6 Mass. App. Ct. 923 | Mass. App. Ct. | 1978
Lead Opinion
1. The defendant was not entitled as of right to have the prospective jurors interrogated individually in accordance with the provisions of G. L. c. 234, § 28, second par., as amended by St. 1975, c. 335. From the bare assertion in the affidavit filed by counsel for the defendant that racial prejudice is widespread in Hampden County the judge was not required to conclude that the statutory preconditions to the right of individual voir dire had been made to appear. Compare Common
Judgment affirmed.
Concurrence Opinion
(concurring). I add a most reluctant concurrence. 1.1 agree that on this record the defendant has not established a statutory violation. See Commonwealth v. Hogue, supra 901 (1978). Compare Commonwealth v. Corgain, 5 Mass. App. Ct. 899 (1977). It seems to me that racial prejudice in Springfield (or in this Commonwealth) could be judicially noticed; certainly there has at least been sufficient guidance from the Supreme Judicial Court, see e.g., Commonwealth v. Lumley, 367 Mass. 213, 216-217 & n.2 (1975), to conclude that a summary denial of a defendant’s request for individual juror interrogation in circumstances where there is anything more than the negligible showing here would be an abuse of discretion. See Commonwealth v. Bumpus, 365 Mass. 66, 70 (1974). 2.1 add that a police officer (by definition a member of the prosecutorial team), who apparently made intimidating out-of-court remarks to a defense witness, was engaging in improper conduct. That proposition is beyond debate. Accordingly, I urge adoption of a prophylactic rule in such circumstances, even, as here, "in the absence of [demonstrable] harm to the defendant.” Cf. Commonwealth v. Manning, 373 Mass. 438, 442-445 (1977).