Commonwealth v. Clark

81 Mass.App.Ct. 1138

967 N.E.2d 650

COMMONWEALTH

v.Joseph CLARK.

No. 10–P–1122.

Appeals Court of Massachusetts.

May 24, 2012.

OPINION TEXT STARTS HEREBy the Court (RAPOZA, C.J., KANTROWITZ & KAFKER, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Joseph Clark, appeals his convictions of two counts of mayhem, one count of malicious destruction of property, two counts of assault and battery by means of a dangerous weapon, and two counts of assault and battery on a correctional officer. He argues that the jury pool was not a representative cross-section of the community because it included no African–Americans, that his convictions of assault and battery by means of a dangerous weapon are duplicative of his mayhem convictions, and that the judge abused his discretion in numerous respects at trial. We agree that the convictions of assault and battery by means of a dangerous weapon may be duplicative, and we therefore vacate them. However, because the defendant has not shown an unrepresentative jury pool and because his other claims are without merit, we affirm the rest of his convictions.

Jury pool composition. The defendant, who is African–American, challenges the lack of African–Americans in the venire on the day of trial and asserts that African–Americans were systematically underrepresented in the jury pool generally. Both claims are waived, as the defendant did not object until after the jury had been selected. See G.L. c. 234A, §§ 73, 74. “[C]hallenges to the composition of a ... jury must be raised only by a pretrial motion to dismiss the indictment or the venire.” Commonwealth v. Barnoski, 418 Mass. 523, 532 (1994), quoting from Commonwealth v. Pope, 392 Mass. 493, 498 (1984). No such motions were made. Even addressing the claims on the merits, however, the defendant has not made out a prima facie case of unconstitutional jury selection. The mere fact that no African–Americans were in the venire on a particular day provides no basis for relief, because random chance can produce such a result even when the process is constitutionally valid. See Commonwealth v. Soares, 377 Mass. 461, 481–482, cert. denied, 444 U.S. 881 (1979); Commonwealth v. Tolentino, 422 Mass. 515, 520–521 (1996). In order to succeed on his systemic underrepresentation claim, the defendant must show that, generally in Norfolk County around the time of trial, African–Americans were “not fairly and reasonably represented in the venires in relation to [their] proportion of the community, and ... that underrepresentation is due to systematic exclusion of [African–Americans] in the jury selection process.” Commonwealth v. Arriaga, 438 Mass. 556, 563 (2003). He has not done so. We also decline the defendant's suggestion that we depart from the “absolute disparity test” applied by the Supreme Judicial Court. Id. at 565. According to the information in the materials before us, African–Americans comprised approximately 5.4 percent of the population of Norfolk County in 2009, and 3.1 percent of the jury pools. The absolute disparity of 2.3 percent is well below the 4.04 percent disparity found insufficient in Arriaga. See ibid.¹

Duplicative convictions. Assault and battery by means of a dangerous weapon is a lesser included offense of the second branch of mayhem.² See Commonwealth v. Martin, 425 Mass. 718, 721–723 (1997); Commonwealth v. Medina, 81 Mass.App.Ct. 525, 529 (2012). The convictions of assault and battery by means of a dangerous weapon can therefore be sustained only if they rested on separate and distinct acts from the mayhem convictions. See Commonwealth v. Drew, 67 Mass.App.Ct. 261, 265 (2006); Medina, supra. As the issue was not raised below, we review for a substantial risk of a miscarriage of justice. See id. at 528.

In this case, the evidence would have been sufficient for the jury to convict the defendant based on separate and distinct acts. See Commonwealth v. Mamay, 407 Mass. 412, 418 (1990). However, the trial judge did not instruct the jury that distinct acts were necessary. See Commonwealth v. Moran, 439 Mass. 482, 489 (2003); Commonwealth v. Juzba, 46 Mass.App.Ct. 319, 325 (1999). Nor did the prosecution's presentation of evidence or closing argument clearly distinguish separate actions as underlying each of the different charges. Compare Mamay, supra (“[T]he prosecutor consistently highlighted the different actions of the defendant”); Medina, supra at 529–530. We must therefore vacate the lesser convictions and order dismissal of those indictments. See Commonwealth v. Thomas, 400 Mass. 676, 681–682 (1987); Commonwealth v. Juzba, supra.

Other issues. The defendant's other arguments are without merit. The trial judge did not abuse his discretion by authorizing increased security measures, as he appropriately instructed the jury on the issue and the defendant rejected a further cautionary instruction. See Commonwealth v. Brown, 364 Mass. 471, 474–477 (1973). It was appropriate to allow the Commonwealth's expert to testify because he was adequately qualified and testified as to matters reasonably within his experience and training. See Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001), and cases cited. The defendant was also able to cross-examine the expert and rebut his testimony. See Commonwealth v. Sands, 424 Mass. 184, 186 (1997). There was no abuse of discretion in permitting the Commonwealth to impeach the defendant with prior convictions, especially where he testified about the convictions on direct examination. See Commonwealth v. Kerrigan, 370 Mass. 859, 859 (1976); Commonwealth v. Crouse, 447 Mass. 558, 565–566 (2006). The defendant's purported prior bad acts testimony was cumulative, and the judge...