Com. v. Yancee

• Decision Date: 17 July 1979
• Citation: 8 Mass.App.Ct. 884,391 N.E.2d 1254
• Parties: COMMONWEALTH v. John YANCEE.
• Court: Appeals Court of Massachusetts

Page 1254

391 N.E.2d 1254

8 Mass.App.Ct. 884

COMMONWEALTH v. John YANCEE.

Appeals Court of Massachusetts, Suffolk.

Argued June 15, 1979.

Decided July 17, 1979.

Kimberly Homan, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Laurie Peterson, Legal Asst. to the Dist. Atty. with him), for the Commonwealth.

Before KEVILLE, ARMSTRONG and DREBEN, JJ.

RESCRIPT.

The defendant appeals from his conviction by a jury of three offenses arising from his alleged operation of a truck which was in collision with two other motor vehicles on a Chelsea street. ¹ There was evidence that the defendant was the operator of the truck at the time of the collision, despite his testimony to the contrary. There was also evidence that prior to his arrest near the scene of the collision the defendant directed epithets bearing racial overtones to the owner of one of the other vehicles and his wife. The defendant is a black Japanese-American, and the three witnesses for the Commonwealth were white.

The record demonstrates that the judge put to the prospective jurors the four statutory questions described in the first paragraph of G.L. c. 234, § 28, but, after inquiring of counsel, denied the defendant's motion brought under the second paragraph of § 28 as amended by St.1975, c. 335, for further interrogation of prospective jurors. The questions contained in the motion had been designed in part to determine whether the judgment of the prospective jurors could be swayed by racial bias where the defendant was a black of "racially mixed" parentage, the "victims" were white and the language used by the defendant during the incident was likely to surface during trial.

There was no violation of the defendant's rights under the Fourteenth Amendment to the Constitution of the United States or of art. 12 of the Massachusetts Declaration of Rights. This is not a case " 'in which the charges and defenses explicitly implicate racial issues . . . (but rather one) which involve(s) racial prejudice, by inference, through the identities of the parties.' " Commonwealth v. Grace, 370 Mass. 746, 756-757, 352 N.E.2d 175, 182 (1976), quoting Dukes v. Waitkevitch, 536 F.2d 469, 470 (1st Cir. 1976). The mere fact that witnesses on one side are of one race while witnesses on the other are of another is not sufficient to inject race as a factor into the trial, Commonwealth v. Core, 370 Mass. 369, 375, 348 N.E.2d 777 (1976), especially where, as here, race had nothing to do with the defendant's arrest or prosecution. Ibid. Nor do we think that the defendant became a "special target of prejudice," Commonwealth v. Lumley, 367 Mass. 213, 214, 218, 327 N.E.2d 683 (1975), by reason of the evidence that he used the word "honky."

Compare Commonwealth v. Williams, --- Mass. ---, --- - --- ^A, 391 N.E.2d 1202, ---- - ---- (1979).

Although the defendant's statutory claims based on the second paragraph of G.L. c. 234, § 28, as amended, give us some pause (see the concurring opinion of Brown, J., in Commonwealth v. Williams,--- Mass.App. --- ^B, 380 N.E.2d 1315), we find no error in the judge's ruling. "The nature and the extent of the examination of prospective jurors lies within the sound discretion of the trial judge . . . subject to statutory provisions," Commonwealth v. Haglund, 4 Mass.App. 858, --- ^C, 357 N.E.2d 341, 342-343 (1976). We cannot agree with the defendant that St.1975, c. 335, which amended G.L. c. 234, § 28, removed all discretion from the judge to act on the defendant's request. Compare Commonwealth v. Hogue,--- Mass.App. --- ^D, 377 N.E.2d 711 (1978). Although that statute, as amended, imposes a duty upon the judge to examine potential jurors with respect to possible bias or prejudice, that duty is triggered only "if it appears that particular jurors . . . may be influenced by extraneous factors to the extent that jurors would be unable to render an impartial verdict." Commonwealth v. Dickerson, 372 Mass. 783, --- ^E, 364 N.E.2d 1052, 1059 (1977). See G.L. c. 234, § 28, 2d par. Here the record reflects that the judge heeded the admonitions of Commonwealth v. Ross 363 Mass. 665, 673, 296 N.E.2d 810, cert. denied, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), and Commonwealth v. Lumley, 367 Mass. at 216-217, 327 N.E.2d 683, and made inquiry of defense counsel after the motion had been presented but concluded "that it is not...