where defense counsel informed judge that defendant was black and complainant was Puerto Rican, individual voir dire not required because “the defendant must make a showing to the judge that he and the complainant are of different races”
How later courts described this case
- where defense counsel informed judge that defendant was black and complainant was Puerto Rican, individual voir dire not required because “the defendant must make a showing to the judge that he and the complainant are of different races”
Written by the judges who cited it.
The opinion
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 compare 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 42 U.S.C. § 1981 (1982), to ensure that all persons be treated equally without regard to color or race embraces membership in a group that is ethnically and physiognomically distinctive).
Moreover, notwithstanding the judge’s hesitancy, if the 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.