Petition — Gunter v. Lussier

In the

Octoser TERM, 1977.

No

77-161 ¢

FRANK O. GUNTER, SuperinTENDENT,

MASSACHUSETTS CORRECTIONAL INSTITUTION, WALPOLE,

AND

FRANK A. HALL,

CoMMISSIONER OF CORRECTION,

PETITIONERS,

vo.

ALAN LLOYD LUSSIER,

RESPONDENT.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the First Circuit.

Francis X. BELLOTTI,

Attorney General,

TERENCE M. TROYER,

Assistant Attorney General,

Criminal Division,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-2240

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

at al te |

Table of Contents.

Opinions below

Jurisdiction

Questions presented

Statutory provisions

Statement of the case

Reasons for granting the writ

I. The respondent is not entitled to federal

habeas corpus relief in the absence of “cause”

or “prejudice”

II. The Court of Appeals erred in holding that

the Massachusetts courts had overlooked re-

spondent’s waiver

Conclusion

Appendix A: Opinion of the United States Court of

Appeals for the First Circuit

Appendix B: Opinion of the United States District

Court for the District of Massachusetts

Appendix C: Opinion of the Supreme Judicial Court

of Massachusetts

Table of Authorities Cited.

CASEs.

Brathwaite v. Manson, 527 F. 2d 363 (2d Cir. 1975),

cert. granted, 425 U.S. 957 (1976) (No. 75-871)

Commonwealth v. Freeman, 352 Mass. 556, 227 N.E.

2d 3 (1967)

aor WON WN PY

10a

l3a

1]

8

ii TABLE OF CONTENTS.

Commonwealth v. Lussier, 364 Mass. 414, 305 N.E.

2d 499 (1973) 2,4

Estelle v. Williams, 425 U.S. 501 (1976) 9, ll

Francis v. Henderson, 425 U.S. 536 (1976) 9,11

Lussier v. Gunter, 552 F. 2d 385 (1st Cir. 1977) 2, 5, 11

Wainwright v. Sykes, 45 U.S.L.W. 4807 (June 23,

1977) 8,9

Warden v. Hayden, 387 U.S. 294 (1967) 9, 11

STATUTES.

United States Code, Title 28

§ 1254(1) D)

§ 2241 4

§ 2254 4

Mass. G.L. c. 278, § 33E 3, 8

MISCELLANEOUS.

Federal Rules of Criminal Procedure, Rule 52(b) 8

tad

a

= OS Ps Pe OT

In the

Supreme Court of the United States.

OcrosBer TERM, 1977.

No.

FRANK O. GUNTER, SuperInTENDENT,

MASSACHUSETTS CORRECTIONAL INSTITUTION, WALPOLE,

AND

FRANK A. HALL,

COMMISSIONER OF CORRECTION,

PETITIONERS,

v.

ALAN LLOYD LUSSIER,

RESPONDENT.

Petition for Writ of Certiorari

to the United States Court of Appeals

for the First Circuit. ©

The petitioners request that a writ of certiorari be issued

to the Court of Appeals for the First Circuit. This is a

cross-petition and is intended to be contingent upon the

granting of certiorari in Lussier v. Gunter, No. 76-7000,

filed June 28, 1977.

2

Opinions Below.

The opinion of the United States Court of Appeals for the

First Circuit is reported at 552 F. 2d 385 (1977) (Appendix

A, la-9a). The opinion of the United States District Court

for the District of Massachusetts is unreported, but is

appended to this petition (Appendix B, 10a-12a). The

opinion of the Supreme Judicial Court of Massachusetts is

reported at 364 Mass. 414, 305 N.E. 2d 499 (1973) (Ap-

pendix C, 13a-24a).

Jurisdiction.

The jurisdiction of this court is invoked pursuant to 28

U.S.C. § 1254(1). The opinion and judgment of the Court

of Appeals were entered on March 31, 1977. On July 7,

1977, Mr. Justice Brennan extended until July 28, 1977, the

time in which this petition may be filed.

Questions Presented.

1. Whether the respondent’s failure to comply with the

Massachusetts contemporaneous objection rule constituted a

waiver sufficient to bar federal habeas relief in the absence

of “cause” or “prejudice.”

2. Whether the Massachusetts Supreme Judicial Court’s

consideration of the claim that plain error had occurred at

the respondent’s trial authorized the United States Court of

omen ee 8

3

Appeals to overlook the respondent's failure to comply with

the Massachusetts contemporaneous objection rule.

Statutory Provisions.

Massachusetts General Laws, c. 278, § 33E, provides as

follows:

“The clerk shall, as speedily as possible but in any

event within ten davs after the filing of the assignment

of errors or within such further time as a justice of the

superior court may for cause allow, transmit the bound

copy of the transcript of the evidence, the summary of

the record and the assignment of errors, which to-

gether shall constitute the record on appeal, to the

supreme judicial court for the county in which the case

is pending or to the supreme judicial court for the com-

monwealth whichever first has a law sitting, including

an adjourned sitting in the case of the court for the

commonwealth, after the assignment of errors is filed,

and upon receipt of the same such appeal shall forth-

with be entered by the clerk on the docket of such

court. Immediately, upon transmission of the record

on appeal as herein provided, the clerk shall notify

counsel for the defendant and for the commonwealth

of such transmission. Except in a capital case, the

entry of the appeal shall not transfer the case but only

the questions to be determined. The supreme judicial

court shall consider all questions of law fairly raised.

“In a capital case as hereinafter defined the entry in

the supreme judicial court shall transfer to that court

the whole case for its consideration of the law and the

evidence. Upon such consideration the court may, if

4

satisfied that the verdict was against the law or the

weight of the evidence, or because of newly discovered

evidence, or for any other reason that justice may re-

quire (a) order a new trial or (b) direct the entry of a

verdict of a lesser degree of guilt, and remand the case

to the superior court for the imposition of sentence.

For the purpose of such review a capital case shall

mean a case in which the defendant was tried on an

indictment for murder in the first degree and was con-

victed of murder either in the first or second degree.

After the entry of the appeal in a capital case and un-

til the filing of the rescript by the supreme judicial

court motions for a new trial shall be presented to that

court and shall be dealt with by the full court, which

may itself hear and determine such motions or remit

the same to the trial judge for hearing and determina-

tion. If a motion is so remitted, or if any motion is

filed in the superior court after rescript, no appeal shall

lie from the decision of that court upon such motion

unless the appeal is allowed by a single justice of the

supreme judicial court on the ground that it presents

a new and substantial question which ought to be

determined by the full court.”

Statement of the Case.

The respondent was convicted of murder in the

Massachusetts Superior Court, and his conviction was

affirmed on appeal. Commonwealth v. Lussier, 364 Mass.

414, 305 N.E. 2d 499 (1973). He petitioned the United

States District Court for a writ of habeas corpus pursuant to

28 U.S.C. §§ 2241, 2254. The District Court denied his

petition, holding that his failure to comply with the

5

Commonwealth’s contemporaneous objection rule consti-

tuted a waiver which barred habeas relief in the absence of

plain error. The Court of Appeals affirmed, holding that

any error present was harmless beyond a reasonable doubt.

Lussier v. Gunter, 552 F. 2d 385 (1st Cir. 1977).

The respondent’s petition for federal habeas corpus arose

out of a remark made during final argument by the

Assistant District Attorney who prosecuted the case.

During the course of his extensive closing, the Assistant

District Attorney said, “I don’t know how he got her down

there. There’s only one person that could tell us that.”

The respondent did not object to this remark, nor did he

request that the judge instruct the jury concerning it or take

any other action. The judge’s charge to the jury included

extensive instructions on the respondent’s privilege not to

‘In full context, the statement was:

“You may ask yourselves, ‘Why did she leave with Lussier in the

first place?’

“What did she see in this creepy-looking character?

“I don’t know the answer to that one, why she left with him.

“A number of possibilities present themselves. Maybe some

conversations took place as to who she was staying with, what's her

address, a possible future date type of thing.

“Or, ‘How much rent are you paying?’

“*There’s a sweetheart of an apartment on the second floor, three

bedrooms, a stone’s throw from Northeastern. Want to come down

and take a look at it?’

“There’s no evidence of this. This is conjecture. This girl was

drinking. Maybe she was half in the bag from the half dozen cans

of beer she consumed.

“Perhaps he suggested, ‘Come down to my apartment and get

more beer.’

“Maybe he told her, there was a party down there. I don't

know how he got her down there. There’s only one person that

could tell us that. But, in any event, she went with him.” (Em-

phasis added.)

6

testify." The respondent did not object to these instructions

or request that they be extended or clarified. Nevertheless,

on appeal to the Massachusetts Supreme Judicial Court and

upon his petition for writ of habeas corpus, the respondent

charged that the judge’s failure to strike the remark and

give special instructions concerning it constituted constitu-

tional error.

The evidence against the respondent (which the District

Court judge characterized as “a strong circumstantial case”)

established that on October 30-31, 1971, he attended a

Halloween party in an apartment on the third floor of a

*“The third fundamental proposition is the following — and I am

referring to that portion of the statute which is General Laws, c. 233,

§ 20, Part Third. While the defendant in this case did not testify, I told

you that under the law he is presumed to be innocent.

“And, again, it’s found in G.L., Ter. Ed. c. 233, § 20, Part Third,

and I am quoting: ‘the defendant in the trial of an indictment,

complaint, or other criminal proceedings shall at his own request but

not otherwise be allowed to testify, but his neglect or refusal to testify

shall not create any presumption against him.’

“Our Supreme Judicial Court has interpreted that section of the

statute and it has said time and time again that this is a privilege of the

defendant which is guarded zealously by the courts. And his decision

not to testify at the trial is a matter that cannot tend to incriminate

him or create in the mind of the fact-finding tribunal, you the jury, in

this case, any unfavorable circumstances and no unfavorable inferences

can be drawn against him for his failure to so testify.

“The logic for this is simple, because under the law the Common-

wealth has the burden of proof to prove guilt of the defendant when it

charges him with an offense. That means that it must establish each

and every element of the crime with which he is charged and to prove it

beyond a reasonable doubt. The defendant is not obliged to prove that

he is innocent.

“He is not obliged to assist in any way or to do anything when he is

charged with an offense. He can remain absolutely mute. The

Commonwealth's burden is to prove that he committed the offense

charged. And he does not have to prove he did not commit it.

“As a matter of fact and as a matter of law, he has no obligations at

all to disprove that which the Commonwealth alleges.”

" ee en

7

building in Boston. Although “scores” of people attended

the party, the respondent was one of the few not in

costume. The respondent was a resident superintendent of

the building where the party was held.

The victim, a 19-year-old woman who was studying

nursing at nearby Northeastern University, was also present

at the party. Two eyewitnesses testified that, at approxi-

mately 2 a.m., she and the respondent left the party hand

in hand. Approximately 18 hours later, her badly battered,

nude body was found in a vacant apartment on the second

floor of the same building. A resident of a first floor apart-

ment of the building testified to hearing noises which

tended to show that the murder had taken place not more

than half an hour after the victim and the respondent had

left the party together. The wounds upon the victim’s body

were consistent with repeated kicks with boots such as those

the respondent was wearing.

This evidence was buttressed by the following facts:

(1) The following day, the respondent twice denied

leaving the party with the victim. One denial took place

before the body was found.

(2) The respondent’s observed behavior during the

remainder of the night of the party was somewhat peculiar,

consistent with a theory that he was disposing of certain

articles of the victim’s clothing which were never found.

(3) Small amounts of blood matching the victim’s blood

type were found on the defendant’s boots and clothing.

This last item was undercut to a considerable degree by

cogent and convincing evidence that another person of the

same blood type had been involved in a fight during the

party and had shed blood. How much blood was shed and

respondent’s proximity to the event remained in dispute.

(4) The respondent was aware of the fact that the apart-

ment on the second floor was vacant. He had helped clean

the apartment the preceding day.

8

Reasons for Granting the Writ.

The petitioners intend to press this cross-petition only if

the petition of Alan Lloyd Lussier (No. 76-7000), filed on

June 28, 1977, is granted. If the original petition should be

granted, it would be inequitable to preclude the petitioners

from presenting the arguments to which they have

consistently adhered throughout this litigation and which

this Court has subsequently accepted in another case. The

Court of Appeals did not consider these arguments, because

it decided in favor of the petitioners on the other grounds.

I. THe RESPONDENT 1s Not ENTITLED TO FEDERAL HABEAS

Corpus RELIEF IN THE ABSENCE OF “CAUSE” OR “ PREJUDICE.”

Throughout this litigation, the petitioners have consistent-

ly argued that the standard of review on federal habeas

corpus was established when the respondent failed to

comply with the Massachusetts contemporaneous objection

rule. The petitioners have argued that, in these circum-

stances, the writ can be granted only if the Court finds that

“plain error” exists within the meaning of Fed. R. Crim. P.

52(b) and the similar Massachusetts rule. See Mass. G.L.

c. 278, § 33E; Commonwealth v. Freeman, 352 Mass. 556,

563-64, 227 N.E. 2d 3, 8-9 (1967). Subsequent to the

decision of the Court of Appeals, this position has been

completely accepted by this Court, with only verbal

changes. Wainwright v. Sykes, 45 U.S.L.W. 4807

(June 23, 1977). The Court held that failure to comply

with a state procedural rule constitutes an independent and

adequate state ground precluding federal habeas in the

absence of cause or prejudice.

8 ee IN

9

The rule in Wainwright v. Sykes governs the present

case and the Court of Appeals ought to have decided the

case on that basis. The court thought it prudent, however,

despite this Court’s decisions in Francis v. Henderson, 425

U.S. 536 (1976), and Estelle v. Williams, 425 U.S. 501

(1976), to avoid the necessity of deciding the question

presented by the petitioners by deciding the case on other

grounds. Thus, the Court of Appeals found that any error

present was harmless “beyond a _ reasonable doubt.”

Although this decision was correct and is supported by the

evidence, its effect was to place upon the petitioners a

heavier burden than the law required them to bear. If the

case is relitigated, this error should be rectified.

II. THe Court or AppEALs ErRRED IN HOLDING THAT THE

MASSACHUSETTS COURTS HAD OVERLOOKED RESPONDENT'S

WaAlIVER.

The decision of the Court of Appeals to reject the peti-

tioners’ arguments and reach the merits was based on

Warden v. Hayden, 387 U.S. 294, 297 n. 3 (1967). In that

case, the Court remarked that when a state court has over-

looked a procedural failure, a federal habeas court may also

do so. The Court of Appeals apparently concluded that the

Massachusetts Supreme Judicial Court had overlooked the

respondent’s failure to observe the Commonwealth’s con-

temporaneous objection rule.

“On appeal to the Massachusetts Supreme Judicial

Court, Lussier argued that the prosecutor’s comments

were ‘improper and [he] challenge[d] the failure of the

trial judge to order the remarks struck when they were

made or to subsequently instruct the jury to disregard

10 11

them.” Commonwealth v. Lussier, 364 Mass. 414,

424, 305 N.E. 2d 499, 505 (1973). The court ruled:

at 506 n. 3.” (Ellipses in original; emphasis added.)

552 F. 2d at 387-388 (Appendix A, 4a-5a).

““While we do not approve of some portions of the

prosecutor’s summation to the jury, when viewed in

the overall context they are not so prejudicial as to

justify reversal. ... Moreover, there is a simple and

obvious reason for the trial judge’s alleged “failure”

to strike them or attempt to mitigate their impact as

effectively as the defendant now argues was appro-

priate. That is, defense counsel took no exceptions

at the close of the prosecutor’s summation, and made

no request for special instructions despite ample

opportunity to do so.... While under G.L. c. 278,

§ 33E, we will, in appropriate circumstances, act

to rectify a substantial risk of a miscarriage of

justice, despite the absence of exceptions in the

record, we do not feel that such action is warranted

here.’ Id. at 424-25, 305 N.E. 2d at 506.

“In a footnote the Supreme Judicial Court quoted

The Court of Appeals erred in deciding, on the basis of

this language, that it was free to reach the merits of the

respondent's claim. The treatment given the matter by the

Supreme Judicial Court was obviously in furtherance of the

Massachusetts plain error rule. The court specifically noted

the absence of an exception, but recognized its obligation to

consider the alleged error further to determine whether it

required action despite that failure. In determining the

remarks were not “so prejudicial as to justify reversal,” the

court was clearly holding that there was no plain error.

Such a treatment by a state court was not sufficient to

invoke the doctrine of Warden v. Hayden. Brathwaite v.

Manson, 527 F. 2d 363, 366 (2d Cir. 1975), cert. granted,

425 U.S. 957 (1976) (No. 75-871) (dictum).

Virtually every jurisdiction in the country has a plain

error rule. Consequently, virtually every appellate court is

obliged to consider alleged error under the terms of that

rule even though an appellant has nct complied with the

applicable procedural rules. To hold that such obligatory

the prosecutor’s remarks which were asserted to be

prejudicial. With reference to the comment that

‘[t]here’s only one person that could tell us that,’ the

court stated:

“*This last remark would raise serious questions as

to the infringement of the defendant’s Fifth Amend-

ment right to remain silent, see Griffin v. California,

380 U.S. 609, 611, 85 S. Ct. 1229, 14 L. Ed. 2d 106

(1965), were it not for that portion of the judge's

charge specifically explaining to the jury that the

defendant had the right not to testify, and that no

unfavorable inferences were to be drawn from his

exercising that right.’ Id. at 424 n. 3, 305 N.E. 2d

consideration releases an appellant from the effects of his

waiver would be to render nugatory the decisions of this

Court in Wainwright, Francis, and Estelle. The Court of

Appeals for the Second Circuit recognized this obvious fact

when it stated that plain error treatment by a state court

would not bring a case within the principle of Warden v.

Hayden. That statement should be adopted by this Court.

In the present case, the Court of Appeals apparently

decided that the Supreme Judicial Court’s treatment of the

matter was plenary consideration on the merits. This

12

decision is plainly erroneous.’ The only question which

was before the federal courts was whether or not there was

constitutional error. As the District Court judge put it:

“(T]he error we are talking about, it is agreed by

everyone, is the error of the trial judge in not singling

out for special, explicit jury attention the almost casual

comment of the prosecuting attorney made in the

course of the prosecuting attorney's final argument.”

(Appendix B, lla.)

This question was also presented to the Supreme Judicial

Court and that court explicitly refused to decide it. The

court noted the absence of either a request for instructions

or an exception and stated that, under these circumstances,

it need not act. This clear holding cannot be dismissed by

referring to the court’s footnote. Even in the absence of an

exception, the court was obliged to consider whether the

error alleged was so egregious as to constitute plain error.

Read in the light of the court’s holding, the footnote clearly

does nothing more than {fulfill this function. The reading

of the Court of Appeals is strained and invades the province

of the Supreme Judicial Court. It should not be upheld by

this Court.

*If this is a factual question, it is one which was resolved in the peti-

tioners’ favor by the District Court. The Court of Appeals erred by

needlessly disturbing this finding. If this is a legal question, it is one

upon which this Court should pass in resolving the case.

13

Conclusion.

If certiorari is granted in Lussier v. Gunter, No. 76-7000,

it should be granted in this case. If certiorari is denied in

No. 76-7000, the Court need not consider the present

petition.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

TERENCE M. TROYER,

Assistant Attorney General,

Criminal Division,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-2240

14

la

Appendix A.

United States Court of Appeals

for the First Circuit.

No. 76-1282.

[Caption omitted in printing. ]

Before Corrin, Chief Judge, Cxarx, Associate Justice,

(Retired), CampBe.L, Circuit Judge.

Levin H. CampBELL, Circuit Judge.

The district court dismissed appellant Lussier’s petition for

a writ of habeas corpus under 28 U.S.C. § 2254 and he

appeals.

Lussier was convicted after a jury trial in Massachusetts

Superior Court of first degree murder committed with

extreme cruelty or atrocity and was sentenced to life

imprisonment. The Commonwealth introduced evidence

that in 1971, at the time of the murder, Lussier was a part-

time resident superintendent at an apartment building on

Westland Avenue, Boston. Late in the evening of Octo-

ber 30 he arrived at a Halloween party in the building

which was attended by the victim, a 19-year-old student

nurse, and scores of other persons. While Lussier was there

a fight broke out between one Devereaux and others. The

testimony was conflicting as to the amount which Deve-

reaux bled and petitioner’s proximity to him. The defense

contended that the type O positive blood which was later

found caked in small amounts on Lussier’ boot and

clothing had originated with Devereaux.

2a

There was evidence that Lussier conversed with the

victim and several others for about one half hour. Two

participants in this conversation testified that they later saw

petitioner and the victim leaving the apartment hand in

hand. About eighteen hours after the couple had left the

party, the victim’s badly battered, nude body was found in

a vacant apartment in the same building. A downstairs

neighbor's testimony recalling sounds of a struggle and a

loud thud emanating from the vacant apartment at about

2:30 a.m. on the night of the party tended to show that the

murder occurred no later than one half hour after petitioner

was observed leaving the party with the victim. The

wounds about the victim’s head were consistent with those

which might have been inflicted by repeated kicks with

boots such as those worn by petitioner. The victim’s blood

was of type O positive, the same type as that found on

petitioner's boot. There was testimony indicating that

petitioner had been aware that the apartment was vacant,

he having assisted in cleaning it on the day before the

party.

The prosecutor's closing statement to the jury included a

number of comments the propriety of which Lussier has

since challenged. The comment which Lussier focuses upon

here, and which he argues entitles him to issuance of a writ

of habeas corpus as in violation of his privilege against self

incrimination, is the following:

“Maybe he told her, there was a party down there.

I don’t know how he got her down there. There’s only

one person that could tell us that. But, in any event,

she went with him.” [Emphasis supplied. ]

3a

Lussier’s attorney, who does not now represent him, did not

object or request a curative instruction from the court. The

court’s lengthy jury instructions included, however, the

following:

“The third fundamental proposition is the following

— and I am referring to that portion of the statute

which is General Laws, c. 233, § 20, Part Third.

While the defendant in this case did not testify, I told

you that under the law he is presumed to be innocent.

“And, again, it’s found in G.L. Ter. Ed. c. 233,

§ 20, Part Third, and I am quoting: ‘the defendant in

the trial of an indictment, complaint, or other criminal

proceedings shall at his own request but not otherwise

be allowed to testify, but his neglect or refusal to testify

shall not create any presumption against him.’

“Our Supreme Judicial Court has interpreted that

section of the statute and it has said time and time

again that this is a privilege of the defendant which is

guarded zealously by the courts. And his decision not

to testify at the trial is a matter that cannot tend to

incriminate him or create in the mind of the fact-

finding tribunal, you the jury in this case, any un-

favorable circumstance and no unfavorable inferences

can be drawn against him for his failure to so testify.

“The logic for this is simple, because under the law

the Commonwealth has the burden of proof to prove

guilt of the defendant when it charges him with an

offense. That means that it must establish each and

every element of the crime with which he is charged

and to prove it beyond a reasonable doubt. The

defendant is not obliged to prove that he is innocent.

“He is not obliged to assist in any way or to do any-

thing when he is charged with an offense. He can

4a

remain absolutely mute. The Commonwealth’s burden

is to prove that he committed the offense charged.

And he does not have to prove that he did not commit

it.

“As a matter of fact and as a matter of law, he has

no obligations at all to disprove that which the Com-

monwealth alleges.”

On appeal to the Massachusetts Supreme Judicial Court,

Lussier argued that the prosecutor's comments were

“improper and [he] challenge[d] the failure of the trial

judge to order the remarks struck when they were made or

to subsequently instruct the jury to disregard them.”

Commonwealth v. Lussier, 364 Mass. 414, 424, 305 N.E.

2d 499, 505 (1973). The court ruled:

“While we do not approve of some portions of the

prosecutor’s summation to the jury, when viewed in the

overall context they are not so prejudicial as to justify

reversal. ... Moreover, there is a simple and obvious

reason for the trial judge’s alleged ‘failure’ to strike

them or attempt to mitigate their impact as effectively

as the defendant now argues was appropriate. That

is, defense counsel took no exceptions at the close of

the prosecutor’s summation, and made no request for

special instructions despite ample opportunity to do

so.... While under G.L. c. 278, § 33E, we will, in

appropriate circumstances, act to rectify a substantial

risk of a miscarriage of justice, despite the absence of

exceptions in the record, we do not feel that such

action is warranted here.” Jd. at 424-25, 305 N.E. 2d

at 506.

5a

In a footnote the Supreme Judicial Court quoted the

prosecutor’s remarks which were asserted to be prejudicial.

With reference to the comment that “[t]here’s only one

person that could tell us that,” the court stated:

“This last remark would raise serious questions as to

the infringement of the defendant’s Fifth Amendment

right to remain silent, see Griffin v. California, 380

U.S. 609, 611, 85 S. Ct. 1229, 14 L. Ed. 2d 106

(1965), were it not for that portion of the judge’s

charge specifically explaining to the jury that the

defendant had the right not to testify, and that no

unfavorable inferences were to be drawn from his

exercising that right.” Id. at 424 n. 3, 305 N.E. 2d at

506 n. 3.

In the district court the Commonwealth resisted the

habeas corpus petition on grounds that Lussier had waived

objection to constitutional errors in failing to take exception

to the prosecutor’s comment. According to this argument,

Massachusetts’ statutory “miscarriage of justice” exception to

a waiver is the equivalent of the federal “plain error” rule,

Fed. R. Crim. P. 52(b). The Commonwealth also argued

that the prosecutor’s comment was harmless in light of the

trial judge’s extensive instructions on the defendant's right to

remain silent. The district court denied the petition.

On appeal, Lussier presses the argument that the prosecu-

tor’s remark was an unconstitutional and harmful comment

on an accused’s exercise of the right to remain silent. He

contends that his attorney's failure to except was not a

“deliberate bypass” of state court procedure, see Fay v.

Noia, 372 U.S. 391, 483, 83 S.Ct. 822, 9 L. Ed. 2d 837

(1963), for the prosecutor’s misconduct had put him in the

6a

position of making a “grisly choice” between suffering the

comment in silence and objecting, thereby calling further

attention to the prejudicial remark. He denies that a

calculated tactical decision to forego objection was ever

made. Id. at 439, 83 S. Ct. 822. Furthermore, Lussier

argues, the Supreme Judicial Court actually reached the

constitutional issue, so the Commonwealth’s reliance on a

theory of waiver is inapposite.

[1] We need not decide whether or to what extent Fay’s

“deliberate by-pass” standard has been broadened by the

Supreme Court in giving effect to state rules concerning

waiver. See Francis v. Henderson, 425 U.S. 536, 96 S. Ct.

1708, 48 L. Ed. 2d 149 (1976); P. Bator, et al., Hart &

Wechsler’s The Federal Courts and The Federal System

256-58 (Supp. 1977). We agree with petitioner that the

Supreme Judicial Court decided the substance of his consti-

tutional claim. It characterized the prosecutor's offensive

comments as “not so prejudicial as to justify reversal.” Id.,

364 Mass. at 424, 305 N.E. 2d at 506. The comment that

is the subject of this appeal was said to “raise serious

questions as to the infringement of the defendant's Fifth

Amendment right to remain silent . . . were it not for that

portion of the judge’s charge specifically explaining that the

defendant had the right not to testify, and that no unfavor-

able inferences were to be drawn from his exercising that

right.” 364 Mass. at 424 n. 3, 305 N.E. 2d at 506 n. 3.

While it also stressed the lack of exceptions and requests for

special instructions, we are satisfied that the court reached

and decided the merits of the constitutional issue presented

in this appeal. We are therefore free to consider it.

Warden v. Hayden, 387 U.S. 294, 297 n. 3, 87 S. Ct.

1642, 18 L. Ed. 2d 782 (1967).

In Griffin v. California, 380 U.S. 609, 615, 85 S. Ct.

1229, 1233, 14 L. Ed. 2d 106 (1965) the Supreme Court

7a

held that “the Fifth Amendment, . . . in its bearing on the

States by reason of the Fourteenth Amendment, forbids

either comment by the prosecution on the accused's silence

or instructions by the court that such silence is evidence of

guilt.” In determining whether Lussier’s fifth amendment

rights were infringed we must therefore inquire whether the

prosecutor's statement was a “comment ... on the

accused’s silence.” The tenth circuit has formulated the

following test:

“[W Jhether the language used was manifestly intended

or was of such character that the jury would naturally

and necessarily take it to be a comment on the failure

of the accused to testify.” Knowles v. United States,

224 F. 2d 168, 170 (10th Cir. 1955).

The comment in this case came after the prosecutor had

speculated about how Lussier might have lured the victim

to the vacant apartment:

“I don’t know how he got her down there. There's

only one person that could tell us that.”

It is not entirely clear who the “one person” was supposed

to be. Either the prosecutor was rhetorically invoking the

' Accord, United States v. Williams, 172 U.S. App. D.C. 290, 521 F.

2d 950, 953 (1975); United States v. Aldridge, 484 F. 2d 655, 660 (7th

Cir. 1973), cert. denied, 415 U.S. 921, 94S. Ct. 1423, 39 L. Ed. 2d 477

(1974); United States v. Biondo, 483 F. 2d 635, 644 (8th Cir. 1973);

cert. denied, 415 U.S. 947, 94 S. Ct. 1468, 39 L. Ed. 2d 563 (1974);

Doty v. United States, 416 F. 2d 887, 890 (10th Cir. 1968), vacated on

other grounds, 401 U.S. 1066, 91 S. Ct. 1247, 28 L. Ed. 2d 542 (1971).

8a

victirn (“there’s only one person that could tell us that and

she no longer can”), or else he was pointing his finger at the

silent Lussier. Cf. Rodriguez-Sandoval v. United States,

409 F. 2d 529, 531 (lst Cir. 1969); Desmond v. United

States, 345 F. 2d 225, 227 (lst Cir. 1965). We cannot

quite say, in the words of the tenth circuit, that the remark

was “manifestly intended or was of such character that the

jury would naturally and necessarily take it” as a comment

on Lussier’s failure to testify.

[2, 3] Even, however, if the comment were interpreted as

coming within the class of prosecutorial comment which the

fifth amendment forbids, we believe that the Superior

Court justice’s lengthy instruction to the jury on a defend-

ant’s right not to take the stand rendered the improper

remark “harmless beyond a reasonable doubt.” Chapman

v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d

705 (1967). While the judge did not immediately interrupt

argument to admonish the prosecutor and instruct the jury,’

his instruction at the conclusion of the trial on Lussier’s

right to remain silent was unusually emphatic and

complete. It far exceeded the more perfunctory general

instructions which have often been found inadequate to

5

s <

* Petitioner notes that this circuit, in United States v. Flannery, 451 F.

2d 880, 882 (1 Cir. 1971), announced that in future cases we would

reverse a conviction where after a prosecutorial comment on a defend-

ant’s silence, the trial judge did not immediately and sua sponte

interrupt the argument to admonish the prosecutor and instruct the jury.

The Flannery rule, as petitioner concedes, rests on our supervisory

powers over the federal courts within this circuit. It was not addressed

to the state judiciary, and insofar as it might require actions in some

cases going beyond the strict requirements of the Constitution, we shall

not apply it in habeas review of state proceedings. This is not to say

that the immediacy and force of a state judge's corrective actions will

not be important in determining whether the prejudice from an uncon-

stitutional comment has been neutralized.

9a

combat specifically prejudicial remarks. The prosecutor's

comment was itself brief, indirect and isolated. It plainly

could and preferably should have been dealt with by an

immediate, sua sponte instruction. But given the thorough-

ness of the later instructions, we think that whatever preju-

dicial impact the comment had in heightening the jury’s

awareness of defendant’s failure to take the stand was

adequately offset. See United States v. Biondo, 483 F. 2d

635, 645 (8th Cir. 1973), cert. denied, 415 U.S. 947, 94 S.

Ct. 1468, 39 L. Ed. 2d 563 (1974); United States v.

Mahanna, 461 F. 2d 1110, 1114-15 (8th Cir. 1972); United

States v. Alloway, 397 F. 2d 105, 113 (6th Cir. 1968);

Jacobs v. United States, 395 F. 2d 469, 477-78 (8th Cir.

1968). Cf. United States v. Schartner, 426 F. 2d 470, 478

(3d Cir. 1970); United States v. White, 444 F. 2d 1274,

1278 (5th Cir.), cert. denied, 404 U.S. 949, 92 S. Ct. 300,

30 L. Ed. 2d 266 (1971). But see Berryman v. Colbert,

538 F. 2d 1247, 1249-50 (6th Cir. 1976); United States v.

Handman, 447 F. 2d 853, 855 (7th Cir. 1971).

Affirmed.

10a

Appendix B.

United States District Court

for the

District of Massachusetts.

[Caption omitted in printing. ]

Proceedings.

THe Crerx: Civil Action 75-3931-G, Alan Lussier versus

Frank Hall.

Tue Court: I will state the ruling and the grounds

therefor, and the ruling is that the petition is denied. The

ground is that in my view, the commonwealth is correct in

holding or in contending that the Davis and Allen cases,

and I refer to Davis versus United States, 411 U. S. 233, in

the year 1973, and United States ex rel. Allum, A-l-l-u-m,

versus Twomey, T-w-o-m-e-y, Seventh Circuit, 1973, 484

Federal 2d 740, engraft on habeas corpus procedure the

federal plain error whenever a state has adopted a similar

rule.

There is not a great deal that can be added, except that I

should make some subsidiary or ancillary findings.

I consider that the case in the state court was a strong

circumstantial evidence case. I do not think it could fairly

be said that the case was overwhelming, but nevertheless

strong and clearly ample to support the conviction, in my

view.

I think that the error of the state court judge was

arguably harmless, but I do not rest the decision here on

that ground, because I think it is a close question, and I

think that it is difficult to say that the error was harmless

lla

beyond a reasonable doubt. The Chapman standard is a

relevant standard, and at least in the habeas cases that have

come before me, I have interpreted it to be, I think, a

stricter standard than has been interpreted in some other

parts of the country. I am not talking about the First

Circuit or this court, but in other parts of the country.

I read syllabuses of cases in which courts hold error to be

harmless, and I have real difficulty in agreeing with those

decisions if Chapman requires, as we know it does, that it

be harmless beyond a reasonable doubt. Nevertheless, the

error we are talking about, it is agreed by everyone, is the

error of the trial judge in not singling out for special,

explicit jury attention the almost casual comment of the

prosecuting attorney made in the course of the prosecuting

attorney's final argument.

The type of prejudicial statement that was arguably made

by the D. A. could, it seems to me, be cured as well in the

course of general, boilerplate instructions on the defendant's

rights under the Fifth Amendment, which were given, as by

singling out the particular statement made by the prosecut-

ing attorney and giving it an emphasis that, in the context

of this case, I think it very probably did not have in the

jury’s minds. In the context in which it was made, I think

it is arguable that the jurors might have thought that the

prosecutor was referring to the deceased, the victim of this

crime.

I recognize that the past tense was not employed, but still

it was certainly not an explicit appeal to the jury’s making

an inference — to an inference permissible from the

defendant’s failure to testify. It simply does not strike me

as having been made in a context where the jury would

probably so interpret it, so that I have no hesitancy at all in

concluding, as I do, that it was not plain error.

12a

If, as I think the law is, the plain error rule is properly

applied in the course of a habeas corpus proceeding in this

court, well, then, that is determinative of the case. I think

I have considered the nature of the case, the circumstantial

evidence against the petitioner, the nature of the error, and

my understanding as to what the correct rule of law is here,

and it is for those reasons that the petition is denied.

This statement, when Mrs. Fitzhugh types it up,

constitutes the Court’s memorandum of decision, and that is

the end of this case, at least in this court.

(Thereupon the hearing was concluded.)

——

13a

Appendix C.

414 364 Mass. 414

Commonwealth v. L.ussicr.

COMMONWEALTH vs. ALAN L. LUSSIER.

Suffolk. November 5, 1973. — December 18, 1973.

Present: TAURO, C.J., REARDON, QUIRICO, KAPLAN, & WILKINS, JJ.

Homicide. Jury and Jurors. Constitutional Law, Due process of law,

Equal protection of laws. Practice, Criminal, Fair trial, Argument by

prosecutor, Election.

At the trial of an indictment for murder of a girl by beating her, the

evidence, together with reasonable inferences to be drawn therefrom,

was sufficient to support the jury’s conclusion that the defendant was

guilty beyond a reasonable doubt. [420-422]

At the trial of an indictment for murder, the rights of the twenty-four year

old defendant under the due process and equal protection clauses of the

Fourteenth Amendment of the Federal Constitution were not violated

by G. L. c. 234, § 1, in that it exempted from jury duty persons under

twenty-two years of age. [423-424]

At the trial of an indictment for murder, although certain remarks made

by the prosecutor in his closing argument were not approved by this

court, when viewed in the overall context they were not so prejudicial as

to justify reversal. [424-425]

At the trial of an indictment for murder, after the decision in Furman v.

Georgia, 408 U.S. 238 (1972), the judge did not commit error by allow-

ing inquiries, and eventual dismissal, of jurors who were opposed to

the death penalty where the Commonwealth was not restricted to a

rape-murder theory; this court was unable to conclude that the exclusion

of jurors opposed to capital punishment resulted in an unrepresentative

jury on the issue of guilt or substantially increased the risk of convic-

tion. [425]

INDICTMENT found and returned in the Superior Court on

January 12, 1972.

The case was tried before Paquet, J.

Lawrence D. Shubow for the defendant.

Thomas J. Mundy, Jr., Assistant District Attorney, for

the Commonwealth.

Tauro, C.J. This is an appeal pursuant to G. L. c. 278,

§§ 33A-33G, from a conviction of murder in the first degree

committed with extreme atrocity or cruelty. The defendant,

aged twenty-four at the time of his arrest, argues that (1)

l4a

364 Mass. 414 415

Commonwealth v. Lussier.

young persons were unconstitutionally excluded from the

jury in violation of the Due Process and Equal Protection

clauses of the Fourteenth Amendment to the United States

Constitution, (2) the verdict was based on insufficient evi-

dence, (3) the prosecutor’s summation argument was im-

proper and prejudicial, (4) the trial court erred in failing to

require the Commonwealth to elect among its theories of

murder and in allowing the exclusion of jurors with strong

views against capital punishment. We cannot agree.

The evidence, which was solely circumstantial as it related

to the defendant’s guilt or innocence, may be briefly sum-

marized as follows. The victim, a nineteen year old third

year student at Northeastern University’s School of Nursing,

on the evening of October 30, 1971, with her roommate and

some friends went to a Halloween party on the third floor,

apartment 32, at 72-74 Westland Avenue, Boston. The next

night, around 7:30 p.m., she was found dead, badly beaten

and bloodied, in a vacant apartment, number 22, on the sec-

ond floor in the same building. From six to eight weeks

prior to the party the defendant Alan Lussier had occupied

apartment 14 along with three other men. The four per-

formed janitorial services in lieu of rental payments, and on

the day of October 29, Lussier, along with two of his room-

mates, had spent time cleaning and preparing apartment 22

for prospective tenants.

Lussier had been observed at the Halloween party by a

number of witnesses. He had not been invited, and was one

of the few persons out of between twenty-five and one hun-

dred in attendance who had not worn a costume. Witnesses

recalled his wearing brown leather square-toed boots, blue

and white striped dungarees, and a black leather motorcycle

jacket. These articles of clothing, along with a purple and

white pin-striped shirt and a cat-faced ring, were all later

identified as belonging to Lussier. Bloodstains were discov-

ered on these items in the course of the police investigation,

but only in the case of the right boot was there sufficient

quantity of blood to allow for blood group identification.

The F. B. I. identified the blood as **O positive.” Two per-

15a

416 364 Mass. 414

Commonwealth v. Lussier.

sons at the party were determined to be within this blood

group — the victim, and one William Devereaux, who had

been involved in an altercation during the course of the

party, and with whom the defendant, according to the testi-

mony, had been in near or actual contact during and after

the altercation.

The Devereaux incident occurred about 12:30 or 12:454.M.

Witnesses recalled that a group of persons had assaulted

Devereaux in the vicinity of the kitchen and hallway in apart-

ment 32, and that he had been bleeding afterwards. Dev-

ereaux was later taken to a hospital for stitches and minor

oral surgery. One witness described the bleeding as ‘‘contin-

uous”’ but not ‘‘massive.’’ Another remembered that there

were a couple of splotches of blood on the wall and on the

casing of the kitchen entrance. A defence witness testified to

the existence of a pool of blood in the hallway after the fight,

but other witnesses either had no such recollection or

described the ‘‘pool of blood’’ as the sticky residue of spilled

beer.

Devereaux, who himself characterized his bleeding as

‘*flowing every time I opened my mout’ ,”’ was ‘‘almost posi-

tive,’” but ‘‘not absolutely 100% positive,”’’ that Lussier had

come between him and his assailant and had broken up the

fight. He testified to spitting out blood as a result of his in-

juries but could not recall whether he had spit or dripped

any blood directly onto Lussier. Other witnesses were also

unable to say whether Devereaux’s blood had at some point

come onto Lussier’s person or clothing.

Immediately after the fight, Devereaux had been ushered

out into the main hallway on the third floor of the apartment

building. Witnesses testified that Lussier then appeared at

the scene, described himself as superintendent of the build-

ing, and ordered Devereaux off the premises. Devereaux

was still bleeding at that point and, according to one witness,

was close to, but not in actual contact with, Lussier. (‘“The

kid [Devereaux] was leaning against the wall. Alan Lussier

was standing on this side of him — with his hand up against

the wall — like that — a foot and a half away from.”’)

16a

364 Mass. 414 417

Commonwealth v. Lussier.

Devereaux soon left for the hospital.

After these events, about 1:15 4.m., Lussier, the victim, one

James Yurkus and a Wayne Fricke were engaged in a conver-

sation in the kitchen of apartment 32. Yurkus had met the

victim previously, and Fricke had known her for at least two

years as a student at Northeastern. Both testified that the

group had remained in the kitchen for fifteen or twenty

minutes. Yurkus recalled that the victim at some point dur-

ing the conversation remarked to Lussier that all the super-

intendents she knew were ‘‘freaky,”’ but when he asked her

if he appeared that way, she answered, ‘‘No.’’ About

1:30 A.M., the group inoved into the living room where Fricke

cleared an area for himself and the victim to sit. He testified

that about fifteen minutes later, Lussier said to the victim,

“I'd like to talk to you for a few minutes.’’ Lussier then took

her hand and they went out into the hallway of apartment 32,

where the victim sat down in a chair. Fricke, who had in-

tended to walk the victim home after the party observed the

two talking in the hallway for the next fifteen minutes, until

approximately 2 A.M., at which point they stood up, joined

hands, and left the apartment through the back door. The

victim was never seen alive again.

Kathleen Bahm lived in apartment 12, directly below

apartment 22 where the victim’s body was later found. She

testified that around two fifteen she heard people, more than

one, running in the apartment upstairs, and that five minutes

later she heard a ‘‘loud thud as though someone fell.’’ Her

roommate, Sherry Klein, gave the same testimony.

According to Bryan McMahon, one of the defendant’s

roommates, Lussier came back to apartment 14 about two

thirty, picked up some clothes, and departed for the apart-

ment of his girl friend. Her testimony was that Lussier had

come by that night, but she did not remember the time, and

that he was there when she awoke the next morning. Wit-

nesses testified to seeing Lussier return to his apartment

building around 4 a.m.

That morning about eleven, Lussier knocked on the door

of apartment 32 and spoke with a Charles Bell. Bell, who

17a

418 364 Mass. 414

Commonwealth v. Lussier.

knew Lussier only as someone who worked around the build-

ing, testified that Lussier said something to the effect that

he, Lussier, had had quite a bit to drink at the party the night

before, and inquired if there had been any trouble during the

course of the evening.

By 7 P.M. the victim’s roommate had not heard from her

and was concerned about her whereabouts. She called An-

drew Hildreth, another resident of apartment 32, who in

turn went down to apartment 14 to ask Lussier whether he

had seen the victim. Lussier said he had not seen her, nor had

he left the party with her. ;

Shortly thereafter, about 7:30 p.m., the severely battered

and bloody body of the victim was discovered in apartment

22 by Sherry Klein and her roommates.

Miss Klein testified that the victim’s body was in the ap-

proximate location where she had heard the “‘thud’’ in the

early morning. The group then contacted Lussier and his

roommates in apartment 14 and told them what they had dis-

covered. At the request of one of the members of the group,

Lussier telephoned the police. His demeanor, according to

Miss Klein, was calm.

The police arrived at eight thirty and began examining the

scene. With the exception of the victim’s hat, headband, and

shoes, none of her clothing was found. A bloody footwear

impression was discovered in the carpet near the body. A

piece of bloodstained toilet tissue was found belund the toilet

in the bathroom, and scrape marks were detected on the edge

of a nearby sink. Along with Lussier’s clothing, described

earlier, and a blood-free chair leg, these items constituted the

whole of the Commonwealth’s physical evidence connecting

Lussier with the crime.

Lussier was arrested on the same night, soon after the

police discovered his bloodstained boots in apartment 14. At

police headquarters, Lussier made a statement in which he

admitted speaking to the victim in the kitchen at the party in

apartment 32, but he denied sitting and speaking with her at

any other time, and maintained that they had not left the

party together.

18a

364 Mass. 414 419

Commonwealth vo tussier

At the trial, three expert witnesses testified as to the results

of their examination of the victim’s body, the defendant’s

clothing, and other objects found at the scene of the crime.

Dr. George Curtis, Suffolk County medical examiner, who

arrived at the murder scene at 10:30 P.M., testified to what he

observed during his examination of the victim’s body, and

used photographic exhibits and slides to explain his observa-

tions. He placed the time of death somewhere between

twelve midnight and seven in the morning of October 31,

1971. In his opinion, the cause of death was ‘‘multiple blows

to the head.”’ These injuries, he said, were consistent with

the victim being kicked in the nose, eyes, forehead and prob-

ably the neck by a person wearing a boot. He also felt that

the chair leg discovered in apartment 22, if used as a striking

instrument, was consistent with some of the injuries. On

cross-examunation, Dr. Curtis acknowledged that other sim-

ilar shoes or objects could have been used to inflict death.

Boston police officer William Charbonnier, an evidence

technician of six months experience at the time he investi-

gated the scene of the crime and the objects discovered

there, also testified for the Commonwealth. So did Paul R.

Bidez, an F. B. |. agent who analyzed some of the evidence in

Washington. Charbonnier testified that he had made visual

observations and performed benzidine tests on the boots

identified as belonging to Lussier. The right boot proved

positive for blood in the area where the heel and leather parts

joined and on the inside of the strap. The subsequent F. B. I.

analysis determined the blood to be ‘‘O positive.’ The ben-

zidine test on the left boot also proved positive, but the

amount of blood was insufficient to allow for blood group-

ing. On the right boot, Charbonnier had initially detected a

pattern of bloodstaining which he characterized as ‘“‘direc-

tional,’” consisting of stains in an upward and rearward

direction, as if the boot had been wiped off, but by the time

of trial he was no longer able positively to identify such a

pattern. Continuing in his testimony concerning the boots,

Charbonnier stated that he had taken a footwear impression

from the blood soaked carpet near the victim’s body on the

19a

420 364 Mass. 414

Commonwealth v. Lussier.

night of his initial investigation. He had observed that the

impression on the carpet was similar in dimension to the heel

of the defendant’s boots. The F. B. I. report proved the

blood to be ‘‘O positive,’’ but by the time of trial, the im-

pression had become diffused to the point where scientific

matching with Lussier’s boot was impossible.

Charbonnier also gave the details of his analysis of other

evidence used by the police to connect Lussier to the crime.

Human blood was found on the left cuff of Lussier’s purple

and white striped shirt, on the left knee of his dungarees, and

in the mouth of the figure of the head of a cat on his ring.

However, because the amounts of blood were insufficient,

the F. B. I. was unable to determine the blood type. But ‘‘O

positive’ blood was found on the toilet tissue discovered by

Officer Charbonnier behind the toilet in apartment 22.

On this evidence, the jury returned a verdict against

Lussier of first degree murder committed with extreme atroc-

ity or cruelty. The defendant asserts that this was error as a

matter of law, and that he was entitled to a directed verdict.

The argument is that, assuming all the facts in evidence to be

true, reasonable inferences equally support the defendant's

innocence as they do his guilt, and thus the conviction must

be overturned because ‘‘[w]hen the evidence tends equally to

sustain either of two inconsistent propositions, neither of

them can be said to have been established by legitimate

proof.”” Commonwealth v. Carter, 306 Mass. 141, 147

(1940). See Commonwealth v. Cooper, 264 Mass. 368, 373

(1928), and Commonwealth v. Shea, 324 Mass. 710, 713-714

(1949). We disagree. Instead, we think that another well

established principle governs the disposition of this case: “*A

jury may find a crime proved beyond a reasonable doubt

even though the inference of guilt from the facts established

is not inescapable or necessary.”” Commonwealth v. Ehrlich,

308 Mass. 498, 500 (1941). “‘It is enough if the inferences

drawn from the circumstances be reasonable and possible.”’

Commonwealth v. Medeiros, 354 Mass. 193, 197 (1968).

The evidence clearly gives rise to ‘‘reasonable and pos-

sible’’ inferences supportive of the jury’s verdict. Testimony

364 Mass. 414 2a 421

Commonwealth v. Lussier.

indicated that Lussier and the victim left the party holding

hands about 2 4.M. on October 31. While Lussier denied this

in his statement to the police, a number of factors warranted

a jury finding that the identifying witness was not mistaken.

Lussier, without a costume at a costume party, was relatively

conspicuous. The witness Fricke, who said he saw Lussier

leave with the victim, had earlier spoken with Lussier in a

group for at least fifteen minutes and thus was not likely to

have so soon thereafter forgotten his appearance. Other wit-

nesses had seen the two holding hands, a fact which further

supports the likelihood that the couple eventually left the

party together. And while these facts do not conclusively

establish that Lussier and only Lussier could have been alone

with the victim in apartment 22, ‘‘[iJt is not necessary to

prove that no one other than the accused could have done the

act. . . . That another might have had the opportunity to

do the act goes only to the weight of the evidence.’’ Com-

monwealth v. Medeiros, supra, at 197.

The next link in the chain of circumstantial evidence, that

Lussier committed the murder in apartment 22 between 2

and 2:30 am, can also be reasonably inferred from the

testimony of a number of witnesses. Both Miss Klein and her

roommate Kathleen Bahm testified to hearing a ‘‘loud thud’”’

and more than one person running around in that apartment

at approximately 2:15 a.m. That this testimony was correct

is even more likely in light of the fact that Miss Klein dis-

covered the victim’s body in the approximate location from

which the “‘thud’’ emanated. And finally, since Lussier had

cleaned up apartment 22 two days earlier, and therefore

knew it was vacant, it was reasonable for the jury to infer

that he would have considered the apartment to be a relative-

ly safe place to commit his crime.

The physical evidence, while not conclusive, also points

convincingly to the defendant’s guilt. Lussier maintains that

the bloodstains found on his clothing and boots are as con-

sistent with his association with Devereaux as they are with

his assaulting and murdering the victim. We believe, how-

ever, that the jury were justified in concluding otherwise.

2la

422 364 Mass. 414

Commonwealth v. Lussier.

There was no evidence that Lussier did, in fact, have actual

contact with Devereaux or that Devereaux’s blood came onto

Lussier’s person or clothing. Nor was there a positive show-

ing that Devereaux’s blood ever spilled onto the floor, thus

leaving the jury without a satisfactory alternative explana-

tion for the O positive blood found on the lower portions of

Lussier’s boot. That the bloodstains were connected with

Lussier’s presence in apartment 22 is made more plausible by

Officer Charbonnier’s testimony that he had _ initially

detected a close similarity between Lussier’s boot heel and

the blood impression in the area of the carpet next to the vic-

tim’s body. The fact that by the time of trial the impression

was no longer clearly visible goes only to the weight of that

testimony and does not necessarily discredit it.

The same may be said of Officer Charbonnier’s initial ob-

servations of ‘‘directional’’ staining on Lussier’s boot, a

fact which when considered with the O positive bloodstained

toilet tissue found in apartment 22, permits an inference that

Lussier used the toilet tissue to wipe his shoes and points to

Lussier’s presence at the scene of the crime. Along with Dr.

Curtis’s testimony that the victim’s fatal injuries were con-

sistent with kicking and stomping by boots of the type worn

by Lussier, this evidence is more than sufficient to establish a

‘reasonable and possible’’ inference that at least a large por-

tion, if not all, of the blood detected on the boots and other

articles of clothing was the victim’s and not Devereaux’s.

We conclude, therefore, that, giving consideration to all

the evidence and reasonable inferences to be drawn there-

from, it was sufficient to support the jury’s conclusion that

the defendant was guilty beyond a reasonable doubt.

We now turn to questions raised by the defendant concern-

ing the constitutionality of the Commonwealth’s jury selec-

tion process, the propriety of certain of the prosecutor's

remarks in his summation argument to the jury, and the

failure of the trial judge to require the Commonwealth to

elect among its theories of murder and to prevent inquiries of

and eventual dismissal of prospective jurors who were op-

posed to the death penalty.

22a

364 Mass. 414 423

Commonwealth v. Lussier.

We need not pause long in disposing of the defendant’s

contention that G. L. c. 234, § 1,' as amended, violates the

Due Process and Equal Protection clauses of the Fourteenth

Amendment to the United States Constitution. The statute

exempts from jury duty all persons under twenty-two years

of age and, according to the defendant, in operation results

in the exclusion of those under twenty-two and one-half and

in the underrepresentation of those between twenty-two and

one-half and twenty-four and one-half. Based on this analy-

sis, and on the fact that he was twenty-four at the time of his

arrest, the defendant makes two arguments: (1) he was de-

prived of his Due Process right to an impartial jury because

persons within his age class and with similar backgrounds

and outlooks were excluded from his jury, and (2) the statute

on its face violates the Equal Protection clause because it

arbitrarily discriminates against younger persons.

Recently, in Commonwealth v. Therrien, 359 Mass. 500,

507, we said in reference to an identical challenge to an

earlier version of G. L. c. 234, § 1, which then exempted per-

sons under twenty-five from jury service, ‘*[the] argument

that exclusion of those persons under twenty-five years of

age from the jury panel was prejudicial to him requires no

discussion. King v. United States, 346 F. 2d 123, 124 (Ist.

Cir.). See Commonwealth v. Slaney, 350 Mass. 400, 401-

'**Section 1. A person of either sex qualified to vote for representatives to the

general court, whether a registered voter or not, shall be liable to serve as a juror, ex-

cept that the following persons shall be exempt: The governor; lieutenant governor;

members of the council; state secretary; members and officers of the senate and

house of representatives during a session of the general court; judges and justices of

a court; county commissioners; clerks of courts and assistant clerks and all regularly

appointed officers of the courts of the United States and of the Commonwealth;

registers of probate and insolvency; registers of deeds; sheriffs and their deputies;

constables; marshals of the United States and their deputies; and all other officers of

the United States; attorneys at law; settled ministers of the gospel; officers of col-

leges; preceptors and teachers of incorporated academi¢s; registered practicing

physicians and surgeons; persons over seventy years of age; persons under twenty-

two years of age; superintendents, officers and assistanis employed in or about a

state hospital, insane hospital, jail, house of correction, state industrial school or

State prison; teachers in public schools; i and members of the fire depart-

ment of Boston, and of other cities and towns in which such exemption has been

made by vote of the city council or the inhabitan's of the town; Christian Science

practitioners and readers, respectively; trained murses; assistants in hospitals;

attendant nurses; mothers of children under sixteen years of age or women having

custody of such children and women members of religious orders."’

23a

424 364 Mass. 414

Commonwealth v. Lussier.

402.’’ We perceive no reason why we should treat the defend-

ant’s argument any differently today.’

Next, the defendant characterizes certain remarks made by

the prosecutor in his closing argument as improper and chal-

lenges the failure of the trial judge to order the remarks

struck when they were made, or subsequently to instruct the

jury to disregard them. We have fully and carefully exam-

ined the record in this case. While we do not approve of

some portions of the prosecutor’s summation to the jury,’

when viewed in the overall context they are not so prejudicial

as to justify reversal. Compare, e.g., Commonwealth v.

De Christoforo, 360 Mass. 531, 544 (1971) (Tauro, C.J.,

dissenting). Moreover, there is a simple and obvious reason

for the trial judge’s alleged ‘‘failure’’ to strike them or at-

tempt to mitigate their impact as effectively as the defend-

ant now argues was appropriate. That is, defence counsel

took no exceptions at the close of the prosecutor’s summa-

tion, and made no request for special instructions despite

ample opportunity to do so (the judge did not charge the jury

until the next morning). At the end of the charge to the jury,

defence counsel asked for further explanation on one point,

and when the explanation was completed, he indicated no

‘Many other courts have been asked to recognize “young persons” as a distinct

group for purposes of determining whether a jury panel includes a fair cross-section

of the community, and have declined to do so. See, ¢.g., King v. United States, 346

F. 2d 123 (ist Cir. 1965) (21-25 year olds); United States v. Ross, 468 F. 2d 1213 (Mh

Cir. 1972) (21-24 year olds); United States v. Olson, 473 F. 2d. 686 (8th Cir. 1973)

(18-20 year olds). A recen: First Circuit case, United States v. Butera, 420 F. 2d 564

(1970), arguably to the contrary, is clearly distinguishable. There the court was con-

cerned about the size of the excluded group, stating. “We cannot allow the require-

ment of a ‘distinct’ group to be applied so stringently with regard to age grouping

that possible discrimination against a large class of persons — in our case, those be-

tween 21 and 34 — will be insulated from attack."’ /d. p. $70. Furthermore, the

court in Butera found that the jury were properly drawn.

*THE PROSECUTOR: “‘I submit to you if [F. B. I1.] Agent Bidez was the chemist on

the scene on the night in question, | submit to you you wouldn't be up in that jury

room more than two riinutes deciding this case. But we are stuck with the evidence

we have to present to sou "* Tin reostcutok “What did she [the victim] see in this

creepy-looking character?"’ Tin rrostcutok “i don't know how he got her down

there. There’s only one person that could tell us that.’’ This last remark would raise

serious questions as to the infringement of the defendant's Fifth Amendment right

to remain silent, see Griffin v. California, 380 U. S. 609, 611 (1965), were it not for

that portion of the judge's charge specifically explaining to the jury that the defend-

ant had the right not to testify, and that no unfavorable inferences were to be

drawn from his exercising that right.

24a

364 Mass. 414 425

Commonwealth v. Lussier.

further disagreement. While under G. L. c, 278, § 33E, we

will, in appropriate circumstances, act to rectify a substantial

risk of a miscarriage of justice, despite the absence of excep-

tions in the record, we do not feel that such action is war-

ranted here. Compare Commonwealth v. Freeman, 352

Mass. 556, 563-564 (1967); Commonwealth v. De Christo-

foro, 360 Mass. 531, 544 (1971) (Tauro, C.J., dissenting).

The defendant’s final argument is that in light of the re-

cent decision of Furman v. Georgia, 408 U. S. 238 (1972),

declaring the death penalty to be unconstitutional in certain

Situations, it was reversible error for the trial judge to ques-

tion the jury panel concerning their views on the death pen-

alty unless the prosecution restricted itself to a rape-murder

theory. The contention is presumably based on the theory

that even after the Furman case the death penalty could be

constitutionally imposed for rape-murder, but it probably

could not be imposed for other types of murder where the

jury are vested with discretion in deciding on the appropriate

penalty. Thus, the argument runs, the pudye, by not forcing

the Commonwealth to make this election, and by allowing

inquiries, and eventual dismissal, of jurors who were op-

posed to the death penalty, unnecessarily deprived the

defendant of ‘‘scrupled jurors’ (see Witherspoon vy. Illinois,

391 U. S. 510 [1968]) that he might have had on his jury if

rape-murder were not going to be a basis of prosecution. We

think this attenuated argument entirely misses the mark. In

rejecting this contention, we need only repeat what the

Supreme Court said in the Witherspoon case at 517-518:

‘“‘We simply cannot conclude, cither on the basis of the

record now before us or as a matter of judicial notice, that

the exclusion of jurors opposed to capital punishment results

in an unrepresentative. jury on the issue of guilt or substan-

tially increases the risk of conviction.’’

Pursuant to the requirements of c. 278, § 33E, we have

reviewed the entire transcript and record and we found no

reason either to order a new trial or to direct a verdict of a

lesser degree of guilt.

Judement affirmed.