Com. v. Long

• Decision Date: 30 March 1995
• Citation: 419 Mass. 798,647 N.E.2d 1162
• Parties: COMMONWEALTH v. Vann LONG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1162

647 N.E.2d 1162

419 Mass. 798

COMMONWEALTH v. Vann LONG.

Supreme Judicial Court of Massachusetts Essex.

Argued Dec. 7, 1994.

Decided March 30, 1995.

Kevin S. Nixon, Boston, for defendant.

Susanne Levsen, Asst. Dist. Atty., Kevin M. Mitchell, Asst. Dist. Atty., with her, for Com.

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

LIACOS, Chief Justice.

On May 26, 1993, a jury convicted the defendant of murder in the first degree, two counts of armed robbery, and armed assault in a dwelling. On appeal, the defendant contends that the trial judge committed reversible error in (1) failing to excuse one allegedly biased juror for cause, (2) failing to require the Commonwealth to explain its peremptory challenges of two Hispanic members of the venire, and (3) denying the defendant's motion for an individual voir dire of prospective jurors. The defendant also asserts that this court should exercise its power pursuant to G.L. c. 278, § 33E (1992 ed.), to reverse the murder conviction and order a new trial. We need discuss only the first two of these claims of error. We hold that the judge erred in seating the allegedly biased juror and in failing to require the Commonwealth to explain its peremptory challenges of two Hispanic members of the venire. Accordingly, we reverse the convictions. ¹

1. The judge's failure to excuse allegedly biased juror for cause.

a. Background.

The judge asked venire members to come to sidebar, when called, if they thought the defendant's Cambodian ethnicity would affect their ability to be impartial. ²

After the defendant had exhausted his peremptory challenges, another prospective juror (juror X) was called. Juror X came to sidebar and this colloquy ensued:

THE JUDGE: "Hi."

JUROR X: "Hi. In fairness to the defendant, I was opposed to the war in Vietnam and I was opposed to the Khmer Rouge. Also, along with that, I am self-employed.

"Also, if this goes on for a long period of time, my mother has terminal breast cancer and she has a very short period of time to live, if this goes on and on, I'm afraid I would be a little impatient here, especially with the deliberations. I will want to get out of here. Also, my brother is in prison."

THE JUDGE: "The trial generally ... will go from nine to one but you will have all afternoon free."

JUROR X: "I do not have a problem serving as long as these attorneys don't have a problem with me.

"I also have a problem with the prison--"

THE JUDGE: "Well, first let me ask you, the fact you were opposed to the Vietnamese war and the Khmer Rouge, would either of those feelings ... interfere with your ability to listen to the evidence in this case and decide this case fairly and only upon the evidence?"

JUROR X: "I would hope that it wouldn't, your Honor."

THE JUDGE: "Why do you think it might?"

JUROR X: "Because the defendant is Cambodian."

THE JUDGE: "I understand that. But you understand there is no indication whatsoever that the defendant was a member of the Khmer Rouge."

JUROR X: "I understand, your Honor. I am more than willing to serve. I will do my best."

THE JUDGE: "All I need to know, but I do need to know it, do you think you can be fair to the defendant and fair to the Commonwealth? The question I would ask on the Commonwealth side, the fact that your brother, did you say he is in prison now?"

JUROR X: "Yes."

THE JUDGE: "So I take it he was prosecuted and convicted?"

JUROR X: "He plea bargained."

THE JUDGE: "That was a federal conviction?"

JUROR X: "Right."

THE JUDGE: "Do you think there is anything about that fact that would make you be unfair?"

JUROR X: "Not in this case. He was involved in tax evasion, and that has nothing to do with this particular case."

THE JUDGE: "Then we are back to the fact that this defendant, he is of Cambodian origin, but there is no connection with the Khmer Rouge. There is nothing connected that is part of this case. I guess my question is do you think you can be fair to him?"

JUROR X: "The only way I can answer that, your Honor, is I would really hope that I could be."

THE JUDGE: "Any questions, [defense counsel]?"

DEFENSE COUNSEL: "Yes, your Honor. I am not quite sure how to phrase it.

"Sir, if you heard conflicting testimony, directly conflicting between the Caucasian police officer and a civilian who was Cambodian, would you have tendencies to believe one over the other because of what you know or what your beliefs were?"

JUROR X: "I would hope that I would have no problem with that. Again, I emphatically tell you that I would lean to the police officer over the civilian, but that doesn't mean that I believe that everything a police officer says is accurate either. I know I give you conflicting answers, but that's it. I don't have a problem if you don't have a problem."

THE JUDGE: "I don't have a problem. I will seat you."

JUROR X: "That's up to you people."

THE JUDGE: "All right."

JUROR X: "Do you want me to go sit down over there?"

THE JUDGE: "Yes."

"(Juror complied.)"

DEFENSE COUNSEL: "Given the fact that we don't have an unequivocal 'I can be fair' and he said 'I hope I can be fair, I would like to think I can be fair,' he can't say he can be fair, given these concerns, I would challenge for cause."

THE JUDGE: "It seems to me he has given some thought to it and has indicated a willingness to follow the dictates of being fair. I think that he will be. I just don't think I will challenge him for cause."

Thus, juror X was seated with the jury and later deliberated on the verdicts.

b. Discussion.

The defendant asserts that the judge's denial of his challenge for cause of juror X, after the defendant had exhausted his peremptory challenges, denied him his right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and under arts. 12 and 29 of the Declaration of Rights of the Massachusetts Constitution. Specifically, the defendant contends that the juror was incompetent by reason of ethnic prejudice because he indicated that he might not be able to decide the case fairly, "[b]ecause the defendant is Cambodian." The defendant also argues that the juror's statement, "I will do my best" did not amount to a statement that he could be impartial, and that his comment, "I don't have a problem if you don't have a problem.... That's up to you people," amounted to a disclaimer of responsibility to be fair to the defendant. The defendant further argues that juror X was incompetent because he indicated that he would favor the testimony of a Caucasian police officer over that of a Cambodian civilian witness. We agree that the judge committed reversible error in not excusing juror X for cause.

Article 12 and the Sixth Amendment, applied to the States through the due process clause of the Fourteenth Amendment, guarantee the right of a criminal defendant to a trial by an impartial jury. ³ Commonwealth v. Susi, 394 Mass. 784, 786, 477 N.E.2d 995 (1985). Commonwealth v. Soares, 377 Mass. 461, 478-480, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Commonwealth v. Bellino, 320 Mass. 635, 638-642, 71 N.E.2d 411, cert. denied, 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1947). "The failure to grant a defendant a fair hearing before an impartial jury violates even minimal standards of due process." Commonwealth v. Susi, supra 394 Mass. at 786, 477 N.E.2d 995, citing Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). The presence of even one juror who is not impartial violates a defendant's right to trial by an impartial jury. See Ross v. Oklahoma, 487 U.S. 81, 85-86, 108 S.Ct. 2273, 2276-77, 101 L.Ed.2d 80 (1988); Aldridge v. United States, 283 U.S. 308, 314, 51 S.Ct. 470, 473, 75 L.Ed. 1054 (1931) ("if any [juror] was shown to entertain a prejudice which would preclude his rendering a fair verdict, a gross injustice would be perpetrated in allowing him to sit").

The trial judge makes the initial determination whether a juror "may not stand indifferent." G.L. c. 234, § 28 (1992 ed.). ⁴ We afford a trial judge a large degree of discretion in the jury selection process. See, e.g., Commonwealth v. Flebotte, 417 Mass. 348, 355, 630 N.E.2d 265 (1994); Commonwealth v. Duddie Ford, Inc., 409 Mass. 387, 392, 566 N.E.2d 1119 (1991); Commonwealth v. Amazeen, 375 Mass. 73, 83, 375 N.E.2d 693 (1978). See also Commonwealth v. Ascolillo, 405 Mass. 456, 459, 541 N.E.2d 570 (1989), quoting United States v. McNeill, 728 F.2d 5, 9 (1st Cir.1984) ("If the trial judge, who conducted the voir dire ... believed that [she] had impanelled a jury of twelve open-minded, impartial persons, then we will set aside [her] action only where juror prejudice is manifest"). In exercising discretion determining possible juror bias, however, the "trial court must be zealous to protect the rights of an accused." Wainwright v. Witt, 469 U.S. 412, 430, 105 S.Ct. 844, 855, 83 L.Ed.2d 841 (1985), quoting Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950). In this case, the judge's failure to excuse juror X violated the defendant's right to trial by an impartial jury.

When juror X came to sidebar, he told the judge that, "[i]n fairness to the defendant, I was opposed to the war in Vietnam and I was opposed to the Khmer Rouge." The judge then asked the juror whether his feelings would interfere with his ability to decide the case fairly. Juror X answered, "I would hope that it wouldn't, your Honor." When the judge asked why his feelings might affect his ability to be fair, the juror admitted, "Because the defendant is Cambodian." At this point, the judge was aware that juror X harbored a potential ethnic bias against the defendant. "[W]here there is abundant latitude for selection of jurors, none should sit who are not entirely impartial." Davis v. Allen, 11 Pick. 466, 467-468 (1831).

The judge's attempted rehabilitation of juror X did not convincingly show that...