Commonwealth v. Torres

905 N.E.2d 101, 453 Mass. 722, 2009 Mass. LEXIS 70
CourtMassachusetts Supreme Judicial Court
DecidedMay 5, 2009
StatusPublished
Cited by15 cases

This text of 905 N.E.2d 101 (Commonwealth v. Torres) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Torres, 905 N.E.2d 101, 453 Mass. 722, 2009 Mass. LEXIS 70 (Mass. 2009).

Opinion

Marshall, C.J.

The defendant was convicted by a Superior Court jury of distributing heroin in a school zone, and he pleaded guilty as a subsequent offender on the distribution charge. See [723]*723G. L. c. 94C, § 32 (b); G. L. c. 94C, § 32J. On appeal to the Appeals Court, he claimed that his trial counsel was constitutionally ineffective in failing to use peremptory challenges to remove two jurors; the judge abused his discretion in denying the defendant’s motion for a mistrial based on a juror’s irregular behavior; and the Commonwealth failed to establish the accuracy of the device used to measure the distance between the drug transaction and the school. The judgments were affirmed by a divided panel of the Appeals Court. See Commonwealth v. Torres, 71 Mass. App. Ct. 723 (2008). The dissenting judge departed from the majority on the question whether the trial judge erred in denying the defendant’s motion for a mistrial. Id. at 735-736. We granted the defendant’s application for further appellate review, and now affirm the judgments.

1. Background, a. The crimes. The evidence at trial permitted the jury to find that the defendant, acting in a joint venture with another man, sold heroin to an undercover police officer in front of the Lafayette Club, in Holyoke.1 Police Officer Brian Duke measured 841.9 feet from the Lafayette Club to the Morgan Elementary School, using a “MeasureMaster roller tape,” a device with two wheels and internal gears.2 Although Officer Duke testified that he had never calibrated the device, he said that other officers had. One such officer was Daniel Riordan. He testified that, during the same month as the offenses in this case, he calibrated the MeasureMaster by using it to measure a known distance (thirty feet marked by a surveyor’s tape) and that the device was accurate. (Neither officer demonstrated the device at trial.) Officer Riordan added that, on various occasions, not in connection with this case, he had measured the distance between the Lafayette Club and the Morgan Elementary School and found the distance to be fewer than 1,000 feet: in the “850 range.” The defendant raised no objection to the testimony of Officer Duke or Officer Riordan.

b. Jury selection. At the beginning of jury selection, the clerk instructed the defendant that, if he wished to object to any of the jurors, he “must do so as they are called and before they are [724]*724sworn. You have a right to challenge any six for no cause and as many others as you have good cause to challenge.”3 The judge sua sponte excused some of the prospective jurors for cause and then found the panel to be indifferent. Fourteen jurors were seated, and the Commonwealth said that it was satisfied.

Defense counsel then peremptorily challenged two jurors, who were dismissed and replaced; counsel did not use any of his four remaining peremptory challenges. Counsel then asked when he could raise challenges for cause, to which the judge said that it was too late to do so. Counsel explained that he wished to challenge for cause jurors no. 11 and no. 28 because they had family members employed in law enforcement. Despite the lateness of the request, the judge conducted individual voir dire of the jurors in question. Juror no. 11 said her husband used to be chairman of the board of selectmen and police commissioner “in town,”4 but that those circumstances would not affect her ability to be fair; the judge seated the juror. Juror no. 28 confirmed that, although her father was a Chicopee police officer, that fact would not affect her ability to be fair to both sides; the judge seated the juror. Both attorneys said they were satisfied.

c. Juror no. 14.5 After the attorneys gave their closing arguments and the judge gave his final jury charge, the prosecutor remarked to the judge at sidebar that she was “wondering whether [juror no.] 14 was focused.” The judge commented, “[S]he did [725]*725raise her hand during [defense counsel’s] argument [but] I’m not going to do anything about the juror.” The jury then left the court room to deliberate.

Approximately forty-five minutes later, the judge returned to the bench and told the attorneys that the foreperson had sent him a note, which read: “On this jury there is an individual unable to deliberate in a coherent and logical manner on this issue. I seek your guidance.” The juror in question was later identified as juror no. 14. With the attorneys’ agreement, the judge brought the foreperson into the court room, and after cautioning him against divulging anything about the jury’s deliberations, the judge questioned him as follows.

Q.: “What is it that leads you to the conclusion [that juror no. 14] can’t deliberate in a coherent, logical manner?”6
A.: “Police officers have offered evidence in court. Not — irrespective of that, [juror no. 14’s] of the mind, because of past experience with police, that all police are bad, so it doesn’t matter what they say, okay? Is that —”
Q.: “I really would like to cut you off. I don’t want to hear what the juror’s personal thoughts are.”
A.: “I didn’t tell you. I am just saying in her mind any police officer, no matter what he says, is bad, because of a prior contact with police. That’s — and we can’t get beyond that.”
Q.: “Okay. Okay. All right.”
A.: “And you want another example?”
£>.: “Well —”
A.: “She doesn’t believe that is heroin because she can’t see it ■ — ■”
[726]*726Q.: “Let me interrupt.”
A.: “— and anyone can sign that sheet.”7
Q.: “I have to stop you. I want to say — stop. I asked you not to tell me about the substance. I really don’t want to hear about the substance.”

Shortly thereafter, the foreperson left the court room, and the judge discussed the matter with the attorneys. A court officer interrupted to say that, moments earlier, when he had gone to the jury room to bring the foreperson before the judge, juror no. 14 said to the court officer, “Are you going to release me yet? I’m going home yet?”8 The judge thanked the court officer and resumed his discussion with the attorneys.

With the attorneys’ assent, the judge brought the jury back into the court room, read them the foreperson’s note, and rein-structed them on their duties — urging them to give the case their full and fair consideration, and to listen to each other’s opinions.9 During those instructions, juror no. 14 raised her hand, but the judge did not engage her in conversation; he told her [727]*727she could communicate with the court by submitting a written note. The attorneys said they were satisfied with the judge’s instructions. The jury then resumed their deliberations.

A little more than one hour later, the judge informed the attorneys that he had received two notes: one from the foreperson and one from juror no. 14. The foreperson’s note said:

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Cite This Page — Counsel Stack

Bluebook (online)
905 N.E.2d 101, 453 Mass. 722, 2009 Mass. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-torres-mass-2009.