COMMONWEALTH vs. A JUVENILE (No. 2).

LIACOS, J. The defendant, a black juvenile, after a bench trial in the juvenile session of the Dorchester District Court, was found delinquent by reason of having committed armed

Page 216

robbery. He appealed to the Boston Juvenile Court, Appellate Division, for a trial de novo under G. L. c. 119, Section 56 (1984 ed.). After trial before a jury of twelve, the defendant again was adjudicated delinquent and was committed to the custody of the Department of Youth Services. He appealed, and we transferred the case to this court on our own motion.

The defendant argues that the judge's instructions to the jury on the meaning of reasonable doubt were constitutionally infirm, requiring reversal. He also claims that it was reversible error for the trial judge to examine prospective jurors on the subject of racial prejudice without first conducting a colloquy with him to ensure that the request for such questioning was made voluntarily and with an understanding of the possible adverse consequences that might result. We affirm.

We summarize the evidence. At approximately 2:25 P.M. on February 1, 1984, Mary Hixon, a teacher at the Lucy Stone School in Dorchester, was walking through the school yard on the way to her automobile with a fellow teacher, Patricia MacLellan, when they were joined by a youth in a brown, or light brown, jacket. Hixon looked at the youth several times thinking he might have been a former student, but she did not recognize him. When the three reached Hixon's automobile, a 1984 Buick LeSabre, the youth demanded the keys. Hixon refused to surrender them, and the youth grabbed the keys from her hand. When Hixon demanded that he return the keys, the youth produced a handgun and threatened to shoot her. The youth then got into the automobile and drove out of the school yard. The two teachers then went to the school principal's office, and the police were called.

Later that day, about 2:40 P.M., Officer Ronald Smith of the Boston police department and his partner, Officer Frank Walsh, were on plainclothes duty in an unmarked automobile on Tebroc Street in Dorchester, seven or eight blocks from the school. Smith saw a 1984 black Buick automobile travelling slowly in front of him; its license plate number matched that of an automobile reported stolen. The Buick came to a stop, and the driver, whom Smith identified at trial as the defendant, alighted and began to run. The officers pursued the defendant

Page 217

on foot through a vacant lot and several backyards and then lost sight of him. Other officers apprehended the defendant shortly thereafter. He was taken to the Lucy Stone School in a police wagon. He was wearing a tan, or beige, jacket when taken into custody.

At the school, Officer Smith asked Hixon and MacLellan to view three suspects. The women first looked at two youths seated in an automobile in the school yard, but neither Hixon nor MacLellan made an identification. They then viewed the defendant in the back of the police wagon, and, after asking that he step out of the wagon so they might see him better, both made positive identifications. [Note 1] Officers Smith and Walsh then returned to Tebroc Street where they retraced the defendant's path of flight and recovered a key ring identified by Hixon as belonging to her. It contained keys to her house and automobile. No gun was ever found.

The defendant testified that he was walking home the afternoon of February 1, 1984, when an automobile pulled up beside him. In the unmarked vehicle were two men. One of the men told him to "come here." At that time, the defendant did not know the man whom he indicated in court was Officer Smith. Although the defendant recognized the other man in the vehicle, Frank Walsh, as a police officer, he ran when Officer Smith got out of the automobile. He testified that he did so because he did not know who Smith was and did not want to be picked up. The defendant denied committing the robbery and maintained that he was mistakenly identified.

1. Jury instructions. The defendant argues that he was denied due process of law when the trial judge instructed the jury that the proof required to sustain a conviction "is not proof beyond all reasonable doubt." [Note 2] This is an obvious misstatement

Page 218

of the Commonwealth's burden of proof. However, we have emphasized repeatedly that "to determine whether a definition

Page 219

of reasonable doubt accurately conveys the meaning of the term, it is necessary to consider the charge as a whole." Commonwealth v. Smith, 381 Mass. 141, 145 (1980). See Commonwealth v. Beverly, 389 Mass. 866, 870 (1983); Commonwealth v. Wood, 380 Mass. 545, 548 (1980). Thus, it is not our practice to "dissect a charge to determine if each part is constitutionally adequate." Commonwealth v. Garcia, 379 Mass. 422, 439, 441 n.12 (1980). Rather we look to the instructions in their entirety and assess the probable impact they had on the jurors. Id.

In the present case the jury were instructed at some length, and in language approved by this court, see note 2, supra, on the meaning of reasonable doubt and the Commonwealth's burden of proof. Before the phrase complained of was spoken, the judge had informed the jurors that "[t]he burden is upon the Commonwealth to prove beyond a reasonable doubt, that the Defendant is guilty of the charges made against him." Immediately preceding the offensive language, he stated as well that "if when all is said and done, there remains in the jury any reasonable doubt of the existence of any fact, which is essential to the guilt of the Defendant, the Defendant must have the benefit." Moreover, the challenged phrase was followed by corrective language. For example, in the same sentence in which the misstatement appeared the judge stated that the proof required to convict is that which "precludes every reasonable hypothesis except that which it tends to support." He then instructed the jury that it "must be satisfied to a reasonable and moral certainty" of the defendant's guilt.

Viewing the charge as a whole, we conclude that the isolated utterance of the phrase at issue, although regrettable, did not vitiate the adequacy of the reasonable doubt instructions. [Note 3] The

Page 220

flawed portion of the charge was in the midst of an otherwise thorough and accurate explication of the requisite standard of proof, thus minimizing any fleeting misimpressions that it might have engendered. The jury could have come to no other conclusion but that it was their duty to acquit the defendant if, after hearing all the evidence, they retained a reasonable doubt as to his guilt. [Note 4] See Reddick v. Commonwealth, 381 Mass. 398, 406 (1980) (trial judge's isolated use of language criticized in our prior decisions did not invalidate otherwise correct instructions on burden of proof); Commonwealth v. Medina, 380 Mass. 565, 578 (1980) (no error in judge's charge on "malice" despite isolated use of improper language where accurate instructions appeared in the same sentence and the correct standard was repeatedly mentioned). Cf. Commonwealth v. Pickles, 393 Mass. 775, 778-779 (1985) (judge's charge was reversible error where, after two statements placing the burden of proof on the Commonwealth, the judge placed it entirely on the defendant and there was no corrective language later in the charge); Commonwealth v. Wood, supra (judge's charge was reversible error where it placed the burden of proof beyond a reasonable doubt simultaneously and with equal emphasis upon the Commonwealth and the defendant; "[t]his is not a case where the flawed portions of the charge represent 'isolated inadequacies' corrected by a proper 'emphasis [on] the necessity of moral certainty of guilt,'" quoting Commonwealth v. Williams, 378 Mass. 217, 233 [1979]).

2. Colloquy. In a pretrial motion, the defendant requested that eight specific questions be asked on voir dire and moved to have the prospective jurors examined individually. Three of the requested questions were directed toward revealing racial

Page 221

bias in the members of the venire. The defendant's counsel indicated in a hearing on the motion that the questions were advisable because the case involved an interracial crime of violence. [Note 5] The judge agreed to ask one of the three race-related questions: "Have you had any experience with black persons that might in any way affect your ability to act fairly and impartially in this case?" [Note 6] On the basis of their responses to this question, one black and three white prospective jurors were excused for cause. [Note 7]

The defendant contends on appeal that the judge committed reversible error by failing to inquire of the defendant whether his decision to request race-related voir dire questions was made voluntarily and with knowledge that such questioning may damage the defendant's case. He relies principally in this regard on our decision in Commonwealth v. Sanders, 383 Mass. 637 (1981).

In Sanders, supra at 640-641, we held that G. L. c. 234, Section 28 (1984 ed.), requires that in interracial rape cases the trial judge must grant a defendant's request for individualized questioning of prospective jurors as to racial bias. We reasoned that our prior decisions had given insufficient force to the second paragraph of Section 28, which provides that, when it appears to the trial judge that prospective jurors may be affected by an extraneous issue such as racial prejudice, he must examine the jurors individually on the matter. Nothing that "interracial rape may be 'a classic catalyst of racial prejudice,'" quoting Dukes v. Waitkevitch, 536 F.2d 469, 471 (1st Cir.), cert. denied, 429 U.S. 932 (1976), we concluded that in the future it should be held as matter of law that "interracial rape cases present a substantial risk that extraneous issues will influence

Page 222

the jury and hence are within Section 28, second par." [Note 8] In so holding, the court stated:

"We stand by the cautionary remarks in Commonwealth v. Lumley, 367 Mass. 213, 216-217 (1975): [Note 9] The motion for interrogation of prospective jurors as to racial prejudice 'should come from the defendant himself. Before granting the motion, the trial judge should carefully ascertain that the defendant's decision to insist on specific questions regarding racial bias was a knowing and voluntary one, made with an understanding that such specific questions may activate latent racial bias in certain prospective jurors or may insult others without uncovering evidence of bias in hard-core bigots who refuse to acknowledge their prejudice.'" Id. at 641.

The rationale for requiring a colloquy between the judge and the accused prior to race-related, individual questioning of prospective jurors in that such questioning raises "difficult

Page 223

issues of jury psychology and potential injury to the defendant's case" of which the defendant should be apprised. Commonwealth v. Lumley, supra at 216-217. As we noted in Commonwealth v. Bumpus, 365 Mass. 66, 67 (1974), specific questioning as to possible racial prejudice among the veniremen may "be counter-productive and serve to inject racial bias into the trial rather than to remove it." Therefore, while recognizing that it is the defense counsel who initiates the request for such questioning in most cases, based on a tactical assessment of the value to be derived therefrom, we believe that the decision whether to raise the racial bias issue with prospective jurors should rest ultimately with a fully informed defendant.

The Commonwealth argues that the obligation to hold a Sanders-type colloquy is contingent on a specific request by defense counsel. We do not agree. Given the importance we have placed on the accused's decision to request race-related questioning of prospective jurors in Lumley and Sanders, see also Commonwealth v. Pope, 392 Mass. 493, 504 n.14 (1984), we think that before granting a motion for such questioning the trial judge must determine sua sponte that the defendant has been informed of, and understands, the risks and potential dangers of this type of voir dire. [Note 10] Thus, a valid request for individualized interrogation under Sanders imposes, by itself, a duty on the trial judge to engage in a colloquy with the defendant. The defendant need not request such a colloquy or object to the judge's failure to hold one to preserve the defendant's rights on appeal. To hold otherwise would be somewhat illogical. If defense counsel were required to request a colloquy, his failure to do so would bind the defendant, thereby defeating the purpose for requiring a colloquy in the first place.

Page 224

In such cases, the record would be devoid of any indication that the defendant knowingly and voluntarily acquiesced in the decision to request race-related questioning, yet the defendant would be precluded effectively from raising the issue on appeal. In the present case, the trial judge erred in failing to conduct the requisite colloquy sua sponte.

We must determine whether that error is cause for reversal. Our ruling in Sanders, and consequently our reaffirmation of that decision today, are based "not on a constitutional mandate, but on the need for caution and certainty in the application of [G. L. c. 234,] Section 28." Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982). Therefore, we are dealing neither with a constitutional right so basic to a fair trial that its infraction can never be treated as harmless error, see, e.g., Commonwealth v. Soares, 377 Mass. 461, 492, cert. denied, 444 U.S. 881 (1979), nor a more commonplace constitutional error, requiring reversal unless the Commonwealth can show that it was harmless beyond a reasonable doubt. See Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). Although we have not explicated the basis of our ruling in Sanders, it seems clear that the imposition of a duty on a trial judge to make inquiry of the defendant is predicated on our inherent and statutory powers of superintendence of the lower courts. See G. L. c. 211, Section 3 (1984 ed.). Ordinarily, the violation of such a principle or the deprivation of a statutory right is not grounds for reversal unless the defendant can demonstrate resulting prejudice. See Commonwealth v. A Juvenile (No.2), 384 Mass. 390, 392 (1981). The defendant, therefore, must show that the error "possibly weakened his case in some significant way so as to require a new trial." Commonwealth v. Schulze, 389 Mass. 735, 741 (1983). No such showing has been made.

The individualized questioning of prospective jurors as to racial prejudice apparently worked to the defendant's advantage. The jury which decided the case were not exclusively white, and three veniremen were excused for cause after indicating a possible inability to act fairly and impartially in the case because of the defendant's race. Of course, a guilty verdict was returned even though these veniremen were excused, but

Page 225

this can be attributed to the overwhelming evidence of guilt presented, rather than to any animosity toward the defendant that might have been created by the race-related voir dire questioning. The only two witnesses to the armed robbery positively identified the defendant, as did a police officer who saw the youth driving the stolen automobile shortly after the criminal incident was reported. The defendant was wearing clothing when apprehended that matched the description given by the two witnesses of that worn by the offender. There was evidence of flight as well, and the victim's key ring was found along the path the defendant took when running from the police officers. Finally, the defendant's exculpatory testimony was uncorroborated. In short, this was not a case in which conflicting evidence rendered the outcome of jury deliberations uncertain. We therefore conclude that the trial judge's error in failing to conduct the required colloquy did not prejudice prejudice the defendant.

Judgment affirmed.