Opinion
09-P-1835
11-22-2011
COMMONWEALTH v. PATRICK S. MCMULLEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of child rape and molestation, see G. L. c. 265, § 23; assault and battery upon a child under the age of fourteen, see G. L. c. 265; § 13B, and possession of a stun gun, see G. L. c. 140, § 131J. On appeal, he argues that he was denied the right to strategically exercise peremptory challenges, and that his motion for a required finding of not guilty should have been allowed on the electronic weapon charge. We affirm.
Background. Jury empanelment took place on Wednesday, February 9, and Thursday, February 10, 2005. The judge noted that the trial was anticipated to last about five days, and that if jury selection could be completed in two days, the trial could conclude prior to a school vacation week. He also noted that a snowstorm was forecast for the evening of February 10th, which might impede jurors' ability to get to court if empanelment went into Friday. The judge preliminarily decided to empanel sixteen jurors and properly gave each party sixteen peremptory challenges. See Mass.R.Crim.P. 20(c)(1), 378 Mass. 890 (1979).
During empanelment, the judge conducted individual voir dire of 114 potential jurors. He asked each juror several questions, including whether he or she had a preexisting bias, had been exposed to media coverage, knew the witnesses, or felt that police officers as a group were more likely to tell the truth. He excused a total of seventy-three jurors on his own initiative, of which about one-third had been exposed to the case in the media, the remainder demonstrating some bias or hardship. All told, the prosecution used nine peremptory challenges and the defense used sixteen. Defense counsel used eleven peremptory challenges on jurors to whom he did not object for cause. Eight of the jurors struck by defense counsel gave unremarkable answers to the judge's questions. Defense counsel did not object to the seating of five jurors who indicated they believed police as a group were more likely to tell the truth. The defense challenged seven jurors for cause, and the judge granted one of those challenges. Each time the judge considered a defense objection to a potential juror, the judge explained the rationale for his decision, and, in several instances, brought the juror back for further questioning before ruling.
By the end of the second day, the judge had conducted voir dire of 110 potential jurors, thirteen jury seats had been filled, and the defense had used all but one of its allotted peremptory strikes. At this point, the judge indicated that he might proceed with only fourteen jurors. Defense counsel responded by stating, 'I definitely have been trying to hold off one of my peremptory challenges knowing that I only have one left. And it would have made a difference whether we're going with 14 or 16.'
Thereafter, one additional juror was seated, two were excused, and the defense used its sixteenth and final peremptory challenge. The judge then announced that he had decided to proceed with fourteen jurors in order to begin trial on Friday, because of his concerns about the weather and the upcoming school vacation. Defense counsel stated, '[W]e said we were going to pick 16 so I strategically have been scrimping and saving every single challenge that I've had and literally used my last one at the end.' The judge replied, '[Y]ou actually got 16 challenges when otherwise you would have had 14. So, probably the harm balances out and it comes out to be a wash.'
Discussion. 1. Jury Selection. Article 12 and the Sixth Amendment guarantee a criminal defendant the right to a trial before an impartial jury. See Commonwealth v. Long, 419 Mass. 798, 802 (1995). We accord a large degree of deference to the trial judge in the jury selection process, and 'will not conclude that the judge abused his discretion by empaneling [a] juror unless juror prejudice is manifest.' Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001). Although a judge may empanel up to sixteen jurors in what may be a protracted case, he need not do so. See Commonwealth v. Beldotti, 409 Mass. 553, 560-561 (1991). Here, the judge followed proper procedures in conducting the individual voir dire, and made a well-justified decision to seat only fourteen jurors because of practical considerations. Commonwealth v. Kenney, 437 Mass. 141, 148 (2002). See also Commonwealth v. Seabrooks, supra at 442. 'The judge violated no principle of State law in proceeding as he did, and, in the absence of a showing of unfairness, no Federal due process principle was violated.' Commonwealth v. Beldotti, supra at 561. Notably, the defendant makes no argument that any member of the jury was not impartial. See Commonwealth v. Chaleumphong, 434 Mass. 70, 74 (2001). Furthermore, his claim that he would have used his peremptory challenges differently is wholly speculative and undercut by his use of all but one of his challenges before the judge indicated that he might empanel only fourteen. In the end, the defendant was able to exercise two more challenges than he otherwise would have received. Finally, the defendant did not object below to any specific seated juror or explain to the judge which jurors he would have struck peremptorily had he known that only fourteen would be seated. In short, he has not preserved the issue for review, shown any harm, or demonstrated that the judge abused his discretion. See Commonwealth v. McCoy, 456 Mass. 838, 843-844 (2010).
2. Possession of electronic weapon. The Commonwealth met its burden of proving that a stun gun seized from the defendant was a 'portable device or weapon from which an electrical current . . . may be directed, which current . . . is designed to incapacitate temporarily, injure or kill,' as required by G. L. c. 140, § 131J. The weapon was shown to the jury, and its purpose and function were described by Officer Stephen Chaisson. Chaisson explained that he had tested the gun and that it 'gave an electrical shock' evidenced by an 'actual blue electrical current' when he depressed the button. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), this evidence was more than sufficient to satisfy the requirements of the statute. Cf. Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997) (physical appearance of ammunition, packaging, and police testimony sufficed to permit inference that ammunition was 'designed for use in [a] firearm').
Judgments affirmed.
By the Court (Rapoza, McHugh & Cohen, JJ.),