Com. v. Bumpus

• Decision Date: 04 April 1974
• Parties: COMMONWEALTH v. Robert T. BUMPUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 491

309 N.E.2d 491

365 Mass. 66

COMMONWEALTH v. Robert T. BUMPUS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1974.

Decided April 4, 1974.

Harvey A. Silverglate, Boston, for defendant.

Newman A. Flanagan, Asst. Dist. Atty. (Thaddeus R. Beal, Jr., with him), for the Commonwealth.

Before TAURO, C.J., and REARDON, BRAUCHER, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

This case is here pursuant to an order entered by the United States Supreme Court ¹ granting the defendant's petition for certiorari, vacating the judgment affirming his conviction (Commonwealth v. Bumpus, Mass., (1972) ^a), 290 N.E.2d 167 and remanding the case to us for further consideration in the light of Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Thus the only issue we must decide is whether the decision in the Ham case requires that the defendant's conviction should be reversed on the ground that the trial judge refused to ask some of the veniremen ² whether they were racially prejudiced. The defendant had made the prerequisite motion to have such questions asked on voir dire.

In COMMONWEALTH V. ROSS, MASS. 1973), 296 N.E.2D 810,^B cert. den. sub nom. Ross v. Massachusetts, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), we interpreted the Ham decision to require such questions only where there is reason to believe that the defendant may be a 'special target for racial prejudice.' We have several times indicated that the fact that the defendant is black and the victim white does not suffice to bring a case within the Ham rule and to require specific questions by the trial judge as to possible racial prejudice among the veniremen. COMMONWEALTH V. ROSS, SUPRA. 296 N.E.2D 816,^B COMMONWEALTH V. RYLES, MASS. (1973), ^C cert. den. sub nom. Ryles v. Massachusetts, 414 U.S. 980, 94 S.Ct. 301, 38 L.Ed.2d 224 (1973). Cf. COMMONWEALTH V. RODRIQUEZ, MASS., (1973), 300 N.E.2D 192.^D We are not inclined to rescind this requirement that special circumstances be shown. In the absence of such circumstances a judge might well conclude that specific questions would be counterproductive and serve to inject racial bias into the trial rather than to remove it. In so concluding we note that the United States Supreme Court recently denied certiorari in the Ross case despite a dissent which vigorously raised the issue of the validity of that requirement. 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486.

In the Ham case the black defendant was well known as a civil rights activist in the small community where he had lived most of his life. His basic defence at the trial was that law enforcement officers were 'out to get him,' because of his civil rights work and that he had accordingly been framed on the charge of possession of marihuana. Thus the entire outcome of the case hinged on the defendant's credibility in contrast with that of the white policeman.

No comparable circumstances distinguish this case. The defendant urges that the case be remanded to the Superior Court for the taking of evidence of 'special circumstances,' viz.: (1) the opinion of a former chief of the Boston police homicide division that this was one of the ten most memorable murder cases of his long career; (2) the possibility that pressure may have been exerted by banking officials on prosecuting authorities to convict the defendant; (3) the character and extent of press coverage of the crime, investigation and trial; and (4) the apparent fact that this was the first murder of a bank officer during a bank robbery in Massachusetts history. We cannot agree that any of these matters warrants a conclusion that the defendant was likely to be a particular target of racial bias.

The purpose of the questioning mandated by the Ham case is to remove extraneous issues at the trial so that the case may be judged on the evidence alone. Thus, the only circumstances that would warrant specific interrogation as to possible racial prejudice among the veniremen are those of which the trial would be expected to make the jury aware. The memorable quality of the case to a particular police officer is irrelevant to this problem. Private pressures on the prosecutor to obtain a conviction are likewise immaterial.

The claim that pre-trial publicity was related in any way to racial bias has not been established. That such publicity may have stated that a suspect was black and a victim was white falls far short of reaching the mandate of the Ham case. Cf. Commonwealth v. Monahan, 349 Mass. 139, 157, 207 N.E.2d 29 (1965).

That the victim in the present case may have been the first bank officer to be killed during a Massachusetts bank robbery is also irrelevant. The uniqueness of the case in other regards bears no relation to any special problem of racial prejudice, which is all that concerns us here. Moreover, there is no reason to believe that the jury were ever aware of this. ³

The defendant also endeavors to make an issue of the supposed symbolic significance of the occupation of the victim. We reject the implication that such a factor could constitute the kind of special circumstances that exacerbate the risk of racial prejudice intruding into the decision of a case and call for the prophylactic measure of specific questions on voir dire. We nevertheless note that if bankers were to be recognized as representative of symbolic authority, it would seem imperative to similarly treat policemen. We have already established that merely because the victim is a quasi policeman there is no special circumstance of significance under the Ham rule. COMMONWEALTH V. ROSS, MASS., (1973), 296 N.E.2D 810,^E cert. den. sub nom. Ross v. Massachusetts, 414...