Com. v. Harrison

• Decision Date: 16 July 1975
• Citation: 368 Mass. 366,331 N.E.2d 873
• Parties: COMMONWEALTH v. Coleman P. HARRISON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 873

331 N.E.2d 873

368 Mass. 366

COMMONWEALTH

v. Coleman P. HARRISON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 1975.

Decided July 16, 1975.

William P. Homans, Jr., Boston, for defendant.

William A. Doherty, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

On May 7, 1971, some 150 to 200 persons met outside the Roxbury Crossing welfare office to demonstrate against welfare and Medicaid policies. A number of police officers were present. There was a scuffle between some of the demonstrators and the police, the datails of which remain rather obscure in the abbreviated record before us. As a result of the encounter, one of the group, the defendant Coleman P. Harrison, was indicted for armed robbery (taking a service revolver out of the possession of Officer Thomas Matthews with the threat of a knife) and assault and battery by means of a dangerous weapon (kicking Officer Matthews). ¹ After trial in the Suffolk Superior Court, the defendant was convicted by a jury of the lesser included offenses of larceny from the person and simple assault and battery. ² Sentence on the larceny conviction was six months in a house of correction, suspended, with three years' probation; there was a like sentence on the assault conviction, to run concurrently.

On a substitute bill of exceptions to the Appeals Court, the defendant raised only the points that the trial judge committed error in denying, in part, a motion with respect to the conduct of the voir dire examination of prospective jurors, and in denying also a motion, after trial and verdict, for a new trial. The Appeals Court overruled the exceptions. COMMONWEALTH V. HARRISON, --- MASS.APP. --- , 321 N.E.2D 672 (1975)^A. On the defendant's application, we granted further review. G.L. c. 211A, § 11. We agree with the Appeals Court.

1. Motion at voir dire. At commencement of trial, the defendant's counsel moved under G.L. c. 234, § 28, as it then stood, ³ for an order that he be permitted to put seventeen questions to the prospective jurors individually; in the alternative, counsel asked the judge to put these questions.

An affidavit of counsel filed in support of the motion stated that '(t)he media, both newspapers and radio and television reported incidents of violance in connection with the gathering. The media also reported injuries to certain policement. The newspapers reported that some of the participants were members of 'radical' political groups.' The affidavit went on to say that 'among a substantial proportion of the population there exists hostility toward young persons, especially those engaging in political protest.' Counsel mentioned a few trials known to him where prospective jurors in response to particular questions had acknowledged biases which, in counsel's opinion, they would not have admitted in answer to questions of a more general character.

Of the seventeen questions proferred in the motion, ⁴ the judge accepted three: ⁵ whether the prospective jurors were relatives of or acquainted with named police officers, or relatives of any policemen or law enforcement officers, or acquainted with the attorneys in the case. He also undertook to put the substance of a fourth question inquiring what the prospective jurors had learned through the news media about the episode in Roxbury on May 7 involving a protest against Medicaid, welfare, and other matters, and arrests or charges connected therewith. Questions refused by the judge asked whether the prospective jurors were aware of feelings of hostility toward persons engaged in peaceful protest of governmental activities, or believed those persons to be unpatriotic or more likely to commit crimes than persons not so engaged; whether they were aware of feelings of hostility toward the welfare or Medicaid system; whether they believed youthful persons had less right to make judgments on governmental activities than other persons; whether they believe the testimony of police officers should by reason of their status be given greater credence than the testimony of others. ⁶

Although refusing the questions mentioned, the judge put questions (mostly deriving from § 28) as to whether the prospective jurors had an interest in the case or had expressed or formed an opinion about the guilt or innocence of the defendant or anyone else connected with the indictments; whether they were conscious of any bias or prejudice for or against the defendant or the Commonwealth; and whether they were satisfied they could afford the defendant a fair trial basing their decisions solely on the evidence produced in court. ⁷

We should add that in the course of trial the judge again cautioned the jury that they were to reach their verdict on the evidence presented in court, and that only. In his charge to the jury (to which no exception was taken), the judge, besides warning against bias, said that the case involved only particular criminal charges, that no political or social philosophy was on trial; that the merit or lack of it of the welfare system was not on trial, nor the validity of anyone's protest; that the appearance of anyone, whether short or long haired, clean shaven or bearded, was not the issue.

The defendant argues that in the judge's denial (in part) of the voir dire motion there was error amounting to deprivation of the constitutional right to an impartial jury. The error, if there was one, could lie only in the judge's declining to go further in particularizing or making specific the questions as to interest or bias or prejudice that he did ask. Traditionally we have held that it is within the wide discretion of the trial judge whether to refine or improve on the subjects of G.L. c. 234, § 28, by going into more detail. See, e.g., Commonwealth v. Lee, 324 Mass. 714, 717--718, 88 L.E.2d 713 (1949); Commonwealth v. Bonomi, 335 Mass. 327, 334--335, 140 N.E.2d 140 (1957); Commonwealth v. Geagan, 339 Mass. 487, 504, 159 N.E.2d 870 (1959), cert. den. 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959); Commonwealth v. Kudish,--- Mass. ---, --- ^b, 289 N.E.2d 856 (1972). Cf. United States v. Malinowski, 347 F.Supp. 347 (E.D.Pa.1972), affd. 472 F.2d 850 (3d Cir. 1973), cert. den. 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). 'If trial by jury is not to break down by its own weight, it is not feasible to probe more than the upper levels of a juror's mind.' L. Hand, J., in United States v. Dennis, 183 F.2d 201, 227 (2d Cir. 1950), affd. on other grounds, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). We have been content to allow the trial judge a fair leeway in deciding how deep the probe should go, having in view the nature of the case as the judge apprehends it at the start.

It is true that in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), the Supreme Court decided, in a case involving a black activist who claimed to have been framed by the police, that questions addressed simply to prejudice were not constitutionally sufficient, that the jurors must be asked in one way or another whether they were conscious of racial prejudice. Just how exacerbated a situation must be in order to raise this right under the Constitution is still a matter of debate. ⁸ However, it is clear that the court saw a difference between racial prejudice and other kinds of possible bias--for example a bias against bearded men, the defendant in the Ham case being such a man. The court said, 'The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge (Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)) ⁹ and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment.' 409 U.S. at 528, 93 S.Ct. at 851. In holding that, so far as the Constitution was concerned, the prospective jurors need not be questioned about prejudice against bearded men, the court said: 'Given the traditionally broad discretion accorded to the trial judge in conducting voir dire . . . and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner's constitutional rights were violated when the trial judge refused to put this question. . . . The trial judge's refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation.' Ibid.

It may be that the States are constitutionally free or nearly so to allow their trial judges their 'traditionally broad discretion' when the claimed bias does not relate to race but to other matters. But assuming that the Ham case could find its counterpart in some strong case in a field outside race, ¹⁰ we do not think counsel's slim affidavit--which, as the Appeals Court indicated, was less a statement of facts than a piece of legal argumentation ¹¹--portrayed a situation of such dimensions or exigency or so fraught with appeals to unreason as to require at voir dire an extraordinary quiz of prospective jurors as a constitutional right. ¹² The case was perhaps stronger than one concerned with beards, but it was closer to beards than to problems of race. The logic of the collection of possible biases to which the proposed questions spoke could suggest for this case, and for many others, a still larger me lange of biases and a multiplication of questions in which the constitutional thread would be hard indeed to follow. We conclude that there was no violation of the State or Federal Constitution in the present case, nor do we see any occasion for overriding the judge's exercise of discretion on any nonconstitutional ground. This is not to say that the judge would have been wrong, had he chosen to go further in adopting questions tendered...