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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Wood, 389
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Robert I. Warner,
Patricia A. McEvoy, Legal Asst. to the Dist. Atty.,
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS
and NOLAN, JJ.
LIACOS, Justice.
On January 13, 1981, a grand jury returned four
indictments, containing twelve counts, for possession [389 Mass. 553]
of controlled substances of classes B, C, D, and E, with intent to distribute
in violation of G.L. c. 94C, against the defendant, William D. Wood, Jr. A fifth indictment charged illegal possession
of hypodermic needles and syringes, adapted for the administration of
controlled substances by injection.
After a four day trial in the Superior Court in
Prior to trial, the defendant filed a motion to suppress
evidence, alleging that the evidence was illegally seized under a warrant
lacking probable cause and by a search which exceeded the scope of the warrant. A judge of the District Court, sitting in the
Superior Court by designation, denied the motion after a hearing. (FN2)
After the trial, the defendant filed an appeal in the
[389
We turn first to the suppression issue. On
The property taken by Wood consisted of two sets of
stereo speakers, a stereo, and an "eight-track" stereo. Apparently, unknown to Wood, at least at this
point in time, one of the speakers contained nine packages of cigarettes and a
prescription bottle containing Dilantin capsules, each with one-half gram of
phenobarbital. DesRoche suffers from
epilepsy and uses the medication to control his seizures. After DesRoche returned to the apartment, he
learned of Wood's actions and called the
[389
The warrant was based on an affidavit by Inspector
Guilfoyle. It authorized a search of the
defendant's entire apartment, as well as of four storage bins in the
attic. The search warrant described,
with particularity, the stereo speakers, the stereos, the cigarettes, and the
prescription drug issued to DesRoche as the objects to be searched for and
seized.
Shortly after
The stereo equipment and speakers described in the warrant
were found by police immediately upon their entering the apartment in the
location pointed out by the defendant, but the cigarettes and DesRoche's
medication were not. While the three
uniformed officers stood by, the four plain-clothes officers then engaged in an
extensive search of the entire apartment for the cigarettes and DesRoche's
medication. During the forty-five minute
search, the police seized objects not described in the warrant which constitute
the basis of the indictments against the defendant charging violation of G.L.
c. 94C. (FN4)
[2] The motion judge found that there was sufficient
cause to issue the search warrant, and this finding is not challenged [389
The testimony surrounding the execution of the search
warrant at Wood's apartment is
conflicting. DesRoche testified for the
defendant. He claimed that he emphasized
to the police, on several occasions, that his medication could be found in one
of the stereo speakers and that he had told the defendant the location of his
medication prior to the execution of the search warrant. The defendant testified that he knew where
the cigarettes and Dilantin were, that he went over to the speaker, removed the
cigarettes and medication, and handed them to the police prior to the search of
the rest of his apartment. (FN6)
[389
The testimony is in agreement that the components of
stereo equipment were the only items listed in the warrant which were visible
to the officers prior to the search of the rest of the premises. The witnesses also agree that the defendant
pointed to apile of stereo equipment and indicated that all property taken from
DesRoche was there. The police testimony
was that the search of the rest of the apartment was for the other items listed
in the warrant, namely the cigarettes and DesRoche's medication
(Dilantin). The police maintained that
as they searched the rest of the apartment for these items, the items seized by
the police were found in plain view.
The motion judge found that "the police did not know
that the cigarettes and delantin [sic ] were located inside the stereo
at the time they executed the search warrant." He concluded that the thorough search of the
rest of the premises described in the warrant was necessary and proper. Since the scope of the search of the entire
premises was permissible, the motion judge then found that the confiscated
drugs, drug paraphernalia, and other seized evidence (FN7) were in plain view
and "obviously contraband."
[3] The evidence before the motion judge consisted
primarily of oral testimony. "The
determination of the weight and credibility of the testimony is the function
and responsibility of the judge who saw and heard the witnesses, and not of
this court." Commonwealth v.
Moon, supra 380
[4] It is true that, if the items described in the warrant
had been found prior to the search, the authority to search ended when the
purposes of the warrant had been carried out.
See
[5] The defendant contends that his assertions as to the
location in one pile of all the property taken from the Lund and DesRoche
apartment, evidenced by his words, "there it is," limited the
intrusion by the search warrant into his private home. Officers executing a valid search warrant are
not required to accept the word of the person whose property is being searched
as to the location of the objects of the search.
We next consider the defendant's contention that his
right to a fair and impartial jury trial was violated by the trial [389
Mass. 559] judge's disallowance of several of the defendant's peremptory
challenges.
[6] The defendant does not specify the basis of his claim
of right to an unfettered exercise of peremptory challenges. He claims, however, that the erroneous denial
by the trial judge of three of his peremptory challenges is reversible error
even without a showing of prejudice. We
must determine, then, whether the rulings of the trial judge were erroneous,
and, if so, whether, absent a showing of prejudice, the defendant is entitled
to a new trial. We start our analysis by
recognizing the principle that there is no Federal constitutional right to
peremptory challenges. Stilson v.
The right to use peremptory challenges is found in the
common law, statutes, or rules of court.
Pointer v. United States, 151 U.S. 396, 407-411, 14 S.Ct. 410,
414-416, 38 L.Ed. 208 (1894). In
Massachusetts, the right to peremptory challenges, in effect at the time of the
criminal trial involved in Commonwealth v. Soares, supra, was set forth
in G.L. c. 234, § 29, prior to its amendment by St.1979, c. 344, § 10
(effective July 1, 1979). The right to
peremptory challenges, effective at the time of the trial of the case at bar,
is found in Mass.R.Crim.P. 20(c), 378
[7] We begin with the presumption of the proper use of
the peremptory challenges by defense counsel.
Once the trial judge determined the presumption to be rebutted by his
own observation, (FN9) or based on the objections of the prosecutor,[389
The defendant argues that his use of peremptory
challenges did not involve a defined or discrete group. The defendant claims further that the trial
judge viewed the challenges of the defendant to be based on age, and
erroneously applied to this category the guidelines established by this court
in Commonwealth v. Soares, supra.
The Commonwealth argues, however, that the sex of the prospective juror
was the basis of the judge's disallowance of the peremptory challenges
exercised by the defendant, and that the disallowances were proper under the
Soares rule. Our review of the
transcript reveals that the defendant's contentions are correct.
During the course of jury empanelment, after the judge
had excused for cause some of the prospective jurors from the venire, the
prosecutor challenged four of the prospective jurors. The trial judge questioned two of these
challenges sua sponte. The basis of the
inquiry by the judge was an apparent exclusion of young males approximately the
same age as the defendant. The
prosecutor offered as justification for his challenges the fact that both
challenged jurors were pursuing careers in the medical field. Because this case involved the chemical
analysis of drugs, the prosecutor feared that these veniremen would have a
tendency to question more critically the Commonwealth's evidence. The trial judge accepted this reasoning and
allowed the challenges to stand, but warned, "I will look at people in
that category." The challenged
jurors were replaced, and the prosecutor challenged one more juror without any
inquiry by the trial judge.
[389 Mass. 562] Defense counsel then
exercised the defendant's right to challenge six prospective jurors. The prosecutor objected to all of the
defendant's challenges on the ground that "[e]ach of the people that he's
challenged are of a much older age group, and four out of the six are older
females. I'd raise a motion under
Commonwealth versus Soares, the defendant is challenging people on the basis of
a particular age group, and the Commonwealth is entitled to a jury of all
types."
In discussing the prosecutor's objection to the
defendant's challenges, the trial judge indicated that he was concerned only
with the three of the defendant's challenges involving elderly
women. "The remaining panel, we
have a woman around seventy years of age.
The remaining panel, they represent the only woman [sic ] on the
panel that age, and the remaining--I mean in the box of that age--and the age
of the remaining panel seems to me to be devoid of that, as I look through the
list.... They represent the only people
in the box of that age and sex. There
are no people in the remaining panel of that age and sex. There's no one. So, you'll have to give me some
reasons." Defense counsel pointed
out that there were two older female jurors on the panel whom he had not
challenged. The judge disagreed by
noting that only one of the two unchallenged jurors referred to by defense
counsel was in the age bracket in question.
(FN10) Again, the judge asked for
justification of the challenges, "[y]ou challenged three of the four women
in that age bracket, so I'm going to ask you to give me reasons." Stating that his challenges were not based
on age, defense [389 Mass. 563] counsel offered his reason for
one of the three peremptory challenges about which the trial judge
inquired. He did not offer any
justification for the remaining two challenges except to repeat that the
challenges were not based on age. The
judge accepted the reasoning offered for the one challenge and disallowed the
remaining two challenges, stating, "I'm telling you that because I see a
definable category .... All I know is
that of the four women in that group--and there are no [sic ] remaining
on the panel--you've isolated, of your six challenges, half of them have gone
to that category, leaving one woman on the panel, in the box, and none on the
panel."
The jury empanelment continued, and defense counsel
peremptorily challenged another prospective juror. The judge stated sua sponte, "A woman
sixty-seven years of age. I'll need a
reason." Counsel responded that
there were several elderly women on the jury and that there were no young males
on the jury. The trial judge was
unsatisfied and stated, "That's not the test. The test is, you have challenged ... every
women [sic ], sixty-five or above, with one exception ...." He disallowed the challenge. (FN11)
Three of the defendant's peremptory challenges involving
elderly women were disallowed. The final
petit jury were twelve women and two men (including two alternates). These figures clearly do not show a
systematic exclusion of women from the venire.
It appears that the trial judge focused[389
[8] The question has already been answered. (FN12)
Age is not a group described in art. 1, on which we relied in Soares,
supra 377 Mass. at 488-489, 387 N.E.2d 499, as being "definitive"
of the groups which were within the Soares rule. (FN13)
Classifications based on age are not a discrete or defined group so as
to render peremptory challenges of the defense counsel improper under the
Soares holding.
We pointed out in Commonwealth v. Soares, supra at
492, 387 N.E.2d 499, that the right to be tried by an impartial jury is so
basic to a fair trial that an infraction can never be treated as harmless
error. Thus, despite the commendable
efforts and sensitivity of the trial judge, the erroneous denial of the right
to exercise a proper peremptory challenge is reversible error without a showing
of prejudice.
The judgments are reversed, and the verdicts are set
aside. We remand these cases for a new
trial to be conducted in accordance with this opinion.
So ordered.
(FN1.) Originally, the defendant
had been charged with possession of cocaine with intent to distribute. On a motion for a required finding of not
guilty, this count was reduced to possession of cocaine in violation of G.L. c.
94C.
(FN2.) The judge who ruled on the motion to
suppress was not the trial judge.
(FN3.) The defendant does not argue before us
the question of the adequacy of probable cause to issue the search warrant,
and, hence, that issue is waived.
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
(FN4.) Although the search warrant was issued
in the course of a larceny investigation, the defendant was never charged with
larceny.
(FN5.) See note 3 supra.
(FN6.) Wood's affidavit in support of the
motion to suppress, however, stated that he did not know about the cigarettes
and medication, and that he did not know their location. Nevertheless, the affidavit asserts that Wood
found these objects and handed them to the police before any further search was
undertaken.
(FN7.) Other evidence included handwritten
notes possibly recording drug transactions.
(FN8.) The judge gave both the prosecution and
the defense six peremptory challenges.
(FN9.) The defendant has not questioned the
discretion of the trial judge, under Commonwealth v. Soares, 377 Mass.
461, 387 N.E.2d 499 (1979), to inquire on his own initiative into the basis of
a peremptory challenge.
(FN10.) Because the age bracket was never
defined, there is some confusion between defense counsel and the trial judge
surrounding these challenges. Defense
counsel originally felt that the prospective jurors in seats numbered 2, 8, 10,
and 6 were elderly women. The judge
disagreed with such a characterization of these jurors, apparently because of
confusion over exactly whom defense counsel had challenged. The age of the jurors in seats numbered 10
and 6 is never established in the record.
The judge stated that the juror in seat number 8 was sixty-seven years
old. While the precise age of the juror
in seat number 2 is never established, it may be inferred from the record that
she was under sixty-five years of age.
Although
the age bracket is never defined by anyone, it can be inferred to be sixty-five
or older.
(FN11.) It should be noted that
the venire in this case was drawn from a jury pool under G.L. c. 234A, which
greatly reduces disqualifications from jury service, compare G.L. c. 234A, § 4,
with G.L. c. 234, § 1, and which requires selection for jury service at random
without exemption or exclusion because of "race, color, religion, sex,
national origin, economic status, or occupation." G.L. c. 234A, § 3, inserted by St.1982, c.
298, § 1. While the number of veniremen
is not shown, the prospective jurors called and examined were ten males and
eighteen females. Challenged for cause,
or excused, were one male and two females.
The prosecutor peremptorily challenged five males and one female. The defendant peremptorily challenged six
females and two males (including the three challenges which were
disallowed). The disparity between the
defendant's total peremptory challenges (eight) and the peremptory challenges
given (six) is not explained in the record.
(FN12.) See our discussion
supra at 718-719.
(FN13.) The American Heritage Dictionary 346
(New College ed. 1981) defines "definitive" as "1. Precisely
defining or outlining; explicit. 2. Determining finally; conclusive;
decisive ...." Under the
word "definite," the dictionary states, "definitive more
often refers, in addition, to what is unalterably final." We note, also, that G.L. c. 234A, § 3, which
requires the court to "strictly enforce" that section's mandate
against group discrimination, also does not list age as a protected group.