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Vuthy SENG
Jury convicts Lowell
man in triple murder
December 10, 1997
CAMBRIDGE - Before
Vuthy Seng was sent away forever yesterday, a prosecutor asked that his
three life sentences be served one after the other.
Assistant Middlesex District Attorney Rick
Grundy said his request, which was granted, was a symbolic way of
emphasizing the lost lives of the three children Seng was convicted of
murdering.
"These
were separate and distinct individuals," Grundy said. "They came into
the world separately and they left the world separately."
Family members said Seng was angry after
Chhong Yim told him to move out of her apartment because her children
did not like him.
Seng was charged with shooting to death 9-year-old
Sovanna Men, 15-year-old Visal Men, and 12-year-old Virak Men. The three
died of their wounds in the week after the November 1995 attack.
The fourth child, Sathy Men, escaped and
recovered from a gunshot to her head. Now, 16, she testified as one of
the key prosecution witnesses.
Yim thanked friends and supporters after
the verdict.
"Not
a day went by when me and my daughter didn't think of my three sons,"
she said, speaking through an interpreter outside the courtroom.
During the trial, defense lawyers conceded
that Seng shot the children, but said he was insane at the time of the
killings.
On
Monday, lawyer Dan Callahan described Seng as a "destitute and broken"
man who was hearing voices -- and should not be held criminally
responsible.
Callahan said Seng's mental troubles stemmed from a 1993 accident at a
bottling factory in which he struck his head when a stack of crates fell
over on him.
Grundy said yesterday that Seng will undergo a psychiatric evaluation at
Bridgewater State Hospital, where he has been held for much of the time
since the slaying.
"His lawyers have refused to allow him to
be evaluated for the entire time he's been there," Grundy said. "I
suspect that evaluation will take place and they'll learn quite quickly
that he is not suffering from any kind of psychotic condition and he
will be sent to prison."
COMMONWEALTH vs. Vuthy SENG.
SJC-10399
December 10, 2009. - April 12, 2010.
Homicide. Armed Assault with Intent to Murder.
Practice, Criminal, Capital case, Challenge to jurors, Instructions to
jury. Evidence, Prior consistent statement, Past recollection recorded.
INDICTMENTS found and returned in the Superior Court
Department on December 21 and 29, 1995.
After review by this court, 436 Mass. 537 (2002), the
cases were tried before Hiller B. Zobel, J.
Leslie W. O'Brien for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney,
for the Commonwealth.
On the evening of November 12, 1995, four children,
three boys and one girl, were found in their home suffering from severe
injuries. All four had been shot in the head; one also had been attacked
with a large knife. Within days, the three boys died. The girl survived.
In 1995, the defendant was indicted for the murders
of the three boys, G.L. c. 265, § 1; and armed assault with intent to
murder the girl, G.L. c. 265, § 18 (b ). [FN1] He was found guilty on
all the indictments on December 9, 1997. In 2002, his convictions were
set aside because of the admission in evidence of a statement obtained
from him in the absence of adequate Miranda warnings. Commonwealth v.
Vuthy Seng, 436 Mass. 537, 548, cert. denied, 537 U.S. 942 (2002). After
a second jury trial, the defendant was found guilty of three charges of
murder in the first degree on the theories of deliberate premeditation
and extreme atrocity and cruelty, as well as guilty on all the remaining
charges. The defendant appealed.
We affirm the convictions and decline to grant relief
under G.L. c. 278, § 33E.
1. Trial. The jury could have found the following
facts based on the evidence adduced at trial.
In 1995, the defendant was living with the victims
and their mother in an apartment in Lowell. The mother began asking the
defendant to move out so she could reconcile with her husband. The
defendant repeatedly refused, professing his love for the mother and
asking her to let him stay because he had no money. On the night of
November 11, 1995, the defendant awoke the mother and asked her a
question that, in hindsight, was ominous. He asked her what she loved
most in the world. "I love my children the most," she replied.
The next day, November 12, the mother told the
defendant that he had until the end of the month to vacate her apartment.
Later on, while the mother was visiting at a friend's apartment, the
defendant telephoned her and again posed his query. In response, the
mother asked him not to hurt her children. She then left to return home.
The defendant had placed the telephone call from the
apartment next door to the one he shared with the mother and the four
victims. At the time, the victims were at home alone watching television.
After making the telephone call, the defendant entered the victims'
apartment, walked into the room where they were sitting, and proceeded
to shoot each of the four children in the head. When the oldest boy
attempted to flee, the defendant shot him in the head again and then
struck him with a large knife that the family kept in the kitchen. [FN2]
Although wounded, the girl escaped through a window
and ran back into the apartment building to get help. She was bleeding
from the head. When her neighbor answered the door the girl struggled
with her words, gestured to her head to indicate a firearm, and said "Thy,"
the name she and her brothers called the defendant. Her neighbor then
ran across the hallway and yelled, "Vuthy, are you crazy? Why are you
killing the kids?" Eventually, the oldest child opened the door on his
knees.
Police and emergency responders arrived at the
apartment and took the children to nearby hospitals. Over the next
several days, the three boys died as a result of their wounds. The
surviving female child provided a firsthand account of the events at
trial.
After shooting the victims, the defendant left the
apartment. Neighbors came to his aid when they saw him stumbling in an
alleyway as a result of an apparent gunshot wound to his ear. They gave
him a new shirt and drove him to a friend's apartment nearby. The police
found him there and arrested him.
Later, the police discovered a firearm in a trash
barrel near the victims' apartment. The defendant's deoxyribonucleic
acid (DNA) was found on the gun, as well as on items in the apartment.
At trial, the defendant attempted to demonstrate that
law enforcement had assumed from the beginning that he was the assailant
based on the story of the surviving victim. The defendant argued that
the victim's perception was faulty and that she could not say for
certain whether someone other than the defendant may have perpetrated
the attacks.
2. Claims of error at trial. The defendant raises
several grounds for reversal. First, he argues that the judge violated
Rule 6 of the Rules of the Superior Court (Lexis Nexis 2008-2009) by
requiring the defendant to exercise his peremptory challenges before the
Commonwealth with regard to certain jurors during individual voir dire.
He next argues that the judge erroneously allowed the Commonwealth to
bolster the girl's testimony with a prior consistent statement, and
erroneously denied the defendant an opportunity to read an inconsistent
statement by the victim into the record as a past recollection recorded.
Finally, he contends that the judge erroneously took away his right to
attack the adequacy of the police investigation by admonishing the jury
that they were to decide the case based on the evidence at trial, not
what they saw depicted on television programs or in science fiction.
We address each of these issues in turn.
a. Order of peremptory challenges. The defendant
claims that he was deprived of an important advantage at trial because
the judge adopted an unconventional individual voir dire procedure.
Prior to jury selection, the judge explained that the procedure would
follow a two-stage process. After filling out a juror questionnaire,
each prospective juror would appear individually before the judge and
counsel for the Commonwealth and the defendant. Based on the juror's
questionnaire responses, the judge would investigate any concerns he had,
and then would permit counsel to suggest further questions. Once the
questioning stage concluded, the judge would give the parties the
opportunity to exercise a peremptory challenge, alternating which party
went first for each juror. Thus, the process was designed to proceed as
follows: For the first juror, the Commonwealth would choose whether to
exercise a challenge, followed by the defendant; for the second juror,
the defendant would choose first, followed by the Commonwealth. [FN3]
Pursuant to Mass. R.Crim. P. 20(c)(1), 378 Mass. 889 (1979), both the
defendant and the Commonwealth were afforded sixteen peremptory
challenges.
The defendant argues that it was error to require him
to exercise his challenges first in this fashion because the procedure
deviated from the method set out in rule 6. [FN4] However, by its terms,
rule 6 does not apply to the defendant's case. That rule, which normally
requires the Commonwealth to exercise its peremptory challenges before
the defendant is required to act, does not apply to empanelment
conducted by means of individual voir dire. There is no rule of the
Superior Court that governs such empanelments, the process being left
largely to the discretion of the judge, see Commonwealth v. Sires, 413
Mass. 292, 308 n. 19 (1992), provided it results in an impartial jury.
[FN5], [FN6] See United States v. Martinez-Salazar, 528 U.S. 304, 307
(2000).
We turn now to whether there was some other error
during jury empanelment that demands relief. Under G.L. c. 234A, § 74, a
defect in jury empanelment does not warrant reversal unless a defendant
objects to it "as soon as possible after its discovery or after it
should have been discovered and unless [he] has been specially injured
or prejudiced thereby." Additionally, constitutional due process and
fair trial concerns require us to confirm that the procedures did not
impair the defendant's right to an impartial jury. See Ross v. Oklahoma,
487 U.S. 81, 90-91 (1988). See also United States v. Martinez-Salazar,
supra at 313-314 ("Because the defendant [in the Ross case] received all
that state law allowed him, and the fair trial that the Federal
Constitution guaranteed, we rejected his due process challenge").
The voir dire procedure was tarnished by no error,
defect, or irregularity that might implicate G.L. c. 234A, § 74, let
alone any prejudice--constitutional or otherwise--that requires us to
reverse the convictions. [FN7] First, as we have already shown, the
defendant received the sixteen challenges to which he was entitled under
Mass. R.Crim. P. 20(c)(1). Second, aside from rule 6 (which does not
apply), there is no source for the defendant's claim that he was
entitled to the advantage of the Commonwealth exercising its peremptory
challenges first. Nothing in the United States Constitution or the
Massachusetts Declaration of Rights establishes the right to peremptory
challenges, let alone the order in which they occur. See Commonwealth v.
Freiberg, 405 Mass. 282, 292, cert. denied, 493 U.S. 940 (1989). Rather,
peremptory challenges "are one means to achieve the constitutionally
required end of an impartial jury," United States v. Martinez-Salazar,
supra at 307. Finally, we have no doubt that the voir dire procedure
achieved that end here because the defendant used only fifteen out of
his sixteen peremptory challenges. [FN8] Had the defendant been
concerned about the seating of one of the jurors, he could have
challenged the juror without cause. See Ross v. Oklahoma, supra at 88.
Consequently, he cannot complain that he was prejudiced by the voir dire
procedure or that it raises a substantial likelihood of a miscarriage of
justice. [FN9] See Commonwealth v. Alvarado, 50 Mass.App.Ct. 419, 420
(2000), quoting Commonwealth v. Stone, 366 Mass. 506, 509 (1974).
b. Prior consistent statement. Faced with the girl's
testimony that she had seen the defendant strike her brother with a
machete-type knife, the defendant attempted to impeach her with
inconsistencies in her prior statements to police. On cross-examination,
the defendant elicited testimony that the first time the victim "testified"
to having seen anyone with a machete was on direct examination the day
before, and that two days after the attacks she had told Officer Phillip
Conroy that she could not remember seeing anyone with a meat cleaver or
a machete. [FN10] To the extent that this examination left the
impression that the victim had never mentioned a machete or meat cleaver
until her testimony at the trial, it was a misleading one that the
Commonwealth was entitled to rebut. Commonwealth v. Rodriquez, 454 Mass.
215, 221-222 (2009). The Commonwealth attempted to do so by asking the
victim about a conversation she had with another police officer, Captain
Kevin Sullivan, at the hospital just hours after the attack, during
which she told him that she had seen the defendant attack her brother
with a machete or a large knife.
The defendant objected on the ground that the
Commonwealth was attempting to introduce a prior consistent statement of
the victim. The Commonwealth did not disagree, but asserted that the
defendant's cross-examination had implied that the victim's testimony
was a recent contrivance, therefore satisfying the prerequisite for the
introduction of a prior consistent statement. Commonwealth v. Novo, 449
Mass. 84, 93 (2007); Mass. G. Evid. § 613(b)(2) (2010). The defendant
disagreed. Ultimately, the judge agreed with the defendant that the
cross-examination left the impression that the victim's memory was
faulty, not that she had recently contrived her testimony. Nevertheless,
he decided to permit the Commonwealth "to ask [the victim] what happened"
at the hospital. The following exchange took place concerning statements
the victim made to Captain Sullivan:
THE PROSECUTOR: "What happened up at the hospital?"
DEFENSE COUNSEL: "Objection."
THE VICTIM: "I told [Captain Sullivan] that he [the
defendant] had a meat cleaver."
THE PROSECUTOR: "A meat cleaver or something else?"
DEFENSE COUNSEL: "Objection, your Honor."
THE JUDGE: "Sustained."
THE VICTIM: "A knife--"
THE JUDGE: "No, no, no."
THE PROSECUTOR: "Did you tell Detective--"
THE JUDGE: "Move on to something else...."
The defendant argues that this constituted an
erroneous introduction of a prior consistent statement by the victim and,
as a result, that he must be afforded a new trial.
It is clear that the Commonwealth was entitled to
rebut in some fashion the impression left by the defendant's cross-examination.
While generally, "impeachment of a witness by prior inconsistent
statements or omissions does not, standing alone, entitle the adverse
party to introduce other prior statements made by the witness that are
consistent with his trial testimony," Commonwealth v. Bruce, 61
Mass.App.Ct. 474, 482 (2004), the Commonwealth is permitted to
rehabilitate the witness by asking questions designed to explain or
contradict the inconsistency even though prior consistent statements by
the witness are implicated. See Commonwealth v. Rodriquez, supra;
Commonwealth v. Tennison, 440 Mass. 553, 563-564 (2003); Commonwealth v.
Hoffer, 375 Mass. 369, 375-376 (1978). To the extent that the
prosecutor's question might have elicited an explanation from the victim
that her statement made sometime later to Officer Conroy was a lapse in
memory rather than a factual assertion that she did not see the
defendant wield a machete or meat cleaver during the assault, such
testimony would have been appropriate rebuttal. Commonwealth v.
Rodriquez, supra. Consequently, the judge did not abuse his discretion
in permitting the prosecutor to ask the victim what happened at the
hospital on the day of the brutal attack.
However, even if it were error for the judge to have
permitted the question, the judge quickly cut off the Commonwealth's
further questioning and sustained the defendant's objection. As a result,
the victim was unable to testify at any length or with much clarity.
[FN11] Thus, any harm inflicted on the defendant was minimal. See
Commonwealth v. Dougan, 377 Mass. 303, 309 (1979). There is nothing to
suggest that the defendant's attempts at impeachment, if left fully
intact, would have had any impact on the overwhelming nature of the
victim's testimony. Whether the victim was always consistent regarding
the specific nature of the weapons the defendant wielded during the
assault on the four children, the defendant could not undo or undermine
her testimony that she saw the defendant carry out the attacks. Any
distinction concerning what long-bladed implement was used would have
made no difference.
c. Past recollection recorded. The defendant's
impeachment of the girl did not end with her inconsistent statements
concerning the machete and meat cleaver. He also attempted to
demonstrate that the girl did not identify the defendant as her attacker
until she heard her neighbor yell the defendant's name. That is, he
tried to undermine the strength of the girl's identification by showing
that the victim--a child at the time--simply adopted her neighbor's
unfounded conclusion that it was "Thy." On direct examination, the girl
testified that when her neighbor opened her door that the victim pointed
to her head and said, "Thy," the defendant's nickname. Only then did her
neighbor run across the hall and yell the defendant's name. On cross-examination,
the girl admitted that in her statement to Officer Conroy she indicated
that she could not speak when she arrived at her neighbor's door.
However, she also testified on cross-examination that her statement to
Officer Conroy was incorrect and that she did, in fact, say the
defendant's name before her neighbor did.
After presenting his defense, but before resting, the
defendant attempted to read into the record the victim's statement to
Officer Conroy. The defendant argued that the victim had testified that
she could not remember what happened when she arrived at her neighbor's
door and therefore that her statement to Officer Conroy qualified as a
past recollection recorded. [FN12] The judge denied the defendant's
request to read the statement into the record, which the defendant
argues was in error.
A statement is admissible as a past recollection
recorded if "(1) the witness has no revivable recollection of the
subject, (2) the witness had firsthand knowledge of the facts recorded,
(3) the witness can testify that the statement was truthful when made,
and (4) the recording was made when the events were fresh in her memory."
Commonwealth v. Nolan, 427 Mass. 541, 543 (1998). However, it is up to
the judge's discretion whether to admit such a statement. Id. at 544.
In this case, the defendant's argument fails the
first element of the Nolan test because the victim testified that her
memory was not, in fact, faulty. In attempting to introduce the
statement that the victim made to Officer Conroy, the defendant argued
that the victim could not remember whether she uttered the defendant's
name before her neighbor did. However, this misstates the victim's
testimony. The victim did not say that she could not remember what
happened when she ran to her neighbor's apartment to get help; rather,
she testified that she said the defendant's name, "Thy," and pointed to
her head to indicate a firearm. When pressed about her statement to
Officer Conroy, the victim said that her statement did not accurately
reflect what had happened. [FN13] That is, her memory was fully "revivable,"
even though it was inconsistent with her prior statement. See id. at
543.
Alternatively, the defendant argues that he should
have been able to introduce the statement as a past recollection
recorded because the victim admitted that she could not recall telling
Officer Conroy that she had heard someone lock the door to her apartment
immediately before the attack. While it is true that a past recollection
recorded may be introduced if a witness is unable to "testify fully," id.
at 544, it is not the case that the inability to remember a single,
inconsequential detail mandates the admission of the witness's entire
prior statement.
Finally, the defendant ignores the role that
discretion plays in admitting past recollections recorded. Id. Even
assuming that the victim's recollection was not revivable, the judge
acted within his discretion when he refused to admit her statement to
Officer Conroy, especially given the fact that the defendant waited five
days before attempting to introduce her statement. See id.
d. Removal of Bowden defense. Throughout trial, the
defendant argued that the police assumed too quickly that the defendant
was the culprit and, as a consequence, ignored conflicting evidence and
conducted an incomplete forensic investigation. The judge thus
acquiesced to the defendant's request that he give a so-called Bowden
instruction, see Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980) (Bowden
), advising the jury that reasonable doubt as to the defendant's guilt
could arise from a finding that law enforcement failed adequately to
investigate the crime. The defendant contends, however, that subsequent
comments by the judge had the effect of neutralizing his defense.
Immediately following the Bowden instruction, the judge said:
"And I remind you that this is real life and not CSI.
I say that without being facetious. It's been observed across the
country that people who've watched that particular program and similar
programs tend to think that life is all that sort of science fiction and
it's not.
"Now, it may be, I say it may be, it may not be but
if it is, then maybe you would like to have heard the testimony of a
person or somebody or persons for that matter, that neither side had
called has a witness. Once again, you may not speculate or guess as to
what that witness's testimony might have been. Not knowing the testimony,
of course, you can't tell which side it would have helped or hurt. I
urge you, therefore, not to spend any time arguing about why so and so
didn't testify."
The defendant argues that this instruction went
beyond admonishing the jury against improper speculation and
impermissibly precluded the jury from considering the inadequacies in
the law enforcement investigation. See Bowden, supra. The defendant
objected to the instruction, thus we review his claim for prejudicial
error. Commonwealth v. Williams, 439 Mass. 678, 682 (2003).
"The Bowden instruction permits jurors to consider
evidence (actually presented) of police failure to take certain
investigatory steps, as it relates to the reliability of the
Commonwealth's case, and indeed evidence of such failures alone may be
sufficient to create a reasonable doubt of the defendant's guilt."
Commonwealth v. Tolan, 453 Mass. 634, 652 (2009). The judge may not "remove[
] this evidence from the jury's consideration, and in so doing invade
the province of the jury to decide what inferences to draw from certain
evidence," Bowden, supra at 486, but the judge is permitted to instruct
the jury against speculating about nonexistent evidence. See
Commonwealth v. Tolan, supra. That is, the jury may consider evidence of
absence, but they may not fill that void with evidence conjured from
their own speculation.
Here, the defendant elicited testimony that law
enforcement did not perform certain forensic tests and did not follow up
on alternate leads. He argues that the judge's reference to "CSI," a
popular television program about forensic science, and to science
fiction, removed that evidence from the jury's consideration because the
judge implied that the defendant's argument was not based in reality. We
disagree. The judge properly highlighted the defendant's Bowden argument
and then properly admonished the jury against inventing their own
evidence. See Commonwealth v. Tolan, supra. He did not asperse the
defendant's argument. There was no error. See Commonwealth v. Williams,
supra.
It bears noting that the judge's instruction likely
was influenced by several references to "CSI" at trial. For example, the
Commonwealth asked a police officer who collected forensic samples at
the crime scene in 1995 whether investigators on television programs
such as "CSI" use a dusting technique to search for fingerprints. The
witness answered affirmatively, but the judge immediately cautioned the
jury that they were not to assume that "CSI accurately mirrors life in
the outside world." The defendant himself referenced the television
program during the cross-examination of the Commonwealth's DNA expert.
In total, "CSI" was referenced four times during the evidentiary portion
of the trial: once by the Commonwealth, once by the judge, and twice by
the defendant. Thus, the defendant's argument that the judge prejudiced
his Bowden defense ignores the prevalence of "CSI" references at trial.
In context, the judge's instruction was designed to confine "CSI" to its
rightful place in fiction, not reality.
That said, we do not indorse the judge's formulation
of the Bowden instruction. Based on the judge's language, he was
apparently concerned about the so-called "CSI effect," the theory that
jurors who watch forensic science television programs like "CSI" will
hold prosecutors to an unreasonably high standard of proof because of
the prowess displayed by fictional forensic scientists. However, we note
that the "CSI effect" may be largely speculative:
"While the CSI effect has been widely noted in the
popular press, there is little objective evidence demonstrating that the
effect exists. As is often the case with legal issues, the pace of
public discussion has outstripped the ability of scholars to research
the issue. Lacking any empirical data, discussions of the CSI effect
have instead been based on the personal impressions of lawyers and legal
scholars." (Footnote omitted.)
Tyler, Viewing CSI and the Threshold of Guilt:
Managing Truth and Justice in Reality and Fiction, 115 Yale L.J. 1050,
1053 (2006). Given its uncertain foundation, the "CSI effect" is a
subject beyond the permissible scope of judicial notice. The same holds
true for the breadth and nature of the gap between fictional and factual
forensic techniques. The implication of a "CSI" instruction, such as the
one given here, is that the actual capabilities of law enforcement
forensics are much less than that of "CSI" specialists, in the absence
of any evidence on the subject. Such references in the context of Bowden
instructions may be problematic in some cases and are unnecessary;
jurors can and should be trusted to separate what they see on television
from what evidence is presented at trial. See Commonwealth v. Furr, 58
Mass.App.Ct. 155, 161 (2003), quoting Commonwealth v. Roberts, 378 Mass.
116, 128 (1979). In this case, the judge acted properly when he
cautioned the jury about the relevance of "CSI" after it was referenced
in testimony, but it was undesirable for him to do so again in his jury
instructions.
3. General Laws c. 278, § 33E. We have reviewed the
record in accordance with G.L. c. 278, § 33E, to determine whether there
is any basis to set aside or reduce the verdict of murder in the first
degree, regardless of whether such grounds were raised on appeal. One
issue gives us pause, but is ultimately without consequence.
Autopsies were performed on the three male victims in
1995. At the 2007 trial, the Commonwealth called as a witness a medical
examiner who did not perform the autopsies, but who did review the
autopsy reports. Most of the witness's testimony was limited to his own
opinions and conclusions. This was permissible. See Commonwealth v.
Nardi, 452 Mass. 379, 390-391 (2008). However, when asked what was the
cause of death for one of the victims, the witness expressly conveyed
the conclusion contained in the original autopsy reports. We have held
such testimony violates a defendant's right to confront witnesses
against him under the Sixth Amendment to the United States Constitution.
Id. at 394. The defendant did not object to the testimony. In any event,
the evidence, both forensic and testimonial, against the defendant was
overwhelming. There is no substantial likelihood of a miscarriage of
justice as a result of the error. See id. at 395-396.
Judgments affirmed.
FN1. The defendant was also charged with assault and
battery by means of a dangerous weapon on the girl and one of the boys,
G.L. c. 265, § 15A (b ); as well as possession of a firearm without a
license, G.L. c. 269, § 10 (a ).
FN2. Both a meat cleaver and a machete-type knife,
each with blood on it, were found at the crime scene.
FN3. When asked prior to individual voir dire,
neither the defendant nor the
Commonwealth objected to this procedure.
FN4. Rule 6 of the Rules of the Superior Court (Lexis
Nexis 2008-2009) provides:
"The procedure in the matter of peremptory challenges
of jurors, except when an individual voir dire is conducted, shall be as
follows, unless specially otherwise ordered in a particular case. The
jurors shall first be called until the full number is obtained. If any
examination on oath of the jurors is required, it shall be made, and any
challenge for cause shall be acted on, and if any jurors shall be
excused others shall be called to take their places. When it has been
determined that all the jurors stand indifferent in the case, each
plaintiff shall at one time exercise his right of peremptory challenge
as to such jurors, and after others have been called to take the places
of those challenged, and it has been determined that they stand
indifferent in the case, shall at one time exercise his right of
challenge of such others, and so on until he has exhausted his right of
peremptory challenge or has ceased to challenge. Each defendant shall
then exercise his right in the same manner. Each plaintiff, if his right
of peremptory challenge has not been exhausted, shall then again
exercise his right in the same manner, but only as to jurors whom he has
not already had opportunity to challenge, and the parties shall likewise
exercise the right in turn, until the right of peremptory challenge
shall be exhausted or the parties shall cease to challenge. No other
challenging, except for cause shown, shall be allowed."
FN5. General Laws c. 234, § 28, authorizes the
individual examination of each juror but, aside from indicating that
such examination must be performed outside the presence of the other
prospective jurors, the statute is silent as to procedure.
FN6. This is not to say that a judge may adopt any
procedure he or she sees fit for individual voir dire. As the Appeals
Court has noted, individual voir dire is excepted from rule 6 because
the process takes longer than ordinary voir dire. That is, the exception
is designed to permit judges to craft more efficient procedures in light
of the individualized attention paid to each prospective juror. See
Commonwealth v. Jean-Louis, 70 Mass.App.Ct. 740, 744 (2007), quoting
Commonwealth v. Barry, 397 Mass. 718, 725-726 (1986) (interpreting
earlier version of rule 6). The defendant argues first that the judge's
chosen procedure in this case was not more efficient than the ordinary
rule 6 order, and therefore, second, that it was error to adopt the
procedure.
Although efficiency concerns may lie at the heart of
the individual voir dire exception, see Commonwealth v. Jean-Louis,
supra, our focus is on the protection of a more fundamental value, the
right to an impartial jury. See United States v. Martinez-Salazar, 528
U.S. 304, 307 (2000). We will not find error on the basis that a judge
adopted an individual voir dire procedure that may have been more or
less efficient than the procedure contemplated for ordinary voir dire.
However, novel procedures, such as the one followed in this case, raise
the possibility of prejudicial error. Although not constitutionally
mandated, peremptory challenges enjoy a "venerable" status in our legal
system. See id. at 311. Deviations from tried and true voir dire
procedures with respect to their exercise invite extra scrutiny because
problems associated with peremptory challenges overlap with problems
associated with the right to a fair trial. The two are not completely
distinct.
FN7. The Commonwealth argues that the defendant's
tardiness in objecting to the voir dire procedure should disqualify his
argument on appeal because he did not object "as soon as possible," as
required by G.L. c. 234A, § 74. The defendant did object to the voir
dire procedure, but not until after he used his second peremptory
challenge to excuse the fourth prospective juror. The Commonwealth also
argues that the defendant's objection was insufficiently specific
because he did not cite rule 6 explicitly. See Commonwealth v. Bartie,
401 Mass. 1009, 1010 (1988). The defendant did indicate concern about
having to exercise his challenges first, but he did not mention rule 6.
However, we do not address these issues because, as a whole, the voir
dire procedure did not prejudice him, and therefore relief under G.L. c.
234A, § 74, is unavailing.
FN8. We do not address whether the defendant would
have been prejudiced had he run out of challenges.
FN9. We also note that the voir dire procedure was
not as rigid as the defendant alleges. Both parties made challenges that
were technically out of turn. They did so in lieu of questioning a
prospective juror, the first step of the judge's procedure. Thus,
although the defendant identifies six instances where he exercised a
peremptory challenge before the Commonwealth was required to exercise
its challenge, the defendant exercised four challenges without waiting
to see if the Commonwealth would challenge. Similarly, on at least three
occasions, the Commonwealth challenged a prospective juror prior to
exercising its opportunity to have the judge ask the juror questions.
While these facts are not dispositive, they do belie the defendant's
view that the voir dire procedure disadvantaged him. That the defendant
does not complain about the challenges he opted to make before the
Commonwealth undermines his argument.
FN10. The relevant portions of the cross-examination
were as follows:
DEFENSE COUNSEL: "Yesterday you talked about seeing
someone with a machete, isn't that right?"
THE VICTIM: "Yes."
DEFENSE COUNSEL: "And that was the first time you had
ever testified that you had ever seen anybody with a machete during this
incident, isn't that right?"
THE VICTIM: "Yes."
DEFENSE COUNSEL: "And, in fact, when you were
speaking with [Officer Conroy], a couple of days later, he asked you
specifically if you saw anybody with a machete or a meat cleaver, isn't
that right?"
THE VICTIM: "Yes."
DEFENSE COUNSEL: "And you told him a couple of days
later that you don't remember seeing anything like that
happening, isn't that right?"
THE VICTIM: "I don't remember."
(Defense counsel shows the victim a document to
refresh her recollection.)
DEFENSE COUNSEL: "[W]hen you were talking to [Officer
Conroy], you told him you couldn't remember seeing anybody with a
machete or meat cleaver, right?"
THE VICTIM: "Yes."
FN11. The judge subsequently denied the prosecutor's
request to question Captain Sullivan about statements made by the victim
to him at the hospital.
FN12. At trial, the defendant focused his argument on
the girl's testimony concerning whether she said the defendant's name
before her neighbor did. However, we note that he never indicated
whether his request to admit the victim's statement to Officer Conroy
was limited to that subject matter, or whether he wanted to read the
statement in its entirety. On appeal, the defendant identifies other
portions of the victim's testimony where she indicated that she did not
remember details, thus demonstrating that he desired to introduce her
entire statement to Officer Conroy. There is no need to speculate about
the defendant's intentions as we uphold the judge's decision without
regard to the contents of the statement.
FN13. The victim expressly stated that her memory
differed from what she told Officer Conroy:
DEFENSE COUNSEL: "But it's your memory today that you
had said something [to your neighbor] first?"