Com. v. Duddie Ford, Inc.

Decision Date22 February 1991
Citation566 N.E.2d 1119,409 Mass. 387
PartiesCOMMONWEALTH v. DUDDIE FORD, INC. (and twenty-two companion cases).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Nancy Gertner, Boston, for defendant.

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

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

O'CONNOR, Justice.

On twelve indictments, a jury found that the defendant, Duddie Ford, Inc. (Duddie Ford), an automobile dealership, "with intent to defraud and by a false pretense induce[d] the Coolidge Bank and Trust Company to part with property in an amount and of a value in all of more than one hundred dollars," in violation of G.L. c. 266, § 34 (1988 ed.). The jury also found on twelve other indictments that Duddie Ford "with intent to defraud, by a false statement in writing respecting the financial condition, or means or ability to pay, of [a specified individual] obtain[ed] credit in an amount and of a value of more than one hundred dollars from the Coolidge Bank and Trust Company," in violation of G.L. c. 266, § 33(2) (1988 ed.). Each of the latter twelve indictments specified a different individual. The twelve indictments under c. 266, § 34, involved the same twelve transactions that gave rise to the indictments under § 33(2). After the verdicts were rendered, the Commonwealth nol prossed one of the § 34 indictments. Its reason for doing so is unimportant to this appeal. The judge then imposed sentences on each of the remaining twenty-three indictments.

Duddie Ford appealed from its convictions, raising numerous issues. The Appeals Court reversed one of the convictions (indictment no. 86-112191) under c. 266, § 33(2), on the ground that the evidence was insufficient to warrant the conviction and affirmed the remaining § 33(2) convictions. Commonwealth v. Duddie Ford, Inc., 28 Mass.App.Ct. 426, 440-442, 551 N.E.2d 1211 (1990). The Appeals Court reversed the convictions on the indictments brought under § 34 and dismissed those indictments. Id. at 442, 551 N.E.2d 1211. The Appeals Court's reason for reversing those convictions was that they were duplicative of the convictions under the § 33(2) indictments.

Both the Commonwealth and Duddie Ford applied to this court for further appellate review. The Commonwealth sought further review with respect to the question whether the convictions were duplicative. The defendant's application focused on the propriety of the jury selection process. We granted both applications. Accordingly, we address those issues as they relate to the eleven remaining convictions under c. 266, § 34, and the eleven under § 33(2). We do not address the other issues considered by the Appeals Court. We conclude, as did the Appeals Court, and essentially for the same reasons, that there was no error or abuse of discretion in connection with the empanelment of the jury. We disagree with the Appeals Court, however, with respect to whether the convictions under G.L. c. 266, § 34, were duplicative of the convictions under c. 266, § 33(2). Therefore, we affirm the twenty-two convictions.

We deal with the jury selection issue first. Before empanelment began, Duddie Ford moved that the judge conduct an individual voir dire of all the prospective jurors, and that certain specific questions bearing on possible bias be asked. Among the requested questions were these: "Please tell us what if anything, you have read, seen or heard about this case or the alleged facts of this case, or about [the defendant]? Do you have any personal knowledge, information or beliefs about this case, or the defendant, Duddie Ford, Inc., that you have not told the court about yet? Do you have any personal belief, opinion or knowledge about automobile dealerships or salesmen that you have not yet told the court about?" The judge declined to proceed precisely as requested. Instead, after informing the venire of the nature of the case, allowing the attorneys to introduce themselves, and identifying anticipated witnesses, the judge put several questions to the venire collectively. He instructed the jurors to indicate affirmative answers by the raising of hands, and he told the jurors that affirmative answers would be followed up later on. The judge asked the prospective jurors whether any of them had any interest in the case, or had expressed or formed an opinion about it, or was aware of any relevant bias or prejudice, or knew any reason why he or she could not decide the case on the basis of the evidence and the judge's instructions as to the applicable law.

The judge also asked the venire as a group whether any of them had done business with Duddie Ford and, if so, whether that resulted in "some unfavorable impression" on their part, and he asked whether the jurors had read or listened to Duddie Ford advertisements. He also said, "[W]ith all the information 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 impanelment of the case? Okay. About your business dealings, any unfavorable result from that, those persons I would like to talk to up here. Any other persons who answered yes to any of the questions that I asked, I would like to talk with. Anyone who has something to tell me that I haven't asked specifically, but you feel that you should talk to with me before we proceed with the impanelment." The judge did not specifically ask the venire whether they had been exposed to any publicity about the case or whether they had any preconceived notions about automobile dealers.

Then, following a brief side bar conference with counsel, the judge asked the venire first for a show of hands of those who were "aware of or familiar with" Duddie Ford, and then for a show of hands of those who were not. Although the record is not entirely clear, it appears to be undisputed that a large majority of the venire indicated that they were aware of or familiar with Duddie Ford. The judge excused for lunch "those jurors who didn't raise [their] hand[s] or who [didn't] feel [they had] something [they] want[ed] to bring to [the judge's] attention," and he proceeded with individual voir dire of the prospective jurors who remained. It is clear that many jurors, who had responded affirmatively to the question about their awareness of or familiarity with Duddie Ford, took the luncheon opportunity and were not individually examined. The judge questioned twenty-five jurors individually and excused fourteen of them. He denied Duddie Ford's request for a change of venue and its renewed request for further individual voir dire.

On the following day, two empanelled jurors came forward in response to the judge's questions to the venire, and the judge questioned them. One of them was challenged. Then, in order to complete the jury selection, a second venire was brought into the courtroom and the judge essentially repeated the process used with the first venire. He conducted individual voir dire with respect to three prospective jurors who, on examination of the venire, indicated that they or someone they knew had had a bad experience with Duddie Ford or that they had some other reason that they thought might interfere with their impartiality. All of the second venire indicated that they were aware of or familiar with Duddie Ford, but the judge did not individually examine prospective jurors on that ground alone. Duddie Ford's request for more extensive individual voir dire was denied. Three more jurors were empanelled, none of whom had been questioned individually. Duddie Ford exhausted its peremptory challenges.

General Laws c. 234, § 28 (1988 ed.), provides in relevant part that, "[f]or the purpose of determining whether a juror stands indifferent in [a] 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, possible exposure to potentially prejudicial material 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, exposure, opinions or any other matters which may, as aforesaid, 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." Rule 20(b)(2) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 889 (1979), essentially tracks the relevant portion of G.L. c. 234, § 28. The rule provides that "[t]he court shall examine ... a juror ... upon issues extraneous to the case if it appears that the juror's impartiality may have been affected by the extraneous issues. The examination ... shall be conducted individually and outside the presence of other persons about to be called or already called as jurors."

Under the statute and the rule, the question for the judge in deciding whether individual voir dire is necessary is "whether 'there exists a substantial risk of extraneous influences on the jury.' " Commonwealth v. Kendrick, 404 Mass. 298, 303, 535 N.E.2d 217 (1989), quoting Commonwealth v. Boyer, 400 Mass. 52, 55, 507 N.E.2d 1024 (1987). Commonwealth v. Sheline, 391 Mass. 279, 290-291, 461 N.E.2d 1197 (1984). As we have repeatedly said, the determination as to whether such a risk exists is subject to the judge's "broad discretion." Id. Commonwealth v. Jackson, 391 Mass. 749, 756, 464 N.E.2d 946 (1984).

Duddie Ford states that, in response to the judge's questions to the first venire, "[a]t least 61 members" raised their hands, and all the members of the...

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18 cases
  • Com. v. Figueroa
    • United States
    • Appeals Court of Massachusetts
    • December 5, 2002
    ... ... 901(a). See Commonwealth v. Duddie Ford, Inc., 28 Mass.App.Ct. 426, 435 & n. 10, 551 N.E.2d 1211 (1990), S. C., 409 Mass. 387, 566 ... ...
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 20, 2010
    ...to a judge's questioning of the full venire is “[impliedly representing] that he or she is not biased.” Commonwealth v. Duddie Ford, Inc., 409 Mass. 387, 393, 566 N.E.2d 1119 (1991). The defendant did not challenge Juror A for cause. Next, Juror B indicated that the defendant looked familia......
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    ... ... 86, 96, 711 N.E.2d 911 (1999), quoting Sunrise Props., Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage, ... Page 938 ... Fialky & Fitzgerald, P.C., 425 ... `[that] can only act through its agents'"); Commonwealth v. Duddie Ford, Inc., 28 Mass.App.Ct. 426, 441, 551 N.E.2d 1211 (1990), S.C., 409 Mass. 387, 566 N.E.2d ... ...
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