Commonwealth v. De La Cruz
Commonwealth v. De La Cruz
Opinion of the Court
The defendant was indicted, and tried by a jury, for unnatural sexual intercourse with a child under the age
The defendant is a fifty-eight year old Hispanic male. The alleged victim, a white girl, was eight years old at the time of the incident. According to the alleged victim’s testimony, on the day of the incident, she saw the defendant coming out of an apartment building which contained a family unit and an elderly unit. The alleged victim and her twelve year old friend went with the defendant into the laundry room of the family unit. The three sat on chairs around a table. The defendant touched the alleged victim’s friend underneath her pants. He then touched the alleged victim underneath her pants inside her “private spot,” with his finger. The defendant then took out his “private spot” and “peed on the rug.” After that, the defendant gave each girl a dollar. The girls walked to a nearby store where they bought some candy.
Prior to trial, the defendant moved for individual voir dire of prospective jurors to determine whether they would be affected by any bias or prejudice. Three questions requested by the defendant to be put to the individual jurors focused on bias against Hispanic persons. Defense counsel’s request for individual voir dire was based on the difference in age between the defendant and the alleged victim, their different “ethnic backgrounds,” and the nature of the allegations. The judge denied the request for individual voir dire. Instead, he posed one question to the venire as a group: “[A]re there any of you that have any prejudice for or against Hispanic people? For example, have any of you had some bad experience or particularly good experience involving an Hispanic person that you believe might affect you as a juror in this case; what is your answer?” The question elicited no response.
On appeal, the defendant contends that the judge’s refusal to conduct individual voir dire of prospective jurors concerning
Rule 20 (b) (2) of Massachusetts Rules of Criminal Procedure, 378 Mass. 889 (1979) states: “The court shall examine or cause a juror to be examined upon issues extraneous to the case if it appears that the juror’s impartiality may have been affected by the extraneous issues.” General Laws c. 234, § 28, states similarly: “Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he [or she] . . . has expressed or formed an opinion, or is sensible of any bias or prejudice, therein .... For the purpose of determining whether a juror stands indifferent in the case, if it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case, including, but not limited to . . . community attitudes ... or possible 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, attitudes [or] . . . opinions . . . which may . . . cause a decision or decisions to be máde in whole or in part upon issues extraneous to the issues in the case. Such examination . . . shall be conducted individually and outside the presence of other persons about to be called as jurors or already called.”
The word, “race,” has historically referred to any of the three primary divisions of humanity as distinguished by skin color: Caucasian, Mongolian, and Negro. Webster’s New World Dictionary 352 (1970). Id. at 69, 278, 288. Thus, this case involves a defendant and an alleged victim of different ethnic backgrounds, not of different races in the traditional sense. The word, “Hispanic,” ordinarily refers, not to race, but to national origin. See Commonwealth v. Aponte, 391 Mass. 494, 509 (1984). The term, “Hispanic,” may refer to persons with various national origins, such as Puerto Rican, Mexican, Cuban, and Spanish, id. at 495 n.3.
The defendant argues that, regardless of the traditional meaning of the word “race,” this court in Commonwealth v. Young settled the question whether, for jury empanelment purposes,
Our opinion in Young surely implies that Hispanic persons are not members of the black (Negro) race. However, the opinion cannot fairly be read as concluding that Hispanic persons constitute a separate race. The opinion is just as consistent with Hispanic persons being viewed as members of the white race, and therefore not black. The Young case is not authority for the proposition that a crime allegedly committed by an Hispanic defendant against a white victim is interracial.
The question whether, in a particular case, it appears that a jury decision may be based upon extraneous issues such as community attitudes or preconceived opinions about the credibility of certain groups of people, is ordinarily best determined
Nothing we say is designed to discourage judges in the exercise of sound discretion from granting individual voir dire of prospective jurors relative to possible or perceived prejudice when a defendant requests such inquiry. See Rosales-Lopez v. United States, supra at 191; Commonwealth v. Sanders, supra at 639. To the contrary, when requested, we encourage individual voir dire as to possible juror prejudice based on ethnic considerations. Commonwealth v. Lumley, 367 Mass. 213, 216 (1975). However, failure to honor such a request will be reversible error only when a “substantial risk” of bias has been shown. Commonwealth v. Hobbs, supra at 873. Commonwealth v. Shelley, 381 Mass. 340, 352-353 (1980). We are content that there was no showing of a “substantial risk” of bias in this case.
In this case, the defendant makes a second argument, unrelated to empanelment of the jury, to which we now turn. At trial, the prosecutor elicited testimony from the alleged victim that the defendant had first put his hand underneath her friend’s pants. Defense counsel objected. The judge overruled the objection and gave the jury a limiting instruction. Defense counsel
The judge’s limiting instruction was as follows: “Ladies and gentlemen, as I told you before the case started, the defendant is presumed to be innocent, and the burden is upon the Commonwealth to prove his guilt for the charges that are on trial beyond a reasonable doubt.
“Now, apparently from this question, you are going to hear some evidence of actions that could be looked at as crimes not charged here. Now, of course, you have a right, or rather the Commonwealth has a right, to introduce all of the evidence of what occurred on a particular occasion. But you should keep in mind that you can consider evidence that may suggest that some other crime was committed as it bears on the crimes that are charged here. But you should not consider them for any other purpose. You should only consider what happened here as bearing upon whether or not the Commonwealth establishes beyond a reasonable doubt that the defendant committed these crimes.”
The defendant argues that, in instructing the jury that they could consider the evidence relative to the alleged victim’s friend “as it bears on” the crime charged, the judge was effectively saying that they could consider the evidence “without limitation, and apparently in any way that the jury deemed relevant.” According to the defendant’s argument, the instruction created a danger that “the jury would misuse the evidence to conclude that the defendant had a propensity to commit sexual crimes against children.” In such circumstances, “a jury might be led to dispense with proof beyond a reasonable doubt that [the defendant] did actually commit the crime charged.”
We think it is unlikely that the jury would have understood the instruction to mean that the evidence permitted them to conclude that the defendant had a predisposition to commit the crimes with which he was charged, or that they could use the evidence for any purpose other than a proper one, that is, to appreciate the total circumstances in which the alleged crimes occurred. That, apparently, was the view of defense counsel, whose silence evinced his satisfaction with the instruction. No substantial risk of a miscarriage of justice has been shown.
Judgment affirmed.
Concurring Opinion
(concurring). People’s prejudices do not, as the court seems to suggest, neatly fit into categories formulated by Webster’s Dictionary. By refusing to extend the rule of Commonwealth v. Sanders, 383 Mass. 637 (1981), to cases of sexual abuse involving Hispanic and non-Hispanic persons, the court today needlessly disregards social reality.
Nothing in the statute at issue, G. L. c. 234, § 28 (1986 ed.), requires us to limit the voir dire requirement to racial prejudice. Rather, it provides that “if it appears that ... the juror may not stand indifferent” because of, among other things, “community attitudes ... or possible preconceived opinions toward the credibility of certain classes of persons ... the court shall . . . examine the juror specifically with respect to such considerations, attitudes, exposure, opinions or any other matters” (emphasis added). Id. The statute includes within its scope prejudices against identifiable classes of individuals, including Hispanic persons.
We need not determine whether Hispanics comprise a racial, rather than an ethnic, group. We have recognized previously, under the Declaration of Rights of the Constitution of the Commonwealth, the threat that bias toward ethnic groups presents to a fair trial. See Commonwealth v. Soares, 377 Mass. 461, 488-489 & n.33, cert. denied, 444 U.S. 881 (1979); art.
I would take judicial notice of the unfortunate prevalence of prejudice against Hispanics in our Commonwealth. See Commonwealth v. Jones, 9 Mass. App. Ct. 103, 121 (1980) (Brown, J., concurring); P.J. Liacos, Massachusetts Evidence 29-34 (5th ed. 1981 & Supp. 1985), and cases cited. See also Rosales-Lopez v. United States, 451 U.S. 182, 192 (1981). It is true that we must take a cautious approach in extending the Sanders principle. See Commonwealth v. Young, 401 Mass. 390, 398 n.8 (1987). But we should not shy away from exercising our superintendency powers to prevent prejudice against Hispanics from contaminating criminal trials.
The indictments in this case involved charges of unnatural sexual intercourse with a child under the age of sixteen (G. L. c. 265, § 23 [1986 ed.]) and indecent assault and battery of a child under the age of fourteen (G. L. c. 265, § 13B [1986 ed.]). Such charges are peculiarly apt to raise prejudice against a defendant, especially one of a different race or ethnic background from that of the alleged victim. See Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982). I would require an individual voir dire in such cases where there has been a threshold showing of potential bias due to ethnic disparity. Because I would apply this rule prospectively, see Commonwealth v. Hobbs, supra, I concur in the result of this case.
Reference
- Full Case Name
- Commonwealth vs. Felipe De La Cruz
- Cited By
- 24 cases
- Status
- Published