COMMONWEALTH vs. JAMES ROSS, JR.

TAURO, C.J. This case is here pursuant to an order entered by the United States Supreme Court [Note 1] granting the defendant's petition for certiorari, vacating the judgment affirming his conviction (Commonwealth v. Ross, 361 Mass. 665) and remanding the case to us for further consideration in the light of Ham v. South Carolina, 409 U.S. 524. Thus, the only issue we must decide is whether the Ham decision requires that the defendant's conviction should be reversed on the ground that the trial judge refused to ask the veniremen whether they were racially prejudiced.

In the Ham case, the defendant's conviction for possession of marihuana had been affirmed by the South Carolina Supreme Court. The young black defendant had lived most of his life in Florence County, South Carolina, and was well known locally for his civil rights activities. He had never previously been convicted of a crime and his basic defence was that the law enforcement officers were "out to get him" because of his civil rights work. The posture of the case thus placed great emphasis on the issue of the credibility of the defendant in light of his reputation as opposed to that of the credibility of the police.

Prior to trial, Ham's counsel requested the judge to ask the prospective jurors four questions, two of which [Note 2] sought to discover any possible racial prejudice. The judge put three general questions to the prospective jurors concerning possible bias, prejudice and partiality, as required by the State statutes, [Note 3] but declined to ask the questions requested by the defendant.

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The Supreme Court of the United States reversed Ham's conviction holding that "the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice." 409 U.S. at 527. Although the court's opinion stated that "the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by . . . [the defendant]," the court decided that once the State had "created . . . [a] 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 . . . [the defendant] be permitted to have the jurors interrogated on the issue of racial bias." 409 U.S. at 527.

The defendant Ross was convicted in the Superior Court for armed robbery, assault by means of a dangerous weapon with intent to murder, and assault and battery by means of a dangerous weapon, and was sentenced to imprisonment in the Correctional Institution at Walpole to serve three lengthy concurrent terms.

The judge denied the defendant's request to ask the prospective jurors a specific question designed to elicit possible racial prejudice. [Note 4] The three lawyers representing

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the defendant and the two codefendants who were tried with him [Note 5] were concerned about the veniremen's possible prejudice in two specific areas: (1) possible racial prejudice because the defendants were black and (2) possible lack of impartiality because the victim was a Boston University security guard or "quasi policeman." The judge recognized both these concerns as problems. He agreed to ask the veniremen whether they had ever done police work or whether they had any relatives in such work. [Note 6] It is not argued that such a question failed to protect the defendants from possible bias on this matter, and this aspect of possible lack of impartiality is not before us.

Although the judge declined to ask the veniremen whether they were prejudiced against black people, he decided, "in the interest of good sense," not to mention the defendants' Muslim names appearing on the indictments, but only to refer to them as Ross, Daniels and Williams. The judge carefully weighed the likelihood of discovering bias by means of questions concerning racial prejudice and came to the conclusion that it would be most unusual for such questions to reveal any such prejudice. [Note 7] He explained to the veniremen with clarity that

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they must let the court know if for any reason they could not try the case impartially, without bias or prejudice

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or if they had already formed an opinion. [Note 8] He pointed out that "your oath requires . . . that any verdict that you return must be a fair and impartial verdict based upon the evidence and not based upon any extraneous factors, not based upon any bias or prejudice or preconceived notion or any other experience factor." The veniremen were told that they must raise their hands "[i]f, for any reason, you conclude that you cannot render a fair and impartial verdict, or if you doubt whether you can render a fair and impartial verdict."

It is clear that at least one of the prospective jurors understood that the questions put to him about his prejudice

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or bias included racial prejudice. The defendants were asked to stand up so that the veniremen could see them. The clerk then asked the veniremen the questions outlined by the judge and various other questions previously explained to them but not in dispute here. In answer to the clerk's questions, several prospective jurors raised their hands to indicate possible bias. Those who indicated that they might be biased, prejudiced or had already formed an opinion of the defendants' guilt were then questioned individually by the judge. One prospective juror was excused because of admitted racial prejudice and two were excused for an unspecified prejudice. Seven prospective jurors were excused because they had already formed an opinion, seven were excused because of connections with police work, and one was excused because of his affiliation with the university where the alleged crimes occurred. The final composition of the jury of twelve was ten white persons and two black persons. [Note 9]

Ross asserts that the similarities between his case and the Ham case are sufficient to bring him within the rule of that case. We cannot agree. We 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 (or from some other racial minority group), even when the defendant has requested such an inquiry and the statutory framework permits questioning to discover bias.

Mr. Justice Rehnquist, writing for the Supreme Court, was careful to limit the language of the court's opinion to the special circumstances of the case under consideration. The court stated: "[W]e think that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice" and more specifically that "the essential fairness required by the

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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). 409 U.S. at 527. In reaching its decision, the Supreme Court relied upon Aldridge v. United States, 283 U.S. 308, but we believe that the precedent of the Aldridge case, which appears to have been given constitutional dimensions, is to be limited to special circumstances as indicated by the Ham case.

As we noted previously, Ham was well known for his civil rights work in the locality where he was tried. The very activities that brought him to public attention specifically focused upon the issue of racial prejudice and Ham raised this matter by claiming that the police were "out to get him" because of his activities. [Note 10] To those members of the jury who might have been prone to racial bias, the defendant Ham would have been a prominent target for their prejudice.

In the instant case, however, there was nothing that pointed to Ross as a special target for racial prejudice. The trial judge addressed the attorneys for the defendants and the Commonwealth in the lobby of the court room and stated that he "thought from something Mr. Donnelly [representing Daniels] said, he might have wanted on the record something which was peculiar to this case, or peculiar to the circumstances which we are operating under here which perhaps he didn't want to say in open court." He then asked, "Is there anything peculiar about it, Mr. Donnelly?" to which Mr. Donnelly replied, "No, just the fact that the victim is white, and the defendants are black." The attorney for Ross, who was present at the lobby conference, did not bring any other special circumstances to the judge's attention and we assume that there were none.

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We hold, therefore, that the Ham decision does not, in this case, dictate that the trial judge was constitutionally required to question prospective jurors specifically concerning their possible racial prejudices beyond the comments and questions that were put to them. While the due process clause of the Fourteenth Amendment requires the States to insure the essential demands of fairness in criminal trials, we believe that the judge's refusal to ask specific questions designed to discover racial prejudice of the veniremen did not, in this case, violate the defendant's right to the demands of fairness. Contrary to the judge in the Ham case, the judge in the instant case expressly recognized the relevance and importance of the problem. He was meticulously careful in questioning the veniremen upon their bias and prejudice and took great pains to insure that veniremen who expressed doubts about their ability to be impartial were excluded from the jury. We believe that the judge's questions and comments to the veniremen were, in these circumstances, commensurate with the requirements of the Fourteenth Amendment.

Although we hold that the judge's examination of the prospective jurors meets the essential demands of fairness in this case, we perceive that it will be unusual for a trial judge to understand fully the dimensions of a case before he has heard it. The issue of racial prejudice may not be apparent at the outset of a case but may become evident during the trial. Therefore, when a defendant requests that the prospective jurors be questioned about their racial prejudice, the judge should make specific inquiries of counsel concerning the racial aspects of the case. Such an inquiry was properly made in the instant case. [Note 11] If it appears from such preliminary inquiries that the case might reasonably be expected to present factors involving possible racial prejudice, then the judge should question the prospective jurors in this area. In such circumstances, it is within the trial

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judge's discretion to determine the precise format of the questions to be asked, provided the inquiry is "sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain." 409 U.S. at 527.

Judgments affirmed.