State v. Massey

Doris, J.

The defendant, Milton C. Massey, III, was tried before a justice of the Superior Court sitting with a jury on an indictment charging him with two counts of assault with a dangerous weapon (a knife) in violation of G.L. 1956 (1969 Reenactment) §11-5-2. The defendant was found guilty on one count and not guilty on the other. He was sentenced to four years at the Adult Correctional Institutions, two years suspended, with four years probation thereafter. Execution was stayed pending appeal.

The sole issue raised on appeal by defendant is the trial justice’s denial of his motion to pass the case.

The error claimed by defendant occurred during the process of jury selection. In questioning the initial panel of prospective jury members, defense counsel learned that potential juror Mosher had been at the scene of the stabbings shortly after they occurred and had remained there briefly to watch the police investigation. Mosher admitted discussing the incident with people at the scene. The following colloquy then took place between defense counsel and Mosher in front of the prospective jury panel and other potential jurors:

“Q At the time you had these discussions, did you form any opinion as to whether or not a crime was committed and whether or not someone was responsible?

“A Well, to be honest, yes.

“Q You did form an opinion?

“A I said, ‘I’ll bet it was a Massey.’

“Q Excuse me?

“A I’ll be honest. I said Til bet it was a Massey.’

“Q Was this as a result of a conversation you were having at the time you made this remark?

“A Yes.”

Mosher was excused from the panel and defense counsel moved to have the case passed on the ground that the statement made by Mosher was so prejudicial to defendant that he could not receive a fair trial regardless of any instructions given to the jury by the trial justice.

The trial justice initially was of the opinion that the case had to be passed, but he subsequently changed his mind when he was informed by the prosecution that two other members of the Massey family, in addition to defendant, were at the scene of the stabbings. The trial justice then asked the prospective jurors if any of them felt his judgment would be prejudiced by the remark. He did not, however, instruct the jury to disregard the statement. None responded. The trial justice then denied the motion to pass the case.

Defense counsel then requested that each potential juror be questioned individually regarding Mosher’s statement on voir dire. The trial justice granted the motion, and several prospective jurors were subsequently excused or challenged.¹ Following the completion of the voir dire, defense counsel again moved to pass the case. The motion was denied.

“The determination of whether a questioned statement is harmless or improperly prejudicial is, in the first instance, addressed to the sound discretion of the trial justice.” State v. Sfameni, 115 R.I. 18, 22, 339 A.2d 742, 744 (1975); see State v. Peters, 82 R.I. 292, 296, 107 A.2d 428, 430 (1954). In cases involving tainted statements, the trial justice ought to attempt to cure the taint. If, however, he is unable to free the minds of the jury from the tainted remark, he ought to pass the case. State v. Sfameni, supra; Lavigne v. Ballantyne, 66 R.I. 123, 126, 17 A.2d 845, 846 (1941). The question we must decide, therefore, is “whether in the context of the facts in this case, the trial justice exercised proper discre-_ tion in refusing to pass the case.” State v. Manfredi, 118 R.I. 144, 148, 372 A.2d 975, 977 (1977); State v. Sfameni, 115 R.I. at 22, 339 A.2d at 745.

This court has held that a defendant is denied a fair trial when evidence of other separate and distinct crimes is erroneously put before the jury. State v. Manfredi, supra; State v. Costa, 111 R.I. 602, 306 A.2d 36 (1973). In these cases we have found that the cautionary instructions given by the trial justice were insufficient to free the minds of the jury from the prejudice which results when jurors learn that the individual on trial before them has committed other unlawful acts. No different result ought to be reached when the information comes to the attention of the jury not by way of testmony but through a statement by a juror on voir dire. See Commonwealth v. Harkins, 459 Pa. 196, 328 A.2d 156 (1974).

This case differs somewhat from our previous cases and Harkins, in that Mosher made no direct statement implicating defendant in a separate and distinct crime. However, in our opinion, no less harm resulted to defendant. The basic underpinnings of the rule prohibiting the use of evidence of other crimes against a defendant include the undue burden imposed upon the defendant of defending himself against another charge and the introduction of prejudice and confusion into the minds of the jury. State v. Beaulieu, 116 R.I. 575, 579-80, 359 A.2d 689, 691 (1976). The defendant here was placed in a position of having to defend himself against not one specific additional charge but rather the inescapable implication that had been left with the jurors that his family was always in trouble with the law. As the trial justice himself noted, the statement “indicates a little bit of preknowledge about the propensities of the Massey family to get into the clutches of the law.” Such statements regarding general reputation are often more difficult to refute than remarks concerning a single illegal act because of their ill-defined and vague nature. The significance of the fact that Mosher was at the scene of two violent acts for only several minutes and yet concluded that “it must have been a Massey” who committed the acts certainly was not missed by the other prospective jurors.

Evidence of a defendant’s bad character, if allowed to get to the jury through a juror during deliberations, has been assumed to be prejudicial, and the burden has been placed on the government to rebut the presumption by demonstrating harmlessnes. See United States v. Howard, 506 F.2d 865 (5th Cir. 1975). Such evidence regarding a defendant’s reputation, legally inadmissible in this case, ought not to be allowed to reach the jury by other methods when it would not be allowed to reach them from the witness stand.

As has been stated, the trial justice initially decided to grant the motion to pass and then changed his position only after being told by the prosecution that evidence would be presented linking three members of the Massey family to the scene of the stabbings. The evidence presented at trial, however, clearly demonstrated that only one Massey, defendant herein, was at the scene at the time of the stabbings. The other two members of the family had left the scene of the incident. The trial justice had apparently decided that with three Masseys at the scene, the jury did not have to focus on defendant exclusively as the guilty party. The impact of the Mosher statement was not simply an indictment of one unnamed Massey as the person responsible for these violent acts, it was also a remark which in effect told the other potential jurors that the Massey family was always in serious trouble. This statement could not help but prejudice these potential jurors against the family in general and defendant in particular, as he was the only one standing before them accused of committing these crimes.

Nor are we convinced that the methods adopted by the trial justice were sufficient to free the minds of the jurors from the prejudicial effect of the statement. The cautionary instruction given by the trial justice did not inform the potential jurors that they were not to consider the statement. He instructed them that defendant was entitled to a fair trial and asked if any of them would feel prejudiced by the remark. None responded. Yet on voir dire one potential juror was excused by the trial justice for the very reason that he admitted the statement would prejudice his decision.

Further, we cannot say that the individual voir dire of the potential jurors demonstrated a lack of prejudice. Statements coming from a nontestimonial source linking a defendant to a particular crime and inferring the commission of others are most difficult to disregard. The United States Supreme Court has recognized that in certain circumstances when prejudicial information has been allowed to reach the jury, affirmative statements by jurors that such information would not affect their decision is not enough to allow the trial to proceed, and a mistrial should be declared. Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959). We note that during the initial questioning of the prospective jury panel, after potential juror Mosher had revealed that he arrived at the scene shortly after the stabbings occurred, Mosher himself stated to the trial justice that his judgment would not be influenced in the case by what he had heard and witnessed at the scene. The effectiveness and reliability of individual questioning, given the prejudicial nature of the statement, must be viewed as doubtful at best.

Further, we cannot agree with the state’s argument that the error was harmless. Inconsistent verdicts arrived at by a jury which heard equal evidence of both stabbings by the same witnesses do not allow us to say that the error was not harmful to defendant. Although we will never know with any degree of certainty the rationale of the jury’s verdicts, we cannot ignore the possibility that a compromise verdict was reached based upon the tainted statement. Because we cannot say that the procedures adopted by the trial justice were sufficient to cure the taint, defendant was denied his right to trial by an impartial jury. The burden therefore is on the state to show that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The state has failed to meet that burden.

This court has noted that there is no fixed formula by which we can determine whether a particular statement is prejudicial. State v. Manfredi, 118 R.I. 144, 372 A.2d 975 (1977). Every case must be decided on its own facts. The one before us is certainly not free of doubt. Under the particular facts before us, involving a prejudicial statement heard by most potential jurors during the early stages of empaneling a jury, we hold that the trial justice abused his discretion in refusing to pass the case. “Where, as here, doubt exists as to the propriety of the trial justice’s refusal to pass the case, such doubt is to be resolved in the defendant’s favor.” State v. Manfredi, 118 R.I. at 149, 372 A.2d at 977.

The defendant’s appeal is sustained, the judgment of conviction is vacated, and the case is remanded to the Superior Court for a new trial.

Mr. Justice Paolino participated in the decision but retired prior to its announcement.

1 From the record it appears that the jury ultimately selected to hear the evidence consisted of two jurors who were not present when the statement was made and three jurors who were present but testified that they had not heard the statement. The remaining members of the panel admitted on voir dire to having heard the remark but stated that it would not affect their judgment in the case.