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Commonwealth v. Somers, 44 Mass.App.Ct.
920 (1998)
Appeals Court of Massachusetts.
No. 96‑P‑1003.
Patricia A. O'Neill,
Brian A. Wilson, Assistant District Attorney, for
the Commonwealth.
RESCRIPT.
[44 Mass.App.Ct.
920] This matter is before us on the
defendant's appeal from his convictions of carrying a firearm in a motor
vehicle without having a license to do so, fourth offense, G.L.
c. 269, § 10(a ), (d ), unlawful possession of ammunition, G.L. c. 269, § 10(h
), operating a motor vehicle so as to endanger, G.L.
c. 90, § 24(2), and operating a motor vehicle after his license had been
revoked, G.L. c. 90, § 23. (FN1)
On appeal, the defendant contends that the trial judge committed
reversible error by denying his challenge for cause of a juror who expressed
concerns about his own impartiality, denying his motion to suppress the gun
seized from his motor vehicle, and allowing in evidence the Miranda rights form
in which the defendant asserted his right to remain silent. The defendant further alleges that the
Commonwealth committed reversible error by arguing facts, relating to the
discovery of the gun, that had been excluded from evidence during trial. We reverse.
1. Facts.
The facts, as testified to at trial, are as follows. On
A second
officer, Trooper Garvin, arrived at the scene and, after learning from Hayes
that the defendant had been driving negligently and smelled of alcohol, approached the defendant's car with a
flashlight in search of signs of alcohol use.
Peering in the passenger‑side window, Garvin saw an unopened beer
bottle on the transmission hump between the front seats. He opened the door, and, as he reached in for
the bottle and any further signs of alcohol use, he saw a gun on the floor in
front of the front seat. Hayes had
meanwhile run a check on the defendant's social security number which revealed
that the defendant had provided false information about his identity.
After the
gun was found, the defendant informed the officers that his name was really
"William Somers." The
defendant conceded that he was aware of the gun in his car and volunteered an
envelope containing bullets. When Hayes
ran a check on the name "William Somers" and the license number given
by the defendant, he discovered that the defendant's license had been revoked
on March 22, 1994. At this point, the
defendant was arrested for possession of a dangerous weapon, possession of
ammunition, driving to endanger, and driving after revocation. He was not arrested for operating while under
the influence.
Such other
facts as are relevant to the defendant's claims have been integrated into our
analysis.
2. Jury empanelment. The defendant contends that the trial
judge's failure to allow his challenge for cause of juror 4‑8 requires
reversal because it prejudicially diminished his peremptory challenges. We agree.
During the
empanelment of the jury, juror 4‑8 came forward expressing concerns about
his ability to be impartial. The juror
explained that his fiancée is an assistant district attorney in a neighboring
county and that every night he hears stories from her about what goes on in
court. He also admitted that he has
"really strong opinions about gun control" in part because many years
ago a high school friend of his was shot only thirty feet away from him. The juror stated that if he were the
defendant, "I would not want me on a jury." When asked if he could hear the evidence in
the case and make his decision based solely on the evidence before him, the
juror responded, "I don't know."
Because of
the juror's uncertainty about his own ability to be impartial, defense counsel
moved to strike this juror for cause.
The trial judge, however, disbelieved the juror's statements and
suspected instead that the juror just did not want to serve. Consequently, the judge denied the
defendant's request. The defendant then exercised
his sixth and final peremptory challenge to remove this juror from the panel,
and sought an additional challenge in order to remove from the panel one other
juror (5‑6), who had expressed child care concerns. The trial judge denied the defendant's
request for another challenge, and juror 5‑6 was empaneled
and ultimately deliberated on the defendant's case.
[1][2]
"Article 12 of the Massachusetts Declaration of Rights and the Sixth
Amendment to the United States Constitution, applied to the States through the
due process clause of the Fourteenth Amendment, guarantee ... the right [of a
criminal defendant] to a trial by an impartial jury.... The failure to [44 Mass.App.Ct. 922] grant a defendant a fair hearing before an impartial jury
violates even minimal standards of due process. Irvin v. Dowd, 366 U.S.
717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751
(1961)." Commonwealth v. Susi,
394 Mass. 784, 786, 477 N.E.2d 995 (1985).
Nonetheless, a trial judge is afforded a large degree of discretion in
making the initial determination whether a juror is impartial. See
Commonwealth v. Ascolillo, 405 Mass. 456, 460,
541 N.E.2d 570 (1989). In exercising
discretion to determine possible juror bias, however, the judge must zealously
protect the rights of the accused. Commonwealth v. Vann Long, 419 Mass. 798,
803, 647 N.E.2d 1162 (1995).
[3] Juror
4‑8 could not unequivocally state that he would be impartial. Although we give substantial weight to
credibility determinations made by the trial judge, it was nonetheless an abuse
of discretion in these circumstances for the judge to have discounted
completely the impact of the juror's intimate relationship with an assistant
district attorney, as well as his own stated concerns of bias. See
Commonwealth v. Auguste, 414 Mass. 51, 57, 605
N.E.2d 819 (1992). See also Commonwealth v. Vann Long, 419 Mass. at
804 n. 7, 647 N.E.2d 1162. It was error
for the judge to refuse to excuse juror 4‑8 for cause. See
Commonwealth v. Susi, 394 Mass. at 789, 477
N.E.2d 995. As a result of the judge's
error, the defendant expended his final peremptory challenge and was then
forced to accept a juror whom he otherwise would have challenged peremptorily.
[4][5] It
is immaterial that juror 4‑8 did not deliberate on the defendant's
case. Only if the defendant had not
exhausted all of his peremptory challenges would he have had to show that he
was prejudiced by the judge's failure to excuse juror 4‑8 for cause. See
Commonwealth v. Amazeen, 375 Mass. 73, 83‑84,
375 N.E.2d 693 (1978); Commonwealth v. Ascolillo,
405 Mass. at 459, 541 N.E.2d 570. Here,
however, the defendant exhausted his peremptory challenges and has adequately
shown that he would have exercised a proper peremptory challenge, had another
been available, to exclude one of the sitting jurors. "[T]he erroneous denial of the right to
exercise a proper peremptory challenge is reversible error without a showing of
prejudice." Commonwealth v. Auguste,
414 Mass. at 58, 605 N.E.2d 819, quoting from Commonwealth v. Wood, 389 Mass. 552, 564, 451 N.E.2d 714
(1983). We therefore reverse the
defendant's convictions. In the event of
retrial, we address certain of the remaining claims of error.
3. Motion to suppress. Before trial, the defendant filed a motion
to suppress evidence which was denied as to the gun and statements made after
arrest but was allowed as to the bullets and statements made before his
arrest. The motion judge ruled that the
gun was admissible because it would inevitably have been discovered during a
lawful inventory search of the defendant's vehicle. The defendant contends that this ruling was
erroneous and violated his rights under the Fourth Amendment to the United
States Constitution. There was no error.
[6][7] A
police officer has the right to stop an automobile in order to make a threshold
inquiry where suspicious conduct gives the officer reason to suspect that a
person has committed, is committing, or is about to commit a crime.
Commonwealth v. Riggins, 366 Mass. 81, 86, 315 N.E.2d 525
(1974). The officers need only have had
specific and articulable facts, which taken together
with rational inferences from those facts, reasonably warrant the stopping of
the defendant's motor vehicle. Ibid. Here, given the defendant's erratic
driving, Sergeant Hayes was warranted in stopping the defendant's vehicle and
conducting the threshold inquiry during which he discerned an odor of alcohol
on the defendant's breath and discovered that the defendant was driving without
a [44 Mass.App.Ct.
923] license. This in turn warranted the police in ordering
that the defendant's car be towed.
[8] Where
the Commonwealth can establish, by a preponderance of the evidence, that the
information ultimately or inevitably would have been discovered by lawful
means, the evidence will be admissible at trial. Commonwealth v. O'Connor,
406 Mass. 112, 116‑117, 546 N.E.2d 336 (1989). The State police inventory policy states that
"[a]ny vehicles ordered towed or in the custody
of the State Police are to be inventoried and properly recorded." Department of State Police General Order TRF‑10
(1992). This policy states that
"[t]he interior is inventoried according to the major areas. Starting with the left front (operator) to
right front (passenger) and the left rear to right rear." Id.
at § 4.2.1. Given this policy, we
conclude that it is certain, as a practical matter, that the gun on the floor
of the defendant's vehicle would have been discovered. See
O'Connor, supra at 117 n. 4, 546 N.E.2d 336 (the test of inevitability
should be made on the circumstances existing at the time of the seizure).
4. Miranda rights form. The defendant also argues that the admission
in evidence, over objection, of his signed Miranda rights form violated his
rights guaranteed by art. 12 of the Massachusetts Declaration of Rights and by
the Fifth Amendment to the United States Constitution. The defendant claims that the Miranda rights
form, which indicated that he wished to assert his right to remain silent, may
have suggested to the jury that guilt could be inferred from his failure to
offer an explanation for the presence of
the gun in the vehicle he was driving.
There is merit to this contention.
[9] A
defendant's silence after the police have given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467‑479,
86 S.Ct. 1602, 1624‑1630, 16 L.Ed.2d 694
(1966), may not be used against that defendant. Commonwealth v. Waite, 422
Mass. 792, 797, 665 N.E.2d 982 (1996), citing Doyle v. Ohio, 426 U.S. 610, 617, 619, 96 S.Ct.
2240, 2244, 49 L.Ed.2d 91 (1976). The
crux of a Doyle violation is the
government's use of the defendant's silence against him. Id. at 798, 665 N.E.2d
982. Nonetheless, in a few situations
evidence of silence is properly admitted because it is not "used
against" the accused. Ibid.
[10]
During a voir dire at trial, the judge found that the
defendant had been given Miranda warnings, that he understood them, and that he
did not waive them. At trial, however,
during the direct examination of its first witness, the Commonwealth offered,
and the judge admitted in evidence, the signed Miranda rights form. The Commonwealth argues here that it did not
offer this evidence to promote an inference of guilt or to impeach the
defendant's story but, rather, offered it in order to show that the defendant
was properly booked and warned.
[11] In
view of the fact that the Commonwealth had already elicited testimony from this
witness to show that the defendant had been advised of his rights, that there
had been no suggestion that the officers had failed to read the defendant his
Miranda rights or that the defendant's statements were in any way involuntary,
and that the defendant in no way opened the door to the discussion of his
having invoked the right to remain silent, the Commonwealth's argument
fails. Contrast Commonwealth v. Waite, 422 Mass. at 799, 665 N.E.2d 982. Where evidence of the defendant's claim of
his Fifth Amendment rights is presented to the jury in order to prejudice the
defendant for exercising these rights, reversible error will be found. Contrast
Commonwealth v. Habarek, 402 Mass. 105, 110, 520
N.E.2d 1303 (1988) (it was not error to admit evidence so as not to leave the
jury wondering why the interview ended so abruptly). If this evidence [44 Mass.App.Ct. 924] was offered to show that the defendant was properly booked and
warned, it was cumulative and not relevant to any issue raised at trial. Its admission in evidence was error.
5. Prosecutorial misconduct. The defendant contends that the prosecutor
committed reversible error when he argued facts relating to the discovery of
the gun that had been excluded from evidence during trial. Trusting that closing argument at any retrial
will not refer to excluded evidence, we do not reach this issue.
Judgments reversed.
Verdicts set aside.
Order denying motion to suppress affirmed.
(FN1.) The last‑named conviction was
placed on file with the defendant's consent and is not before us. See
Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716 (1975).