COMMONWEALTH vs. JACKIE J. HOBBS.

HENNESSEY, C.J. The defendant was convicted on several charges arising from an attack upon two children in their home. His principal argument on appeal is that he was denied a public trial. He also claims that the judge erred in refusing several requests concerning jury instructions, and in declining to question prospective jurors individually on the issue of racial bias. We find no error, and affirm the judgments of conviction.

The two victims, whom we shall refer to as Susan and Gary, are sister and brother. Susan, who was thirteen years old at the time of the crimes, testified that she had fallen asleep one evening at the foot of Gary's bed. She awoke to find the defendant, a stranger, removing her clothes. The defendant began to masturbate, and may have climbed onto the bed. When Susan tried to scream, the defendant grasped her throat. Susan could not recall whether he touched any other part of her body.

Gary, who was nine years old, gave a similar account. He awoke while the defendant was in the bedroom, and saw the defendant masturbating and assailing Susan. When Gary tried to push the defendant away from Susan, the defendant slapped Gary's leg and ordered him to lie down. Eventually, the defendant left, taking with him a bicycle kept in the front hall. Shortly thereafter police apprehended the defendant riding the bicycle. Both children identified him as their assailant.

The defendant was indicted by a grand jury for armed burglary, [Note 1] assault and battery with a dangerous weapon

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(upon Susan), indecent assault upon a child under fourteen (Susan), assault with intent to rape a child under sixteen (Susan), assault and battery (upon Gary), and larceny. On the first two of these charges, the jury found the defendant guilty of the lesser included offenses of unarmed burglary and assault and battery upon Susan. On the four remaining charges, they found him guilty as charged. The defendant appealed, and we transferred the case to this court on our own motion.

1. Exclusion of the Public.

The trial judge, at the request of the Commonwealth, and over the defendant's objection, excluded the general public from the courtroom during the testimony of both Gary and Susan at a pretrial hearing on a motion to suppress identification evidence, and during Susan's testimony at trial. Family of the defendant, members of the bar, and members of the press were allowed to remain. The defendant argues that closure during Gary's testimony was beyond the judge's authority under G. L. c. 278, Section 16A, which governs public attendance at trials involving sexual offenses against children. He also contends that the closure violated his right to a public trial under the Sixth Amendment to the United States Constitution. [Note 2]

The Commonwealth raises a threshold question whether the concept of an open trial extends to a pretrial suppression hearing. [Note 3] See Richmond Newspapers, Inc. v. Virginia, 448

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U.S. 555, 564 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 378-379, 387-388 (1979). Cf. Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 851-852 (1980), vacated and remanded, 449 U.S. 894 (1980) (hereinafter Globe I). Certainly, the guaranty of a public trial does not apply to all aspects of the criminal process. See United States ex rel. Bennett v. Rundle, 419 F.2d 599, 605 (3d Cir. 1969), and cases cited. At a suppression hearing, closure may sometimes be necessary to protect the defendant's interests. See Commonwealth v. Jackson, 3 Mass. App. Ct. 288, 290 (1975); Gannett Co. v. DePasquale, supra at 378-379. The Supreme Court, however, has not taken a clear position with respect to a defendant's assertion of his Sixth Amendment right to a public trial at a suppression hearing, cf. id., and we prefer not to rest our decision on a possible distinction between trial and pretrial proceedings. See United States v. Clark, 475 F.2d 240, 246-247 (2d Cir. 1973); United States ex rel. Bennett v. Rundle, supra at 605-606. Therefore, we assume for purposes of this discussion that the same statutory and constitutional principles apply to Gary's pretrial testimony as would apply to his testimony at trial.

Both the Commonwealth, in requesting closure, and the judge, in granting it, relied exclusively on G. L. c. 278, Section 16A. The Commonwealth gave no independent reasons for its request, stating simply that the statute required exclusion of the public during Susan's and Gary's testimony. The judge made no inquiry into the need to exclude the public in the circumstances at hand, and stated no findings. [Note 4]

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General Laws c. 278, Section 16A, provides that all persons except those directly interested in the case shall be excluded during trials at which defendants are charged with sexual offenses against children. In recognition of the essential role of public trials in our judicial process, and the interests of both the defendant and the public in open proceedings, we have read Section 16A narrowly. Globe I, supra at 853-856. See generally Globe Newspaper Co. v. Superior Court, 383 Mass. 838, prob. juris. noted, 454 U.S. 1051 (1981) (hereinafter Globe II); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); In re Oliver, 333 U.S. 257 (1948). In Globe I, supra at 861, we held that the statute mandates closure only during the testimony of the child victim. Even then, friends and relatives of a defendant are considered to have a direct interest in the trial, and may stay. Commonwealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950).

In the present case, we believe that Section 16A required exclusion of the public during the testimony of both Susan and Gary. Susan was clearly the victim of alleged sexual offenses. Although the indictments charged only simple assault and battery against Gary, he can also properly be considered a "victim," within Section 16A. He was the child victim of a crime committed in connection with sexual offenses against another minor, and an eyewitness to the sex-related crimes. The sex offenses against Susan and the assault and battery against Gary were at issue in a single proceeding. In these special circumstances, Gary as well as Susan was protected by the statute.

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Section 16A, as we have construed it, is consistent with the defendant's Sixth Amendment right to a public trial. [Note 5] The right to an open trial is an important and time-honored right, basic to our system of justice, but it is not absolute. Commonwealth v. Stetson, 384 Mass. 545, 549-551 (1981). Commonwealth v. Bohmer, 374 Mass. 368, 380 (1978). See In re Oliver, 333 U.S. 257, 266-271 (1948). See generally Note, The Right to a Public Trial in Criminal Cases, 41 N.Y.U.L. Rev. 1138, 1144-1146 (1966). Judges may exclude spectators from the courtroom when necessary to protect witnesses, shelter confidential information, or maintain order. See, e.g., Commonwealth v. Bohmer, supra at 380-381 (order); United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 693-696 (7th Cir. 1977), cert. denied, 434 U.S. 1076 (1978) (rape victim); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274-1275 (2d Cir.), cert. denied, 423 U.S. 937 (1975) (informant); United States v. Bell, 464 F.2d 667, 669-670 (2d Cir.), cert. denied, 409 U.S. 991 (1972) ("skyjacker" profile); United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965), cert. denied sub nom. Orlando v. Follette, 384 U.S. 1008 (1966) (order); Geise v. United States, 262 F.2d 151, 156-157 (9th Cir. 1958), cert. denied, 361 U.S. 842 (1959) (child victim of sexual offenses). See generally Gannett Co. v. DePasquale, 443 U.S. 368, 388 n.19 (1979). Additionally, we believe that the Legislature may require automatic closure in narrow situations, such as the testimony of child victims of sexual offenses, in which the need to protect witnesses is clear. Cf. Globe II, supra at 851-852. Exclusion of the public protects witnesses' ability to testify by removing a

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source of fear, confusion, and distraction, and may encourage victims to report and prosecute crimes. Globe II, supra at 851, 853. Globe I, supra at 859. When the victim is a child who must testify about sexual incidents these interests justify a mandatory closure rule that is carefully tailored to the problems it is designed to alleviate, as is Section 16A.

2. Variance Between Indictment and Instructions on Burglary Charge.

The defendant was indicted for armed burglary and convicted of unarmed burglary. The indictment charged that the defendant had broken and entered with intent "to commit a felony, to wit: larceny." [Note 6] At several points during his instructions on the element of specific intent to commit a felony, the judge informed the jury that a felony could be rape, robbery or homicide, as well as larceny. The defendant objected, requesting that the judge limit his instructions to the particular felonious intent named in the indictment -- intent to commit larceny. [Note 7] The judge refused to do so. The defendant now contends that this was reversible error, because the instructions permitted the jury to consider proof at variance with the indictment.

As a general rule, a crime must be "proved as charged." Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). This requirement protects the grand jury's role in the criminal process, and ensures that the defendant has proper notice of the charges against him. See Commonwealth v. Whitehead, 379 Mass. 640, 647-650 (1980); Commonwealth v. A Juvenile, 365 Mass. 421, 440 (1974); Commonwealth v. Snow, 269 Mass. 598, 605-606 (1930). See also Hamling v. United States, 418 U.S. 87, 117 (1974); Stirone v. United States, 361 U.S. 212, 215-219 (1960). The rule does not, however, apply to technical defects that do not affect substantial rights. General Laws c. 277, Section 35, provides that variance between the indictment and the Commonwealth's proof is not ground for acquittal if the indictment states

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correctly the essential elements of the crime, and the variance does not prejudice the defendant in his defense. [Note 8] The same principle applies on review of a conviction, when the defendant claims that the judge's instructions created a variance between the indictment and the proof to be considered. See Commonwealth v. A Juvenile, supra at 439-440. Thus we have upheld convictions when the particular terms of the indictment from which the evidence or instructions depart were merely "surplusage" -- unnecessary to describe the crime -- and did not mislead the defendant, confuse the jury, or raise the danger of retrial after acquittal. See, e.g., Commonwealth v. Whitehead, supra at 646-650 (proof of female-to-female rape under indictment charging "sexual intercourse" by force); Commonwealth v. Grasso, supra at 139-140 (shotgun possession -- discrepancy in description of gun); Commonwealth v. A Juvenile, supra at 439-440 (manslaughter -- discrepancy in description of weapon). Contrast Commonwealth v. Ohanian, 373 Mass. 839, 843-844 (1977) (obtaining money by checks drawn on insufficient funds -- misnomer of drawee bank prejudiced defense and may have affected elements of crime).

Here, the allegation in the indictment of the particular felony intended (larceny) was harmless surplusage. It was not necessary to describe the crime of burglary; intent to commit any of the felonies described by the judge would constitute a state of mind sufficient to support conviction. The incident from which the charges arose was clear from the date and location of the burglary, both stated in the indictment. Other indictments charged several felonies in

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addition to larceny of a bicycle, and the burglary indictment itself mentioned an armed assault within the building. [Note 9] In these circumstances the defendant could not have been surprised in his defense when the judge mentioned felonies other than larceny. Nor is there any suggestion that the judge's definition of felony crimes might have confused the jury. Contrast Commonwealth v. Ohanian, supra at 844. Finally, a subsequent indictment, based on the same incident but naming a different form of felonious intent, would be barred on grounds of former jeopardy. See, e.g., Gallinaro v. Commonwealth, 362 Mass. 728, 732-733 (1973). In sum, the defendant points to no possible prejudice other than the fact the jury, in finding him guilty, may have relied on a felonious intent other than intent to steal a bicycle. This is not prejudice in the defense of the case, but simply the natural disadvantage caused by the probative effect of the variant evidence.

3. Instructions on Lesser Offenses.

The defendant next argues that the judge erred in refusing the defendant's request for an instruction on simple assault as a lesser offense included in the charge of assault with intent to rape. Commonwealth v. Lewis, 9 Mass. App. Ct. 842 (1980). When the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime. Commonwealth v. Campbell, 352 Mass. 387, 392 (1967). No such instruction is necessary, however, when the evidence provides no "rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense." Commonwealth v. Santo, 375 Mass. 299, 305 (1978). Commonwealth v. McKay, 363 Mass. 220, 228 (1973). "[A] judge is not required to instruct on a hypothesis that is not supported by evidence." Commonwealth v. Santo, supra at 305-306.

Conceivably, a jury considering the evidence in this case might have found that the defendant lacked specific intent

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to carry out a rape. But there was no basis for finding a simple assault. Both Susan and Gary testified that the defendant had masturbated, and Susan testified that he had touched her and removed her clothes. The defendant testified that before his arrest he had never encountered the children or been to their home. On this evidence, if any assault took place, it was an aggravated assault. Several forms of aggravated assault were presented to the jury, both in the indictments and in the judge's instructions. In addition to assault with intent to rape, the defendant was charged with indecent assault and battery upon a child, and the judge informed the jury that if they failed to find a specific intent to rape, they might still convict the defendant of indecent assault and battery. [Note 10] Another indictment charged assault and battery upon Susan by means of a dangerous weapon, and the judge explained that the jury might find the defendant guilty of the lesser included offense of assault and battery. Reading the instructions as a whole, we conclude that the jury were well informed of the possibility of convictions of lesser crimes. See Commonwealth v. McKay, supra at 228-229. There was no need for an instruction on the implausible theory of simple assault.

4. Questioning of Prospective Jurors on Racial Prejudice.

The defendant's final argument is that the judge, in examining prospective jurors, did not adequately address the possibility of racial bias. The judge refused the defendant's request that he ask each juror, individually, two questions related to racial prejudice. Instead, he inquired generally of the prospective jurors, listing several factors, including racial bias, that might affect their impartiality. He then called each juror individually to the side bar, and asked

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whether, on reflection, there was any reason why the juror could not be fair and impartial in the case.

Under G. L. c. 234, Section 28, when it appears to a judge that prospective jurors may be affected by an extraneous issue, such as racial prejudice, he must examine the jurors individually, asking specific questions about the problem perceived. Commonwealth v. Shelley, 381 Mass. 340, 353 & n.12 (1980). Commonwealth v. Dickerson, 372 Mass. 783, 793 (1977). Ordinarily, it is for the judge to determine when a problem of extraneous influence has arisen. His actions will be upheld unless he has abused his discretion by refusing to examine jurors in the face of a "substantial risk" of bias. Commonwealth v. Shelley, supra at 352. See Commonwealth v. Lumley, 367 Mass. 213, 216 (1975). In the sensitive area of racial prejudice, however, we have imposed more specific limits on judges' discretion. Thus, in Commonwealth v. Sanders, 383 Mass. 637 (1981), we held that in any case involving interracial rape, the judge must question each juror, out of the hearing of the venire, about the possibility of racial prejudice. Id. at 641. Our holding in Sanders, however, was based, not on a constitutional mandate, but on the need for caution and certainty in the application of Section 28. Id. at 638-639, 641. As a result, the Sanders rule applied only to future cases, and did not require reversal of Sanders's convictions.

We have no doubt that the present case -- in which a black defendant is charged with sexual offenses against a white child -- is equally likely to inflame racial prejudice as was the interracial rape in Sanders. In future trials involving interracial sexual offenses against children, the procedure outlined in Sanders must be applied. Like the Sanders rule, however, the rule we have established in this opinion affects only future trials. Therefore, the defendant is not entitled to reversal of his convictions on the basis of G. L. c. 234, Section 28.

The defendant also claims that he was constitutionally entitled to an individual examination of prospective jurors, but this claim is without support in the decisions of this court and the United States Supreme Court. In some circumstances,

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the due process clause of the Fourteenth Amendment may require, as a matter of "essential fairness," that judges accede to defendants' requests for individual voir dire on the subject of race. Ham v. South Carolina, 409 U.S. 524, 526-527 (1973). This principle, however, applies with constitutional force only when special features of the case make the defendant a "target" of racial bias, Commonwealth v. Ross, 363 Mass. 665, 672, cert. denied, 414 U.S. 1080 (1973) (with dissents), habeas corpus granted sub nom. Ross v. Ristaino, 388 F. Supp. 99 (D. Mass.), aff'd, 508 F.2d 754 (1st Cir. 1974), rev'd, Ristaino v. Ross, 424 U.S. 589 (1976), and "suggest a significant likelihood that racial prejudice [may] infect [his] trial," Ristaino v. Ross, 424 U.S. 589, 598 (1976). See Commonwealth v. Sanders, supra at 638-639; Commonwealth v. Lumley, 367 Mass. 213, 214 (1975); Rosales-Lopez v. United States, 451 U.S. 182, 189-190 (1981). The mere fact that the defendant is black and the victim white does not require individual questioning on the issue of race. Commonwealth v. Lumley, supra at 218. Rosales-Lopez v. United States, supra at 190.

The Supreme Court has indicated that individual voir dire is necessary only when racial issues are "inextricably bound up with the conduct of the trial," as they were in the Ham case. Ristaino v. Ross, supra at 597. In Ham, the defense rested upon a claim that police had "framed" the defendant because of civil rights activism. Ham v. South Carolina, 409 U.S. 524, 525 (1973). Rosales-Lopez v. United States, supra at 189. In the present case, racial bias was not an issue at trial, and we do not believe that the inflammatory nature of the crime was sufficient to make the defendant a "special target" of prejudice.

In sum, we find no error in the record before us. The judge properly excluded spectators from the courtroom during the pretrial testimony of Gary, a child victim of an assault and battery committed in the course of sexual offenses against another child, and an eyewitness to the sexual offenses. There were no defects in the judge's instructions on burglary and assault with intent to rape. Finally, the

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judge was not required, at the time of this trial, to question prospective jurors individually on racial bias, and his voir dire examination satisfied the requirements of due process.

Judgments affirmed.