Com. v. Ramirez

• Decision Date: 07 June 1990
• Citation: 555 N.E.2d 208,407 Mass. 553
• Parties: COMMONWEALTH v. Rafael RAMIREZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 208

555 N.E.2d 208

407 Mass. 553

COMMONWEALTH v. Rafael RAMIREZ.

Supreme Judicial Court of Massachusetts Essex.

Argued Jan. 9, 1990.

Decided June 7, 1990.

Richard Zorza, Committee for Public Counsel Services, for defendant.

S. Jane Haggerty, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ. O'CONNOR, Justice.

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, 327 N.E.2d 683 (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, 296 N.E.2d 810, cert. denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (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 367 Mass. at 214, 327 N.E.2d 683, quoting Ross, supra 363 Mass. at 672, 296 N.E.2d 810, a situation not present here. Nonetheless, we said that a motion to have jurors asked about racial prejudice should usually be granted, Lumley, supra 367 Mass. at 216, 327 N.E.2d 683, and we said further, id. at 216-217, 327 N.E.2d 683: "Such a motion, raising as it does difficult issues of jury psychology and potential injury to the defendant's case, should come from the defendant himself. Before granting the motion, the trial judge should carefully ascertain that the defendant's decision to insist on specific questions regarding racial bias was a knowing and voluntary one, made with an understanding that such specific questions may activate latent racial bias in certain prospective jurors or may insult others without uncovering evidence of bias in hard-core bigots who refuse to acknowledge their prejudice. If, thereafter, the defendant insists that specific questions concerning bias be asked, the judge should propound such questions to the veniremen. The decision then has been the defendant's to make." (Footnote omitted.)

In Commonwealth v. Sanders, 383 Mass. 637, 641, 421 N.E.2d 436 (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, 485 N.E.2d 170 (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, 490 N.E.2d 1160 (1986), Commonwealth v. Young, 401 Mass. 390, 398 n. 8, 517 N.E.2d 130 (1987), and Commonwealth v. Washington, 402 Mass. 769, 772-774, 525 N.E.2d 396 (1988). In Washington, supra at 774, 525 N.E.2d 396, 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 may have to make. In no other instance not involving a waiver of constitutional rights, as here, see Commonwealth v. A Juvenile (No. 2), supra 396 Mass. at 224, 485 N.E.2d 170, have we imposed a requirement of dialogue between the judge and the defendant personally. Indeed, not only does a decision to request a voir dire present a potential of harm to the defendant, but also a decision not to request a voir dire runs a risk that the jury will include bigots, but we do not require the trial judge to inquire of the defendant personally concerning his or her involvement in the tactical decision not to request a voir dire. See Commonwealth v. Guess, 23 Mass.App.Ct. 208, 212, 500 N.E.2d 825 (1986).

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, 502 N.E.2d 943 (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, 502 N.E.2d 943.

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, 463 N.E.2d 1172 (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 function." Id. at 747, 463 N.E.2d 1172. 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. Inde...