation apparently not having been recorded. Fortunately, the transcript of the subsequent hearing on the defendant’s motion for a new trial sheds some light. The motion transcript indicates that, at the colloquy, defense counsel waived the defendant’s right to be present by indicating that he did not “believe there’s a need” for the defendant to be present and by failing to object to the defendant’s absence therefrom. On the basis of this waiver at the hearing on the motion for a new trial, the judge concluded that the defendant had agreed to the colloquy being conducted in his absence and, consequently, denied the defendant’s motion. From the transcript of the sentencing hearing, however, it is clear that the defendant was not aware that the colloquy had been conducted, was surprised to observe that Clark had been discharged from the jury, and certainly had not agreed to the colloquy being conducted in his absence.
Under
The United States Supreme Court has recognized that the defendant’s constitutional right to be present at trial is one of those “basic rights that an attorney cannot waive without the fully informed and publicly acknowledged consent of the defendant.” Taylor v. Illinois, 484 U.S. 400, 417-418 & n.24 (1987), citing Cross v. United States, 325 F.2d 629 (D.C. Cir. 1963). Therefore, for the voir dire of Clark to have been proper, the judge should have ensured on the record either that the defendant was present, or that the defendant made a voluntary, knowing and intelligent waiver of his right to be present at the voir dire. Commonwealth v. Hicks, 22 Mass. App. Ct. 139, 147 (1986). The judge’s failure to do so in this case was error.
Nonetheless, the absence of the defendant from such a colloquy does not automatically constitute reversible error. See Commonwealth v. Hicks, supra. Even though any violation of a constitutional right gives rise to presumptive prejudice, where the Commonwealth can make an affirmative showing that the error was harmless beyond a reasonable doubt, reversal of the conviction is not required. Commonwealth v. MacDonald (No. 1), 368 Mass. 395, 399 (1975). See 3 LaFave & Israel, Criminal Procedure § 23.2 (1984). Thus, the burden shifts to the Commonwealth both to show affirmatively that the error was harmless and to make that showing beyond a reasonable doubt. Ibid. Commonwealth v. Owens, 414 Mass. 595, 603-604 (1993).
On the facts of this case, the Commonwealth has made such a showing. It was within the trial judge’s sound discretion to remove a deliberating juror for good cause during the course of the trial.
Based upon the inadequate record before us, it appears that the judge may not have inquired of Clark as to the reasons he failed to disclose his criminal record and the effects of his prior drug convictions on his ability to perform his duty as a juror, both desirable lines of inquiry in the circumstances. Where, as here, the transcript is incomplete, it is of course the defendant’s
Judgment affirmed.
Order denying motion for new trial affirmed.
Notes
The pertinent part of
Defense counsel’s request was as follows, “Your honor, I would prefer, I just want to make a hundred percent — be a hundred percent sure that this is the same individual and I’d ask of you to bring him in alone and ask him questions so as to determine his identity as being the same person and if the Court is satisfied, then I assume you will take action with regard to the alternate juror.”
The defendant noted, “I don’t know how, when I came out here, there were seven jurors and you took the jurors away, came back out here and they found me guilty. I thought they was in deliberating and I’d come back. One juror was missing.”
The distribution sentence was later revised with one year to be served concurrently with the school zone sentence and the balance suspended until January 17, 1998.
Although the judge declined to make a determination as to contempt, he was satisfied that Clark had concealed, purposefully or otherwise, his prior conviction of possession of a class B controlled substance, cocaine, when filling out his juror questionnaire.
In Commonwealth v. Connor, 392 Mass. 846-847, the Supreme Judicial Court adopted the “demonstrable reality” standard as set forth in People v. Compton, 6 Cal. 3d 55, 60 (1971). This standard defines the limits of a trial judge’s discretion in determining when to discharge a juror for good cause. Thus, in Compton, the court asserted that, in order to withstand scrutiny under the precise language of the California Penal Code, “the trial court has at most limited discretion to determine that the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality.” People v. Compton, supra at 60. The California cases do, however, assert that concealment of prior criminal charges will satisfy this standard and constitute good cause for discharge of a juror. People v. Johnson, 6 Cal. 4th 1, 22 (1993). See People v. Price, 1 Cal. 4th 324, 400 (1991), cert. denied, 506 U.S. 851 (1992); People v. Farris, 66 Cal. App. 3d 376, 386-387 (1977).
It is regrettable that the discharge of Clark from the jury resulted in the elimination of the sole African-American juror. There nonetheless existed a persuasive neutral reason for Clark’s discharge, unrelated to the defendant’s race. In this situation, the trial judge’s removal of Clark from the jury does not constitute an abuse of discretion. Contrast Commonwealth v. Harris, 409 Mass. 461, 468 (1991) (where Commonwealth failed to justify juror challenge with a persuasive neutral reason unrelated to defendant’s group membership, the challenge should not have been allowed). Although the “defendant is constitutionally entitled to a jury selection process free of discrimination against his grouping in the community,” Commonwealth v. Rodriguez, 364 Mass. 87, 92 (1973), the defendant’s right to the selection of a jury from a fair and representative cross section of the community does not require that each jury actually impaneled include constituents of every group in the population. Commonwealth v. Soares, 377 Mass. 461, 488, cert. denied, 444 U.S. 881 (1979).