Commonwealth v. RamirezCommonwealth v. Ramirez
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- Before:
- O'Connor
After a jury trial, the defendant was convicted of assault with a dangerous weapon, larceny from the person, receiving stolen property, and carrying a firearm without a license. The charges arose out of an incident involving the defendant, who is Hispanic, and his former girl friend, who is not Hispanic and is white. Prior to empanelment of the jury, defense counsel requested individual voir dire of the venire on several matters including bias against Hispanic persons. Without conducting a colloquy with the defendant personally, the judge asked each juror the following requested questions (with occasional inconsequential variation): “The defendant in this case is Hispanic. Are you aware of any feeling of bias or prejudice based on race which might interfere with your ability to decide the case impartially? . . . This case also involves weighing the credibility of white witnesses against the credibility of Hispanic witnesses. Do you think you could remain impartial with respect to that?”
The defendant argues on appeal that the judge erred in failing on his own initiative to conduct a colloquy with him personally before conducting the voir dire. The purpose of the inquiry, he asserts, would be to ensure that he had knowingly and voluntarily participated in counsel’s decision to request the individual examination of potential jurors concerning their possible bias against Hispanic people. We granted the Commonwealth’s application for direct appellate review and now affirm the convictions.
We first suggested in
Commonwealth
v.
Lumley,
367 Mass. 213 (1975), that, in circumstances like those present here, a colloquy should take place between a defendant personally and the trial judge. In
Lumley,
we reaffirmed the holding of
Commonwealth
v.
Ross,
363 Mass. 665, cert. denied, 414 U.S. 1080 (1973), that questions to potential jurors about racial prejudice “are constitutionally mandated only when the defendant [is] a ‘special target for racial prejudice,’ ”
Lumley, supra
at 214, quoting
Ross, supra
at
In Commonwealth v. Sanders, 383 Mass. 637, 641 (1981), we repeated in dicta those “cautionary remarks” made in Lumley, supra. Then, in Commonwealth v. A Juvenile (No. 2), 396 Mass. 215, 223-225 (1985), we announced that a judge’s failure to conduct the cautionary colloquy could be reversible error although we did not hold that reversible error had occurred in that case. A Juvenile (No. 2) was followed by three cases in which we reiterated the colloquy principle, Commonwealth v. Rivera, 397 Mass. 244, 251 (1986), Commonwealth v. Young, 401 Mass. 390, 398 n.8 (1987), and Commonwealth v. Washington, 402 Mass. 769, 772-774 (1988). In Washington, supra at 774, we held that the failure to conduct the colloquy was reversible error.
On further reflection, we are no longer convinced that a judge should be required to conduct such a colloquy. Our research has disclosed no other State in which the trial judge is required to do so. Also, although a decision to request a voir dire concerning juror racial or ethnic bias undoubtedly raises difficult issues of jury psychology with a potential for counter-productivity, that decision is only one of numerous tactical decisions with a similar potential that the defense
A criminal defendant must decide whether to testify, as is the defendant’s constitutional right, or not to testify, which is also a constitutional right. Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 386 (1987). Clearly, that tactical decision may have immense consequences for the defendant. Nevertheless, there is no requirement in this Commonwealth that the trial judge engage in a colloquy with the defendant personally about the defendant’s participation in the decision whether to testify. Id. at 388-390.
Moreover, we have held that “it will be reversible error if a judge instructs the jury concerning a defendant’s right not to testify when-the defendant has requested that no such instruction be given.”
Commonwealth
v.
Buiel,
391 Mass. 744, 746 (1984). In that case, we recognized that a judge’s instruction to the jury concerning the respect the jury should have for the defendant’s unfettered right not to testify may instead have the unintended and prejudicial effect of “focus [ing] the jury’s attention on the question why the defendant decided not to assist the jury in their fact-finding funcr tion.”
Id.
at 747. Even so, we have not imposed an obligation on trial judges to engage in colloquies with defendants personally to be sure they appreciate the competing risks involved in determining whether to request an instruction about a defendant’s right not to testify; Indeed, we said in
Buiel
that, “[i]f there are multiple defendants, under Federal constitutional requirements the judge will have to give the
We have required on-the-spot colloquy in cases involving a defendant’s waiver of constitutional rights. See, e.g., Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979) (waiver of right to jury trial); Commonwealth v. Davis, 376 Mass. 777, 784-785 (1978) (waiver of right to a conflict-free attorney); Commonwealth v. Foster, 368 Mass. 100 (1975) (waiver of rights involved in a plea of guilty). However, in conducting a colloquy to be sure that a defendant’s waiver of such a right is truly voluntary, a judge runs little risk that, if he or she influences the defendant to reconsider counsel’s advice, the judge may have done more harm than good. The minimal risk of harm to a defendant who, as a result of the colloquy, decides not to waive a jury or not to proceed with an attorney with a possible conflict of interest or not to plead guilty is fully justified by the importance of protecting the defendant’s constitutional rights. However, in conducting a colloquy to be sure that an informed defendant agrees with his or her attorney’s assessment that a voir dire of prospective jurors concerning racial or ethnic bias would be advisable, the judge does not protect a constitutional right and runs the risk, as a result of his or her advice, that the unexamined jury will include racially or ethnically biased members. The benefit to be obtained by a colloquy does not justify the risk of harm. Thus, we have concluded that there was no error in this case, and that henceforth judges will not be required to conduct a colloquy with defendants personally before examining prospective jurors for racial or ethnic bias.
We now briefly turn to a second and quite different issue that the defendant raises on appeal. The defendant argues that the judge’s jury instructions on the crime of carrying a
There was no error. Even if the jury’s verdict could have been based on evidence that the defendant moved a firearm only within his residence, as the defendant contends, there was no evidence that the defendant possessed a firearm identification card. The burden to produce such evidence was on the defendant, Commonwealth v. Dunphy, 377 Mass. 453, 460 (1979), Commonwealth v. Seay, supra at 738, and he did not meet it.
Judgments affirmed.