COMMONWEALTH vs. PAUL D. PROULX.

DREBEN, J. Tried on two counts of unnatural sexual intercourse by force upon a male victim, the defendant moved for an individual voir dire pursuant to G. L. c. 234, Section 28. [Note 1] Although

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the judge questioned potential jurors collectively, [Note 2] the defendant claims that individual voir dire [Note 3] was required by that statute, or, if not, the judge abused his discretion in not conducting individual examination of jurors. See Commonwealth v. Shelley, 381 Mass. 340, 353-354 n.12 (1980). See generally Smith, Criminal Practice & Procedure, Sections 1717-1719 (2d ed. 1983 & Supp. 1993). In seeking reversal of his convictions and a new trial, [Note 4] the defendant does not rely on special extraneous influences based on the record, see Commonwealth v. Boyer, 400 Mass. 52, 56 (1987), but rather urges that individual voir dire be required in all homosexual rape cases where a defendant contends that the complainant

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consented. Because of the Supreme Judicial Court's reluctance to limit the discretion of trial judges in these matters, and because the few limitations it has imposed on such discretion are based on its supervisory power, see Commonwealth v. Young, 401 Mass. 390, 398 (1987), we do not consider this the rare case where we can "fill the interstices." See Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 364 n.1 (1991).

The Supreme Judicial Court has followed a "cautious" approach, see Commonwealth v. Young, 401 Mass. 390, 398 n.8 (1987), in extending the principles of Commonwealth v. Sanders, 383 Mass. 637 (1981), [Note 5] even in interracial cases, the one area in which it has, "in a limited class" of cases, restricted judicial discretion under G. L. c. 234, Section 28. See Commonwealth v. De La Cruz, 405 Mass. 269, 274 (1989); Commonwealth v. Grice, 410 Mass. 586, 588, 589 (1991). Thus, the court refused to extend the Sanders principle in De La Cruz to include Hispanic persons as a race for jury empanelment purposes and, in Grice, to cases involving interracial armed robbery. Clearly concerned with the imposition of an additional burden on the court system by a blanket requirement of individual voir dire in a category of cases, see Commonwealth v. Young, 401 Mass. at 398 n.8, the court has assiduously refused to expand the Sanders rule "in the absence of demonstrated necessity." Commonwealth v. De La Cruz, 405 Mass. at 274.

In addition, the decision in Commonwealth v. Boyer, 400 Mass. at 56, suggests denial of the defendant's claim in this case. There, the defendant sought individual examination of jurors, requesting the posing of several questions relating to homosexuality, including the following:

"The defendant in this case is a homosexual. Do you have feelings about homosexuals that might make it difficult for you to be impartial in deciding this case?"

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The defendant in Boyer was convicted under G. L. c. 272, Section 53, as a "common night walker," that is, "someone who is abroad at night and solicits others to engage in illicit sexual acts." Id. at 53 n.1. For purposes of its decision, the court accepted the defendant's claim that the judge did not inform the jurors "that the defendant was a homosexual male who the evidence might show traveled at night as a transvestite" and did not ask collectively the jurors "if any juror would have difficulty sitting on such a case." Id. at 54. While recognizing the possibility of bias against homosexuals, the court upheld the trial judge's refusal to engage in individual voir dire, concluding that there was no basis in the record to require the judge to determine that there was a substantial risk of extraneous influences on the jury. Id. at 56. See also Commonwealth v. Shelley, 381 Mass. at 352.

The narrow range of Sanders and the decision in Boyer lead us to conclude that the judge did not err in refusing to question the jurors individually. See also State v. Lambert, 528 A.2d 890, 892 (Me. 1987). Our failure to find a requirement in the statute or an abuse of discretion by the trial judge is not, however, to be taken as disapproval of individual voir dire in cases involving sexual acts between persons of the same sex where the defendant requests such questioning. There is obviously a potential for prejudice in such cases. See G. L. c. 272, Section 34 ("abominable and detestable crime against nature"). See also Commonwealth v. Shelley, 381 Mass. at 353 n.11, where the court suggests that "homosexuals might constitute a class" under G. L. c. 234, Section 28. See generally Developments in the Law -- Sexual Orientation and the Law, 102 Harv. L. Rev. 1508, 1511-1519, 1551-1553 (1989). As stated in Commonwealth v. Ramos, 31 Mass. App. Ct. at 364, "appellate decisions have consistently encouraged trial judges to respond generously to motions that they question jurors individually about possible prejudice." See Commonwealth v. De La Cruz, 405 Mass. at 274.

Judgments affirmed.