Com. v. Lumley

• Decision Date: 28 March 1975
• Citation: 367 Mass. 213,327 N.E.2d 683
• Parties: COMMONWEALTH v. Clifton LUMLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 683

327 N.E.2d 683

367 Mass. 213

COMMONWEALTH v. Clifton LUMLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1975.

Decided March 28, 1975.

Edward F. Haber, Boston, for defendant.

William J. Doyle, Asst. Dist. Atty., for the Commonwealth.

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

TAURO, Chief Justice.

The defendant is here on an amended bill of exceptions after conviction under an indictment charging robbery. He was also tried and found not guilty under indictments charging him with the commission of an unnatural and lascivious act and assault and battery. We overrule the exceptions.

In this case, we are required once again to consider the scope and applicability of the United States Supreme Court's holding in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). In COMMONWEALTH V. ROSS, 363 MASS. --- , 296 N.E.2D 810, 815 (1973)^A, cert. den., 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), we said that '(w)e do not believe that the Ham case announced a new broad constitutional principle requiring that questions, designed to discover possible racial prejudice, be put to prospective jurors in all State criminal trials when the defendant is black.' Id. at --- ^b, 296 N.E.2d at 815. We went on to say that such questions are constitutionally mandated only when the defendant was a 'special target for racial prejudice,' (id. at --- ^c, 296 N.E.2d 810 as the defendant in the Ham case had been. Our holding in the Ross case has been followed consistently by this court. See Commonwealth v. Ryles, --- Mass. ---, --- ^d, 296 N.E.2d 816 (1973), cert. den., 414 U.S. 980, 94 S.Ct. 301, 38 L.Ed.2d 224 (1973); Commonwealth v. Rodriquez, --- Mass. ---, --- - --- ^e, 300 N.E.2d 192 (1973); Commonwealth v. Bumpus, --- Mass. ---, --- ^f, 309 N.E.2d 491 (1974); Commonwealth v. Pinckney, --- Mass. ---, --- ^g, 309 N.E.2d 495 (1974). Today we reaffirm that holding.

The circumstances in the Ham case were novel. The defendant, a young black man, was well known as a civil rights activist in the small community where he had resided for most of his life. At the time of his trial, he had no prior record of convictions. His principal defense was that the local law enforcement authorities were 'out to get him' because of his civil rights activities and had 'framed' him on the charge of marihuana possession. With this factual background, the United States Supreme Court reversed his conviction. The court held that the trial judge in the voir dire improperly failed to examine potential jurors on the issue of racial bias. Mr. Justice Rehnquist, writing for the court, carefully limited the holding to the facts in the case: 'The State having created this statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias' (emphasis supplied). Ham v. South Carolina, 409 U.S. 524, 527, 93 S.Ct. 848, 850 (1973).

Racial issues infected the entire Ham trial. The issues were inescapably and powerfully before the jurors. Bias formed the heart of the defense. The defendant rightfully contended that bias, official and covert, was the sole cause and foundation for the prosecution. The defendant fought bias in his civil rights activities, undoubtedly known to jurors drawn from the locality. Any latent bias harbored by the jurors would likely have been activated by the case and would have defeated the defendant's efforts to achieve acquittal. When the racial issues were so salient and Ham, himself, was a special target for prejudice, the due process clause plainly entitled Ham to have the judge examine jurors for racial prejudice

Yet, in the light of the language of Mr. Justice Rehnquist quoted above, we do not believe that the due process clause mandates such examination in every case in which there is a black defendant. ¹ We adhere to our prior holdings, cited above, that the defendant must be a special target for prejudice before the constitutional guaranties are invoked.

In the ordinary case, inquiries beyond the statutory questions, which raise generally the issue of bias, rest in the sound discretion of the trial judge. Commonwealth v. Nassar, 354 Mass. 249, 253, 237 N.E.2d 39 (1968). Absent the above mentioned factors which make the defendant a special target for racial prejudice, there is no constitutional compulsion to ask questions beyond the statutory questions. '(T)he statutory questions . . . (are) sufficient to insure the 'essential demands of fairness' required by the Fourteenth Amendment.' Commonwealth v. Ryles,--- Mass. ---, --- ^h, 296 N.E.2d 816, 819 (1973), cert. den., 414 U.S. 980, 94 S.Ct. 301, 38 L.Ed.2d 224 (1973). However, as a practical matter, when a motion that prospective jurors be interrogated as to possible prejudice is presented, we believe the trial judge should grant that motion. ² Such a motion, raising as it does difficult issues of jury psychology and potential injury to the defendant's case, should come from the defendant himself. Before granting the motion, the trial judge should carefully ascertain that the defendant's decision to insist on specific questions regarding racial bias was a knowing and voluntary one, made with an understanding that such specific questions may activate latent racial bias in certain prospective jurors or may insult others without uncovering evidence of bias in hard-core bigots who refuse to acknowledge their prejudice. ³ If, thereafter, the defendant insists that specific questions concerning bias be asked, the judge should propound such questions to the veniremen. The decision then has been the defendant's to make. Granting the request for special interrogation may avoid needless appeals which lack constitutional substance under our interpretation of the Ham case. ⁴

This court's interpretation of the Ham case was before the United States Court of Appeals for the First Circuit recently in Ross v. Ristaino, 508 F.2d 754 (1st Cir. 1974), an application for a writ of habeas corpus filed by the defendant in Commonwealth v. Ross. The Court of Appeals, by a divided court, did not attempt to 'resolve . . . (the) ambiguity' it found in the Ham opinion and, for purposes of argument, accepted the requirement that the defendant be a special target for prejudice. Id. 409 U.S. at 756, 93 S.Ct. 848. The court, with Judge Moore dissenting, then approved an implicit finding of the Federal District Court that 'a black defendant charged with violent crimes against a white security officer would be likely to be a special target of racial prejudice.' Ibid.

'(A)lthough we give respectful consideration to such lower Federal court decisions as seem persuasive,' we are, of course, 'not concluded by decisions of . . . (lower) Federal courts.' Commonwealth v. Masskow, --- Mass. ---, --- ⁱ, 290 N.E.2d 154, 157 (1972). We cannot agree that the mere accusation of a black defendant in a crime with a white victim or the fact that the victim is a security guard constitutes 'circumstances which reasonably present the issue of racial prejudice' (Commonwealth v. Ryles, --- Mass. ---, --- ^j, 296 N.E.2d 816, 818 (1973), cert. den., 414 U.S. 980, 94 S.Ct. 301, 38 L.Ed.2d 224 (1973)), and make the defendant a special target for racial prejudice. See Commonwealth v. Ross, --- Mass. ---, --- ^k, 296 N.E.2d 810 (1973), cert. den., 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973); COMMONWEALTH V. BUMPUS, 365 MASS. --- , 309 N.E.2D 491 (1974)^L. 'We have several times indicated that the fact that the defendant is black and the victim white does not suffice to bring a case within the Ham rule and to require specific questions by the trial judge as to possible prejudice among the veniremen.' Commonwealth v. Bumpus, supra, at --- ^m, 309 N.E.2d at 493. The ethnic identities of the defendant and victim, without other factors underscoring the racial elements of the case and their specific application to the defendant, are insufficient to invoke the special precautions of the Ham case. The victim's occupation alone is not one such factor.

It is appropriate at this point to note that the expansive construction of the Ham holding adopted by the United States Court of Appeals for the First Circuit would have a calamitous impact on the criminal justice systems of many States if the construction were accepted as good constitutional law and applied retroactively ⁵ to all prior trials. Reliance on former constitutional standards, which left the specific content of voir dire questions in State courts to the trial judge, for many years was widespread in this and other jurisdictions. See, e.g., COMMONWEALTH V. ROSS, 361 MASS. --- , 282 N.E.2D 70 (1972)^N, judgment vacated, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973), affd. on rehearing, --- Mass. --- ^o, 296 N.E.2d 810 (1973), cert. den., 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973); State v. Ham, 256 S.C. 1, 180 S.E.2d 628 (1971), revd., 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). The prior case law and Supreme Court decisions gave no forewarning that certain specific questions concerning racial bias might be obligatory as a matter of Fourteenth Amendment due process. If the First Circuit's construction of the Ham case were given retroactive, general application, many of those convicted and incarcerated after otherwise fair trials, which had resulted in deserved convictions, would be able to come before State and Federal courts seeking relief from those convictions. While we lack precise statistics as to the number of convicted 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d Tehan v. United States ex rel. Shott, 382 U.S. 406, 418, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966)), our experience suggests that the number is significant. Prior to any amplifying construction of the Ham case or any...