Opinion
12-P-1875
05-19-2015
COMMONWEALTH v. JOHN WHEELER.
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
After a jury trial, the defendant was convicted on three counts each of aggravated rape of a child and rape of child by force; he also was convicted of assault on a child with intent to rape, indecent assault and battery on a child, and dissemination of matter harmful to minors. His motion for a new trial was denied. He argues here that the voir dire questions posed during empanelment were inadequate; specifically, he challenges the wording of the judge's questions to prospective jurors on the issue of whether they had experienced childhood sexual abuse, and, also, the judge's failure, under all of the circumstances of this case, to ask prospective jurors whether they could be impartial in deciding a case involving an interracial sexual offense against a child. Finally, the defendant contends that there was insufficient evidence to sustain his conviction on the dissemination charge. We affirm.
Voir dire. 1. Child sexual abuse. Before any juror was seated, the prosecutor informed the judge that, under the teaching of Commonwealth v. Flebotte, 417 Mass. 348 (1994), the judge must inquire explicitly about whether the juror had been a victim of a sexual offense as a child. The judge stated that he was going to phrase the question to include the words "a crime of a sexual nature or child abuse." Both counsel responded, "That's fine." Thereafter, the judge asked each juror, "Knowing the nature of this case, have you, your family members, or close friends ever been accused of, a victim of, or a witness to a crime of a sexual nature or a crime of child abuse?" (emphasis added). There was no objection.
Before the trial, both the prosecutor and defense counsel submitted written requests for individual voir dire questions.
The defendant now argues that the inquiry was inadequate, creating a substantial risk of a miscarriage of justice "because the judge failed to directly inquire as to whether any juror had been a victim of a childhood sexual offense." In the defendant's view, the judge's question was asking whether the juror was "a victim of a crime of a sexual nature (presumably as an adult) OR a victim of 'child abuse.'" We do not accept this very strained reading of the judge's question.
"[I]n cases tried . . . involving sexual offenses against minors, on request, the judge must interrogate individually each prospective juror as to whether the juror has been a victim of a childhood sexual offense." Commonwealth v. Flebotte, 417 Mass. at 353. "Broad discretion is reserved for the trial judge 'in determining what questions to ask potential jurors on this sensitive issue.'. . . The acquiescence of defense counsel to actions taken by the trial judge can constitute a waiver of any objection to the judge's actions." Commonwealth v. Vickery, 82 Mass. App. Ct. 234, 235 (2012). We are satisfied that the judge's wording in this case sufficiently complied with the law. See Commonwealth v. Flebotte, supra, and Commonwealth v. Vickery, supra. Because there was no error, defense counsel was not ineffective for not objecting at trial.
2. Interracial sexual offenses against children. The defendant also argues that the judge erred in failing sua sponte to question prospective jurors about whether they could be fair and impartial in a case involving interracial sexual offenses against children. Although cases involving interracial rape and sexual offenses against children require, upon request, individual questioning with respect to racial prejudice, defense counsel did not request, nor did this case compel such an inquiry. See Commonwealth v. Reavis, 465 Mass. 875, 888 (2013).
Before the voir dire, the prosecutor brought to the judge's attention a question as to whether there was a racial disparity between the defendant and the victims. He said, "Mr. Wheeler is Caucasian. One of the alleged victims appears to be Hispanic. The other alleged victim, I don't know what her race is or background is, but she doesn't appear to be Caucasian. She has darker skin." The judge responded that he didn't "see that race [was] an issue here," and defense counsel responded "okay.",
Apparently, the Department of Children and Families records, brought to the judge's attention by defense counsel, listed one of the victims as "Caucasian."
At oral argument, defense counsel agreed that the defendant was Caucasian, but she said that she knew one of the victims was "Hispanic" because she looked her up on a social media Web site.
The defendant concedes that he was not entitled to mandatory voir dire questioning on racial bias.
On the facts of this case, it was not unreasonable for trial counsel to agree that there should be no voir dire question based on race. First, it is not clear on this record whether any racial differences between the defendant and the victims would have been apparent to the jurors. In addition, that inquiry also might have run "the risk that 'such specific questions may activate latent racial bias in certain prospective jurors or may insult others without uncovering evidence of bias in hard-core bigots who refuse to acknowledge their prejudice.'" Commonwealth v. Prunty, 462 Mass. 295, 314 (2012), quoting from Commonwealth v. Lumley, 367 Mass. 213, 217 (1975). See Commonwealth v. Ramirez, 407 Mass. 553, 554-555 (1990). We see no error.
Sufficiency of the evidence. The defendant also argues that the judge erred in denying his motion for a required finding of not guilty on the charge of dissemination of matter harmful to minors. He asserts that the Commonwealth failed to meet its burden because it relied solely on the testimony of one of the victims (referred to by the pseudonym "Sally" in the defendant's brief) in proving that the contents of the videos that Sally saw with the defendant at his home were obscene as defined under the statute.
"Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished. . . ." G. L. c. 272, § 28.
Matter is harmful to minors "if it is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors." G. L. c. 272, § 31.
Sally testified that she frequently watched "pornographic" movie tapes with the defendant and the defendant's wife and children in his bedroom; the defendant played these movies "almost all the time" when Sally was present at the defendant's home. She described the contents of the movies as naked adult men and women "making love, I guess" or "having sex, I guess." The defendant, himself, described the movies to Sally as "porn." Considering this evidence, "together with permissible inferences from that evidence, in the light most favorable to the Commonwealth . . . '[a] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Carter, 442 Mass. 822, 823 (2004), quoting from Commonwealth v. Platt, 440 Mass. 396, 400 (2003). The judge did not abuse his discretion in denying the defendant's motion for a required finding of not guilty.
Judgments affirmed.
Order denying motion for new trial affirmed.
The issues raised in the defendant's motion for new trial are almost identical to those raised here on appeal; based on the foregoing conclusions, we see no error and determine that the motion judge, who was also the trial judge, did not abuse his broad discretion in denying the motion. See Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013).
By the Court (Berry, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 19, 2015.