NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 22-P-786 COMMONWEALTH vs. MICHAEL WAYNE JOHNSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 After a jury trial in the Superior Court, the defendant was convicted of (1) assault and battery and (2) strangulation or suffocation against the victim. 1 The defendant is white; the victim is Black. The defendant did not initially request individual voir dire on the interracial aspect of the case.

During empanelment and after five jurors had been seated, however, the defendant asked the judge to ask all subsequent jurors whether they could be impartial given the racial difference between the defendant and the victim, and the judge included such a question in his voir dire of the jurors from that point on. The defendant did not ask that the first five seated jurors be asked the race-based voir dire question, and

Background. The defendant and the victim had separate tents within the same homeless encampment. Upon occasion, the victim permitted the defendant to stay in her tent because the defendant’s tent was "older, wet and moldy." At one point, the victim needed surgery and was away from the tent for approximately two weeks. When the victim returned, she found that the defendant had moved his belongings into her tent, and she removed them. On the following day, the victim was asked to leave by a security guard. As the victim was packing up and dismantling the tent, the defendant arrived. He immediately became agitated and said, "Don't take my tent." An argument ensued during which the defendant struck the victim and strangled her. Through argument and cross examination, the defendant asserted that the tent had been abandoned and that he was protecting his property when the altercation occurred.

There is no suggestion that race played a role in either party's

theory of the case, and initially, neither defense counsel nor the prosecutor asked the trial judge to inquire about race as part of the jury voir dire.

However, after five jurors had been seated, 2 defense counsel raised a concern about race. The issue arose during the individual voir dire of juror no. 23 at sidebar. Almost immediately, juror no. 23 expressed his distrust of the police and his resulting concern about his ability to serve as an impartial juror in the defendant's case. Juror no. 23 explained that his reservations related to both his own past drug conviction and an incident in which the police "beat up on" him and his brother before wrongly arresting them. The juror stepped back while the judge and counsel discussed his answer.

The judge made what he termed an "editorial comment" expressing concern and regret that experiences like those described by juror no. 23 had "poisoned [the] well" for some jurors, and counsel agreed that the juror should be excused for cause. In the same conversation, defense counsel commented that "we do have an interracial assault here, so I'm a little nervous that

that might affect [juror no. 23's] thinking, too." 3 After this conversation, the judge excused juror no. 23 for cause. 4 Before questioning the next prospective juror, the judge asked whether the parties had additional questions for the remainder of the venire. Defense counsel noted that although he had not moved in limine for individual voir dire on racial bias because there were "[no] racial overtones" to the incident and the crimes alleged were based on non-sexual assault, he had changed his mind; defense counsel asked that the judge "bring it up [to the prospective jurors] that there is a black woman and a white man accused of a crime." The judge agreed to do so, framing the voir dire question as, "the defendant in this case is white and one of the alleged victims is African-American.[ 5] Can you fairly and impartially decide this case without regard to the race or color of these individuals?" Both counsel agreed with the inclusion of that question in the ongoing voir dire,

and the judge asked that question of each of the remaining jurors until a jury was seated. 6 Defense counsel did not ask the judge to put the new question to the five jurors who had been seated before the voir dire of juror no. 23, and the judge did not do so sua sponte.

Discussion. 1. Standard of review. Generally, both the decision to conduct individual voir dire and the scope of the questions put to the prospective jurors rests within "the sound discretion of the trial judge." Commonwealth v. Espinal, 482 Mass. 190, 195 (2019). See Commonwealth v. Colon, 482 Mass. 162, 182 n.17 (2019). We uphold the judge's rulings on those issues absent a clear showing of abuse of discretion. See Espinal, supra, at 197-198. Where, as here, the defendant's challenge on appeal was not preserved, to the extent we discern an abuse of discretion, our review is for a substantial risk of a miscarriage of justice. 7 See Commonwealth v. Heywood, 484 Mass. 43, 45 (2020).

2. Judge's obligation. The defendant's contention that individual voir dire regarding race and ethnicity is required "whenever the victim and defendant are of different races or ethnicities" is not correct. "Unless 'there exists a substantial risk of extraneous issues that might influence the jury,' the judge is not required to ask any questions beyond those required by G. L. c. 234A, § 67A." 8 Commonwealth v. Robertson, 480 Mass. 383, 389 (2018), quoting Commonwealth v. Lao, 443 Mass. 770, 777 (2005). In the circumstances of this case, there was no such risk, and the judge was not obligated to ask any questions about race or ethnicity as part of the jury voir dire.

While such inquiry is required where a defendant is tried for interracial rape, interracial murder, or an interracial sexual offense against a child, see Espinal, 482 Mass. at 196; Colon, 482 Mass. at 182, that rule has not been extended to

("[w]here a defendant fails to challenge a juror for cause, the questions of the impartiality of that juror and the adequacy of voir dire are waived").

"if it appears [to the judge] that, as a result of the impact of considerations which may cause a decision to be made in whole or in part upon issues extraneous to the case, including, but not limited to, . . . preconceived opinions toward the credibility of certain classes of persons, the juror may not stand indifferent, the court shall . . . examine the juror specifically with respect to such considerations."

apply to the offenses for which the defendant was indicted in this case, and we decline to apply it here. See Robertson, 480 Mass. at 389.

The defendant has failed otherwise to explain how he met his burden of "show[ing] that there [was] some basis for finding that a substantial risk of extraneous influences on the jury exist[ed], . . . and that there [was] a substantial risk that jurors would be influenced by such considerations" (citations omitted). Commonwealth v. Mason, 485 Mass. 520, 523-524 (2020).

Here, defense counsel's request for voir dire on the issue of race was triggered by juror no. 23's account of his experiences with the police 9; juror no. 23 did not specifically identify any racial component to the incident he described and defense counsel otherwise disclaimed race as a factor in the defendant's case. Further, nothing in the judge's response or related comments indicated that the judge had a concern about the impact of the racial disparity in the defendant's case on the jury's impartiality. Put another way, it is evident that defense counsel made his request for the additional voir dire question out of an abundance of caution, and that the judge simply acquiesced to the defense counsel's request. Because nothing in

the record suggests that the judge harbored doubts during empanelment about the prospective jurors' impartiality on the basis of race here -- in other words, where it did not "appear[] that" any juror was swayed by the racial disparity between the defendant and the victim -- we are unpersuaded by the defendant's argument that the judge was obligated to ask any voir dire questions based on the fact that the defendant and one victim were of different races. 10 See Commonwealth v. Williams, 481 Mass. 443, 447 (2019).

The defendant's challenge to the judge's failure to ask the same voir dire question of the first five jurors seated that he asked of the remaining jurors questioned at sidebar rests on the unwarranted presumption that the judge was required to ask the race-based question in the first place. Given our conclusion that the judge was not required to ask that question at all, the defendant has not persuaded us that the judge abused his discretion by failing to recall the first five jurors on his own initiative and to put the same question to them. Where we discern no abuse of discretion in the judge's voir dire of the jury we need not and do not reach the question whether the

10In his brief, the defendant also relies on G. L. c. 234, § 28.

That statute has been repealed.

conduct of the voir dire resulted in a substantial risk of a miscarriage of justice. See Heywood, 484 Mass. at 45.

Judgments affirmed.

By the Court (Vuono, Milkey & Hand, JJ. 11),

Assistant Clerk

Entered: January 8, 2024.