Opinion
No. 12–P–1153.
2013-09-12
COMMONWEALTH v. LACEY L., a juvenile.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Juvenile Court, the juvenile was found delinquent on a charge of assault and battery on a police officer, G .L. c. 265, § 13D, and committed to the Department of Youth Services. On appeal, she argues that the trial judge erred in refusing to ask certain questions of the venire on voir dire and in making certain evidentiary rulings. We affirm.
1. Background. The jury could have found the following facts. The juvenile, who was the subject of a so-called “runaway warrant,” was stopped by two uniformed police officers as she sat in the rear of a taxicab with a young man. The officers were responding to information they had just received from the juvenile's mother, who stated that a warrant had been issued for her daughter's arrest as a runaway. Upon questioning by the police officers, the juvenile at first refused to identify herself but later admitted her true name. The police officers verified the warrant and ordered the juvenile to get out of the taxicab. She complied, but once she was outside of the vehicle she began screaming and swearing at her mother, who was standing nearby. When the police officers handcuffed her and began walking toward the waiting cruiser, the juvenile yelled, “Take your hands off me pig.” She refused the order to get into the cruiser and when one of the police officers attempted to push her inside, she kicked the police officer “several times” as she yelled, “Fuck you, pig.” Before the juvenile could be forced into the cruiser, she continued her tirade, screaming: “You hit me, you hit me nigger, take these cuffs off me, I'm going to kill you, nobody hits me.” With the assistance of a second officer, the juvenile was eventually secured inside the cruiser, but she continued to swear at the police officers en route to the police station. The juvenile testified at trial, admitting in substance to the Commonwealth's version of events but denying that she kicked the police officer. 2. Voir dire questions. The juvenile proposed questions to the venire concerning prejudice against her because of her ethnicity (Hispanic). On the Commonwealth's representation that the case did not otherwise involve the issue of race, the judge declined to inquire on the subject. On appeal, the juvenile argues that the Commonwealth misrepresented the nature of the case by failing to disclose that her use of a racially derogatory epithet in the encounter with the arresting officer would be elicited during the course of the trial and that the judge erred as a result of his reliance on that representation.
Under our law, the proponent of a question on racial bias bears the burden of demonstrating that in the particular circumstances of the case, race presents a “substantial risk of extraneous influence[ ].” Commonwealth v. Robinson, 78 Mass.App.Ct. 714, 719 (2011). Race or ethnicity alone, however, is not sufficient to meet that test except in certain criminal cases.
Otherwise, the judge may exercise his discretion in determining whether questions to the venire regarding racial bias are appropriate. See ibid. Thus, our review of this claimed error focuses on whether the judge abused his discretion in declining to ask the questions suggested by the juvenile. We conclude that the juvenile has failed to meet her burden to show an abuse of discretion.
Individual voir dire on racial bias is required only in cases of “interracial killings, interracial rape, and sexual offenses against children committed by defendants of a different race.” Commonwealth v. Robinson, 78 Mass.App.Ct. at 719.
Although the prosecutor surely must have known that the racial epithets directed to the police officer would be offered into evidence, the juvenile had the burden to present the facts to the judge in making her case for individual voir dire on the race issue. She failed to do so and nothing in the record suggests that she did not recall her statements. Given this lapse, we see no reason to excuse her failure to bring the statements of concern to the judge's attention.
Based on the information available to the judge, there was no abuse of discretion.
We do not condone the prosecutor's failure to fully apprise the judge of the precise nature of the juvenile's statements to be offered into evidence.
3. Evidentiary rulings. The juvenile next argues that the trial judge erred in admitting evidence that a warrant had been issued for her arrest and that she was out alone at night against her mother's wishes with her eighteen year old boyfriend. She also argues that the judge improperly allowed the prosecution to introduce evidence suggesting that she had committed additional uncharged crimes. There was no error.
To meet its burden to prove delinquency by reason of assault and battery on a police officer, the Commonwealth was required to establish that the police officer was “engaged in the performance of his duties” when the juvenile's unlawful conduct occurred. See G.L. c. 265, § 13D, as amended through St.1990, c. 498; Commonwealth v. Colon, 81 Mass.App.Ct. 8, 22 (2011). The existence of a warrant for the juvenile's arrest was indisputably and highly relevant to this element of the offense. Indeed, a police officer has the power and duty to arrest the subject of an arrest warrant. On these facts, the question is not close and we find no error in the judge's ruling.
While the better practice would have been to explain to the jury that the warrant was unrelated to criminal activity, the characterization of the warrant as a “runaway warrant” was not unduly prejudicial.
The juvenile also argues that the judge wrongly admitted evidence that she was dating her eighteen year old boyfriend against her mother's wishes. While this evidence was only marginally, if at all, relevant, the juvenile has failed to establish prejudice.
Finally, the juvenile argues that the judge erred in allowing the prosecutor to suggest during cross-examination that she had been treated favorably by the Commonwealth in its charging decision.
Having reviewed the record, we discern no basis for allowing these questions (see note 4, supra ) to be put to the juvenile. To the extent that the juvenile's defense was based on police misconduct during the arrest, the charging decision, which was made well after the arrest, had no bearing on the police officers' conduct or state of mind at the scene. Nonetheless, the juvenile has not met her burden to show prejudice. The juvenile acknowledged in her testimony that she was angry with the police and that she knew her arrest was forthcoming. She admitted in substantial part the Commonwealth's version of events, and only denied that she kicked the police officer. Under the circumstances, the jury reasonably could credit the Commonwealth's version of events and discredit the juvenile's claim that she committed every act except that justifying the charge against her.
Over the juvenile's objection, the prosecutor was permitted to ask the following questions: “Did Officer Dube charge you with threats?” “Did he charge you with resisting arrest?” and “Were you charged with disorderly conduct or disturbing the peace?”
We have also reviewed the juvenile's additional arguments concerning the racial epithet and likewise conclude that she has failed to show that she was prejudiced by these claimed errors.
Adjudication of delinquency by reason of assault and battery on a police officer affirmed.