137 N.E.3d 413
Mass. App. Ct.2019Background
- Defendant Dominick R. Alves, an African‑American man, was convicted after a Superior Court jury of aggravated assault and battery by means of a dangerous weapon, two counts of assault and battery by means of a dangerous weapon, and possession of cocaine; he appealed.
- The underlying incident involved a large melee after a graduation party; multiple white witnesses used racial epithets toward Black participants and several witnesses made or admitted to racist statements.
- During individual voir dire the judge proposed asking whether a juror could "fairly and impartially weigh the credibility of a witness who has been shown to have used a derogatory racial term." After a juror asked for clarification the judge rephrased the question to ask how such a fact would affect a juror's view of the witness's credibility.
- Eleven prospective jurors (including the only two identified people of color who were individually questioned) were excused for cause after answering the rephrased question affirmatively; the seated jury was all white.
- On appeal the court held the judge’s questioning and resultant excusals improperly removed jurors who reasonably believed a racist witness might be less credible, skewing the venire and violating the defendant’s art. 12 right to a jury representing a fair cross section and to an impartial jury; convictions were reversed and remanded for a new trial.
- The court separately ruled the single‑shirt identifications (one photo texted to a witness and one show‑up of a shirt at the station) were not so suggestive as to violate due process and therefore admissible, an issue that may arise again on retrial.
Issues
| Issue | Commonwealth's Argument | Alves's Argument | Held |
|---|---|---|---|
| Whether excusing jurors who said a racist witness would affect their credibility violated art. 12 fair‑cross‑section/right to impartial jury | The judge properly excused jurors who, on voir dire, indicated they could not be impartial in assessing credibility | Excusing jurors for expressing that a racist witness might be less credible improperly removed jurors based on life‑experience beliefs and skewed the jury | The excusals (particularly of jurors of color and those expressing race‑based credibility concerns without further inquiry) were improper; defendant’s art. 12 rights violated; reversal and new trial required |
| Whether the judge’s rephrasing of the voir dire question was permissible | The rephrased question was a reasonable clarification to probe juror views about credibility | The rephrasing changed meaning and led to wrongful excusals without adequate follow‑up | Rephrasing produced a different question that elicited credibility assessments rather than incapacity for impartiality; failure to follow up and the resulting excusals were improper |
| Whether the systematic exclusion constituted structural error requiring automatic reversal | The Commonwealth relied on judge’s discretion and that many excusals were proper after follow‑up | The systematic exclusion of a class of jurors (including all identified jurors of color) was structural and no prejudice inquiry is needed | The exclusion was structural (systematic removal of a group) and reversal is required without proof of prejudice |
| Whether a single‑photo/text or single‑shirt show‑up identification was so suggestive as to violate due process | The single‑item showings were not accompanied by improper police statements and did not make an "extreme" suggestive procedure | The single‑photo/text and single‑shirt show‑up were impermissibly suggestive and should have been excluded | The trial judge did not err; identification procedures here were not shown to be unduly suggestive to the level of denying due process |
Key Cases Cited
- Commonwealth v. Williams, 481 Mass. 443 (prospective jurors cannot be excused simply for beliefs about racial disparities; judge must assess whether life‑experience beliefs prevent impartiality)
- Commonwealth v. Soares, 377 Mass. 461 (art. 12 fair‑cross‑section requirement and limits on excusing jurors)
- Taylor v. Louisiana, 419 U.S. 522 (right to jury drawn from representative cross section)
- Commonwealth v. Simmons, 383 Mass. 46 (due‑process standard for suggestive identification of inanimate objects)
- Commonwealth v. Thomas, 476 Mass. 451 (application of Simmons; police should avoid unnecessary suggestiveness in show‑ups)
- Commonwealth v. Nelson, 91 Mass. App. Ct. 645 (juror may be qualified despite stating a reason‑based credibility preference if follow‑up shows impartiality)
- Witherspoon v. Illinois, 391 U.S. 510 (systematic exclusion of veniremen for views that would not substantially impair juror performance can violate Sixth Amendment)