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Commonwealth v. Lopes1/22/2004
uest, to question prospective jurors individually for bias in cases involving sexual offenses against minors, see Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994), and in cases involving the insanity defense, see Commonwealth v. Sequin, 421 Mass. 243, 249 (1995), cert. denied, 516 U.S. 1180 (1996). None of these situations is present here.
That being said, in view of the violent nature of the charge of murder, it would have been preferable had the judge asked the venire collectively whether any of the prospective jurors, or a member of their immediate family, had ever been the victim of a violent crime. A single collective question would have provided an opportunity for any juror to reveal a previously undisclosed experience that might have affected their impartiality. We would expect judges to ask the question in cases of violent crime. We do not consider the time it might take particularly to inquire further to assess bias on the part of prospective jurors who respond positively as persuasive justification to forgo the practice. There is nothing in our statutes or case law, however, to suggest that the judge committed reversible error by refusing to ask the requested question.
The panel was sufficiently advised as to the nature of the case and the charge against the defendant. The judge explained in detail the importance of being aware of factors that could affect a juror's impartiality, such as: pretrial publicity; a relationship with a prospective witness; the fact that the defendant had been indicted or held in custody; and the credibility of police officers as compared to lay witnesses. The judge carefully instructed prospective jurors to examine their consciences as to whether they were free from bias or prejudice. The judge then asked the group to respond by a show of hands if any prospective juror felt that he or she could not be impartial. We also note that the defendant's trial counsel, who was given the opportunity to examine the answers on the juror questionnaires, gave no indication to the judge that any of the jurors ultimately selected for service had not answered, or had given a possibly questionable answer to, the question about involvement as a party or a victim in a prior civil or criminal case. We give deference to the judge's determination that the chosen jurors were fair and impartial. The defendant's allegation that the case could have been decided on prejudice harbored by one or more jurors provides no basis for overturning the judge's decision. See Commonwealth v. Mahoney, 406 Mass. 843, 850-851 (1990); Commonwealth v. Sheline, 391 Mass. 279, 291 (1984).
2. The contested issue at trial was whether the defendant killed the victim intentionally, as the Commonwealth claimed, or whether, as the defendant claimed, he killed the victim, while intoxicated, in the heat of passion or in self-defense during a struggle following the victim's robbery of the defendant. The judge instructed the jury substantially in accordance with the defendant's requested instructions on the proper use of deadly force in self-defense. The instructions on self-defense with deadly force and on the issues of provocation and killing committed in the heat of passion were comprehensive and correct. The defendant made no request for an instruction on the use of non-deadly force in self-defense. The defendant now claims that the judge's failure so to instruct, sua sponte, was error. We review the claim to see whether error existed, and, if so, whether it created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Nunes, 430 Mass. 1, 4 (1999). "The proper standard for determining whether a defendant's particular actions were justifiably undertaken in self-defense depends on
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