Smith v. Commonwealth

649 N.E.2d 744, 420 Mass. 291, 1995 Mass. LEXIS 166

• Court: Massachusetts Supreme Judicial Court
• Decided: May 9, 1995
• Status: Published

Opinions

Liacos, C.J.

After having been convicted of various drug offenses in a jury-waived session of the Chelsea Division of the District Court Department¹ in July, 1993, Dennis Smith, whom we shall call the defendant, exercised his then-existing right to a de nova trial before a jury of six.² Pursuant to an order of the Chief Justice of the District Court Department, the defendant’s pending case was transferred to the so-called northern trial session of the District Court, held in Cambridge (Middlesex County). The defendant moved for a change of venue back to Suffolk County. A judge of the District Court denied this motion and declined to stay the case pending the outcome of Commonwealth v. Siciliano, post 303 (1995), or to report the case pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979). The defendant sought relief in the county court pursuant to G. L. c. 211, § 3 (1992 ed.). The single justice reserved and reported the case to the full court. We conclude that the defendant is entitled to relief.

The defendant was arrested in June, 1993, for various drug-related offenses by officers of the Chelsea police department. After a jury-waived trial pursuant to G. L. c. 218, § 26A, as appearing in St. 1978, c. 478, in July, 1993, in the Chelsea District Court sitting in Cambridge,³ the defendant was convicted and exercised his right to a de nova trial by a jury of six pursuant to G. L. c. 218, § 27A, as amended through St. 1992, c. 133, § 557. Through a turn of events described in note 3, supra, the defendant’s case was to be heard in the northern trial session sitting in Cambridge with a jury drawn from Middlesex County. The defendant sought a change of venue so that his case would be considered by a jury drawn from Suffolk County. The District Court judge denied this motion.

The defendant is nonwhite. The record contains various statistics from the 1990 United States Census of Population and Housing and from the Massachusetts Institute for Social and Economic Research of the University of Massachusetts (MISER). We need not recite all those data here. The most significant statistics for our purposes show that in Suffolk County, minorities⁴ make up 38% of the population while in Middlesex County, minorities make up 10% of the population. The District Court judge noted that “the minority percentage of the Suffolk County population (38%) is nearly four times greater than the minority percentage of the Middlesex County population (10%), and the nonwhite percentage of the Suffolk County population (34%) is more than four times greater than the nonwhite percentage of the Middlesex County population (8%).”

The defendant raises a number of issues, both constitutional and statutory, in support of his argument that he is entitled to a change of venue. We need only to consider art. 12 of the Massachusetts Declaration of Rights to conclude that the defendant is entitled to relief. Hence, we do not discuss any Federal constitutional arguments.

We have stated in Commonwealth v. Aponte, 391 Mass. 494, 506 (1984), that “art. 12 safeguards defendants against systematic, albeit unintentional, discrimination against their protected class.” Cf. Duren v. Missouri, 439 U.S. 357, 364 (1979) (defendant must show that underrepresentation is due to “systematic exclusion” to make out claim under Sixth Amendment to the United States Constitution).

Exclusion is “systematic” when it is “inherent in the particular jury-selection process utilized.” Duren v. Missouri, supra at 366. See Taylor v. Louisiana, 419 U.S. 522, 523, 538 (1975) (statute exempting women from jury service unless they requested in writing to serve resulted in unconstitutional systematic exclusion under Sixth Amendment); Commonwealth v. Aponte, supra at 509-510 (former Essex County “key man” jury selection system violated art. 12 when it excluded minorities from service). As these cases demonstrate, the inquiry does not focus on the jury selection process itself, but instead focuses on the result of the process using an analysis of the process. Thus, if exclusion of a particular group arises as a result of the system by which potential jurors are chosen, that exclusion is “systematic.”⁵

In this case, there is no contention that Middlesex County jury pools systematically exclude any particular group or class of residents of Middlesex County. Here, the defendant, a black male, contends, in essence, that, even if jurors are to be drawn from Middlesex County for trials of crimes allegedly committed in Suffolk County, it is the population of Suffolk County that is relevant for determining whether members of certain groups or classes are being excluded from potentially serving as jurors during the defendant’s trial. Thus, the defendant would conclude that, since the population of Middlesex County, from which jurors will be drawn, is not similar to that of Suffolk County for Sixth Amendment and art. 12 purposes, and since this dissimilarity occurs as a result of administrative changes promulgated by the District Court Department, the exclusion of particular groups or classes is systematic.

The defendant’s argument is persuasive. The basis for this procedure appears to be a general order designed to facilitate the operation of the new “one trial system.” Although this transfer is not a “jury selection process” as we typically use that phrase, the transfer nevertheless caused a change in the racial composition of the potential jury pool. The effect of the potential jury pool resulting from the transfer is the same to the defendant as if there had been exclusion in the mechanics of the juror selection process. See Commonwealth v. Soares, 377 Mass. 461, 480-481, cert. denied, 444 U.S. 881 (1979), quoting Peters v. Kiff, 407 U.S. 493, 503-504 (1972) (discussing significant, although perhaps unknowable, effect of excluding certain groups from potential jury service).

Article 12 entitles the defendant “to a jury selection process free of discrimination against his grouping in the community.” Commonwealth v. Aponte, supra at 507, quoting Commonwealth v. Soares, supra at 478. Under art. 12, “a fair jury is one that represents a cross section” of individuals and ideas in the community. Id.6

Our State Constitution often provides to criminal defendants broader protection than does the Federal Constitution under similar provisions. Commonwealth v. Aponte, supra at 506, and cases cited. Further, we stated: “Two recent decisions of this court indicate through their analysis of State constitutional and statutory provisions that art. 12 safeguards defendants against systematic, albeit unintentional, discrimination against their protected class .... See Commonwealth v. Bastarache, 382 Mass. 86, 101-103 (1980); Commonwealth v. Soares, supra at 478-479, 481-482.” (Emphasis supplied and footnotes omitted.) Id. Additionally, we said, “It is likely that the distinction between equal protection analysis (grand juries) and Sixth Amendment analysis (petit juries) found in Federal law ... is not relevant to State law analysis under art. 12.” Id. at 506 n.20. We believe that, in this case, art. 12 provides sufficient grounds for the defendant to prevail.

“[T]his court has noted that a defendant’s constitutional right under art. 12 of the Declaration of Rights to a trial by jury consists of the right to have ‘issues of fact . . . determined by the composite judgment of a fairly numerous and representative body of impartial residents of the county selected at large rather than by the judgment of one or of a small number of single individuals who may be subject to peculiar prejudices or whose station and personal experiences in life may have failed to provide them with sufficient understanding of the conditions and circumstances in which the parties acted.’ Commonwealth v. Bellino, 320 Mass. 635, 639, cert, denied, 330 U.S. 832 (1947). Surely, any practice in drawing jury lists that failed to produce ‘a fairly numerous and representative body of impartial residents’ would be inconsistent with the requirements of . . . art. 12 of the Declaration of Rights. More recently we said that ‘the ultimate touchstone of constitutionality is whether the system as a whole and in a general sense is or is not calculated to produce as triers a fair cross-section of the populace.’ Commonwealth v. Peters, 372 Mass. 319, 322 (1977).” Commonwealth v. Bastarache, 382 Mass. 86, 93-94 (1980).

We “express ‘particular sensitivity in analyzing jury selection practices to discrimination against those groupings in the community that are set out in art. 1 of the Declaration of Rights.’ ” Commonwealth v. Aponte, supra at 507, quoting Commonwealth v. Bastarache, supra at 101. Thus, we have concluded that the exercise of peremptory challenges to exclude members of discrete groups in the community, based solely on membership in those discrete groups, violated art. 12. Commonwealth v. Soares, supra at 488. Similarly, we have concluded that the nonrandom, so-called “key man” grand juror selection process which resulted in underrepresentation of certain minority groups violated art. 12. Commonwealth v. Aponte, supra at 508-509. In Aponte, we noted that “the defendants were entitled ... to a jury selection procedure which precluded the possibility of even an unintentional exclusion of prospective jurors based on national origin” (emphasis added). Id. at 509.

In this case, the defendant could be tried before a jury drawn from Suffolk County but for administrative impediments. The record reflects that the Suffolk County population is substantially more diverse than that of Middlesex County and that the minority population of Middlesex County is a substantially smaller percentage of the whole than that of Suffolk County.

Given our case law in this area and our “particular sensitivity” to this issue, this result cannot stand. The Middlesex County jury pool does not reflect the diversity of Suffolk County. There is no significant distinction between this defendant’s situation and the situation faced by a defendant who is to be tried by jurors selected from a jury pool which was drawn up using an exclusionary process. Each such defendant would lose the right to be tried by jurors drawn from a pool representing a fair cross section of the community. Both such defendants should enjoy the protection of art. 12.

“The right to a proper jury cannot be overcome on merely rational grounds.” Taylor v. Louisiana, 419 U.S. 522, 534 (1975). In Commonwealth v. Duteau, 384 Mass. 321, 332 (1981), we ordered that residents of Athol in Worcester County should be included on lists from which Franklin County jury pools were drawn, because crimes committed in Athol were to be tried in Franklin County. We issued this order even though we were not constitutionally or statutorily mandated to do so. Id. Mere administrative convenience cannot outweigh a defendant’s rights under art. 12 and there is no apparent reason why some provision cannot be made, such as we ordered in the Duteau case, to protect those rights. For example, the defendant’s trial could be transferred to a jury session in Suffolk County, or Suffolk County jurors could be transported to the northern trial session in Cambridge.⁷

The group which the defendant claims to be underrepresented in this case, nonwhites, is a group characterized by race and race is a protected classification under art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments. See Commonwealth v. Aponte, 391 Mass. 494, 507 (1984) (groups which art. 12 protects are those set out in art. 1). Just because the defendant further defines the group as nonwhites of Suffolk County does not transform the classification into an unprotected geographical group. See Duteau, supra at 329-330. In any case, the geographic distinction is not pertinent here because the essence of the defendant’s argument is racial exclusion.

The defendant has made out a claim for violation of his art. 12 rights. The racial group, nonwhites, makes up a constitutionally significant, large proportion of the population of the county from which jurors would have been drawn but for systematic changes made for the sake of administrative convenience. No matter what statistical gloss is applied, the defendant, a black, will be less likely to have black and minority jurors consider his fate.

The order of the District Court denying the defendant’s request for a change of venue is vacated. The case is remanded to the District Court for further proceedings consistent with this opinion.

So ordered.

1 The offenses allegedly were committed in Chelsea, which is in Suffolk County.

2 The right to an appeal for a jury trial de nova after a jury-waived trial was eliminated by St. 1992, c. 379, § 193.

3 On March 5, 1992, the Justices of the Supreme Judicial Court ordered the termination of operations at the facility housing the Chelsea Division of the District Court Department. This order was necessitated by the unsafe physical conditions of the court facility in Chelsea. On March 6, 1992, the Justices ordered that all new and pending matters before the Chelsea District Court “be transacted” at a court facility in Cambridge.

In August, 1992, the Chief Justice of the District Court Department ordered that criminal jury trials arising in the Chelsea Division were to be held in Cambridge with jurors from Middlesex County. Until that time, even after the closing of the Chelsea court facility, criminal jury trials arising in the Chelsea Division had been held in the Boston Municipal Court with jurors from Suffolk County. Chelsea is in Suffolk County.

In December, 1993, the Chief Justice of the District Court ordered that jury trials arising in the Brighton, Charlestown, Chelsea and East Boston Divisions of the District Court were to be held in the so-called Chelsea Court, northern trial session. Pending Chelsea jury cases were transferred to this northern trial session, also held in Cambridge with jurors from Middlesex County.

The defendant’s appeal to a jury session is pending in the northern trial session. Thus, a jury drawn from Middlesex County, not Suffolk County, would consider his case.

4 MISER defines “minorities” as the total Hispanic population plus the total nonwhite population.

5 Contrary to the dissent’s position, the exclusion is “systematic” in a constitutional sense.

6 In his memorandum of decision, the District Court judge stated that the defendant’s burden in making out a claim under art. 12 was the same as that under the Sixth Amendment. The judge relied on Commonwealth v. Colon, 408 Mass. 419, 437 (1990). The Colon case, in turn, relied on Commonwealth v. Bastarache, 382 Mass. 86, 96-97 (1980). The cited portion of Bastarache, however, was a discussion of the Sixth Amendment. Id. Article 12 is not necessarily coextensive with the Sixth Amendment. See Commonwealth v. Aponte, 391 Mass. 494, 506-508 (1984) (discussing protection afforded by art. 12); Commonwealth v. Soares, 377 Mass. 461, 478, cert, denied, 444 U.S. 881 (1979) (same).

7 We do not suggest that a defendant has a right to a trial by a jury drawn only from the community wherein the crime allegedly was committed. Rather, what is important is that the jury which actually consider the case must be drawn from a representative fair cross section of that community. Thus, in this case, if the population of Middlesex County were racially similar to that of Suffolk County, art. 12 might have been satisfied.