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Commonwealth v. Scanlan, 9 Mass.App.Ct. 173 (1980)
Appeals Court of Massachusetts, Hampshire.
Argued
Decided
William C. Newman,
Stephen R. Kaplan, Asst. Dist. Atty. (Bernard J. Whalen, Jr., Asst. Dist. Atty.,
with him), for the Commonwealth.
Before [9
Mass.App.Ct. 173] GOODMAN, ROSE and
KASS, JJ.
KASS, Justice.
From
conviction on thirteen counts of breaking and entering a building in the
nighttime with intent to commit a felony and nine counts of larceny in a
building, the defendant Scanlan appeals pursuant to G.L. c. 278, ss 33A‑33G. These offenses occurred over a period of
twenty‑six months, during which Scanlan served as a police officer in
[1] 1.
Jury selection. Scanlan moved before
trial to dismiss the indictments on the ground that the process by which the
grand jury and petit jury pools were selected intentionally and systematically
excluded a disproportionate number of women and persons between the ages of
eighteen and thirty‑nine. For purposes
of the hearing on that motion the parties filed a statement of agreed facts
incorporating the transcript of evidence, exhibits, briefs, and the decision in
Commonwealth v. Blutstein, a Superior Court case in Hampshire County (Docket
Number 10939) in which, about two years earlier, identical challenges to
selection of the jury had been made. In
that case the judge after extensive hearings ruled that "(t)he defendants
have failed [9 Mass.App.Ct. 175] to sustain the burden of proving that
in the selection of . . . jurors . .
. there was a systematic or a deliberate
or a
purposeful or a consistent discrimination against or exclusion of
women as a group, or of persons under the age of . . . 39 as a group. . . ."
As to the status of those findings we shall have more to say later in
our consideration of the contention that the jury pool contained
disproportionately few persons below the age of forty.
[2] (a)
Underrepresentation of women. The
contention that women were insufficiently represented in the grand jury and
traverse jury pools edges to the brink of frivolity. Fifteen of the twenty‑three members of
the jury which indicted Scanlan were women.
Of the jurors summoned to jury duty in
[3] [9 Mass.App.Ct. 176] (b) Underrepresentation of persons
under age forty. On appeal, the
defendant focuses not on whether the class he selected, those aged eighteen to
thirty‑nine, was in fact systematically underrepresented, but whether it
constitutes a cognizable group for purposes of a constitutional challenge to
the jury selection process. The trial
judge ruled that it was not a cognizable group, noting the arbitrary limits of
that age grouping and that within any age group there will be vast variation in
attitudes, viewpoints and experiences.
([FN1])
However,
we need not resolve the question whether the eighteen to thirty‑nine
class is a cognizable group since the judge, having reviewed the Blutstein
record and affidavits submitted by counsel in the instant case, found no
factual basis for the proposition that persons under the age of forty were in
fact underrepresented on either panel in Hampshire County. That finding is entitled to substantial
deference by an appellate court.
Commonwealth v. White, 374 Mass. ‑‑‑, ‑‑‑
([FNB]), 371 N.E.2d 777 (1977), aff'd 439 U.S. 280 (1978). Commonwealth v. Taylor, 374 Mass. ‑‑‑,
‑‑‑ ([FNC]), 374 N.E.2d 81 (1978). Having ourselves reviewed the Blutstein materials,
which are detailed and extensive, we have no difficulty in concluding that they
support the judge's finding.
[4][5][6][7]
Of at least equal significance were the judge's findings that the jury
selectors in Hampshire County "made conscientious efforts to acquire women
and young people for jury service;" that "(i)n almost all of the
towns, jury selection[9 Mass.App.Ct.
177]
was done at 'random' without 'distinction as to sex or age;' " and
that "jury selection procedures were fair, balanced and designed to
produce a representative jury and grand jury." Neither the Constitution of the United States
nor of Massachusetts, as we earlier observed in connection with the defendant's
claim of underrepresentation of women in the jury pool, requires that each jury
actually chosen represent a cross section of the population. United States v. Butera, 420 F.2d at 567‑568. The constitutional mandate is that the jury
selection procedures be fair and non‑discriminatory. Thiel v. Southern Pac. Co., 328 U.S. 217,
220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946).
Thus, even if a challenging party persuades a judge that a jury or jury pool
is statistically askew, that aberration must be the result of a selection
system rigged to exclude identifiable groups.
([FN2]) If the jury selection
system is reasonably designed to yield a fair cross section of the population,
the system is valid even if it is less than perfect. Swain v. Alabama, 380 U.S. 202, 209, 85 S.Ct.
824, 830, 13 L.Ed.2d 759 (1965). It is
the burden of the government to establish the fairness of the system, if the
jury pool is statistically distorted.
United States v. Butera, supra at 570.
The
defendant argues that the Blutstein transcript and exhibits were offered solely
to aid the judge in deciding the question of law, but this is not what appears
from the record. ([FN3]) When those materials were submitted by
defense counsel, the following colloquies took place:
MR. NEWMAN (defense counsel):
"To the extent that the Court might find it useful or instructive to
review [9 Mass.App.Ct. 178] any part of that record, the defense
certainly has no objection to the Court's reviewing that; but certainly, on the
other hand, we are not advising the Court to do so if the Court would feel
comfortable in adopting Judge Tisdale's (the judge in Blutstein )
findings."
THE COURT:
"Now, do you want to argue or just leave it to me to read all this information
and briefs and records and so forth; and decide the motion one way or the
other?"
MR.
NEWMAN: "That would be sufficient with the defense, your Honor."
Obviously the judge thought he was to
make a finding whether persons under forty had in fact been systematically
excluded from the jury pool, because he made precisely such a finding. The defense made no objection to that finding
of fact or motion to strike it from the judge's decision.
[8] 2. Motion to suppress physical
evidence. Before trial, the defendant
unsuccessfully sought to suppress a sledge hammer used to force entry in
several of the burglaries. The
defendant's attack is directed at the reliability of the informant cited in the
affidavit upon which the search warrant was issued. That affidavit, in turn, led to seizure of the
sledge hammer. The informant's
reliability, the defendant urges, was not adequately substantiated because: (a)
polygraph test results were improperly used to establish reliability; (b) the
affidavit did not set forth promises, rewards, and inducements made to the
informer in exchange for his information; and (c) there
were no other facts corroborating the informant's reliability. In addition, he argues that the affidavit
failed to establish probable cause because the information in the affidavit was
stale. There was no error.
[9][10][11] The two‑pronged test
developed by the United States Supreme Court for evaluating affidavits used as
a basis for search warrants requires that the affidavit set forth some of [9 Mass.App.Ct. 179] the underlying circumstances from
which the affiant concluded that the informant was reliable and some of the
underlying circumstances from which the informant concluded that the defendant
was engaged in criminal activity. See
Aguilar v. Texas, 378 U.S. 108, 112‑116, 84 S.Ct. 1509, 1512‑1515,
12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 415‑416,
419, 89 S.Ct. 584, 588‑589, 590, 21 L.Ed.2d 637 (1969); United States v.
Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Commonwealth v.
Stewart, 358 Mass. 747, 750, 267 N.E.2d 213 (1971); Commonwealth v. Fleurant, 2
Mass.App. 250, 252, 311 N.E.2d 86 (1974).
In applying this test to a particular affidavit, the affidavit is to be
interpreted in a common sense fashion and not subjected to hypertechnical
scrutiny. Stewart, supra 358 Mass. at
750, 267 N.E.2d 213. It must be examined
as a whole, Commonwealth v. Moran, 353 Mass. 166, 170, 228 N.E.2d 827 (1967),
to determine if probable cause existed to issue the warrant; not if there was
evidence of guilt beyond a reasonable doubt.
United States v. Harris, 403 U.S. at 584, 91 S.Ct. at 2082.
[12] An examination of the affidavit
reveals, apart from the results of the polygraph test, sufficient information
to uphold the magistrate's finding of informant reliability. It was not necessary for the affiant to
allege that the informant was believed to be reliable. Commonwealth v. Fleurant, 2 Mass.App. at 253,
311 N.E.2d 86, 89. "The specificity
of the information supplied, the affiant's occasion to question the informant,
and the fact that the informant was named and was not a paid informer" may
supply sufficient indicia of reliability.
Id. The informant here was a
former police officer, fully identified in the affidavit, who participated in
the crimes with which Scanlan was charged.
See Commonwealth v. Harvey, 6 Mass.App. ‑‑‑ ([FND]),
377 N.E.2d 427 (1978). In that regard he
is in a different category from the professional informant whose identity may
be unknown and whose ability to deal with the subject matter of crimes is more
questionable. Cf. United States v.
Melvin, 596 F.2d 492, 497 (1st Cir. 1979).
The informant, as set out in the
affidavit, gave detailed descriptions of several crimes which he and the defendant
had allegedly committed and the facts of which were independently corroborated
by the affiant through police reports and records. See Commonwealth v. Lotfy, ‑‑‑
Mass.App.[9 Mass.App.Ct. 180]
Ct. 126, 130‑132 ([FNE]),
391 N.E.2d 1249 (1979). Added to that
information in the affidavit was the fact that the informant and Scanlan at the
time all of the burglaries took place were partners on cruiser duty in the
vicinity of each of the crimes.
Thus, as the trial judge observed, the
reliability of the affidavit was established without reinforcement from the
polygraph examination of the affiant to which the defendant objects, and there
is no need to consider whether the polygraph tests were properly used. ([FN4])
As to the defendant's second objection to
the supporting affidavit, that it failed to mention inducements made to the
informant Roy for the information referred to in the affidavit, there is no
evidence in the record suggestive of a deliberate misrepresentation in the affidavit on this score. Commonwealth v. Reynolds, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FNF]), 370 N.E.2d 1375
(1977). Commonwealth v. Kinnitt, 2
Mass.App. 810, 308 N.E.2d 798 (1974).
See Franks v. Delaware, 438 U.S. 154, 171‑172, 98 S.Ct. 2674,
2685, 57 L.Ed.2d 667 (1978). As factors
of blameworthiness shade off from deliberate misrepresentation, so do the
grounds for suppression. Commonwealth v.
Reynolds, supra, ‑‑‑ Mass. at ‑‑‑ ([FNG]),
370 N.E.2d 1375. We do not agree that
the failure to set forth promises and rewards to Roy rendered the affidavit
misleading to the magistrate to whom it was presented. Evidence of such inducements would not per se
render the informant so unreliable as to torpedo the basis for a finding of
probable cause. There is no burden on
the applicant for a search warrant to furnish in the supporting affidavit
material which might later prove useful to the defense. United States v. Averell, 296 F.Supp. 1004,
1018 (E.D.N.Y.1969). United States v.
Lewis, 425 F.Supp. 1166, 1173 n.19 (D.Conn.1977).
Staleness of the supporting affidavit is
the basis for the third and last attack on the search warrant which led to the
sledge hammer. Ten months had gone by
between the date [9 Mass.App.Ct. 181] of the affidavit and the time when
Roy had last seen the sledge hammer at Speed City, a shop Scanlan operated when
off duty. As was the case in
Commonwealth v. Fleurant, 2 Mass.App. at 254‑255, 311 N.E.2d 86, ([FN5]) the affidavit and warrant referred to
another item (a stolen scanner radio) which Roy had seen within three months of
his affidavit. ([FN6]) Moreover, the informant here provided
abundant details of the modus operandi employed in a series of crimes over a
period of two years. Factors such as the
nature of the criminal activity under investigation and the nature of the
evidence sought have a bearing on what constitutes excessive remoteness. United States v. Dauphinee, 538 F.2d 1, 5
(1st Cir. 1976). As the trial judge
noted, the sledge hammer and the other tools had been used in a continuing
pattern of criminal conduct. See
Commonwealth v. Vynorius, 369 Mass. 17, 25, 336 N.E.2d 898 (1975). They were also the sort of items which
"would likely remain in the possession of the suspect in connection with
his business or personal affairs."
1 LaFave, Search and Seizure s 3.7 at 688 (1978).
[13] 3. Police chief's testimony. Through the testimony of Daniel Labato,
acting chief of police for the Northampton police department, the Commonwealth
introduced police department rosters, which Labato testified were kept in the regular
and ordinary course of business, with entries made at or about the date of the
event, which were true and accurate as far as he knew, and which were made and
kept in good faith. G.L. c. 233, s 78. These records showed a remarkable correlation
between the nights Scanlan and Roy worked as cruiser partners and the nights
when breaks occurred on their beat.
[9
Mass.App.Ct. 182] Labato further
testified that he had examined all daily work sheets of the police department
over the two year period of time during which the majority of breaks occurred,
and had found that Scanlan and Roy did not work together during the last part
of 1974, except for one night. On that
night a break occurred. During 1975,
seven of the breaks for which Scanlan was indicted took place on nights when he
and Roy were on duty together, and on only two nights that they worked together
did breaks not take place. In 1976, they
worked together when eight breaks covered by the indictment occurred, and again
on
only two nights that they
worked together did breaks not take place.
[14] As we understand the defendant's
objection, it is not to the admission of the roster entries which showed when
he and Roy had worked together; it is only to allowing Chief Labato to testify
as to when Scanlan and Roy had not worked together on the basis of his
examination of all the duty records from October 20, 1974, to the end of
December, 1976. Labato did not bring
those records with him, and the defendant protests that in the absence of the
records as a basis for cross‑examination by the defense, Labato's
testimony was not admissible.
([FN7]) The applicable rule of
evidence is to the contrary. A witness may
testify that he has examined records and not found a particular entry or
entries. "In these circumstances
the proof of the fact that an entry does not exist does not require the
production of the records themselves or the laying of a foundation for the
introduction of secondary evidence."
Commonwealth v. Torrealba, 316 Mass. 24, 30, 54 N.E.2d 939, 943
(1944). See also Cohen v. Boston Edison
Co., 322 Mass. 239, 241, 76 N.E.2d 766 (1948); Johnson v. Wilmington Sales,
Inc., 5 Mass.App. 858, 364 N.E.2d 1291 (1977).
Leach and Liacos, Massachusetts Evidence 313‑314 (4th ed.1967).
[15] 4. Jury misconduct. Approximately one week after the trial, the
defense moved for a voir dire examination of the jurors and for a new trial on
the basis of information furnished[9
Mass.App.Ct. 183] by Linda Rozolsky, an alternate juror, that
during the presentation of evidence and prior to the court's charge certain
members of the jury had discussed the case among themselves despite repeated
instructions by the court not to talk about the case with one another. A supporting affidavit from defense counsel
alleged that one juror expressed his conclusion to two others that Scanlan was
guilty. On a separate occasion one juror
(not involved in the first conversation) said to another, "Why doesn't he
just get up and plead guilty and save us all the time and money?" On a third occasion, a juror told Rozolsky
that she was leaning towards a guilty verdict.
Rozolsky declined to make an affidavit.
It is the defendant's position that, if
proved, these conversations among jurors deprived him of his right to a fair
and impartial trial and required that the verdicts be set aside. See Commonwealth v. Theberge, 330 Mass. 520,
530, 115 N.E.2d 719 (1953). See also
Commonwealth v. Haywood, ‑‑‑ Mass. ‑‑‑, ‑‑‑
([FNH]), 388 N.E.2d 648 (1979).
Therefore, the court's refusal to interrogate the jurors, the defense
insists, was error. The defendant has
been industrious in making available to us authority concerning the
psychological dynamics of groups for the purpose of demonstrating how damaging
to the defendant expressions of opinion could be within a jury.
[16] After Commonwealth v. Fidler, ‑‑‑
Mass. ‑‑‑ ([FNI]), 385 N.E.2d 513 (1979) however, there is
less to the defendant's jury misconduct argument than meets the eye. It is the presence of extraneous influences
that may impeach a jury verdict, not matters relating to the jury's internal
decision making. Id. at ‑‑‑
([FNJ]), 385 N.E.2d 513.
[17][18][19] This is not a case in which
external factors such as pretrial publicity, Commonwealth v. Mascolo, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑ ([FNK]), 375 N.E.2d 17,
cert. denied, 439 U.S. 899, 99 S.Ct. 265, 58 L.Ed.2d 247 (1978); unauthorized
views by the jury, Harrington v. Worcester, Leicester, & Spencer St. Ry.,
157 Mass. 579, 581‑583, 32 N.E. 955 (1893); facts communicated by a third
party, People v. Hutchinson, 71 Cal.2d 342, 349‑351, 78 Cal.Rptr. 196,
455 P.2d 132, cert. denied, 396 U.S. 994, 90 S.Ct. 491, 24 L.Ed.2d 457 (1969);
or discussions between jurors and non‑jurors, Commonwealth v. Theberge,
330 Mass. at 528‑530, 115 N.E.2d 719; United [9 Mass.App.Ct. 184]
States v. Pierce, 593 F.2d 415 (1st Cir. 1979) might have affected the jury's
ability to deliberate with impartiality.
See United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied,
419 U.S. 835, 95 S.Ct. 62, 42 L.Ed.2d 61 (1974). In such a case the trial judge might be
required to hold a hearing. Commonwealth
v. Fidler, supra, ‑‑‑ Mass. at ‑‑‑ ‑ ‑‑‑
([FNL]), 385 N.E.2d 513. United States
v. Rhodes, 556 F.2d 599, 601‑602 (1st Cir. 1977). United States v. Chiantese, 582 F.2d 974, 979
(5th Cir. 1978), cert. denied sub nom. Cerrella v. United States, 441 U.S. 922,
99 S.Ct. 2030, 60 L.Ed.2d 395 (1979).
United States v. Pierce, 593 F.2d at 419. ([FN8])
While the internal discussion among jurors in the face of daily
instructions from the judge to the contrary was undesirable, Commonwealth v.
White, 147 Mass. 76, 80, 16 N.E. 707 (1888), we would embark on a slippery
slope indeed if we began to monitor and evaluate the internal procedures of the
jury. For this reason, testimony of a
juror concerning jury deliberations may not be received by a trial judge. Commonwealth v. Meserve, 156 Mass. 61, 62, 30
N.E. 166 (1892). See Carzis v. Hassey, 6
Mass.App. ‑‑‑, ‑‑‑ ([FNM]), 371 N.E.2d 1375
(1978). The jury sat sequestered for
sixteen days; it is not realistic that the jurors would succeed in keeping
their lips sealed in the face of the alternating drama and tedium of the
trial. In the interior workings of a
jury there is room for impropriety that is short of unlawfulness. See Commonwealth v. White, supra, 147 Mass.
at 80, 16 N.E. 707; United States v. Chiantese, 582 F.2d at 979‑980;
State v. Mimmovich, 284 A.2d 282, 287 (Me.1971). In the instant case, although the defendant
urges it is mere speculation, it is fair to comment that the defendant was
acquitted on eight of the twenty‑one indictments against him and that,
apparently, although the mouths of some of the jurors may have been too open,
their minds were not shut.
Order denying motion for a new trial
affirmed.
Judgment affirmed.
(FNA.) Mass.Adv.Sh. (1979) 593, 619.
(FN1.) For references to a class of persons
under age twenty‑five, see Commonwealth v. Lussier, 364 Mass. 414, 423‑424,
305 N.E.2d 499 (1973); Commonwealth v. Peters, 372 Mass. 319, 321‑322,
361 N.E.2d 1277 (1977). For the view
that a larger age classification (age twenty‑one to age thirty‑four)
constitutes "a cognizable though admittedly ill‑defined group for
purposes of defendant's prima facie case" see United States v. Butera, 420
F.2d at 570. For a discussion of what
constitutes a cognizable group, see United States v. Guzman, 337 F.Supp. 140,
143‑144 (S.D.N.Y.), aff'd 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410
U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973).
For a useful analysis of jury selection decisions in the Federal courts
see the appendix to Foster v. Sparks, 506 F.2d 805, 813‑837 (5th Cir.
1975), especially the review of challenges based on discrimination against a
particular age grouping at 823‑824.
(FNB.) Mass.Adv.Sh. (1977) 2805, 2811.
(FNC.) Mass.Adv.Sh. (1978) 394, 400.
(FN2.) For example, limiting the list to
personal acquaintances of the jury commissioners, resulting in exclusion of
blacks, Smith v. Texas, 311 U.S. 128, 131‑132, 61 S.Ct. 164, 165‑166,
85 L.Ed. 84 (1940); women chosen only from a list of members of the League of
Women Voters, Glasser v. United States, 315 U.S. 60, 83‑86, 62 S.Ct. 457,
470‑472, 86 L.Ed. 680 (1942); exclusion of day laborers, Thiel v.
Southern Pac. Co., 328 U.S. 217, 221‑222, 224‑225, 66 S.Ct. 984,
986‑987, 987‑988, 90 L.Ed. 1181 (1946).
(FN3.) Were we to accept the defendant's
limitations, we would be faced with an abstract question on which we would
hesitate to make a determination.
(FND.) Mass.App.Ct.Adv.Sh. (1978) 655.
(FNE.) Mass.App.Ct.Adv.Sh. (1979) 1517, 1521‑1523.
(FN4.) In Baker v. Lawrence, ‑‑‑
Mass. ‑‑‑ ‑ ‑‑‑ (1979)
(Mass.Adv.Sh. (1979) 2599, 2604‑2605),
the Supreme Judicial Court recently determined that the standards set forth in
Commonwealth v. A Juvenile, 365 Mass. 421, 313 N.E.2d 120 (1974), and its
progeny for the admission of polygraph test results in the trial of criminal
cases do not apply to certain investigatory procedures.
(FNF.) Mass.Adv.Sh. (1977) 2817, 2822.
(FNG.) Mass.Adv.Sh. (1977) at 2821.
(FN5.) In which observations made by an
affiant thirteen months before were found sufficiently fresh.
(FN6.) For examples of the signal failure with
which the claim of staleness of supporting affidavits has met, see:
Commonwealth v. Ellis, 356 Mass. 574, 577‑578, 254 N.E.2d 408 (1970);
Commonwealth v. Guerro, 357 Mass. 741, 755, 260 N.E.2d 190 (1970); Commonwealth
v. Misci, 358 Mass. 804, 263 N.E.2d 445 (1970); Commonwealth v. Fleurant, 2
Mass.App. 254‑255, 311 N.E.2d 86; Commonwealth v. Blye, 5 Mass.App. 817,
362 N.E.2d 240 (1977); United States v. Mustone, 469 F.2d 970, 973 (1st Cir.
1972).
(FN7.) The defendant did not during or before
Labato's testimony make demand for the daily sheets.
(FNH.) Mass.Adv.Sh. (1979) 965, 981.
(FNI.) Mass.Adv.Sh. (1979) 240.
(FNJ.) Id. at 248.
(FNK.) Mass.App.Ct.Adv.Sh. (1978) 435, 451.
(FNL.) Mass.Adv.Sh. (1979) at 249‑250.
(FN8.) For a general discussion on the subject
of impeachment of jury verdicts, see Coyne, The Penelope Syndrome:
Irrationality in Impeachment of Jury Verdicts, 23 Boston Bar J. No. 11, 9
(Dec.1979).
(FNM.)
Mass.App.Ct.Adv.Sh. (1978) 26, 30.