COMMONWEALTH vs. HEWITT O. BODDEN
Appellate Court of Massachusetts, Suffolk
December 15, 1986. — May 5, 1987.
24 Mass. App. Ct. 135
BROWN, CUTTER, & SMITH, JJ.
Suffolk.
At the pretrial hearing on a black defendant‘s motion for an individual examination of prospective jurors in regard to the possible existence of racial prejudice and agаin during the jury impanelment stage at his trial on indictments charging him with aggravated rape and other serious offenses, there was no reversible error in the judge‘s refusing to question the prospective jurors individually, rather than collectively, with respect to racial prejudice where, in response to the judge‘s repeatedly asking whether the case had racial overtones, defense counsel‘s statements that the complainant was “Puerto Rican” did not adequately inform the judge that the defendant and complainant were of different races. [138-140]
BROWN, J., concurring.
Although, in questioning jurors pursuant to the first paragraph of
INDICTMENTS found and returned in the Superior Court Department on April 13, 1984.
The cases were tried before John T. Ronan, J.
Eric Brandt, Committee for Public Counsel Services, for the defendant.
Judy G. Zeprun, Assistant District Attorney, for the Commonwealth.
SMITH, J. The defendant was the subject of four indictments that charged him with five offenses: two counts of aggravated rape, assault and battery by means of a dangerous weapon, kidnapping, and assault by means of a dangerous weapon. After a jury trial the defendant was found guilty of one count
The defendant claims that the judge committed reversible error during the jury selection process. He contends that the judge erred in (1) denying the defendant‘s motion for individual questioning of prospective jurors with regard to possible racial prejudice and (2) refusing to hear the responses of prospective jurors to collective questioning on other matters privately at the sidebar.
The following is a summary of the complainant‘s tеstimony. Shortly before midnight on February 12, 1984, she went out to a nightclub to dance. There she met the defendant, whom she did not know. He introduced himself to her as “Roberto” and bought her a couple of drinks. She left the first nightclub and went with a girlfriend to a second club, where she had more to drink. After that club closed, she went to an “after hours” place, where she again saw the defendant and had more drinks. By 3:00 or 3:30 A.M., she was dizzy and wanted to go home, but she had no money and could not get a ride. The defendant offered to give her cab fare, indicating that he could get some money from a bank machine. They left the after hours place and got a ride to a bank machine. After the people in the car had left, the defendant stated that he had forgotten his bank card; he then suggested he get her some money at his mother‘s house a few blocks away. The complainant did nоt want to go, but she consented when the defendant assured her she could wait outside.
While they were walking, the complainant again felt dizzy and tried to flag a taxi, but the defendant grabbed her and pulled her out of the street, forcing her to accompany him to the house. Once there, he held her arm and pushed her up the stairs, despite her repeated protests. After he unlocked the door
The complainant‘s testimony was corroborated by physical evidence (torn clothing, photographs, and medical evidence) and the testimony of numerous fresh complaint witnesses. Four of the witnesses described the complainant‘s injuries. They all stated that the complainant‘s lips and the side of her face were bloody, and that her face was swollen.
The defendant did not dispute that he and the complainant had sexual intercourse or that she had been beaten by someone that night. He presented three witnesses in his defense: a detective involved in the investigation, the landlady in the defendant‘s apartment building and her thirteen year old son. Their testimony may be summarized as follows. The detective testified that the complainant told him that she and the defendant had “wаlked” to his mother‘s house, and she never told the police about being “forced to do so.” The landlady testified that she awoke at about 5:30 A.M. and heard “laughter” and “very happy” voices. She then heard footsteps going up the stairs that continued up to the third floor, where she heard the defendant‘s door open. She also testified that she did not hear any yelling at that time, or any loud noises thereafter. The landlady‘s son testified that he saw the complainant standing
The jury deliberated over a period of four days. At the beginning of the fourth day, the judge read to them the instruction taken from Commonwealth v. Rodriquez, 364 Mass. 87, 102-103 (1973). Later that day, the jury completed their deliberations and returned with their verdicts.
Prior to trial, the defendant, a black man, filed a motion for an individual examinatiоn of prospective jurors in regard to the possible existence of racial prejudice. He claimed that, because he had been accused of an interracial rape, he was entitled to such an inquiry. He cited Commonwealth v. Sanders, 383 Mass. 637, 640-641 (1981). That case held that, if a defendant is charged with intеrracial rape, the judge must grant a defendant‘s request for individualized questioning of prospective jurors regarding possible racial bias. At the hearing on the motion, defense counsel informed the judge that the defendant was black. The judge then inquired of defense counsel, “Is this a black and white situation?” He responded, “Well, black and Puerto Rican.” Upon hearing that response to his question, the judge ruled that Sanders was not applicable and denied the defendant‘s motion.
At the trial, after the judge concluded asking the statutory questions of the prospective jurors, defense counsel renewed his request for an individual voir dire as to pоssible racial bias. The judge again inquired as to the complainant‘s race. Once again, the response was that she was “Puerto Rican.” At this point the judge commented that the term “Puerto Rican” described the complainant‘s “nationality” and not her race. Defense counsеl then informed the judge that the complainant was “light-skinned.” After further discussion at the bench, the judge told defense counsel that, because the complainant was “lighter-skinned” than he at first thought, he would “mention it” to the prospective jurors, collectively, by asking the question set out in the margin.2 The defendant objected to the procedure
On appeal, the defendant argues that the Sanders decision controlled the situation here, and that the judge committed prejudicial error when he refused to conduct an individual voir dire as to racial prejudice.3 We conclude that in the circumstances there was no error.
Commonwealth v. Sanders, supra, was an interracial rape case.4 Here, the record shows that the trial judge was thoroughly fаmiliar with that decision. When presented with the defendant‘s motion, prior to trial and again at the jury impanelment stage, he repeatedly asked the defense counsel whether the case had racial overtones. The response by defense counsel that the complаinant was “Puerto Rican” did not adequately inform the judge that the defendant and complainant were of different races.5 It is clear that, in order to invoke the procedure
We emphasize that our decision is based on the circumstances in this case. The Sanders decision is clear that, in interracial rape cases, the trial judge must grant a defendant‘s request for individualized questiоning of the prospective jurors as to racial bias. Our decision should not be considered as relaxing that requirement.
The defendant also objected to the procedure used by the judge in regard to the responses of the prospective jurors to the statutory questions. Seе
Judgments affirmed.
BROWN, J. (concurring), I concur, albeit reluctantly, in the result because I do not think that Commonwealth v. Sanders, 383 Mass. 637 (1981), controls the instant circumstances. If Sanders did, the defendant‘s convictions would have to be reversed. My sole basis for thinking that the convictions should stand is that, as the majority indicates, the race of the complainant has not been made to appear with the requisite clarity. See Commonwealth v. Williams, 6 Mass. App. Ct. 923, 924 (1978) (Brown, J., concurring). Based on this lack of clarity, I cannot say with confidence that this was an interracial rape, or that the jury would perceive it as such. See and cоmpare Commonwealth v. Hogue, 6 Mass. App. Ct. 901, 901-902 (1978).
Of course, when there is doubt, it is always prudent to grant a defendant‘s request for individualized questioning of prospective jurors regarding possible racial bias. See Commonwealth v. Lumley, 367 Mass. 213, 216-217 & n.2 (1975). I think that a defendant is entitled to an individual voir dire if he reasonably believes that, because the victim and defendant are from different ethnic groups, there is a potential for bias. Cf. Al-Khazraji v. Saint Francis College, 784 F.2d 505, 517 (3d Cir. 1986), cert. granted in part, 497 U.S. 812 (1986) (Congress‘s purposes under
Moreover, notwithstanding the judge‘s hesitancy, if thе Commonwealth had supported the defendant‘s motion for individualized questioning, I am certain the judge would have allowed the motion. I say, once again, that it is the responsibility of all parties to strive to ensure that all trials are fair and free of any potential error. Cf. Commonwealth v. Paiva, 16 Mass. App. Ct. 561, 563 (1983). A busy appellate court needs unnecessary issues as much as a fish needs a bicycle.