Opinion
20-P-1203
03-10-2022
COMMONWEALTH v. GREGORY CRANSHAW.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of armed assault with intent to rob in violation of G. L. c. 265, § 18 (b). The conviction was based on evidence that the defendant, while wearing a mask and armed "with an asp or baton," charged at a gas station attendant causing the attendant to flee from the kiosk where he was working. The defendant, who fled after he took cigarettes and a coin tray from the kiosk, was discovered a short time later in the back seat of a vehicle parked at a nearby apartment complex. Cigarettes and gold coins of the type stolen from the kiosk were found in the car.
The defendant's trial counsel challenged three jurors for cause because, in response to voir dire questions, the jurors said that in certain circumstances they would expect the defendant to testify at trial. On appeal the defendant claims that his constitutional right to an impartial jury was violated when the judge denied his challenges to these three jurors for cause. We affirm.
Background.
We summarize the facts related to jury selection. The judge conducted jury empanelment in three phases: first, the judge asked questions of the entire venire; second, the judge conducted individual voir dire; and finally, the lawyers were permitted to conduct panel voir dire after jurors were seated in the jury box. At the outset of the jury selection process and again before panel voir dire, the judge instructed the jury on some of the principles of law that would govern the case. The judge explained the presumption of innocence, the Commonwealth's burden of proof beyond a reasonable doubt, and that the defendant had no obligation to testify or call any witnesses. All of the jurors agreed that they understood and could apply those principles.
During the second phase of jury selection, the judge asked each individual juror if the juror could decide the case fairly based only on the evidence presented and follow the judge's instructions of law. Juror numbers 12, 29, and 31, the challenged jurors, each responded in the affirmative.
In the third phase of the voir dire process, the attorneys were permitted to ask questions of the jurors who were divided into two panels. During questioning of the first panel, defense counsel asked "[i]f [ten] people get up here and point the finger at [the defendant] and said '[h]e did it,' what do you think about him not getting up and defending himself?" Juror number 12 stated that he "probably would" expect to hear from the defendant during the trial. More specifically, juror number 12 stated "[i]f everyone's saying he's doing something, I'd be a little confused why he wouldn't want to say something and stand up for himself . . . that's his right, but it would seem a little suspicious to me."
The defendant challenged juror number 12 for cause for "not being able to accept [the defendant's] right not to testify." The prosecutor agreed, but the judge denied the challenge, reasoning that "[t]he fact that they expect ... to hear him testify has nothing to do with whether he is presumed innocent or has a right to -- right not to testify. ... If [eleven] people came in and said he was the one who did the crime -- is a hypothetical . . . that's unrelated to the evidence in this case." The defendant did not exercise a peremptory challenge to juror number 12.
During voir dire examination of the second panel, juror number 29 stated that he would expect the defendant to testify if he was innocent. Juror number 31 agreed stating, "I mean, if he's innocent, why wouldn't he say -- why wouldn't he speak his side?" The defendant challenged juror numbers 29 and 31 for cause based on those answers. The judge again denied the challenges stating, "[t]hey both said they would expect him to testify if he was innocent. They said nothing about whether they can presume him innocent and honor the [c]ourt's instruction." Although he still had peremptory challenges remaining, the defendant did not exercise a peremptory as to either juror numbers 29 or 31.
Discussion.
The defendant is entitled to a trial by an impartial jury. See Commonwealth v. Williams, 481 Mass. 443, 447 (2019). A judge may rely on a prospective juror's representation that the juror is impartial unless there is "solid evidence of a distinct bias." Commonwealth v. Bryant, 447 Mass. 494, 500 (2006), quoting Commonwealth v. Leahy, 445 Mass. 481, 499 (2005). We review the judge's decision regarding a determination that a juror stands indifferent for abuse of discretion, and that determination "will not be disturbed except where juror prejudice is manifest." Commonwealth v. Clark, 446 Mass. 620, 629-630 (2006) .
Here the judge instructed each juror twice that the defendant had no obligation to testify and the jurors affirmed their understanding of that right. The later statements of juror numbers 12, 29, and 31, indicating that they would expect the defendant to testify in certain circumstances, raised a potential misunderstanding of the judge's instructions. The judge denied the challenges for cause to those jurors without further examination. Even assuming, without deciding, that juror numbers 12, 29, and 31 should not have been seated without further inquiry, there was no prejudice. "[P]rejudice generally is shown by the use of a peremptory challenge to remove the juror who allegedly should have been excused for cause together with evidence that the defendant later was forced to accept a juror he would have challenged peremptorily but was unable to because his peremptory challenges had been exhausted." Commonwealth v. McCoy, 456 Mass. 838, 842 (2010). Here, as to each challenged juror, the defendant had a peremptory challenge available that he failed to exercise. Nor did the defendant request additional peremptory challenges or express dissatisfaction with the seated jury. See Commonwealth v. Nelson, 91 Mass.App.Ct. 645, 647-648 (2017) . In these circumstances there was no prejudice.
Judgment affirmed.
The panelists are listed in order of seniority.