COMMONWEALTH vs. EDWARD J. SOARES (аnd three companion cases)
Supreme Judicial Court of Massachusetts
March 8, 1979
377 Mass. 461
Suffolk. September 11, 12, 1978. — March 8, 1979. Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, & ABRAMS, JJ.
Motions for directed verdicts were rightly denied as to three defendants indicted for murder in the first degree, based on a joint enterprise to commit murder, where there was evidence that the first defendant brought a knife into a street brawl with students chasing two prostitutes whom they suspected had taken a student‘s wallet, that that defendant used the knife twice, conferred with the other defendants following a pause, and pursued and threatened the students before stabbing the victim with great force as the victim attempted to disengage [469-470]; where there was evidence that the second defendant conferred with the first defendant and others before instigating the encounter, and that the second defendant fought the victim and while pursuing the students knew the first defendant had a knife and had a premeditated design to kill [470-471]; and where there was evidence that the third defendant was the first to confront the students and engaged in the common purpose to protect the prostitutes and preclude recovery of the wallet, that he knew the first defendant had a knife and intended to use it, and that the third defendant by agreement positioned himself to protect and assist the other defendants [471-472].
Discussion of the statement in Swain v. Alabama, 380 U.S. 202 (1965), that “the presumption in any particular case must be that the prosecutor is using the State‘s challenges to obtain a fair and impаrtial jury. . . .” [474-477]
Analysis of the right of trial by a jury drawn from a fair and representative cross-section of the community. [477-483]
Article 12 of the Declaration of Rights of the Massachusetts Constitution proscribes the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership, or affiliation with, defined groupings in the community, such as those delineated in the Equal Rights Amendment, art. 106 of the Amendments. [486-488]
Examination of the mechanics incident to the effectuation of the constitutional guaranty that peremptory challenges of prospective jurors will not be improperly exercised. [489-490]
At the trial of three blacks indicted for murder of a white man and for assaults on other white victims, use by the prosecutor of peremptory challenges created a prima facie case of improper exercise thereof on the basis of blacks being challenged because they were black where it appeared that by such use twelve of the thirteen available blacks were excluded from the venire, although one was seated, with the result that ninety-two per cent of the available blacks were excluded as contrasted with the exclusion of only thirty-four per cent of the available whites, and that the defendants’ attempts during empanelment to have a full hearing on their constant objections to the prosecutor‘s use of peremptory challenges were unsuccessful [490-491]; on appeal this court held that the judge‘s failure to guarantee the right of the defendants under art. 12 of the Declaration of Rights of the Massachusetts Constitution to be tried by an impartial jury of peers was prejudicial per se, and the cases were remanded for a new trial [492]. BRAUCHER, J., concurring in the result, with whom QUIRICO and WILKINS, JJ., joined.
INDICTMENTS found and returned in the Superior Court on December 17, 1976.
The cases were tried before Roy, J.
Walter J. Hurley & Robert T. Capeless, Jr., for Edward J. Soares.
Richard K. Latimer for Richard S. Allen.
Wallace W. Sherwood for Leon Easterling.
Thomas J. Mundy & Dennis J. Curran, Assistant District Attorneys, for the Commonwealth.
LIACOS, J. The defendants Soares, Allen, and Easterling were indicted for the murder in the first degree of Andrew Puopolo, as well as for other charges resulting from a street brawl that occurred in the early morning of
In these appeals pursuant to
We consider first the defendants’ claims for directed verdicts. Within our discussion of each issue we will summarize the pertinent facts.
1. Motions for Directed Verdicts.
At the close of the Commonwealth‘s case and again after the defense rested, each defendant moved for directed verdicts on all charges related to the stabbing death of Andrew Puopolo. The judge denied the motions and noted the defendants’ exceptions. Only the judge‘s denial of
On the evening of Monday, November 15, 1976, the Harvard College football team “broke training” with a dinner at the Harvard Club on Commonwealth Avenue in Boston. Alcoholic beverages were available before, during, and after the meal and formal ceremony. At approximately midnight, about fifty football players went to the “Naked I,” a bar on Washington Street in Boston‘s “Combat Zone.” At closing time (2 A.M.), the football players left the “Naked I” in various groups to share transportation back to Cambridge. Chester Stone, the equipment manager of the football team, had offered to drive six team members back to Harvard College in the team‘s equipment van, which was parked in a lot at Boylston
As Stone and the accompanying students headed toward the van, they encountered two black women on Boylston Street. Sexual favors were discussed. The two women accompanied the group to the van. Thе women stayed at the van momentarily. When they had left, Charlie Kaye found that his wallet was missing. Suspecting that the women had taken it, he and his teammates jumped from the van and pursued them. At the entrance of Bumstead Court, an alley off Boylston Street and adjacent to the Carnival Lounge, their path was blocked by a black man, codefendant Allen, the “bouncer” at the Carnival Lounge. The football players returned to their van, got in and pulled up to Boylston Street. About this time, Saxon and those he was to drive home were on their way to Saxon‘s car.
As the van proceeded east on Boylston Street, one of the football players inside the van saw one of the black women walking west on Boylston Street. He shouted, “There she goes.” One of the players jumped out of the van to pursue her. The van pulled into an alleyway next to the Silver Slipper Bar, and the rest of the football players jumped out to give chase. The woman was stopped by three other football players who were standing on Boylston Street. She screamed and ran toward the Tremont Street intersection. The football players from the van and those standing on Boylston Street began running after her. The black woman reached the intersection of Tremont and Boylston Streets as Saxon caught up to and grabbed her. She fell to the pavement. Saxon pulled her to her feet. When she regained her footing she ran away, southward, down Tremont Street toward LaGrange
From the corner diagonally opposite (southeast) codefendant Allen shouted, “You came to the Zone, you got burned. Now clear out of here. Get the hell out of here.” The football players continued their advance on Soares. Soares backed up over the curb onto the sidewalk to the front of an MBTA kiosk. He took off his jacket and defied the encircling football players, saying, “Come on. I‘ve been waiting for this.” One of the football players, Lincoln, said, “Let‘s get out of here. This is silly because he doesn‘t have a wallet.” From across Boylston Street a black man in a leather coat (codefendant Easterling) ran forward brandishing a knife, followed by a second man. Stone, standing behind the football players, saw Easterling and shouted, “Get out of here. There‘s a guy coming over with a knife.” Coolidge, facing Soares at a distance of about five or six feet, heard Stone‘s warning, and assumed it pertained to Soares. He looked down and saw something shining at or near Soares‘s hand; he could not say, however, that Sоares then or later held a knife.
Easterling ran up to Lincoln and stabbed him in the arm and in the abdomen. At this point most of the football players around the MBTA kiosk, and in the intersection, turned and ran back down Boylston Street toward the van. Coolidge helped Lincoln toward Saxon‘s car.
As to what happened at this point there was conflicting evidence given by the prosecution witnesses. Lincoln testified that as Coolidge helped him walk about fifteen yards down Boylston Street, he looked back up Boylston Street toward the intersection. He observed a white man in a red jacket (who was not identified at the trial), Soares, Easterling, and Allen gather in the intersection
The unidentified man in the red jacket then opened the van door and amid shouts pulled Charlie Kaye, a very big man, out by his tie. General pushing and shoving began, followed by fighting in the parking area next to the van. Soares punched Kaye, and moved about, challenging various football players to fight him. Andrew Puopolo ran down from Saxon‘s car to the van. Saxon and Boland followed and were confronted by Easterling at the rear of the van. Easterling had his knife out and was asking, “Where you coming from m——— f———?”
Puopolo became involved in a fight at the right front of the van. Boland testified that Puopolo‘s opponent was Easterling. Savage testified that the opponent was Allen. However, DeCamp testified that it was Soares, which testimony was corroborated by Saxon, Witten, and Coolidge.
At that moment Officers Geary and Carroll drove their cruiser onto Boylston Street from Washington Street. Geary testified that as the disturbance came into view, he saw a black man, identified by his hat as Soares, striking the victim with a side-arm motion. Coolidge testified that after Puopolo and Soares separated, Easterling shouted at Puopolo. Puopolo turned toward Easterling who met him and stabbed him in the chest. Easterling backed off as Puopolo and Coolidge staggered away east down Boylston Street toward Washington Street. Soares and Easterling moved along the sidewalk further up Boylston Street. They turned and started walking up Boylston Street toward Tremont Street. Officer Geary got out of the police car and shouted at them. The officer began running after them. They then started to run up Boylston Street toward Tamworth, an alleyway. Easterling ran down Tamworth and escaped, but Soares stumbled and the officer overtook him. Soares was taken back to the cruiser and was searched. There was no weapon.
The prosecution‘s theory for the indictments of murder in the first degree was that the defendants engaged in a joint enterprise to commit murder with deliberate premeditation and malice aforethought. Specifically, it claimed that either Easterling or Soares struck the fatal blow and that the other of the two, with Allen, aided and abetted in the killing. See
Easterling argues that the evidence shows only that he intended to disperse the football players and to protect Soares, and that, in any case, he lacked the time and opportunity for deliberate premeditation. Soares argues that he engaged in mutual combat only, that the evidence cannot support an inference that he stabbed Puopolo or that he associated with Easterling in a scheme which contemplated murder. Lastly, Allen maintains that his acts fail to evince association with a criminal enterprise at any level. We consider each defendant and the relevant evidence separately.
a. To prove deliberate premeditation the Commonwealth must show that a defendant‘s resolution to kill was a result of reflection which “is not so much a matter of time as of logical sequence. First the deliberation and premeditation then the resolution to kill, and lastly the
b. Without сonsidering whether the evidence supports an inference that Soares stabbed Puopolo, we conclude that the evidence of a joint enterprise to commit murder in the first degree warranted the judge‘s submission of the issue to the jury. The theory underlying joint enterprise is that one who aids, commands, counsels, or encourages commission of a crime while sharing with the principal the mental state required for the crime is guilty as a principal. See, e.g., Commonwealth v. Blow, 370 Mass. 401, 407-408 (1976); Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973). The jury may infer the requisite mental state from the defendant‘s knowledge of the circumstances and subsequent participation in the offense. See Commonwealth v. Ferguson, 365 Mass. 1 (1974). Here there was evidence sufficient to warrant a finding that as Soares pursued the students to the van, he knew that Easterling had a knife and was acting on a premeditated design to kill. Compare Commonwealth v. Scanlon, 373 Mass. 11, 16-17 (1977), with Commonwealth v. Clark,
c. There is little question that the jury could deem Soares an abettor in the murder of Puopolo; he fought Puopolo up to the moment Easterling did the stabbing. See Commonwealth v. Perry, 3 Mass. App. Ct. 308, 313-314 (1975). Allen, on the other hand, argues that because he did not fight the victim or anyone else, he did not participate in the joint venture. It is true that presence with knowledge of the planned act is insufficient alone to convict a person for the acts of another. See, e.g., J. R. Nolan, Criminal Law § 622 (1976). However, if an individual is, by agreement, in a position to render aid, he is an abettor 4
We turn now to a consideration of the claim of error which in our view is dispositive of this appeal, namely the issue raised by the assignments of error dealing with the alleged denial of the rights of the defendants to a trial by an impartial jury.5
The defendants Soares, Allen, and Easterling are black. The victim of the murder for which they were tried was white, as were the victims of the assaults alleged. At the jury empanelment, thirteen black members of the venire were found to be indifferent by the judge,
The prosecutor exercised a total of forty-four peremptory challenges. Through his use of these challenges, he excluded ninety-two per cent of the available black jurors, and only thirty-four per cent of the available white jurors.7 The defendants Easterling and Allen claim that by virtue of this systematic use of peremptory challenges to eliminate all but one black from the jury, the prosecutor effectively deprived them of their constitutional right to a fair trial, and their right to be tried by an impartial jury, in violation of arts. 12 and 15 of the Declaration of Rights of the Massachusetts Constitution.8
The Commonwealth asserts that the standards enunciated in Swain v. Alabama, 380 U.S. 202 (1965), should be incorporated into the Massachusetts Constitution.9
In Swain, five Justices of the Supreme Court joined in holding that the striking of black persons from the jury in a particular case did not violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. The Court stated: “The presumption in any particular case must be that the prosecutor is using the State‘s challenges to obtain a fair and impartial jury to try the case before the cоurt. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.” Id. at 222. While the practice of removing blacks from a particular jury was found insulated from inquiry “on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged,” id. at 223, the Court implied that it would entertain an equal protection challenge in some circumstances. This might occur when “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be,” the prosecutor “is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries.”10 Id.
The Swain approach advocated by the Commonwealth is doubtless attractive in its simplicity. If followed, it would permit us to approve without further scrutiny the prosecutor‘s exercise of peremptory challenges in this case, as comporting with the Fourteenth Amendment. The defendants suggest, however, that consideration of the discriminatory use of peremptory challenges should not begin and end with Swain.11 Rather, they propose
that the protections offered by the right to trial before a jury of peers, guaranteed by art. 12, provide an alternate basis for examination of the prosecutor‘s use of peremptory challenges in this case to exclude twelve of thirteen eligible black jurors. We accept the invitation to reexamine the issue, recognizing that it previously has not been explored by the court within this framework.12
The defendants rely primarily on art. 12. That provision states in pertinent part: “And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgments of his peers, or the law of the land.”
The mandate that a jury be drawn from a fair and representative cross section of the community is hardly unique to Massachusetts law. The United States Supreme Court has frequently affirmed this concept.14 In Taylor v. Louisiana, 419 U.S. 522, 528 (1975), the Court held that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.”15 In Taylor, the
Court reversed a State conviction of a male defendant on the ground that women had been effectively excluded from jury service.16 Recognizing that “excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial,” id. at 530, the Court focused on the rights of the individual defendant in any particular trial.17
The right to be tried by a jury drawn fairly from a representative cross section of the community is critical for a variety of reasons. Acknowledging that “[t]he purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the profession-
The “assurance of a diffused impartiality” is a key objective sought to be furthered by the requirement of a representative cross section of the community. In Peters v. Kiff, 407 U.S. 493, 503-504 (1972), a white defendant was deemed to have standing to raise this issue and his conviction was reversed as violative of the due process clause19 on the basis that blacks had been systematically excluded from his grand and petit juries in State court. Mr. Justice Marshall stated that “[w]hen any large and identifiable segment of the community is excluded from
jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.20
Despite the crucial importance of the principle of “diffused impartiality,” we rеcognize that the right to a jury representative of a cross section of the community cannot require that each jury include constituents of every group in the population. The impracticability of such a formula is patent. Aside from the fact that no jury of reasonable size could possibly reflect all the distinctive groups in the
Another reason why absolute proportionality cannot be guaranteed is the proper provision for removal of any prospective juror, whether of a discrete group or not, who has expressed or formed an opinion regarding the case, or has an interest, bias, or prejudice related to the unique situation presented by the case. See
Given these considerations, we refrain, as did the Taylor Court, from imposing a requirement that petit juries actually chosen “mirror the community and reflect the various distinctive groups in the population.” Taylor, supra at 538. It is not enough, however, that there be a representative venire or panel. The desired interaction of a cross section of the community does not occur there; it is only effectuated within the jury room itself. Cf. United States v. McDaniels, 379 F. Supp. 1243, 1244 (E.D. La. 1974) (Swain burden not met, but where government peremptory challenges removed six of seven black persons from venire, court allowed motion for new trial under
At one point in the development of the common law, peremptory challenges were allowed the defendant only, to be used for protection against jurors who appeared to be prejudiced against him.24 Later, the government‘s interest in trial by a jury not unfairly biased in favor of acquittal was recognized, and the right of the prosecution to exercise peremptory challenges is now clearly established. See Swain v. Alabama, supra; Hayes v. Missouri, 120 U.S. 68 (1887). The scope of the peremptory challenge traditionally has exceeded that of the challenge for cause.25 To eliminate those jurors perceived as harboring
A description of the latitude allowed in the use of peremptory challenges is set forth in Swain v. Alabama, supra at 220: “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court‘s control.” This court often has used similar language. See, e.g., Commonwealth v. Mitchell, 367 Mass. 419, 420 (1975); Commonwealth v. Stone, supra. The quoted passage goes too far, however.26 If the constitutional mandate of a jury which fairly reflects a cross section of the community is to signify more than hollow words in this Commonwealth, we cannot permit the peremptory challenge to be exercised with absolute and unbridled discretion.
In the case before us, three black defendants were convicted of the murder of a white man by a jury from which twelve of thirteen eligible blacks had been excluded by the prosecution. We cannot assume that the elimination of black jurors would produce an “impartial” jury. The opposite result is just as probable. Assuming that “group bias” does operate in some fashion, white jurors are equally likely to be sympathetic to a white victim.31 Given an unencumbered right to exercise peremptory challenges, one might expect each party to attempt to eliminate members of those groups which are predisposed to-
To recapitulate: exercise of peremptory challenges to excludе members of discrete groups solely on the basis of bias presumed to derive from that individual‘s membership in the group, contravenes the requirement inherent in art. 12 of the Declaration of Rights. In so holding, we recognize that no defendant is entitled to a petit jury proportionally representing every group in the community; nor are members of particular groups insulated from the proper use of peremptory challenges to exclude any individual on any other ground. What both parties are constitutionally entitled to expect is “a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.” People v. Wheeler, supra at 277.
Having identified the right to a peer jury as including the assurance that peremptory challenges will not be exercised so as to exclude members of discrete groups simply by virtue of that affiliation, we need define those discrete groups. Further discussion is hardly required to establish that blacks constitute a discrete group. We view the Equal Rights Amendment33 as definitive, in delineat-
ing those generic group affiliations which may not permissibly form the basis for juror exclusion: sex, race, color, creed or national origin.
We now examine the mechanics incident to the effectuation of that guaranty.34 We begin with the presumption of proper use of peremptory challenges. That presumption is rebuttable, however, by either party35 on a
showing that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.
In this case, the pattern of conduct to which we refer was clearly demonstrated: twelve of thirteen eligible blacks were challenged by the prosecutor. The second element required to rebut the presumption of proper use of peremptory challenges was also shown by the defendants here. The disproportionate exclusion by the prosecution of ninety-two per cent of the prospective black jurors, as contrasted with thirty-four per cent of the available whites, sufficiently indicated the likelihood that blacks were being challenged because they were black. Further, although common group membership of a defendant and those jurors excluded is not a prerequisite to assertion of the right herein defined, it is a factor to be considered by the judge when he assesses whether the presumption of propriety has been rebutted. Common group membership of the victim and the majority of remaining jurors is likewise a significant factor. See note 31, supra. In the case at bar, the defendants and the disproportionately excluded jurors were black; the victim and the seated jurors, with the exception of one, were white.
Presented with evidence as to these two elements, the trial judge must determine whether to draw the reasonable inference that peremptory challenges have been exercised so as to exclude individuals on account of their group affiliation. Although decisions of this nature are always difficult, we are convinced that trial judges, given their extensive experience with jury empanelment, their knowledge of local conditions, and their familiarity with attorneys on both sides, will address these questions with the requisite sensitivity.
We follow the suggestion of the Wheeler court with regard to the remedy which is appropriate in the event the judge finds that the use of peremptory challenges has been predicated on group affiliations: “If the court finds that the burden of justification is not sustained as to any of the questioned peremptory challenges, the presumption of their validity is rebutted. Accordingly, the court must then conclude that the jury as constituted fails to comply with the representative cross-section requirement, and it must dismiss the jurors thus far selected. So too it must quash any remaining venire, since the complaining party is entitled to a random draw from an entire venire—not one that has been partially or totally stripped of members of a cognizable group by the improper use of peremptory challenges. Upon such dismissal a different venire shall be drawn and the jury selection process may begin anew.” Id.36
In the case before us, the defendants made a prima facie showing of improper exercise of peremptory challenges on the basis of group membership, and shifted the burden to the prosecutor to justify his challenges as predicated not on group affiliation, but on individual characteristics specific to each group member excluded. The defendants timely requested a hearing for this purpose. The judge asked the prosecutor if he wished to respond to these allegations; the prosecutor replied that he did not. The judge then denied the defendants’ request. Applying the principles enunciated herein, we find that denial to have been error.
As we noted in Commonwealth v. Gilday, 367 Mass. 474, 499 n.3 (1975), “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” The right to be tried by an impartial jury of peers is one such right. See People v. Wheeler, supra at 283, and cases cited. The judge‘s failure to guarantee that right was prejudicial per se.
The judgments are reversed, the verdicts set aside and the cases remanded for a new trial,37 to be conducted in
So ordered.
BRAUCHER, J. (concurring in the result, with whom Quirico and Wilkins, JJ., join). At the trial in 1977, the defendants properly raised the point that the prosecutor was using his peremptory challenges to cause the Commonwealth to discriminate against prospective black jurors on the basis of race. Given an opportunity to respond, the prosecutor declined, and the judge overruled the objections without further inquiry. The result was that twelve of the thirteen prospective black jurors, otherwise qualified, were excused. On the basis of the record of extraordinary circumstances in this particular case, and notwithstanding our decision in Commonwealth v. Mitchell, 367 Mass. 419, 420 (1975), I concur in the court‘s conclusion that the pattern of the prosecutor‘s conduct must be held to have exceeded the broad, but not limitless, range of discretion permitted in the exercise of peremptory challenges and to have violated the basic requirements of fairness. The defendants are therefore entitled to the relief orderеd in the concluding paragraph of the court‘s opinion. Early in 1976 the then Chief Justice of the Superior Court declared a mistrial in similar cir-
I see no occasion, however, for the decision of any constitutional question, State or Federal, for critical review of decisions of the Supreme Court of the United States, or for approval or disapproval of the decision of a sharply divided court in People v. Wheeler, 22 Cal. 3d 258 (1978). In particular, I refrain from attributing speculative types of “group bias” to members of “discrete groups.” Moreover, this case presents no issue as to misuse of peremptory challenges by a criminal defendant, as to discrimination by reason of sex, or as to the quashing of a venire, and the court‘s discussion of such issues is not necessary to its decision. If we must ultimately consider such issues on a constitutional basis, it may be wise to defer to any guidance which may come from the United States Supreme Court on the basis of the United States Constitution. Holdings involving interpretation of the Massachusetts Constitution seem gratuitous and premature.