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Commonwealth v. Alves

Appeals Court of Massachusetts, Plymouth

November 20, 2019


          Heard- January 4, 2019

          Indictments found and returned in the Superior Court Department on September 27, 2013. The cases were tried before Brian A. Davis, J.

          Patrick A. Michaud for the defendant.

          Laurie Yeshulas, Assistant District Attorney, for the Commonwealth.

          Present: Green, C.J., Vuono, Meade, Rubin, & Wolohojian, JJ. [1]

          RUBIN, J.

         Following a jury trial in the Superior Court, the defendant, Dominick R. Alves, who is African-American, was convicted in this racially charged criminal case of aggravated assault and battery by means of a dangerous weapon (knife), G. L. c. 265, § 15A (c) (i); two counts of assault and battery by means of a dangerous weapon, G. L. c. 2 65, § 15A (b); and possession of a class B controlled substance (cocaine), G. L. c. 94C, § 34.[2] He now appeals.

         The defendant's principal argument is that he was denied a fair trial before a jury of his peers because the trial judge improperly struck certain prospective jurors for cause. We agree; the judge's voir dire questions improperly excluded jurors holding a specific belief with respect to racial discrimination "born of the prospective juror's life experiences," and who, as a consequence, might have been particularly attentive to the racial dynamics of the case. Commonwealth v. Williams, 481 Mass. 443, 449 (2019). The consequence was that the defendant was tried by an all-white jury that did not contain a representative cross-section of the community, and whose selection denied his right to an impartial jury, in violation of art. 12 of the Massachusetts Declaration of Rights. We therefore conclude that his convictions must be reversed and the case remanded so that he may have a new trial before a properly constituted jury.


         The events that led to the defendant's arrest were as follows. Based on the testimony at trial, the jury could have found that the violence on the night in question began at about 1 A.M., when someone from among a group of white people who had been attending a graduation party, and who were escorting Timothy Rounds, a friend of the defendant, away from their party, punched Rounds in the mouth. The defendant, who is African-American, approached Rounds, who told the defendant he was afraid of the group of white men. The defendant took a few steps toward the group and told them to leave Rounds alone.

         Three or four of the group, whom Rounds did not know, responded by shouting racial epithets at the defendant, calling him "nigger" and "nigger boy." The defendant told Rounds to run, which he did.

         Sometime later, someone who was identified as the defendant punched one of the white men in the back of the head, and ran into a crowd of over thirty people, many African-American. The adult son of the man who had been punched testified that he, the son, ran into the crowd yelling, "Which one of you fucking niggers hit my father?"

         The son grabbed an individual identified as the defendant and they began fighting. The son was stabbed. A friend of the son, the stabbing victim, testified that, after he watched the stabbing, he yelled, "Which one of you niggers just stabbed my friend." The friend also admitted that he might have posted on the website Facebook the day after the incident, "Bet that nigger is regretting it, too." And, at the very end of his testimony, he volunteered, completely unsolicited, the following: "Want to hear an old saying? . . . They say, 'Niggers come in . . . all colors.'"

         After the stabbing, the stabbing victim's brother called 911 to report the altercation. The brother testified that he described the black individuals in the area, including both the defendant and some who were helping his brother, the stabbing victim, as "fucking niggers."

         A fourth witness, the initial punching victim, the father of the stabbing victim, testified that he "could [have]" used the word "nigger" during the altercation but did not think he did. Furthermore, another friend of the stabbing victim who was a percipient witness testified that he "might [have]" used the word "nigger" on the night in question, and had used it on other occasions, "but not like in a racist way."

         Only two out of seven percipient witnesses (apart from Rounds) did not make statements either suggesting that they had, or explicitly admitting to having, used the word "nigger" to refer to members of the defendant's race.

         Voir dire.

         Prior to jury empanelment the judge informed counsel that he intended to ask, inter alia, the following three questions of each juror in individual voir dire, in the following order: (1) "One or more of the persons who are allegedly assaulted in this case are white, and the defendant is black. Do these facts in any way affect or impair your ability to render a fair and just verdict with respect to some, or all of the charges against the defendant?"; (2) "Would you be influenced in any way by the defendant's race in reaching a verdict in this case?"; and (3) "Would you be able to fairly and impartially weigh the credibility of a witness who has shown to have used a derogator[y] racial term?" The judge, however, ultimately did not ask most of the prospective jurors the third question as he had framed. He began questioning the prospective jurors by asking them the questions as he had proposed, and three jurors were seated. When he asked the third question of prospective juror no. 17, she responded, "What was the last part?" When the judge repeated the question, the juror paused, and the judge sua sponte rephrased the question. The following colloquy ensued:

The court: "I will rephrase it. Would the fact that a witness used a derogatory racial term -- is shown to have used a derogatory racial term, would that fact affect in any way how you would view the credibility or the testimony of that witness?"
Juror 17: "Yes."
The court: "You think it would?"
Juror 17: "Yes."
The court: "You think it would impair? How would it affect how you would view that witness?"
Juror 17: "It would just prove to me that they thought, like, if it's a white person saying something against a black person, that ...

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