Commonwealth v. Alves
| Decision Date | 20 November 2019 |
| Docket Number | No. 16-P-1470,16-P-1470 |
| Citation | 137 N.E.3d 413,96 Mass.App.Ct. 540 |
| Parties | COMMONWEALTH v. Dominick R. ALVES. |
| Court | Appeals Court of Massachusetts |
Patrick A. Michaud, for the defendant.
Laurie Yeshulas, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Vuono, Meade, Rubin, & Wolohojian, JJ.1
Following a jury trial in the Superior Court, the defendant, Dominick R. Alves, who is African-American, was convicted in this racially charged criminal case of aggravated assault and battery by means of a dangerous weapon (knife), G. L. c. 265, § 15A (c ) (i) ; two counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ) ; and possession of a class B controlled substance (cocaine), G. L. c. 94C, § 34.2 He now appeals.
The defendant's principal argument is that he was denied a fair trial before a jury of his peers because the trial judge improperly struck certain prospective jurors for cause. We agree; the judge's voir dire questions improperly excluded jurors holding a specific belief with respect to racial discrimination "born of the prospective juror's life experiences," and who, as a consequence, might have been particularly attentive to the racial dynamics of the case. Commonwealth v. Williams, 481 Mass. 443, 449, 116 N.E.3d 609 (2019). The consequence was that the defendant was tried by an all-white jury that did not contain a representative cross-section of the community, and whose selection denied his right to an impartial jury, in violation of art. 12 of the Massachusetts Declaration of Rights. We therefore conclude that his convictions must be reversed and the case remanded so that he may have a new trial before a properly constituted jury.
Background. The events that led to the defendant's arrest were as follows. Based on the testimony at trial, the jury could have found that the violence on the night in question began at about 1 A . M ., when someone from among a group of white people who had been attending a graduation party, and who were escorting Timothy Rounds, a friend of the defendant, away from their party, punched Rounds in the mouth. The defendant, who is African-American, approached Rounds, who told the defendant he was afraid of the group of white men. The defendant took a few steps toward the group and told them to leave Rounds alone.
Three or four of the group, whom Rounds did not know, responded by shouting racial epithets at the defendant, calling him "nigger" and "nigger boy." The defendant told Rounds to run, which he did.
Sometime later, someone who was identified as the defendant punched one of the white men in the back of the head, and ran into a crowd of over thirty people, many African-American. The adult son of the man who had been punched testified that he, the son, ran into the crowd yelling, "Which one of you fucking niggers hit my father?"
The son grabbed an individual identified as the defendant and they began fighting. The son was stabbed. A friend of the son, the stabbing victim, testified that, after he watched the stabbing, he yelled, "Which one of you niggers just stabbed my friend." The friend also admitted that he might have posted on the website Facebook the day after the incident, "Bet that nigger is regretting it, too." And, at the very end of his testimony, he volunteered, completely unsolicited, the following:
After the stabbing, the stabbing victim's brother called 911 to report the altercation. The brother testified that he described the black individuals in the area, including both the defendant and some who were helping his brother, the stabbing victim, as "fucking niggers."
A fourth witness, the initial punching victim, the father of the stabbing victim, testified that he "could [have]" used the word "nigger" during the altercation but did not think he did. Furthermore, another friend of the stabbing victim who was a percipient witness testified that he "might [have]" used the word "nigger" on the night in question, and had used it on other occasions, "but not like in a racist way."
Only two out of seven percipient witnesses (apart from Rounds) did not make statements either suggesting that they had, or explicitly admitting to having, used the word "nigger" to refer to members of the defendant's race.
Voir dire. Prior to jury empanelment the judge informed counsel that he intended to ask, inter alia, the following three questions of each juror in individual voir dire, in the following order: (1) ; (2) "Would you be influenced in any way by the defendant's race in reaching a verdict in this case?"; and (3) "Would you be able to fairly and impartially weigh the credibility of a witness who has shown to have used a derogator[y] racial term?" The judge, however, ultimately did not ask most of the prospective jurors the third question as he had framed. He began questioning the prospective jurors by asking them the questions as he had proposed, and three jurors were seated. When he asked the third question of prospective juror no. 17, she responded, "What was the last part?" When the judge repeated the question, the juror paused, and the judge sua sponte rephrased the question. The following colloquy ensued:
As should be clear, the "rephrased" third question was a different question entirely from the one initially proposed by the judge. It did not ask whether the fact that a witness had used a racial slur would render the juror unable to be fair or impartial. Rather, as prospective juror no. 17 understood, it asked whether a witness's use of a racial slur in the past would affect the juror's assessment of the witness's credibility when he was testifying against a member of the racial group against whom he had spoken the slur.3
After the colloquy with prospective juror no. 17, the prosecutor requested that the judge continue to use this version of the third question, and the judge responded, "I'll try to do it that way going forward." The judge used this new question or some equivalent formulation for the rest of empanelment, never returning to the question that asked prospective jurors whether they could fairly and impartially evaluate the credibility of a witness who used derogatory racial terms.
The next juror excused for cause on the basis of this question was prospective juror no. 21. The judge asked this prospective juror, "If you heard that one or more of the witnesses in this case had used a derogatory racial comment or term, how would that affect your view or your ability to weigh the credibility, the truthfulness of the witness?" After clarifying the meaning of the question, the prospective juror responded only, "Yes," and the judge excused her.
Defense counsel objected, and pointed out that, of the entire venire on the first day of empanelment, the excused prospective juror was one of only two people of color.4 The other prospective juror of color, prospective juror no. 37, was also excused because of his response to the question. In response to the judge's question, prospective juror no. 37 said, Defense counsel at this point objected to the exclusion for cause and also moved to discharge the entire venire.
Over the course of the two-day empanelment process, a total of eleven prospective jurors were excused for cause because they gave some form of an affirmative response to this new version of the third question, including the only identifiable people of color who underwent voir dire.5 This included prospective juror no. 24, whose response was, "Maybe, yeah," and prospective juror no. 19, who stated only, "I might wonder if prejudice has played into it."
Depending on all the facts and circumstances, in a case like this it may be reasonable to conclude that a witness who has used what "is widely regarded as the most hateful and offensive" racial slur against African-Americans, see Thomas O'Connor Constructors, Inc. v. Massachusetts Comm'n Against Discrimination, 72 Mass. App. Ct. 549, 567, 893 N.E.2d 80 (2008) (Rubin, J., concurring in judgment and dissenting in part), is less credible in his testimony against a black criminal defendant. Indeed, those prospective jurors who were given the chance to explain their answers, such as prospective juror nos. 17 and 37, quite reasonably explained the reasons why a witness's prior use of a racial slur might affect their judgments of the witness's credibility in testifying against a black defendant. They were not asked, and did not say, that they could not be fair or impartial in assessing the witness's testimony. They merely described accurately why the prior use of a racist term might have bearing on a witness's credibility in certain circumstances. Yet they were excused for cause.
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Commonwealth v. Browning
...[105 S.Ct. 196, 83 L.Ed.2d 128] (1984) ], quoting Commonwealth v. Carter, 271 Pa. Super. 508, 516 (1979)." Commonwealth v. Alves, 96 Mass. App. Ct. 540, 550, 137 N.E.3d 413 (2019). See Commonwealth v. Amaral, 81 Mass. App. Ct. 143, 149, 960 N.E.2d 902 (2012).As in Alves, here "[t]here was n......