Com. v. Duddie Ford, Inc.

• Decision Date: 26 March 1990
• Docket Number: No. 87-1393,87-1393
• Citation: 28 Mass.App.Ct. 426,551 N.E.2d 1211
• Parties: COMMONWEALTH v. DUDDIE FORD, INC.
• Court: Appeals Court of Massachusetts

Page 1211

551 N.E.2d 1211

28 Mass.App.Ct. 426

COMMONWEALTH v. DUDDIE FORD, INC.

No. 87-1393.

Appeals Court of Massachusetts Worcester.

Argued Oct. 5, 1989.

Decided March 26, 1990.

Nancy Gertner, Sharon Beckman, Boston, with her, for defendant.

Sandra L. Hautanen, Asst. Atty. Gen., for the Com.

Before BROWN, KAPLAN and PERRETTA, JJ. BROWN, Justice.

The defendant, Duddie Ford, Inc. (Duddie Ford), ¹ was convicted on twelve indictments charging larceny by a false pretense to induce another to part with property in violation of G.L. c. 266, § 34, and on twelve indictments charging larceny by a false statement in writing to obtain credit in violation of G.L. c. 266, § 33. ² Duddie Ford was sentenced to a $500 fine and $125 surfine on each of the convictions.

The Commonwealth presented evidence that, in 1984, loans for the purchase of automobiles by twelve customers of Duddie Ford had been obtained by fraudulent means from the Watertown branch of the Coolidge Bank & Trust Company (the bank). Maintaining that the financial information ³ submitted to the bank for the loans proved the existence of a "scam" with substantial benefit accruing to Duddie Ford, the Commonwealth contended that the defendant Nedder, employed as a salesman by Duddie Ford, obtained automobile loans for customers who were poor credit risks by, among other things, misrepresenting the customers' income, current employment, work history, down payments and trade-ins. ⁴ Because of inflated price figures supplied to it, the bank issued checks at the loan closings made out jointly to the customers and Duddie Ford in amounts greater than the actual prices of the automobiles financed. The Commonwealth alleged that certain Duddie Ford employees endorsed the checks and made out separate overage checks to the customers for the amounts of the excess. The overage checks were later negotiated (sometimes under forged endorsements), but the customers did not, in most cases, receive any proceeds.

1. Jury bias. The defendant claims that the record shows a substantial risk that the jurors were influenced by community bias or pretrial publicity and that the judge abused his discretion by not conducting an individual voir dire as to such influence. See G.L. c. 234, § 28. See also Mass.R.Crim.P. 20(b), 378 Mass. 889 (1979). Secondly, the defendant argues that the judge erred in failing to interview the jury panel or grant some other form of requested relief after one juror, on the second day of trial, reported that other jurors previously had read about the case in a newspaper.

(a) Prior to the empanelment of the jury the defendant moved for an individual voir dire and proposed specific questions to be asked the prospective jurors. The judge declined to conduct an individual voir dire, but requested that defense counsel point out which questions he felt were "essential" to a fair trial. Then, calling for affirmative responses to be indicated by a show of hands, the judge conducted an inquiry of the venire which included the following questions:

"Whether you have expressed any opinion on [the case] or formed any opinion insofar as the matter is concerned ...;

"Whether any of you are sensible of any bias or prejudice insofar as this case is concerned, the parties and the issues;

"Whether any of you know of any reason why you cannot or do not stand indifferent. By standing indifferent, I mean you know of any reason why you could not ... make your decision on the basis of the evidence that you hear and the instructions that would be given to you insofar as the law is concerned "[H]ave any of you had any business dealings with Duddie Ford;

. . . . .

"[W]hether any of you have purchased or shopped for a motor vehicle at the Duddie Ford dealership ... [T]hose of you who said that you shopped down there, did any of the activities or business relations with Duddie Ford or its salesmen or other employees, result in some unfavorable impression on your part ...;

"[W]hether any of you have read or listened to advertisements of Duddie Ford.... I think it is likely that a good number of us have at least seen the ads. But I am talking about paying sufficient attention to those ads so that you would read them ... or ... hear what was being said on those ads;

"[W]ith all of the information that I have given you here, is there anything that comes to your mind because of what I have told you here or because of the questions that I have asked you, that you feel that you should bring to my attention before we proceed with the empanelment of the case."

The judge then said he would see the prospective jurors who had had any "unfavorable result" from business dealings with the defendant, prospective jurors who had answered affirmatively any of his questions, and anyone "who has something to tell me that I haven't asked specifically, but you feel you should talk ... with me before we proceed with the empanelment." After a sidebar conference requested by Duddie Ford's counsel, the judge asked for a show of hands of those jurors "aware of or familiar with" the Duddie Ford dealership, followed by a request for a show of hands of those who were not aware of or familiar with the defendant. ⁵

Some confusion then ensued. The judge excused the panel for lunch, except for "those jurors who raised their hands up here ... [and] [t]hose who want to talk with me or whom I have asked to talk with me." ⁶ The judge questioned individually those prospective jurors--twenty-five--who remained, and excused fourteen of them, many on the basis of their previous business dealings with Duddie Ford or their unfavorable opinion of the dealership. He denied Duddie Ford's motion for a change of venue and its renewed request for an individual voir dire, stating that "when you take the nature of the questions that I have asked them, I gave them plenty of opportunity to come up to say what they knew, how they felt, or what it is that gave them a bad taste in their mouth, or some such thing as that." He also observed that he felt he had gone "to great pains in putting questions to [the prospective jurors] that would invite an opportunity for them to voice in an case that they heard was going to go for two weeks, some reason that would disqualify them as disinterested jurors."

The next day, prior to opening statements of counsel, two of the empanelled jurors came forward in response to the judge's questions of the previous day about knowing the parties or witnesses. The judge questioned these jurors individuallyS one of them was challenged. In order to augment the jury, a second venire was brought in, and the judge repeated essentially the same questioning procedure that he had used with the first venire. This time all the prospective jurors indicated that they had heard of Duddie Ford. The judge questioned and excused three of the prospective jurors. Duddie Ford's request for a more extensive individual voir dire was again denied. Three more jurors were then empanelled, none of whom had been questioned individually about possible bias. Duddie Ford exhausted its peremptory challenges, as it had with respect to the first venire.

The key inquiry is whether, as Duddie Ford contends, the prospective jurors' responses to the group questions established that there was a substantial risk that juror impartiality was affected by extraneous influences, thereby necessitating a full individual examination. G.L. c. 234, § 28. Unless the trial judge first determines that such a risk exists, individual questioning of the prospective jurors is not required; the threshold determination is subject to the judge's broad discretion. See Commonwealth v. Shelley, 381 Mass. 340, 352, 409 N.E.2d 732 (1980); Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633 (1982); Commonwealth v. Sheline, 391 Mass. 279, 290-291, 461 N.E.2d 1197 (1984); Commonwealth v. De La Cruz, 405 Mass. 269, 273-274, 540 N.E.2d 168 (1989); Commonwealth v. Mahoney, 406 Mass. 843, 851, 550 N.E.2d 1380 (1990); Commonwealth v. Kendrick, 26 Mass.App.Ct. 48, 522 N.E.2d 1006 (1988), S.C., 404 Mass. 298, 303, 535 N.E.2d 217 (1989). See also Commonwealth v. Brown, 386 Mass. 17, 30, 434 N.E.2d 973 (1983). Here, the judge concluded that there was not such a risk. Although the voir dire could have been conducted more smoothly, we do not think the judge abused his discretion in refusing to question all of the prospective jurors individually.

Despite the fact that Duddie Ford was a well known enterprise in Worcester County, the judge could rightly determine that individual questioning of every prospective juror was not necessary. See Commonwealth v. Kendrick, 404 Mass. at 303-304, 535 N.E.2d 217. Indeed, many of the prospective jurors indicated that they had heard of Duddie Ford, and the judge could properly take their failure to come forward for individual questioning, after his initial specific questions to them, as a representation that they could sit impartially. "The judge was entitled to 'accept, without more, the declaration of the jurors as to their disinterest and freedom from emotional and intellectual commitment.' " Ibid. (citations omitted). See also Commonwealth v. Ascolillo, 405 Mass. 456, 460, 541 N.E.2d 570 (1989).

The mere fact that many of the prospective jurors had heard of or read about Duddie Ford is insufficient in itself to show a substantial risk of prejudice. See Commonwealth v. Jackson, 391 Mass. 749, 755-756, 464 N.E.2d 946 (1984). "Jurors need not be absolutely ignorant of the facts and issues involved in a case to be able to make an impartial judgment." Id. at 755, 464 N.E.2d 946, citing Dobbert v. Florida, 432 U.S. 282, 302-303, 97 S.Ct. 2290, 2302-2303, 53 L.Ed.2d 344 (1977). The thrust of all the questions the judge did ask of the prospective jurors collectively was designed to flush out any juror who could not be impartial, and after questioning the venire as a group about any bias, interest or other influence upon...