Com. v. De La Cruz

• Decision Date: 03 July 1989
• Citation: 540 N.E.2d 168,405 Mass. 269
• Parties: COMMONWEALTH v. Felipe De La CRUZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 168

540 N.E.2d 168

405 Mass. 269

COMMONWEALTH v. Felipe De La CRUZ.

Supreme Judicial Court of Massachusetts Worcester.

Argued April 5, 1989.

Decided July 3, 1989.

Eric Brandt, Committee for Public Counsel Services, for defendant.

Katherine E. McMahon, Asst. Dist. Atty., for the Com.

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

O'CONNOR, Justice.

The defendant was indicted, and tried by a jury, for unnatural sexual intercourse with a child under the age of sixteen in violation of G.L. c. 265, § 23 (1986 ed.), and for indecent assault and battery of a child under the age of fourteen in violation of G.L. c. 265, § 13B (1986 ed.). The jury acquitted the defendant of the first charge, but convicted him of indecent assault and battery of a child under fourteen. The defendant appealed, and we allowed his petition for direct appellate review. We affirm the conviction.

The defendant is a fifty-eight year old Hispanic male. The alleged victim, a white girl, was eight years old at the time of the incident. According to the alleged victim's testimony, on the day of the incident, she saw the defendant coming out of an apartment building which contained a family unit and an elderly unit. The alleged victim and her twelve year old friend went with the defendant into the laundry room of the family unit. The three sat on chairs around a table. The defendant touched the alleged victim's friend underneath her pants. He then touched the alleged victim underneath her pants inside her "private spot," with his finger. The defendant then took out his "private spot" and "peed on the rug." After that, the defendant gave each girl a dollar. The girls walked to a nearby store where they bought some candy.

Prior to trial, the defendant moved for individual voir dire of prospective jurors to determine whether they would be affected by any bias or prejudice. Three questions requested by the defendant to be put to the individual jurors focused on bias against Hispanic persons. Defense counsel's request for individual voir dire was based on the difference in age between the defendant and the alleged victim, their different "ethnic backgrounds," and the nature of the allegations. The judge denied the request for individual voir dire. Instead, he posed one question to the venire as a group: "[A]re there any of you that have any prejudice for or against Hispanic people? For example, have any of you had some bad experience or particularly good experience involving an Hispanic person that you believe might affect you as a juror in this case; what is your answer?" The question elicited no response.

On appeal, the defendant contends that the judge's refusal to conduct individual voir dire of prospective jurors concerning their possible bias against Hispanic persons was reversible error. The defendant's contention is not based on the Federal or State Constitution, but rather on an alleged violation of G.L. c. 234, § 28 (1986 ed.). The Commonwealth argues that defense counsel's request, focusing on differences in "ethnic backgrounds," as distinguished from racial differences, was not sufficient to preserve the individual voir dire question for appellate review. We disagree with that contention. We are content that the defendant adequately preserved his rights. See Commonwealth v. Susi, 394 Mass. 784, 788 n. 3, 477 N.E.2d 995 (1985) (defendant made judge aware that prospective juror held cane and needed assistance into jury box, and thereby adequately raised issue of exclusion of blind juror despite failure to request voir dire regarding extent of juror's visual impairment).

Rule 20(b)(2) of Massachusetts Rules of Criminal Procedure, 378 Mass. 889 (1979) states: "The court shall examine or cause a juror to be examined upon issues extraneous to the case if it appears that the juror's impartiality may have been affected by the extraneous issues." General Laws c. 234, § 28, states similarly: "Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he [or she] ... has expressed or formed an opinion, or is sensible of any bias or prejudice, therein.... For the purpose of determining whether a juror stands indifferent in the case, if it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including, but not limited to ... community attitudes ... or possible preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court shall ... examine the juror specifically with respect to such considerations, attitudes [or] ... opinions ... which may ... cause a decision or decisions to be made in whole or in part upon issues extraneous to the issues in the case. Such examination ... shall be conducted individually and outside the presence of other persons about to be called as jurors or already called."

We stated in Commonwealth v. Sanders, 383 Mass. 637, 640-641, 421 N.E.2d 436 (1981), that, in cases of interracial rape, prospective jurors must be interrogated individually in accordance with the statute, rather than as a group because, as a matter of law, "interracial rape cases present a substantial risk that extraneous issues will influence the jury." In Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633 (1982), we extended the Sanders rule to the interracial assault and sexual abuse of a child. We extended the rule as to interracial murder in Commonwealth v. Young, 401 Mass. 390, 398, 517 N.E.2d 130 (1987). In each case, we held that the trial judge must question each juror individually, out of the hearing of the venire, about possible racial bias and prejudice. These decisions rested not on constitutional grounds but, rather, on our superintendency power to implement the statutory policy set forth in G.L. c. 234, § 28. Commonwealth v. Young, supra at 398 n. 8, 517 N.E.2d 130. We have clearly stated that cases involving a black defendant and white victim, Commonwealth v. Sanders, supra; Commonwealth v. Hobbs, supra; or a black defendant and Hispanic victim, Commonwealth v. Young, supra, are "interracial." The issue before us now is whether sexual assault of a white child by an Hispanic defendant is an "interracial" crime and, if not technically so, whether nevertheless it should be treated that way. The result would be to extend the Sanders rule to this case.

The word, "race," has historically referred to any of the three primary divisions of humanity as distinguished by skin color: Caucasian, Mongolian, and Negro. Webster's New World Dictionary 352 (1970). Id. at 69, 278, 288. Thus, this case involves a defendant and an alleged victim of different ethnic backgrounds, not of different races in the traditional sense. The word, "Hispanic," ordinarily refers, not to race, but to national origin. See Commonwealth v. Aponte, 391 Mass. 494, 509, 462 N.E.2d 284 (1984). The term, "Hispanic," may refer to persons with various national origins, such as Puerto Rican, Mexican, Cuban, and Spanish, id. at 495 n. 3, 462 N.E.2d 284.

The defendant argues that, regardless of the traditional meaning of the word "race," this court in Commonwealth v. Young settled the question whether, for jury empanelment purposes, an alleged sexual assault of a white child by an Hispanic defendant is "interracial." Young involved the alleged murder of a person of Hispanic origin by a black defendant. The trial judge denied the defendant's motion for individual voir dire of the venire. We held that the judge had acted in accordance with the law as it existed at the time of the trial, id. at 400, 517 N.E.2d 130, and therefore we affirmed the conviction, id. at 407, 517 N.E.2d 130, but we announced that "for the future, we [were] expand[ing] the principle we [had] stated in Sanders and Hobbs and shall require that a trial judge 'must make [individual inquiry directed to the discovery of racial prejudice] when requested by a defendant accused of [murder] and where the defendant and the victim are members of different racial ... groups.' " Id. at 398, 517 N.E.2d 130, quoting Rosales-Lopez v. United States, 451 U.S. 182, 192, 101 S.Ct. 1629, 1636, 68 L.Ed.2d 22 (1981). The defendant argues that the clear import of the Young opinion was that henceforth Hispanic persons are to be viewed as a race for jury empanelment purposes. He argues that there was no suggestion in the Young opinion that the court viewed the crime as interracial because the defendant was black and the victim was white. Rather, he says, the court's conclusion that the crime was interracial appears to have been based on the defendant's being a member of the "black race" and the victim's being a member of the "Hispanic race." In support of this contention, the defendant points out that the defendant in Young only argued that the victim was Hispanic, not that he was white.

Our opinion in Young surely implies that Hispanic persons are not members of the black (Negro) race. However, the opinion cannot fairly be read as concluding that Hispanic persons constitute a separate race. The opinion is just as consistent with Hispanic persons being viewed as members of the white race, and therefore not black. The Young case is not authority for the proposition that a crime allegedly committed by an Hispanic defendant against a white victim is interracial.

The question whether, in a particular case, it appears that a jury decision may be based upon extraneous issues such as community attitudes or preconceived opinions about the credibility of certain groups of people, is ordinarily best determined by the judge on the scene. In the exercise of our supervisory power, we have imposed our judgment in a limited class of "interracial" cases where we were satisfied that the possibility of a...