Opinion
14-P-168
05-01-2015
COMMONWEALTH v. JONATHAN GONZALEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jonathan Gonzalez, appeals from his convictions of armed robbery, armed carjacking, breaking and entering in the nighttime with the intent to commit a felony, assault by means of a dangerous weapon, and larceny of a motor vehicle. We reverse.
Discussion. Jury voir dire. The defendant argues that his substantial rights were violated when the judge failed to conduct an individual voir dire of jurors concerning his defense of lack of criminal responsibility. We agree.
When "the defendant indicates that his or her lack of criminal responsibility may be placed in issue and so requests, the judge shall inquire individually of each potential juror, in some manner, whether the juror has any opinion that would prevent him or her from returning a verdict of not guilty by reason of insanity, if the Commonwealth fails in its burden to prove the defendant criminally responsible." Commonwealth v. Seguin, 421 Mass. 243, 249 (1995). Here, the defendant was advancing a defense of lack of criminal responsibility due to mental defect and, therefore, was entitled to individual voir dire of the jurors if he made such a request.
Contrary to the Commonwealth's assertion, the procedure that was employed was not an individual voir dire and did not satisfy the requirements of Commonwealth v. Seguin, 421 Mass. at 248-249. Seguin, as well as other cases mandating a juror voir dire upon the request of the defendant, is clear that the questioning must occur individually and outside the presence of the venire generally. See ibid. See also Commonwealth v. Sanders, 383 Mass. 637, 637-638 (1981) ("[W]e direct that in similar trials hereafter jurors are to be examined with respect to racial prejudice, pursuant to the statute, 'individually and outside the presence of other persons about to be called as jurors or already called'"), overruled in part on another ground in Commonwealth v. Ramirez, 407 Mass. 553, 555 (1990); Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982); Commonwealth v. Young, 401 Mass. 390, 397-398 (1987), overruled in part on another ground in Commonwealth v. Ramirez, supra; Commonwealth v. Flebotte, 417 Mass. 348, 353-356 (1994). That did not occur here. The judge instead asked the venire generally to think to themselves about the questions that were asked of the venire as a whole. At the conclusion of the recitation of all the questions, each potential juror was asked if he or she had any issue to discuss. Only if the juror answered yes, did the juror proceed to side bar. Moreover, even those jurors who did proceed to side bar were not asked about bias against the defense of lack of criminal responsibility unless the juror raised the issue. We also note that this procedure of asking the venire questions without requiring any immediate response has been discouraged as a voir dire protocol by the Supreme Judicial Court. See Commonwealth v. Shea, 460 Mass. 163, 169-170 (2011).
Defense counsel requested an individual voir dire in writing prior to jury empanelment. The judge allowed this motion "as indicated by the record." However, on the record, the judge made the following statement:
"When you say sequester individual voir dire of the jurors, the way the court impanels a case is I read all of the questions as a group, and no one raises their hand. If they do have a question, they come to side bar, out of the hearing of the jurors what they said to the court. It is in the nature of a voir dire heard at the side bar out of the hearing of the jurors. Anything more you want to say about that?"Defense counsel responded: "No Your Honor." However, defense counsel later clarified that on the questions for the jurors concerning the defense of mental defect:
"I believe, not to be redundant, given what I think is generally perceived to be dubious perception and the lack of percentage with which a defense of lack of criminal responsibility is successfully believed, these questions are warranted to protect Mr. Gonzalez's constitutional rights if anybody on the jury, or prospective juror certainly will not in any circumstance concede somebody is not responsible for their actions regardless of mental defect, or regardless of mental issues, or mental health history. If a juror is candidly going to say I am not buying it, he should not sit on this jury. I think an individual voir dire on that issue is mandated by the facts, as well as Mr. Gonzalez's constitutional rights for fair trial."This was sufficient to request individual voir dire, and as a result, the failure to conduct the individual voir dire was error.
Generally, "if the judge erroneously fails to conduct an individual voir dire and make the relevant inquiry, the case will be reversed only if the defendant can show that the error possibly weakened his case in some significant way." Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 473 (1998). However, when there is an error in providing an individual voir dire that is mandatory upon defense counsel's request, "the court has assumed that prejudice may exist from the failure to conduct the requested examination" unless "overwhelming evidence of guilt was presented." Id. at 474. Here, the jury were presented with two competing expert opinions concerning the defendant's criminal responsibility for his actions. The requested voir dire would have addressed whether any individual juror had bias concerning that defense. As a result, the defendant met his burden of proving prejudice and his convictions must be reversed.
Because of our conclusion, we need not reach the other issues raised by the defendant.
Judgments reversed.
Verdicts set aside.
By the Court (Trainor, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 1, 2015.