Mass. Decisions, 1-620 N.E.2d 506 N.E.2d 129, 399 Mass. 617, Com. v. Amir...
Copyright (c) West Publishing Co. 1993 No claim to original U.S. Govt. works.
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399 Mass. 617
COMMONWEALTH
v.
Gerald AMIRAULT.
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued Jan. 8, 1987.
Decided April 13, 1987.
Defendant, who was convicted on indictments charging rape and sexual abuse
of children, moved for new trial based on alleged misconduct of juror. The
Superior Court Department, Elizabeth J. Dolan, J., denied the motion. After
grant of Commonwealth's application for direct appellate review, the Supreme
Judicial Court, Middlesex, Nolan, J., held that: (1) evidence supported
finding that juror who stated on voir dire he had not been victim of crime
when it appeared he had been rape victim was impartial; (2) Supreme Judicial
Court would not require consideration of psychiatric evidence of psychological
blockage in determining whether defendant should be granted new trial based on
juror's alleged misconduct; and (3) defendant was not entitled to new trial
on ground he was denied right to exercise peremptory challenge to the juror.
Denial of new trial affirmed.
1. JURY k33(2.10)
230k33(2.10) k. In general.
Formerly 230k33(2)
Mass. 1987.
Sixth Amendment guarantees criminal defendant right to be tried by
impartial jury. U.S.C.A. Const.Amend. 6.
2. CONSTITUTIONAL LAW k267
92k267 k. Right to trial by jury.
Mass. 1987.
Criminal defendant's claim that his right to fair trial was violated by
misconduct of juror and that he was entitled to new trial would be examined
solely under due process clause, where defendant had not argued that
Massachusetts article guaranteeing right to impartial jury established higher
standard than federal Sixth Amendment guarantees made applicable to states
through Fourteenth Amendment. U.S.C.A. Const.Amends. 6, 14; M.G.L.A. Const.
Pt. 1, Art. 12.
3. JURY k33(2.10)
230k33(2.10) k. In general.
Formerly 230k33(2)
Mass. 1987.
Although impartial jury is cornerstone of fair trial, criminal defendants
are not entitled to perfection in trial process.
4. CONSTITUTIONAL LAW k267
92k267 k. Right to trial by jury.
Mass. 1987.
When defendant raises reasonable claim of juror misconduct subsequent to
verdict, due process requirement is satisfied by hearing conducted by trial
judge in which defendant has opportunity to show that juror was actually
biased because juror dishonestly answered material question on voir dire and
that prejudice resulted from the dishonesty. U.S.C.A. Const.Amends. 6, 14.
5. CRIMINAL LAW k923(1)
110k923(1) k. In general.
Mass. 1987.
Crucial inquiry in determining whether defendant raising reasonable claim
of juror misconduct subsequent to verdict is entitled to new trial relief is
whether juror's incorrect answering of material question on voir dire was
honest, that is, whether juror was aware that answer was false. U.S.C.A.
Const.Amends. 6, 14.
6. CRIMINAL LAW k959
110k959 k. Hearing and rehearing in general.
Mass. 1987.
Determination of whether juror who gave incorrect answer to material
question on voir dire was aware answer was false is question of fact and rests
with trial judge, for purposes of determining whether defendant is entitled to
new trial relief.
7. CRIMINAL LAW k956(9)
110k956(9) k. Presumptions and burden of proof as to disqualification
of jurors.
Mass. 1987.
Defendant has burden of showing that juror who incorrectly answered
material question on voir dire was not impartial, and must do so by
preponderance of the evidence, to justify new trial.
8. CRIMINAL LAW k1158(1)
110k1158(1) k. In general.
Mass. 1987.
Absent clear abuse of discretion or showing that trial judge's findings
regarding whether juror who incorrectly answered material question on voir
dire was aware that answer was false were clearly erroneous, judge's ruling
regarding new trial request will not be disturbed on appeal.
9. JURY k133
230k133 k. Trial and determination.
Mass. 1987.
Juror's testimony is not inherently suspect, and trial judge may rely on
juror's testimony in determining existence of juror bias.
10. CRIMINAL LAW k1144.18
110k1144.18 k. New trial and arrest of judgment.
Mass. 1987.
Supreme Judicial Court would assume that trial judge acted properly in
examining juror regarding allegedly incorrect answer with respect to prior
experience as crime victim, in determining whether new trial should be
granted, where Commonwealth had not argued that evidence that juror was victim
of crime related to juror's mental processes and was therefore inadmissible.
11. CRIMINAL LAW k956(10)
110k956(10) k. Sufficiency of proofs as to disqualification of jurors.
Mass. 1987.
Evidence on new trial motion supported finding that juror who did not
indicate his prior involvement with criminal case was impartial with respect
to prosecution of defendant on numerous indictments charging rape and sexual
abuse of children, although court records and investigation indicated juror
had been raped and man had gone to prison for the crime; juror testified he
could not remember being victim of crime and juror had demonstrated
conscientiousness during trial by informing judge that he might have been
improperly approached regarding trial, and trial judge found juror's
misstatements on voir dire to be honest mistakes.
12. CRIMINAL LAW k959
110k959 k. Hearing and rehearing in general.
Mass. 1987.
Scope of hearing on motion for new trial involving allegation of juror
misconduct is entrusted to sound discretion of trial judge.
13. CRIMINAL LAW k959
110k959 k. Hearing and rehearing in general.
Mass. 1987.
Where evidence supported trial judge's conclusion on new trial motion that
juror's misstatements on voir dire regarding his having been crime victim were
honest mistakes, there was no rational basis for further inquiry.
14. CRIMINAL LAW k956(8)
110k956(8) k. Disqualification of jurors in general.
Mass. 1987.
Supreme Judicial Court would not require consideration of psychiatric
evidence of psychological blockage proffered by defendant regarding ability of
rape victim to suppress memory of such an experience and remain impartial in
circumstances similar to prosecution of defendant on numerous indictments
charging rape and sexual abuse of children, in hearing on motion for new trial
involving allegation of juror misconduct relating to juror's failure to
disclose his past as rape victim.
15. CRIMINAL LAW k956(8)
110k956(8) k. Disqualification of jurors in general.
Mass. 1987.
Conversation between court clerk and attorney for juror in which attorney
mentioned to clerk that juror had been involved in sexual incident as
youngster but was unable to recall any details of the incident did not possess
sufficient impeachment value to be admissible in new trial hearing regarding
misconduct of juror, who stated on voir dire he had not been victim of crime
when it appeared he had been rape victim in past, and who denied in posttrial
questioning that he remembered ever having been victim of crime and denied any
recollection of sexual assault or rape incident.
16. CRIMINAL LAW k957(1)
110k957(1) k. In general.
Mass. 1987.
Refusal to permit juror alleged to have made false voir dire statement that
he had never been victim of crime when he had been victim of rape to testify
about juror's knowledge of criminal sanctions for false voir dire answer in
new trial hearing did not harm defendant.
17. JURY k132
230k132 k. Evidence.
Mass. 1987.
In exceptional circumstances, bias on part of juror may be implied from
false answer in response to voir dire questions.
18. CRIMINAL LAW k956(9)
110k956(9) k. Presumptions and burden of proof as to disqualification
of jurors.
Mass. 1987.
Bias would not be impliedly attributed to juror in prosecution of defendant
on numerous indictments charging rape and sexual abuse of children based on
juror having stated on voir dire he had not been victim of crime when it
appeared juror had been rape victim, for purposes of new trial motion.
19. CRIMINAL LAW k923(1)
110k923(1) k. In general.
Mass. 1987.
Mere failure of juror to disclose prior experience as criminal victim on
voir dire does not automatically entitle criminal defendant to new trial.
20. CRIMINAL LAW k923(1)
110k923(1) k. In general.
Mass. 1987.
Defendant convicted on indictments charging rape and sexual abuse of
children was not entitled to new trial on theory he was denied right to
exercise peremptory challenge to juror who failed to disclose past experience
as rape victim; there had been no impairment of defendant's right to
impartial jury through juror's having sat on jury, and defendant had thus not
established that his right to exercise peremptory challenges was prejudiced.
[399MASS618]
------------------------- Page 506 N.E.2d 131 follows --------------------------
Juliane Balliro, Boston, for defendant.
Karen J. Kepler, Asst. Dist. Atty., for the Com.
Before [399MASS617] HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN,
JJ.
NOLAN, Justice.
Gerald Amirault appeals from the denial of his motion for a new trial on
numerous indictments charging rape and sexual abuse of children. He argues
that his right to a fair trial was violated by the misconduct of a juror and
that he is entitled to a new trial. (FN1) The claimed misconduct concerns
the failure of a juror to answer correctly a question posed during the jury
empanelment process. This information did not surface until after the jury
had returned their verdicts. The trial judge conducted a hearing to determine
whether Amirault had been harmed by the nondisclosure. The judge concluded
that the juror was not biased and that the circumstances did not warrant a
finding of implied bias. The motion for a new trial was therefore denied. We
granted the Commonwealth's application for direct appellate review. We agree
with the judge's ruling and affirm the denial.
[399MASS619] The defendant was involved in the operations of the Fells
Acres Day School in Malden. In January and September, 1985, a Middlesex
County grand jury returned the indictments which charged Amirault with rape
and indecent assault and battery. Nine different children, both male and
female, were named as victims. On July 19, 1986, after a three-month trial,
the jury found Amirault guilty on all indictments. The jury deliberations
lasted twelve days.
On Monday, July 21, 1986, a telephone call was received in the offices of
Amirault's attorneys. The caller identified himself as a Mr. Galligan and
asked to speak with one of the attorneys involved in the Fells Acres case.
Galligan related that on the previous day, he had read a newspaper account of
the trial. The story was accompanied by a photograph of the jurors standing
outside the court house. Galligan thought that one of the jurors looked
familiar to him. The jurors' names were provided in the story and he was sure
that he knew one of the jurors. Galligan informed the attorney that what he
knew about the juror caused him to question whether Amirault received a "fair
shake." He believed that, while a teenager, the juror had accused Galligan's
cousin of rape. Furthermore, the case had gone to court and his cousin had
been sentenced to a prison term. The attorney asked Galligan for more
details, but Galligan stated he was reluctant to become further involved and
that the attorney should be able to verify his information. Galligan refused
to say anymore about himself. He concluded the conversation by remarking that
he might call back, but there is no indication that he ever did.
Amirault's attorney then petitioned the judge to direct the Commonwealth to
provide the defense with access to criminal records in order to verify
Galligan's story. The judge entered such an order on August
------------------------- Page 506 N.E.2d 132 follows --------------------------
1, 1986. The inquiry revealed that the juror's name was indeed correctly
provided by Galligan along with certain other personal matters. On the basis
of that corroborating information, defense counsel extended the scope of the
investigation. A private investigator was retained. He interviewed two
individuals who were somewhat familiar with the juror's past. One person
confirmed that the juror had been [399MASS620] raped and that a man had gone
to prison for a lengthy period of time but could not recall the year of the
incident or the rapist's name. The other individual's knowledge was more
vague, but that individual had been told that the juror was raped, and that a
man had gone to prison for the crime.
On August 12, 1986, the judge ordered the juror to appear at an in camera
hearing. The order informed the juror that the juror was entitled to have
counsel present and that the juror's attorney could view beforehand the
documents relating to Amirault's motion for a new trial. The hearing took
place on August 19 and Amirault was present. Defense counsel initially sought
to question the juror by claiming that the juror was Amirault's witness. The
judge responded that as she had summoned the juror, she would initiate the
interrogation and then permit both the defendant and the Commonwealth to pose
questions.
A review of the empanelment process is necessary at this point before
turning to the evidence produced at the hearing. During the empanelment, the
judge and trial counsel utilized written questionnaires along with oral
examination. Three written documents were completed by the jurors who reached
the final oral examination. All individuals who were summoned to jury service
filled out a standard, one-page form. A special, three-page document with
questions especially pertinent to the present case was also given to all
potential jurors. A list of over 375 potential witnesses was appended to this
questionnaire. The answer to these questions were examined by the judge and
trial counsel over eight days. Based upon the responses, a "pool" of
forty-eight potential jurors were found to be indifferent. These jurors
filled out another specifically drafted form. Those who were not eliminated
by their written answers underwent voir dire inquiry by the judge.
The juror underwent the process described. On the standard form, there is
a question in which a respondent is asked, "[D]escribe briefly any involvement
(past or present) as a party or victim in a civil or criminal case: you or
any member of your family." The juror answered, "No." The specially
drafted document contained the following question: "Have you or any member of
your immediate family or any of your close friends [399MASS621] ever been a
victim, witness, or defendant in a criminal case?" The juror responded
affirmatively but answered "No," to a follow-up question concerning whether
the matter ever went to trial. The juror was questioned about the nature of
this answer on voir dire and informed the judge that a member of the juror's
immediate family had been charged with driving under the influence. The judge
asked whether that incident would have any affect on the juror's ability to be
impartial. After receiving satisfactory answers, the juror was found to be
indifferent and neither side objected.
Thus, the postverdict hearing was conducted to determine whether the juror
had correctly answered the question about being a criminal victim and what
harm, if any, had been suffered by Amirault if Galligan's story was true.
We set forth relevant portions of the colloquy between the juror and the
judge:
Q: "So the first question that would be posed by the Court to the juror
would be: Did the event, as alleged, occur? And the event, as alleged,
would be whether or not you were ever the victim of a crime at some point in
your life--alleged?"
A: "To my knowledge, I can never remember being a victim of a crime. If
something happened in my life, it had to be over 40 years ago, and it has
something--been completely blocked from my mind; I know no details about it
whatsoever. I cannot
------------------------- Page 506 N.E.2d 133 follows --------------------------
recall anything about it. I had to have been a child, and I just cannot
remember anything about it."
Q: "And when you responded to the question on the first questionnaire, the
answer was 'No.' Was that based upon the fact that you could not remember
anything--"
A: "I cannot remember--the only thing that came to my mind was my children
being in trouble, and that's the only thing that's important to me."
Q: "And as the trial went on, there was no impact as far as the prior
incident? Nothing ever came to mind in your--"
A: "I can't remember anything, so nothing come into my mind."
Q: "All right. And when you went into the juror service on this panel and
you answered that you could decide it solely upon the evidence--"
[399MASS622] A: "Definitely."
Q: "--were you ready then to follow the instructions of the Court?"
A: "Definitely."
Q: "Is it reasonable, then, to assume that if you have no memory, or had no
memory of it at that time, that you made no mention of anything to any of your
fellow jurors at any time about yourself?"
A: "I have nothing to remember."
Defense counsel then cross-examined the juror about the incident. Relevant
excerpts from the record are included below.
Q: "[Y]ou had indicated that you remember something happening to you as a
child, but you don't remember any details or particulars about what this was?"
A: "Exactly right."
Q: "Does it refresh your memory at all if I ask you whether or not it was
in the nature of a sexual assault of any type?"
A: "No."
Q: "Does it refresh your memory at all if I ask you if it was in the nature
of a rape incident?"
A: "No."
Q: "Okay. Do you have any memory of ever having told anybody that
something in the nature of a sexual assault occurred when you were a child?"
A: "No."
Q: "Do you remember telling anybody that somebody went to jail for a long
time as a result of an incident involving you as a child?"
A: "I never remember anybody going to jail."
Defense counsel continued to interrogate the juror about what the juror
remembered. The final question asked was whether the juror understood the
possible penalties that could be imposed for a dishonest or incomplete voir
dire answer. Both the Commonwealth and the juror's attorney objected and the
judge did not permit the juror to answer. Since defense counsel had no
further questions, the juror was excused. Counsel then argued to the judge
why the question was proper. Additionally, counsel requested that the hearing
be extended so that the defense could present additional witnesses who
[399MASS623] might impeach the juror's credibility. Specifically, counsel
wanted to call the two individuals interviewed by the private investigator and
to present expert testimony pertaining to the ability of a rape victim to
suppress the memory of such an experience and remain impartial in
circumstances similar to this case. After the Commonwealth responded to the
arguments of defense counsel, the hearing recessed.
When the hearing resumed, defense counsel made an offer of proof concerning
a conversation that had occurred between a court clerk and the juror's
attorney. During the recess, defense counsel learned from the clerk that the
clerk had spoken with the juror's attorney when the attorney called to make
arrangements to see the papers prior to the hearing. The attorney mentioned
to the clerk that the juror had been involved in a sexual incident as a
youngster but was unable to recall any details of the incident. Defense
counsel sought to have the clerk testify about this
------------------------- Page 506 N.E.2d 134 follows --------------------------
conversation because he claimed that it contradicted the juror's testimony.
The judge asked the clerk if counsel had correctly summarized what the juror's
attorney had told him. The clerk stated that he could add nothing further and
the judge ruled his testimony unnecessary because the record contained the
offer of proof. The judge also denied the requests to extend the
investigation and the hearing.
In the decision denying Amirault's motion for a new trial, the judge found
that the juror had honestly answered the pretrial questions and that the
nondisclosure of having been a victim of a sexual offense was unintentional.
The judge stressed that this conclusion was supported by an incident that
occurred after the trial began. The juror informed the judge, in chambers and
on the record in the presence of all counsel, that the juror had stopped at
the juror's place of employment to retrieve some personal belongings. The
juror met a fellow worker who sought to engage the juror in conversation about
the case. Specifically, the fellow worker asked whether the juror knew a
certain person whose daughter attended the Fells Acres center. The juror
admonished the coworker that the juror was not able to discuss anything
connected to the case and the conversation went no further. The juror checked
the witness list to make sure that the individual mentioned was not scheduled
to testify [399MASS624] at trial and did not discover that name listed. The
list was reviewed again in chambers. The juror was returned to the jury
without objection from either side. The judge noted that had the juror
harbored any hostility toward Amirault, it is not likely that the juror would
have reported the incident. Therefore, the judge concluded that the juror was
not actually biased toward Amirault and there was no basis to support a
finding of implied bias.
[1][2][3] The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the right to be tried by an impartial jury.
This right is made applicable to the States by the Fourteenth Amendment to the
United States Constitution. See Duncan v. Louisiana, 391 U.S. 145, 149, 88
S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). (FN2) An impartial jury are the
cornerstone of a fair trial; "[t]he failure to grant a defendant a fair
hearing before an impartial jury violates even minimal standards of due
process." Commonwealth v. Susi, 394 Mass. 784, 786, 477 N.E.2d 995
(1985). But defendants must also recognize that they are not entitled to
perfection in the trial process. Brown v. United States, 411 U.S. 223,
231-232, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973), and cases cited.
The defendant would have us rule that the juror was actually prejudiced.
We believe, however, that he has not successfully made such a demonstration.
Our analysis is guided by the Supreme Court decisions in Smith v. Phillips,
455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) and McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). (FN3)
In Phillips, the Supreme Court refused to impute bias to a juror who, during
the trial, submitted an employment application to the prosecutor's office.
The Court observed: "Due process means a jury capable and willing to decide
the case solely on the evidence before it, and a trial judge [399MASS625] ever
watchful to prevent prejudicial occurrences and to determine the effect of
such occurrences when they happen." 455 U.S. at 217, 102 S.Ct. at 946.
Consequently, the Court "held that the remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity to prove
actual bias." Id. at 215, 102 S.Ct. at 944.
McDonough was a products liability suit in which the jury returned a
verdict for the
------------------------- Page 506 N.E.2d 135 follows --------------------------
defendant. After the trial, the plaintiff moved for a new trial because a
juror failed to admit during voir dire that his son had been seriously injured
in the explosion of a truck tire. The District Court judge denied the motion
without even examining the juror. 464 U.S. at 551, 104 S.Ct. at 847. The
Court of Appeals reversed because it concluded that even had the juror acted
in good faith, the honest failure to respond affirmatively to a voir dire
question was "irrelevant." Id. at 552, 104 S.Ct. at 848. A new trial was
required because the "information would have been significant and cogent
evidence of the juror's probable bias." Id. The Supreme Court held that the
Court of Appeals was wrong in ordering a new trial outright. The plurality
opinion said that "to obtain a new trial in such a situation, a party must
first demonstrate that a juror failed to answer honestly a material question
on voir dire, and then further show that a correct response would have
provided a valid basis for a challenge for cause. The motives for concealing
information may vary, but only those reasons that affect a juror's
impartiality can truly be said to affect the fairness of a trial " (emphasis
supplied). Id. at 556, 104 S.Ct. at 850.
[4][5] Our reading of Phillips and McDonough compels the conclusion that
when a defendant raises a reasonable claim of juror misconduct subsequent to
the verdict, the due process requirement is satisfied by a hearing conducted
by the trial judge in which the defendant has the opportunity to show that a
juror was actually biased because the juror dishonestly answered a material
question on voir dire and that prejudice resulted from the dishonesty. In the
instant case, Amirault requested and received such a hearing. Only the juror
testified and defense counsel was permitted to cross-examine the juror
extensively. Amirault argues, however, and the record supports him, that the
juror did not correctly answer the voir dire question concerning[399MASS626]
whether the juror had ever been the victim of a similar crime. But, as
McDonough makes clear, the crucial inquiry is whether the juror's answer was
honest; that is, whether the juror was aware that the answer was false.
United States v. Perkins, supra at 1531. See also Commonwealth v. Harrison,
368 Mass. 366, 376, 331 N.E.2d 873 (1975) (falsehood must be "material and
knowing").
[6][7][8] The determination of this issue is a question of fact and
rests with the trial judge. The defendant has the burden of showing that the
juror was not impartial and must do so by a preponderance of the evidence. In
the absence of clear abuse of discretion or a showing that the judge's
findings were clearly erroneous, the judge's ruling will not be disturbed on
appeal. Commonwealth v. Tavares, 385 Mass. 140, 156, 430 N.E.2d 1198 cert.
denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). "[A] finding
of fact by the trial judge will not be deemed 'clearly erroneous' unless the
reviewing court on the entire evidence is left with the firm conviction that a
mistake has been committed." Id., quoting New England Canteen Serv., Inc.
v. Ashley, 372 Mass. 671, 675, 363 N.E.2d 526 (1977).
[9] The trial judge found that the juror's misstatements were honest
mistakes because the judge believed the juror's testimony that the juror had
forgotten about the incident. The juror testified that the juror did not
intend to conceal the information and did not know that defense counsel was
misled. During the trial, the juror had demonstrated conscientiousness by
informing the judge that the juror might have been improperly approached. A
juror's testimony is not "inherently suspect," Phillips, supra, 455 U.S. at
217 n. 7, 102 S.Ct. at 946 n. 7, and a judge may rely on it in determining the
existence of bias. Commonwealth v. Dalton, 385 Mass. 190, 194-195, 431
N.E.2d 203 (1982).
[10][11] The hearing was meaningful and consistent with the purposes
outlined in Phillips, supra, 455 U.S. at 222, 102 S.Ct. at 948 (O'Connor, J.,
concurring): "A hearing permits counsel to probe the juror's memory, his
reasons for acting as he did, and [his] understanding of the consequences of
[his] actions. A hearing also permits the trial judge to observe the juror's
------------------------- Page 506 N.E.2d 136 follows --------------------------
demeanor under cross-examination and to evaluate [his] answers in light of
the particular circumstances[399MASS627] of the case." (FN4) Amirault has
produced no other evidence that the juror was actually prejudiced against him
and our review of the hearing persuades us that the judge could have accepted
the truth of the juror's experience. In the circumstances, we conclude that
the judge's determination that the juror was impartial was not clearly
erroneous and therefore we will not set it aside.
Amirault contends, however, that even if we do not disturb the judge's
finding that the juror was not actually biased, the judge's decision must be
reversed because defense counsel was denied sufficient opportunity to prove
actual bias. Amirault claims it was error for the judge (1) to refuse to
allow the juror to answer the question concerning knowledge of criminal
penalties for a false voir dire answer; (2) to refuse to allow counsel to
continue their investigation of the incident; (3) to refuse to extend the
hearing to include expert and other lay witness testimony; (4) to refuse to
allow the clerk to testify about his conversation with the juror's attorney.
[12][13][14][15][16] The scope of a hearing on a motion for a new
trial involving an allegation of juror misconduct is entrusted to the sound
discretion of the trial judge. See Commonwealth v. Fidler, 377 Mass. 192,
202-203, 385 N.E.2d 513 (1979). In the absence of reasonable grounds to
believe that the juror was biased, a hearing is not designed to afford a
convicted defendant the opportunity to conduct a miniature trial with the
juror as the accused. Since the judge was warranted in being convinced of the
juror's honesty, there was no rational basis for further inquiry. The focus
of the hearing was not whether the rape had actually [399MASS628] occurred,
but whether the juror was biased against the defendant. The defendant wanted
to offer psychiatric evidence of psychological blockage, but we decline to
require consideration of such evidence. Once the judge accepted the essential
truth of the juror's testimony, the need for other witnesses to testify
evaporated. Likewise, the judge was warranted in finding that the
conversation between the clerk and the juror's attorney did not possess any
sufficient impeachment value. Finally, we do not see how the judge's refusal
to permit the juror to testify about the juror's knowledge of criminal
sanctions for a false voir dire answer harmed the defendant. Defense counsel
had extensive opportunity to explore the juror's motives for fabrication.
Accordingly, we are not prepared to say that the judge abused her discretion
during the conduct of the hearing and in terminating it when she did.
[17][18] The defendant further argues the juror should be presumed to be
biased as a matter of law. He claims that the Phillips and McDonough
decisions do not "foreclose the use of 'implied bias' in appropriate
circumstances." Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948,
71 L.Ed.2d 78 (1982) (O'Connor, J., concurring). McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 556-557, 104 S.Ct. 845, 850, 78 L.Ed.2d 663
(1984) (Blackmun, J., concurring, with whom Stevens and O'Connor, JJ.,
joined). Id. at 552-559, 104 S.Ct. at 848-851 (Brennan, J., concurring,
with whom Marshall, J., joined). We acknowledge that in certain exceptional
circumstances implied bias may be applicable, (FN5) but we reject Amirault's
assertion
------------------------- Page 506 N.E.2d 137 follows --------------------------
that in the circumstances here presented we must attribute bias to the juror
involved.
[399MASS629] We have queried the Massachusetts Reports and have not
discovered a case in which a juror failed to disclose that he or she had been
a victim of a same or similar crime. The closest factual situation we can
find was presented in Commonwealth v. Grant, 391 Mass. 645, 651-653, 464
N.E.2d 33 (1984). There the defendant was on trial for kidnapping and
aggravated rape. During the empanelment procedure, jurors were asked if they
were conscious of any bias or prejudice. After the defendant was found guilty
on the rape charge, defense counsel learned that a female juror had failed to
reveal that ten years earlier her daughter had been a rape victim. The trial
judge interviewed the juror, who explained that it simply had not occurred to
her to disclose the information about her daughter. The judge subsequently
denied defendant's motion for a new trial and we found no error.
The only case that defendant has cited to us that he claims is on point is
United States ex rel. DeVita v. McCorkle, 248 F.2d 1 (3d Cir.), cert. denied,
355 U.S. 873, 78 S.Ct. 121, 2 L.Ed.2d 77 (1957). In DeVita, a writ of habeas
corpus was granted because a juror failed to disclose that he had recently
been the victim of an armed robbery. The defendant was charged with murder
and armed robbery. Id. at 2-3. The court found that the "closeness of [the
juror's] connection with the trial content [was] frightening," id. at 9, and,
as such, established "colorable bias." Id. at 8. But DeVita is
distinguishable from the present case on several grounds. First, because the
juror was aware of his victimization, it is more proper to characterize it as
involving "positive non-disclosure." Brown v. United States, 356 F.2d 230,
233 (10th Cir.1966). Also, because the juror purposefully concealed his
experience it may be appropriate to conclude that his bias was "actual and
demonstrated." United States v. Poole, 450 F.2d 1082, 1083 (3d Cir.1971).
Finally, the DeVita court's operative concern was not the jury determination
of the guilt or innocence of the defendant since the trial was held "to have
the jury pass on the essentially judicial question of sentence, life or
death.... For that kind of trial the Fourteenth Amendment insists on the most
impartial tribunal the reasonable needs of society will permit." DeVita,
supra at 8. This distinction was relied on by the Supreme Court of New Jersey
when one of [399MASS630] DeVita's accomplices who had been convicted of murder
in the first degree sought a new trial on the same ground. State v.
Rosania, 33 N.J. 267, 274-275, 163 A.2d 139 (1960), cert. denied, 365 U.S.
864, 81 S.Ct. 828, 5 L.Ed.2d 826 (1961), and by the United States Court of
Appeals for the Third Circuit in affirming the District Court's denial of
habeas corpus relief. Rosania v. New Jersey, 299 F.2d 101, 102 (3d Cir.),
cert. denied, 371 U.S. 893, 83 S.Ct. 192, 9 L.Ed.2d 126 (1962).
[19] We have examined similar cases from other jurisdictions, but, because
the determination of implied bias is so fact-sensitive, the only
generalization that can be drawn is that the mere failure of a juror to
disclose his or her prior experience as a criminal victim does not
automatically entitle the defendant to a new trial. Ex parte Ledbetter, 404
So.2d 731, 734 (Ala.1981) (new trial granted). People v. Resendez, 260
Cal.App.2d 1, 10-11, 66 Cal.Rptr. 818 (1968) (new trial denied). See People
v. Diaz, 152 Cal.App.3d 926, 938, 200 Cal.Rptr. 77 (1984) (new trial
granted). Instead, we "must be satisfied that it is more probable than not
that the juror was biased against the litigant." State v. Wyss, 124 Wis.2d
681, 730, 370 N.W.2d 745 (1985).
------------------------- Page 506 N.E.2d 138. follows -------------------------
We believe that the facts of this case do not demonstrate that the juror was
probably biased against Amirault. The judge found that the juror did not
purposefully give an incorrect answer or intentionally withhold the
information. Thus, we conclude that the trial judge did not abuse her
discretion and was not clearly wrong in denying the defendant's motion for a
new trial.
[20] Finally, the defendant asserts that he is entitled to a new trial
because he was denied the right to exercise a peremptory challenge to this
juror and that the denial of this right is reversible error even without a
showing of prejudice. But "[n]either the Federal nor the State Constitution
guarantees a criminal defendant the right to exercise peremptory
challenges." Commonwealth v. Hutchinson, 395 Mass. 568, 571, 481 N.E.2d
188 (1985). The right to peremptory challenges is simply a means of selecting
an impartial jury. If the remedy of a new trial is not available for
violation of the constitutional right to an impartial jury because of juror
misconduct unless a court finds that the juror was actually or impliedly
prejudiced, it cannot follow that denial of a nonconstitutional right
involving jury selection is [399MASS631] reversible error without a showing of
prejudice. Since we have concluded that there was no impairment of the
defendant's right to an impartial jury, the defendant has not established that
his right to exercise his peremptory challenges was prejudiced. See
McDonough, supra, 464 U.S. at 555-556, 104 S.Ct. at 849-850.
Order denying motion for new trial affirmed.
FN1. Amirault has also appealed errors which, he alleges, marred his trial.
A single justice of the Appeals Court permitted Amirault to bifurcate his
appeal. We are concerned here only with the denial of the motion for a new
trial predicated on juror misconduct.
FN2. Article 12 of the Massachusetts Declaration of Rights also guarantees
the right to an impartial jury. Commonwealth v. Wood, 389 Mass. 552, 559,
451 N.E.2d 714 (1983). The defendant has not argued that art. 12 establishes
a higher standard and thus we examine his claim solely under the due process
clause. The analysis is the same as it would be under the Sixth Amendment.
Willie v. Maggio, 737 F.2d 1372, 1379 n. 6 (5th Cir.1984).
FN3. Although McDonough is a civil case, its reasoning has force in criminal
cases. See, e.g., United States v. Perkins, 748 F.2d 1519, 1531-1533 (11th
Cir.1984).
FN4. "In Massachusetts, juror testimony is admissible at a hearing to impeach
a jury verdict, but only to establish the existence of improper extraneous
influences on the jury. This testimony is not admissible to demonstrate the
effect that the extraneous matter had upon the juror's thought process."
Commonwealth v. Dunnington, 390 Mass. 472, 478, 407 N.E.2d 1109 (1983). But
"a juror's bias, strictly speaking, is not an 'extraneous matter' as that term
is ordinarily used." Commonwealth v. Grant, 391 Mass. 645, 653, 464 N.E.2d
33 (1984).
The Commonwealth has not argued that the evidence that a juror was the
victim of a crime relates to the juror's mental processes and was
inadmissible. Therefore, we assume the judge acted properly in examination
of the juror. See Commonwealth v. Tavares, 385 Mass. 140, 156, 430 N.E.2d
1198 (1982).
FN5. It is difficult to state conclusively when implied bias must be found
because each case will present unique facts. Justice O'Connor of the United
States Supreme Court has suggested that the following are examples of "extreme
situations that would justify a finding of implied bias": it is disclosed
that "the juror is an actual employee of the prosecuting agency, that the
juror is a close relative of one of the participants in the trial or the
criminal transaction, or that the juror was a witness or somehow involved in
the criminal transaction." Phillips, supra, 455 U.S. at 222, 102 S.Ct. at
948 (O'Connor, J., concurring). Another conceivable illustration is a case
where the trials of codefendants are severed and an individual observes the
first trial and sits as a juror in the second trial. It is also likely that
bias would be implied to a juror who has been the victim of a similar crime
and has consciously concealed that fact from the parties or the court.
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