Commonwealth v. Lopes1/22/2004
idential juror questionnaire that elicited information to be used by the judge and lawyers during empanelment of the jury. The questionnaire provided a space for each potential juror to " describe briefly any involvement (past or present) as a party or a victim in a civil or criminal case by you or any member of your immediate family." In the course of jury selection, the defendant's trial counsel requested that the judge inquire of the venire whether they, or anyone in their family, had ever been the victim of a crime of violence. The judge noted that the identical question had already been posed to prospective jurors by the confidential juror questionnaire. The defendant's trial counsel indicated that, in his experience, one or more jurors may have been a victim of a violent crime but, intentionally or inadvertently, neglected to include this information in the written responses to the questionnaire. The judge denied the request, and the jury then were empanelled.
The defendant does not now claim, nor is there anything in the record to indicate, that the chosen jurors were less than fair and impartial. He argues only that the jury may have included members whose views were tainted by personal experiences with violent crime and that the judge's refusal to pose the requested question denied him the opportunity to probe for potential bias.
The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous. See Commonwealth v. Emerson, 430 Mass. 378, 384 (1999), cert. denied, 529 U.S. 1030 (2000). We reject the defendant's contention that the proper focus of our review is "whether the [questions] used for testing impartiality created a reasonable assurance that prejudice would be discovered if present." United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973). The goal of permitting questioning of prospective jurors is to provide a defendant with a competent, fair, and unbiased jury. A trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure that a particular jury can weigh and view the evidence impartially.
Beyond those mandated by G. L. c. 234, § 28, questions to be asked during voir dire are within the broad discretion of the judge, except when there exists a substantial risk of extraneous issues that might influence the jury. See Commonwealth v. Morales, ante 536, 548 (2003); Commonwealth v. Ashman, 430 Mass. 736, 739 (2000); Commonwealth v. LaFaille, 430 Mass. 44, 50-51 (1999); Commonwealth v. Grice, 410 Mass. 586, 588 (1991); Commonwealth v. Mickel, 401 Mass. 1003, 1004 (1987). This court has concluded that cases involving interracial murder, interracial rape, and sexual offenses against children where the victim and the defendant are of different races, present, as matter of law, a substantial risk that extraneous issues will likely influence prospective jurors, and, in such cases, individual questioning with respect to racial prejudice, on request, is mandatory. See Commonwealth v. Young, 401 Mass. 390, 398 (1987), overruled in part on another ground in Commonwealth v. Ramirez, 407 Mass. 553, 555 (1990) (interracial murder); Commonwealth v. Sanders, 383 Mass. 637, 640-641 (1981), overruled in part on another ground in Commonwealth v. Ramirez, supra (interracial rape); Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982) (interracial sexual offenses against children). A judge is also required, on req
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