COMMONWEALTH vs. JAMES H. SOWERS, JR.

NOLAN, J . The defendant, a black man, was indicted by a Suffolk County grand jury on August 15, 1979, on two charges of unnatural rape and one charge each of kidnapping, armed robbery, assault and battery by means of a dangerous weapon, and assault and battery. The defendant's first trial ended in a mistrial on March 21, 1980, when the jurors were unable to agree on a verdict. The defendant's second trial began on June 3, 1980, and, on June 5, the jury found him guilty as charged on each indictment. He was sentenced to State prison for concurrent terms of not less than six nor more than ten years for all but the two assault and battery convictions, which were placed on file. [Note 1] The defendant appealed on two grounds: (1) that the judge's questions to prospective jurors at voir dire did not sufficiently probe the possibility of racial bias, and (2) that the judge improperly admitted the opinion testimony of an ophthalmologist concerning the victim's ability to "identify" people under certain conditions. The Appeals Court affirmed the convictions. Commonwealth v. Sowers, 13 Mass. App. Ct. 975 (1982). We granted the defendant's application for further appellate review. We find no error and affirm the convictions.

We summarize the facts. Other facts necessary to understand the issues raised appear elsewhere in this opinion. The victim is a white female albino who is "legally blind" (twenty/two hundred vision). She was attacked on a Brighton street shortly after midnight on July 15, 1979. Her assailant asked her for money and threatened to kill her if she screamed. He then dragged her into a nearby alley and beat her when she started to struggle, again threatening to kill her. The assailant then held a knife to the victim's throat and forced her to a third-floor room of a burned-out

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building beside the alley. He pushed the victim into a corner and ordered her to remove her clothes. When she had done so, he compelled her to submit to acts of fellatio and sodomy. He then went through the victim's pocketbook and took her wristwatch from her wrist. He left after telling the victim he would return to kill her if she made any noise.

The victim was with her assailant for about one-half hour, during which time she studied his face so as to be able to identify him. The room in which the rape took place was illuminated by a street light shining through the windows. The victim waited a few minutes, then dressed and screamed for help. A woman living nearby heard the victim and went to her aid. When the police arrived a few minutes later, the victim, crying and very upset, described the assailant as a thin, bemoustached black man, maybe seventeen to twenty year old, "a little taller" than her own height of about five feet three inches, and weighing approximately one hundred ten to one hundred twenty pounds. The height, weight, and age were based on comparisons with the victim's own height, weight, and age. She described the assailant as wearing a dark blue shirt with a white circle and printing on the front, brown pants, and a beige "fisherman's cap" with a narrow dark band around the edge. The victim was then taken to a hospital.

The next morning, a police officer accompanied the victim to the scene. He then took her to the police station in Brighton, where he interviewed her and gave her books of photographs to view. After looking through three or four books, the victim selected a picture of the defendant as the man who attacked her. The picture was four years old and it depicted the defendant as clean shaven. The defendant was arrested the next day, July 16, and a photograph taken at the time of arrest shows the defendant as having a moustache and goatee.

That evening the victim was informed that the man whose photograph she had selected had been arrested. On the morning of July 17, she went to the Brighton Division of

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the District Court Department and met a police detective who told her to wait in the courtroom. The victim walked to the front of the courtroom where she saw two men in a cell. When she was within four or five feet of the cell, she recognized one of the men, the defendant, as her assailant. The victim also identified the defendant at trial. According to police records, the defendant was five feet, eight inches tall and weighed 135 pounds.

At trial, the defendant's mother, sister and girl friend, all of whom lived with the defendant in Brighton, testified that they were with the defendant at home either part or all of the time on the evening of the attack. Another friend testified that she had spoken with the defendant by telephone at his home for some time on that evening. The defendant's mother testified that the defendant did not own clothing such as that described by the victim. His sister and girl friend stated they had never seen him wearing such clothes. The defendant's sister also testified that the scene of the attack was about a five minute walk from their apartment.

1. The Questioning of Prospective Jurors on Racial Prejudice.

Prior to the second trial, the defendant moved under G. L. c. 234, Section 28, [Note 2] that the members of the venire be questioned

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"individually and out of the hearing of other prospective jurors." [Note 3] Included in the questions proposed by the defendant were two questions dealing with racial prejudice. [Note 4] The motion was "allowed to the extent of generalizing most questions." Although there is no transcript available for the proceedings on the first day of jury empanelment, [Note 5] it is apparent from the judge's later remarks that, on the first day, he had informed the assembled venire at least generally as to the nature of the charges and the races of the defendant and the victim, and that he had asked the members of the venire to make known "any reason that they felt that they could not stand indifferent." It is also apparent, and undisputed, that on both days the judge asked each juror individually a question designed to discover whether the race of a witness

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would affect the prospective juror's view of the witness's credibility (the credibility question). [Note 6] The judge also asked each female prospective juror a question probing the effect of the fact that the case involved the unnatural rape of a white woman by a black man (the sensitivity question). [Note 7] The judge had asked this question of all or most of the prospective male jurors on the first day but he did not, over the defendant's objection, continue this practice on the second day.

The defendant contends that the judge's refusal to examine all prospective male jurors "about their attitudes towards interracial unnatural rape was 'an unconstitutional abuse of discretion', Rosales-Lopez v. United States, [451 U.S. 182, 190 (1981),] and a violation of his 'heavy responsibility' under G. L. c. 234, Section 28." As a result of this abuse of discretion, the defendant's argument continues, the judge was unable to fulfil his duty to discharge jurors for cause, the defendant was unable to exercise intelligently his peremptory challenges against male jurors, and at least three males who had not been asked the sensitivity question participated in the jury's deliberations. The defendant contends that this

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constitutes a violation of his rights under G. L. c. 234, Section 28, and his rights to a fair trial and due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We do not agree.

There is no support in the record for a claim that this defendant was a "special target for racial prejudice." 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, 424 U.S. 589 (1976). See Ham v. South Carolina, 409 U.S. 524 (1973). The case of Rosales-Lopez v. United States, 451 U.S. 182 (1981), does not eliminate the requirement that a person claiming Federal constitutional error based on the voir dire of prospective jurors must show "special circumstances," [Note 8] Ross, supra. Further, even in cases where the defendant is a special target, the trial judge is 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. Ham, supra at 527.

We believe that the credibility question, combined with the judge's comments on the nature of the offense and the races of the defendant and the victim, was sufficient to satisfy his obligation under G. L. c. 234, Section 28. The instant case is similar to Commonwealth v. Core, [Note 9] 370 Mass. 369 (1976). In that case, we upheld a voir dire where "the judge called to the attention of the prospective jurors the facts that the defendants were black and that the alleged victim was white, and inquired of them collectively whether

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this raised any bias or prejudice in their minds which would prevent them from deciding the case fairly and impartially on the evidence and without regard to the color of either the defendants or the victim." Id. at 373. Since we conclude that the judge was not required to ask each potential juror the sensitivity question, his failure to ask three male jurors the sensitivity question is not reversible error.

Another short but conclusive answer is found in Commonwealth v. Sanders, 383 Mass. 637, 640-641 (1981), where we ruled that in cases tried after that decision it would be "a matter of law [that] interracial rape cases present a substantial risk that extraneous issues will influence the jury and hence are within Section 28, second par." This holding was based "not on a constitutional mandate, but on the need for caution and certainty in the application of Section 28." Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982). Since the present case was tried in 1980, the defendant does not benefit from our ruling in Sanders.

2. The Admission of the Ophthalmologist's Opinion.

At trial, Dr. Edward B. Murphy, Jr., was qualified as an expert in ophthalmology with a specialty in the field of albinism. On direct examination, Dr. Murphy testified as follows: The victim, whom he had seen as a patient on three occasions, was an albino and legally blind; albinism produces precise and predictable visual disturbances; the victim's vision, with corrective lenses, was twenty/two hundred, meaning that she could see at twenty feet what a person with normal vision could see at two hundred. The victim suffers from astigmatism, which causes distortion in perception, and from nystagmus, which is a gentle rocking of the eyes resulting in a blurred effect similar to that produced in a picture taken by a camera in motion. The victim is used to the effects of these diseases, and daytime glare affects her vision in such fashion that she sees better at night. Direct examination of Dr. Murphy concluded with the following questions and answers, to which defense counsel objected: THE PROSECUTOR: "And, Doctor, if [the victim] were looking at a person from this distance, or from this

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distance, would she be able to identify that person?" THE WITNESS: "Yes." THE PROSECUTOR: "And if she were looking at a book of photographs, would she be able to pick out a photograph?" THE WITNESS: "Yes."

The defendant challenges admission of this testimony on the grounds that it was beyond the scope of the doctor's area of expertise, based on scientific principles as yet unaccepted as a proper basis for expert testimony, and unnecessary to the jury's determination whether the victim's identification was reliable. In light of the fact that the victim's identification of the defendant was uncorroborated from any other source, and subject to many of the weaknesses making eyewitness identification unreliable, the danger is that the jury may have relied on the apparent trustworthiness of this opinion to erase otherwise reasonable doubts in their minds. We are aware that such a possibility exists. In Commonwealth v. Gardner, 350 Mass. 664 (1966), we affirmed a conviction for unnatural and lascivious acts, but reversed the defendant's rape conviction because we believed that the testimony of a gynecologist, admitted as expert opinion, that he "thought that there was forcible entry" was based on "factors outside the area of his professional competence" and "could have substantially influenced the jury's decision as to whom to believe." Id. at 666-667. However, we think there is no such danger in the present case. The Commonwealth contends, and we agree, that it is clear from the record that the word "identify," as used in the passage quoted above, was meant, and could only be understood by the jury, to refer to the victim's visual capability to distinguish the features of a person whom she viewed at a certain distance rather than to her ability to perform the complex tasks of human perception necessary to make an identification of an individual as a person whom one has seen earlier.

The prosecutor's questions on direct examination were all aimed at determining the victim's visual acuity and the effects that the various diseases she suffered from had on her vision. These were matters well within the doctor's field of

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knowledge and also matters concerning which, given the nature and variety of the victim's visual disabilities, the jury were not equally capable of drawing conclusions. Compare Commonwealth v. Gardner, supra; Lawlor v. Wolff, 180 Mass. 448 (1902) (doctor not allowed to testify whether it was possible for a man to have carnal knowledge of a woman of relatively the same strength against her will); Commonwealth v. Middleton, 6 Mass. App. Ct. 902 (1978) (upholding trial judge's ruling that testimony of expert on human memory as to factors affecting the reliability of eyewitness identification was inadmissible as not beyond the scope of the average juror's knowledge and experience). The prosecutor asked no questions concerning the victim's ability to retain or recall what she had seen. He apparently emphasized the point of the challenged questions by moving various distances from the witness as he spoke. On cross-examination, defense counsel used the word "identification" in his effort to impeach the doctor's testimony, and his questions implicitly recognize that the only issue raised by the doctor's previous testimony was whether the victim had the visual ability to make out the features of her assailant during the attack. [Note 10] After further questioning on redirect examination,

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the judge also questioned the doctor, and it appears from the judge's question and the witness's answer that the clarity and distinctness of the victim's vision were the only matters in issue. [Note 11]

In his closing, the prosecutor again referred to the doctor's testimony concerning the victim's ability to make an "identification," and the context once again indicates that the term was meant to refer only to the victim's ability to see despite her eye problems. [Note 12]

Finally, we note that the judge gave a lengthy and correct instruction to the jury on identification testimony, which

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emphasized the fact that an "identification" in the legal sense could take place only after a victim had opportunity to see and observe the person whom she later identified. The judge also pointed out the pertinent factors which might have affected this victim's opportunity to observe and told the jury it was "absolutely critical" that they determine whether the victim had adequate opportunity to observe her assailant. He had earlier instructed the jury that they could accept or reject the expert testimony and that an expert was no more or less believable than any other witness.

In these circumstances we think it unlikely that the jurors understood Dr. Murphy's testimony to be anything other than expert medical opinion as to the victim's visual capabilities. As such, its admission was not improper.

In all, we find no reversible error.

Judgments of the Superior Court affirmed.