Commonwealth v. Wilson

964 N.E.2d 342, 81 Mass. App. Ct. 464, 2012 WL 898820, 2012 Mass. App. LEXIS 158
CourtMassachusetts Appeals Court
DecidedMarch 20, 2012
DocketNo. 11-P-1143
StatusPublished
Cited by2 cases

This text of 964 N.E.2d 342 (Commonwealth v. Wilson) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wilson, 964 N.E.2d 342, 81 Mass. App. Ct. 464, 2012 WL 898820, 2012 Mass. App. LEXIS 158 (Mass. Ct. App. 2012).

Opinion

Smith, J.

The defendant, Barry Wilson, a criminal defense attorney, appeals from the entry of a judgment of summary criminal contempt against him pursuant to Mass.R.Crim.P. 43, 378 Mass. 919 (1979). The summary contempt finding occurred during Wilson’s representation of Garrett Jackson, a criminal defendant charged with murder in the first degree. After a guilty verdict was returned in that case, the judge, after a hearing, sentenced Wilson on the finding of summary criminal contempt to ninety days in the house of correction. Wilson filed a timely appeal.1

Background. As required by Mass.R.Crim.R 43(b),2 the judge made written findings upon which he based the adjudication of summary criminal contempt. The findings are not disputed. In addition to the transcript, we have also reviewed an audio recording of Wilson’s outburst that resulted in the finding of summary criminal contempt. We begin by summarizing the incident at issue, turning then to the judge’s rule 43 findings.

1. Proceedings triggering Wilson’s conduct. On May 4, 2011, empanelment began in Superior Court in the trial of an indictment charging Jackson with murder in the first degree, with Wilson representing Jackson, an African-American male. The judge had adopted the following procedure in regard to empanelment. Each prospective juror was assigned a number and each was individually summoned to the courtroom, where the prospective juror was interviewed by the judge. After the interview, but before the attorneys exercised their peremptory challenges, if any, the prospective juror was escorted out of the courtroom and ordered to remain by the door. With the prospective juror absent, the judge would inform the attorneys whether he found the prospective juror to be indifferent. If the judge so found, the attorneys would exercise their peremptory challenges, if they had any. If the prospective juror was accepted by the [466]*466lawyers, he or she would be escorted upstairs to join the other selected jurors. In regard to the number of peremptory challenges, the judge originally had decided to empanel fifteen jurors, but both parties persuaded the judge to empanel sixteen jurors. Thus, each party was allotted one additional peremptory challenge. On the first day, empanelment proceeded in its normal course and there was no controversy.

The next day, May 5, the Commonwealth exercised its final peremptory challenge. The defense still had an additional peremptory challenge remaining, which it exercised on prospective juror 31. When the next prospective juror, number 32, was called to the courtroom, he did not appear, apparently not having returned from lunch as the other prospective jurors had. Wilson became upset that prospective juror 32 was not available, informing the judge that he had exercised his remaining peremptory challenge on the assumption that juror 32 was available, and he was sure the prospective juror would be found by the judge to be indifferent, and thus become the sixteenth juror.3 Wilson then requested that the judge revert to his original plan to empanel fifteen jurors. The judge denied his request. The judge then interviewed the next two prospective jurors, numbers 33 and 34, and excused each for cause.

The judge next interviewed prospective juror number 35. That individual had a law enforcement background as an agent for the Department of Homeland Security following September 11, 2001, but was currently unemployed. Prospective juror 35 stated that he had not raised his hand to indicate an affirmative answer to any of the questions the judge had asked prospective jurors. He told the judge he was not prejudiced against black people or persons of color. He next informed the judge that he had been employed by the Immigration and Naturalization Services for about five years and, after the September 11, 2001, attack, was transferred to Homeland Security. According to prospective juror 35, he had worked in law enforcement for fifteen years. The judge asked him if his background in law enforcement would affect his ability to fairly judge the case. He [467]*467responded, “I don’t think it would, sir.” The judge asked, “Are you quite sure of that?” Prospective juror 35 responded, “Yes, sir.” The judge then drew his attention to certain answers in his application. Prospective juror 35 denied that he had ever been arrested, been convicted of a crime, or been a witness or sat on a jury, and stated that there was nothing in his background that might affect his ability to be fair and impartial.

2. Conduct leading to the finding of contempt. After the above questioning had concluded, the judge asked prospective juror 35 to step outside the courtroom. The following exchange then occurred between Wilson and the judge according to the transcript and audio disc:

The court: “[Juror 35] is indifferent. And both counsel having exercised their 16 •—”

Wilson then shouted at the judge:

Wilson: “Oh, no. Oh, no —”
The court: “Wait a minute.”
Wilson: “Oh, no.”
The court: “Mr. Wilson •—”
Wilson: “No.”
The court: “Mr. Wilson —”
Wilson: “No, we’re not going to say wait. We’re not going to say wait. You excused a juror because she’s got two kids 20 and 21, and this guy’s got 15 years —”
The court: “Mr. Wilson —”
Wilson: “— of law enforcement.”
The court: “Mr. Wilson —”
Wilson: “And you’re going to sit him.”
The court: “Listen, if you —”
[468]*468Wilson: “Lock me up now. Just lock me up and declare it a mistrial. I’m not sitting with that guy on this jury. No way.”
The court: “Mr. Wilson —”
Wilson: “No way. No way am I going to try a case with that man. That’s ridiculous. Fifteen years a federal agent and he’s going to be unbiased. Are you kidding me? I can’t do it. I won’t do it. Take my ticket. I don’t really care. This is just plain ridiculous. Ridiculous. I’m going to sit there with a federal agent who says that he’s not going to believe his fellow officers, are you ridiculous. You gotta be. You gotta be. I can’t try the case and I won’t. I will not.”
The court: “Well, I’m afraid you’re going to have to try the case.”
Wilson: “Oh, I don’t think so. I can’t. I’m not looking —■ I can’t. I can’t. How can I look at my client and say he should think this is legitimate after you make a ruling like that and you excuse a woman who had two children, and that’s enough excuse? You think I would ever let a woman — whatever that man is — sit on it.”

Wilson next screamed at the judge:

Wilson: “And the other thing is I think maybe if he’s [juror 35] standing outside there you better go ask him if he heard me screaming, because I think you gotta excuse him now ‘cause I think he knows I don’t like him.”
The court: “Mr. Wilson, is there some reason that I should not hold you in contempt?”
Wilson: “Judge, you can do what you wish to do, but I have news for you.

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Cite This Page — Counsel Stack

Bluebook (online)
964 N.E.2d 342, 81 Mass. App. Ct. 464, 2012 WL 898820, 2012 Mass. App. LEXIS 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wilson-massappct-2012.