COMMONWEALTH v. POWELL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case arises out of a late-night altercation on a Lawrence street corner that culminated in the defendant fatally shooting the victim. After a jury trial in the Superior Court on an indictment charging murder in the first degree, the defendant was convicted of the lesser included offense of voluntary manslaughter. On appeal the defendant claims that the judge erred by refusing to excuse a juror for cause, failing to give a requested curative instruction after admonishing defense counsel, and providing a consciousness of guilt instruction over the defendant's objection. We affirm.

Impartial jury. The defendant contends that he was denied his right to an impartial jury because the judge refused to excuse prospective juror number 381 for cause based on a combination of facts relating to the juror's employment and the employment of her live-in boyfriend. We disagree.

The judge first posed general questions to the venire, and then both the judge and the attorneys questioned the jurors individually. During individual voir dire, juror 381 stated that she worked as a hearing examiner for the Massachusetts Sex Offender Registry Board and “preside[d] over the final classification hearings of sex offenders.” Juror 381 acknowledged that she relied on police reports in her role as a hearing examiner but stated that she would treat the testimony of a police officer “[t]he same as any other” witness. Juror 381 also represented that her live-in boyfriend previously worked for the Essex County district attorney's office in the juvenile diversion program and presently worked as a counselor at a correctional institution.

The judge asked juror 381 if she believed anything about her employment “might affect [her] ability to be fair and impartial as a juror in this case,” to which juror 381 responded, “No.” Juror 381 also responded with a direct “[n]o” when asked whether she believed anything about her boyfriend's employment would affect her ability to be impartial. The judge found juror 381 to stand indifferent, but defense counsel challenged the juror for cause in light of her boyfriend's prior employment with the district attorney's office. The judge then allowed defense counsel to probe the juror further on that issue. During this second round of questioning, defense counsel elicited from juror 381 that she regularly spoke with her boyfriend about his work when he was at the district attorney's office.

Based on that statement, defense counsel renewed his request to excuse juror 381 for cause. The judge denied the request, stating that she “remain[ed] persuaded” that the juror stood indifferent. The judge explained that she found the juror “highly credible and forthcoming” and was convinced that she could “be fair to both sides.” The defendant then used a peremptory challenge to remove juror 381. Because the defendant later exhausted his peremptory challenges and his request for an additional peremptory challenge was denied, his challenge of juror 381 for cause is preserved. See Commonwealth v. Kennedy, 478 Mass. 804, 815 (2018).

“Article 12 of the Declaration of Rights of the Massachusetts Constitution 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.” Commonwealth v. Mattier (No. 2), 474 Mass. 261, 274 (2016), quoting Commonwealth v. Andrade, 468 Mass. 543, 547 (2014). If there is “a question of potential bias on the part of a prospective juror,” the trial judge must “make inquiry of the juror and determine whether the prospective juror can be fair and impartial and render a true and just verdict.” Commonwealth v. Rios, 96 Mass. App. Ct. 463, 468 (2019). The trial judge, “who is in a much better position than an appellate court to evaluate a prospective juror's ability to be impartial,” has broad discretion in making this determination. Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 272 (2002). Therefore, if the judge explored the issue and the juror unequivocally stated that she could be impartial, the judge's determination of impartiality will not constitute an abuse of discretion “unless juror prejudice is manifest.” Id., quoting Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001). See Commonwealth v. Colton, 477 Mass. 1, 17 (2017).

Here, upon discovery of a potential bias, the judge properly examined juror 381 further to determine whether she could be impartial. See, e.g., Jaime J., 56 Mass. App. Ct. at 274. The judge was not required to excuse the juror based solely on the facts of her employment and that of her boyfriend. See, e.g., Commonwealth v. Duran, 435 Mass. 97, 107 (2001) (prospective juror's employment as correctional officer not automatically disqualifying); Commonwealth v. Ascolillo, 405 Mass. 456, 460-461 (1989) (same for police officer). Adhering to her duty to examine, the judge carefully questioned the juror and permitted the attorneys to do the same -- even allowing defense counsel to ask follow-up questions after he had initially finished questioning the juror.

The judge's determination of impartiality after this careful examination was not an abuse of discretion. Juror 381 neither expressed nor displayed manifest bias during individual voir dire. Instead, she unequivocally stated that she could be fair and impartial and also showed through her tone and demeanor, to the judge's satisfaction, that she could be impartial. See Commonwealth v. Ferguson, 425 Mass. 349, 352-353 (1997), quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984) (“The determination of a juror's impartiality ‘is essentially one of credibility, and therefore largely one of demeanor’ ”). Specifically, the judge noted that juror 381 was “very direct and forthcoming,” “appear[ed] intelligent and thoughtful,” and “made good eye contact in her answers.” We discern no abuse of the judge's broad discretion.

Admonishment of defense counsel. Shortly after 9:00 a.m. on the sixth day of trial, the judge brought the jury into the courtroom and announced to them that they were awaiting defense counsel's arrival. At 9:06 a.m., defense counsel arrived, asked for a sidebar, and made an oral motion for a mistrial based on the judge's actions. After excusing the jury from the courtroom for fear that they might overhear the conversation, the judge denied the motion and noted that defense counsel had not informed the court that he would be late.

During the sidebar the judge acknowledged that she had intentionally brought the jury into the courtroom before defense counsel's arrival because she found it “disrespectful” that he was not on time. She then stated several times that she would inform the jury that defense counsel was “unavoidably delayed” if he explained his tardiness. Instead of explaining, defense counsel asked the judge “to instruct the jury that they should not have been brought out into court, there were other court matters, and, to the extent that they think it is attributable to [defense counsel], they should not in any way hold that against [him or the defendant].” The judge did not provide the requested instruction but told the jury, it appears falsely, that she was “informed that [defense counsel] was unavoidably delayed this morning by circumstances beyond his control.” ²

Although we strongly disapprove of the procedure employed by the judge, after close examination of the record in its entirety, we conclude that the defendant was not deprived of a fair trial. See Commonwealth v. Perez, 390 Mass. 308, 316 (1983) (judge's conduct “[v]iewed in the context of the entire trial”); Commonwealth v. Festa, 369 Mass. 419, 423 (1976) (similar). The jury should not have been brought into the courtroom prior to defense counsel's arrival, and any exception to defense counsel's tardiness should have been addressed privately.³ The judge's conduct, however, did not interfere with the defendant's ability to present a defense, and the combined effect of the judge's immediate instruction and final instructions sufficiently cured any resulting prejudice.

The judge minimized defense counsel's responsibility for the delay immediately after the incident by informing the jury that the delay was “unavoidabl[e]” and due to circumstances beyond defense counsel's control. We agree with the defendant that it would have been better for the judge to also give an instruction akin to Instruction 2.360 of the Criminal Model Jury Instructions for Use in the District Court (2009), explaining that the jury could not draw any inference from the judge's admonition of defense counsel. But the defendant did not request such an instruction, and the instruction that the judge did give conveyed that, because defense counsel was not at fault, the jury should not hold the delay against him.

Furthermore, the judge made clear in her final instructions that the jury were not to let any of her comments, actions, or rulings affect the jury's consideration of the evidence, and that “nothing else” besides the evidence was relevant to their verdict. See Commonwealth v. Meadows, 33 Mass. App. Ct. 534, 538 (1992) (finding no prejudice from admonition of counsel where judge provided similar instruction). We presume that the jury followed these instructions. See Commonwealth v. Imbert, 479 Mass. 575, 587 (2018). We note also that the jury demonstrated careful consideration of the evidence by returning a verdict on the lesser included offense of voluntary manslaughter. For these reasons, although the judge's conduct was regrettable, we are not persuaded that it was so prejudicial as to warrant a reversal of the defendant's conviction.

Consciousness of guilt instruction. Finally, we address the defendant's contention that the evidence did not warrant a consciousness of guilt instruction. “Consciousness of guilt instructions are permissible when there is an ‘inference of guilt that may be drawn from evidence of flight, concealment, or similar acts,’ such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness.” Commonwealth v. Vick, 454 Mass. 418, 423-424 (2009), quoting Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008). Whether to instruct the jury about consciousness of guilt is within the trial judge's discretion. See Commonwealth v. Cole, 473 Mass. 317, 326 (2015).

The judge here acted within her discretion when she decided to give such an instruction over the defendant's objection. The Commonwealth presented sufficient foundational evidence of flight, which is “classic evidence of consciousness of guilt.” Vick, 454 Mass. at 426. Specifically, the jury heard testimony that the defendant fled the scene of the shooting in a car with his friend “Flave” and another individual. The jury also heard about phone calls between the defendant and his girlfriend early in the morning after the shooting, during which the defendant, panting and crying, said that he would likely never see her again and instructed her to say that he “did it” if the police cornered her. In addition, there was evidence that, at Flave's direction, the girlfriend packed a bag of the defendant's personal effects, which was then picked up and transferred to Flave. Finally, the jury heard that the defendant did not return to the apartment he shared with his girlfriend and was found in New York approximately two months after the shooting. If believed, this evidence reasonably could lead a jury to conclude that the defendant fled from law enforcement and that he did so because of consciousness of guilt. See, e.g., Commonwealth v. Toney, 385 Mass. 575, 583-584 (1982).

Judgment affirmed.

FOOTNOTES

2.   We note that defense counsel did not object to the instruction on the basis that it was factually inaccurate.

3.   We acknowledge that the judge appropriately removed the jury from the courtroom during the sidebar when she became “aware that the charged atmosphere might reach the jury box.” Commonwealth v. Meadows, 33 Mass. App. Ct. 534, 538 (1992).