Com. v. Holloway, 96-P-1429

• Decision Date: 20 March 1998
• Docket Number: No. 96-P-1429,96-P-1429
• Citation: 691 N.E.2d 985,44 Mass.App.Ct. 469
• Parties: COMMONWEALTH v. Anthony HOLLOWAY.
• Court: Appeals Court of Massachusetts

Page 985

691 N.E.2d 985

44 Mass.App.Ct. 469

COMMONWEALTH v. Anthony HOLLOWAY.

No. 96-P-1429.

Appeals Court of Massachusetts,

Plymouth.

Argued Dec. 16, 1997.

Decided March 20, 1998.

Further Appellate Review Denied April 28, 1998.

Robert J. Wheeler, Jr., Boston, for defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Before LAURENCE, KAPLAN and LENK, JJ.

LENK, Justice.

This appeal arises from the defendant's February 22, 1996, conviction, by a Superior Court jury, of rape of a child under sixteen years of age, in violation of G.L. c. 265, § 23. On appeal, the defendant makes two claims of error. The defendant contends that the trial judge erred in (1) denying his request for an individual voir dire of the prospective jurors on the issue of whether any juror, family member, or friend had been the victim of sexual abuse; and (2) admitting, over objection, evidence of two prior bad acts. Because of the failure to conduct the requisite voir dire examination, we reverse. We also treat the evidentiary issue as it may arise on retrial.

The jury would have been warranted in finding the following facts. The defendant, Anthony Holloway, is a karate champion and professional karate trainer. He was the complainant's karate instructor from September of 1988 through August of 1993. The complainant began taking lessons from the defendant when she was eleven years old and continued through age sixteen. The complainant became nationally ranked in karate and was twice ranked number one in the country for her age group. Over the years, the defendant developed a close friendship with the complainant and her family.

When the complainant began studying with the defendant, she attended one-hour classes three times a week which, within a year or two, increased to five or six sessions a week, each of two to four hours duration. In addition, the complainant traveled frequently with the defendant, locally and out-of-state, to attend karate competitions. When the defendant began taking the complainant out socially, however, the complainant's mother asked him not to do so. In July of 1991, when the complainant's mother traveled to Ohio to watch her daughter compete in the Junior Olympics, she observed her daughter lying in bed "in a coupled position" with the defendant and heard the defendant addressing her daughter as "baby, honey, [and] sweetie." At this point, the complainant's mother informed the defendant that he was only to be in her daughter's presence during karate lessons.

At trial, the complainant testified that in April, 1989, when she was twelve years old and the defendant was twenty-two years old, the defendant asked her to accompany him to Wareham to pick up uniforms. Along the way, the defendant asked her about her virginity. The next day, when the complainant was alone with the defendant at the karate school, the defendant asked her for a massage and then asked if he could kiss her. After initially refusing, the complainant acquiesced to the defendant's requests. The next night, while the defendant was driving the complainant home from dinner, he stopped at a conservation area and had sexual intercourse with her. The complainant testified that that year she had intercourse with the defendant six or seven times. In the following years, the frequency of sex increased to "like every day" until the relationship ended in July or August of 1993 when the complainant was sixteen and one-half years old.

Over the defendant's objections, in addition to testifying to other specific sexual encounters, the complainant testified that the defendant had shown her pornographic films and had purchased alcohol for her consumption on several occasions.

The defendant testified, denying that he had ever engaged in any sexual activity with the complainant. ¹ The defendant's testimony otherwise corroborated that of the complainant with respect to the extent of their contact, travel together, and social outings. The defendant presented four other witnesses, all of whom testified that they had observed the defendant and the complainant together on many occasions and had never witnessed any inappropriate sexual behavior. Several of the defense witnesses also testified that they had observed the complainant demonstrating significant hostility towards Michelle Daley, a woman whom the defendant began dating in 1991 and subsequently married.

1. Jury voir dire. The defendant contends that the trial judge erred in declining to conduct an individual voir dire of prospective jurors to ascertain whether any juror or family member had been the victim of sexual assault. The defendant asserts that such inquiry is mandatory in cases involving sexual offenses against minors and that the judge's refusal to so inquire in this case constitutes reversible error. We agree.

Prior to trial, the defendant submitted a number of proposed questions for the prospective jurors and requested an individual voir dire of the jurors. The defendant requested that the trial judge ask each juror individually, "Have you or any members of your family or a close personal friend been the victim of any type of sexual assault?" The judge declined to make this inquiry, and defense counsel noted his objection.

Because of the difference in the defendant's and complainant's races, however, the judge did conduct an individual voir dire to ferret out racial bias as required by Commonwealth v. Sanders, 383 Mass. 637, 640-641, 421 N.E.2d 436 (1981) (on request, in cases involving interracial rape, individual questioning regarding racial bias is required). ² In the course of this, he indicated that "the case involves a charge of an alleged statutory rape." In response to this information, two of the first three jurors volunteered personal information relating to members of their family who had been victims of sexual assault. At this point, the defendant renewed his request for individual questioning on the issue of sexual assault, and the judge again refused his request.

"Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution ... guarantee to the criminally accused the right to a trial by an impartial jury." Commonwealth v. Susi, 394 Mass. 784, 786, 477 N.E.2d 995 (1985). To that end, G.L. c. 234, § 28, requires the judge to question prospective jurors individually when it appears that their impartiality may be affected by extraneous issues. Commonwealth v. Grice, 410 Mass. 586, 588, 574 N.E.2d 367 (1991). It is generally within the judge's discretion, however, to determine when there exists a substantial risk that extraneous issues would influence the jury such that an individual voir dire of potential jurors is warranted. Ibid. Nonetheless, this discretion has been limited by the Supreme Judicial Court through its power of general superintendence, primarily in the area of racial prejudice. Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633 (1982). "[W]hile the decision to conduct an individual voir dire is generally discretionary with the trial judge, it is mandated--upon an informed request by the defendant--in certain cases." Commonwealth v. Hooper, 42 Mass.App.Ct. 730, 731, 679 N.E.2d 602 (1997). "It is the combination of race, sex, and violence that, as a supervisory matter, circumscribes trial court discretion." Ibid.

The court has also invoked its power of general superintendence in a nonracial bias context in Commonwealth v. Flebotte, 417 Mass. 348, 355, 630 N.E.2d 265 (1994), by circumscribing a trial judge's discretion in cases involving sexual offenses against minors. A trial judge is now required, on request, to question each potential juror individually in cases involving sexual offenses against minors as to whether the juror has been a victim of a childhood sexual offense. Ibid.

As we have noted, in establishing these rules, the Supreme Judicial Court relied upon its superintendency powers to implement the policy set forth in G.L. c. 234, § 28, and not upon constitutional considerations. See Commonwealth v. Sanders, 383 Mass. at 640, 421 N.E.2d 436; Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633 (1982); Commonwealth v. Young, 401 Mass. 390, 398, 517 N.E.2d 130 (1987); Commonwealth v. Flebotte, 417 Mass. at 355, 630 N.E.2d 265; Commonwealth v. Stephens, 15 Mass.App.Ct. 461, 465, 446 N.E.2d 410 (1983). The failure to comply with this requirement is thus ordinarily not grounds for reversal unless the defendant can demonstrate resulting prejudice. Commonwealth v. A Juvenile (No. 2), 396 Mass. 215, 224, 485 N.E.2d 170 (1985). ³ Otherwise put, if the judge erroneously fails to conduct an individual voir dire and make the relevant inquiry, the case will be reversed only if the defendant can show that the error possibly weakened his case in some significant way. Ibid. See Commonwealth v. Otsuki, 411 Mass. 218, 229, 581 N.E.2d 999 (1991).

On the record before us, it is clear that the trial judge erred in failing to satisfy the unequivocal requirement of Flebotte to examine each juror individually on the issue of sexual assault as requested by the defendant. Because this ruling does not violate a constitutional mandate, we must now consider whether the error affected the substantial rights of the defendant. Commonwealth v. A Juvenile (No. 2), 396 Mass. at 224, 485 N.E.2d 170.

The Supreme Judicial Court has explicitly recognized the need for a safeguard in cases involving sexual assault of minors because of the reasonable possibility that prejudice would influence the jury. Commonwealth v. Flebotte, 417 Mass. at 355, 630 N.E.2d 265. The Commonwealth's contention that the individual voir dire which the judge did conduct was adequate to address the concerns raised in Flebotte, supra, is unpersuasive. The judge made clear in his inquiry that he was primarily concerned with the possibility of racial prejudice. ⁴ The fact that several of the jurors came forth with...