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16-P-1153                                             Appeals Court

                   COMMONWEALTH   vs.   LARRY HART.


                            No. 16-P-1153.

        Suffolk.        November 7, 2017. - July 16, 2018.

            Present:   Green, C.J., Rubin, & Sullivan, JJ.


Motor Vehicle, Receiving stolen motor vehicle, Operation.
     Evidence, Identification. Identification. Jury and
     Jurors. Practice, Criminal, Jury and jurors, Conduct of
     juror.



     Indictments found and returned in the Superior Court
Department on March 10, 2014.

    The cases were tried before Elizabeth M. Fahey, J.


     Timothy St. Lawrence for the defendant.
     Houston Armstrong (Teresa K. Anderson, Assistant District
Attorney, also present) for the Commonwealth.


    RUBIN, J.    In this direct appeal from his convictions of

receiving a stolen motor vehicle, subsequent offense, G. L.

c. 266, § 28(a), and negligent operation of a motor vehicle,

G. L. c. 90, § 24(2)(a), the defendant raises two arguments;

whether (1) the trial judge erred in denying his motion for a
                                                                    2


required finding of not guilty because the Commonwealth produced

insufficient evidence of identification, and (2) the judge

abused her discretion in denying a motion for mistrial due to

juror bias.

    1.     Sufficiency.   The easier question relates to the

sufficiency of the evidence.    The facts adduced at trial were as

follows.   On the evening of January 31, 2014, while unloading a

dark Buick Enclave sport utility vehicle (SUV) for his employer,

witness Shehab Ragab saw a strange man in the driver's seat of

the vehicle.   Ragab identified the man as dark-skinned, thin,

and wearing a white jacket and a dark-colored winter hat.      He

never saw the man's face.    Ragab unsuccessfully attempted to

remove the man from the SUV.    The man drove off.   Ragab called

the police at 7:04 P.M. and immediately began to canvass the

neighborhood looking for the SUV.    He saw the vehicle, attempted

to stop it, and was knocked to the ground.     The SUV sped away in

the direction of a Stop & Shop grocery store.     Ragab returned to

his place of employment to give a statement to the police when

he again saw the SUV.     The police pursued it by foot and by car.

    Shortly thereafter, witness Roger Marcon was walking in the

neighborhood and saw and heard the SUV stop abruptly on the

sidewalk on the Stockwell Street side of Frawley Street, near

where he was walking.     He continued to walk.   Although he did

not see anyone get out of the SUV, he looked back and saw the
                                                                   3


defendant, who is African-American, near the SUV carrying

grocery bags from Stop & Shop.   The lights were on and the

driver's side door was open.   The defendant was wearing a dark

coat and a dark winter hat, and looked disheveled, frightened,

and confused.   Marcon saw nobody else near the SUV.   When the

police arrived, Marcon pointed them toward the defendant, who

was then arrested.

     At the scene, a detective conducted a show-up of the

defendant with Ragab and Marcon.   Ragab was unable to make a

positive identification of the defendant, although he stated

that the defendant's hat and skin color matched those of the man

who stole the SUV.1   Marcon, however, did make a positive

identification with 100 percent confidence.   Defense counsel's

theory was that the defendant, who lived in the neighborhood,

was simply walking home from the Stop & Shop.   However, the

Commonwealth elicited testimony at trial that the intersection

of Frawley Street and Stockwell Street was not on the

defendant's most direct route home from Stop & Shop.

     At trial, the Commonwealth introduced in evidence a video

recording from the Stop & Shop parking lot.   It showed that, at

     1 The discrepancy between Ragab's testimony that the man who
stole the SUV was wearing a light coat, and Marcon's testimony
that the only man near the SUV -- the defendant -- was wearing a
dark coat, was never explained. Nor was the fact that Mr. Ragab
testified that the man was thin, but the defendant stated at
booking that he weighed 220 pounds.
                                                                  4


7:00 P.M., an SUV pulled into the parking lot, a person got out

of the vehicle, a person then entered it approximately nine

minutes later, and the SUV drove off.

    Notwithstanding the equivocal identification by Ragab, the

testimony of Marcon that, immediately upon hearing a vehicle

screech to a halt on Frawley Street, he turned and saw the

stolen vehicle with its lights on and door open and the

defendant standing next to it holding bags of groceries and

appearing disheveled, frightened, and confused, when combined

with the facts that no other person was anywhere in the vicinity

and that the location was not along the most direct walking

route from the Stop & Shop to the defendant's house (in

contravention of the defendant's claim that he was walking home

from Stop & Shop), suffice to support the element of

identification with respect to which the defendant claims there

is insufficient evidence.   To be sure, the record contains no

explanation for the fact that the video recording purporting to

show the stolen SUV entering the Stop & Shop parking lot was

time stamped several minutes before the robbery occurred, rather

than afterward.   While such circumstances might call into

question the relevance of the videotape, the adequacy of its

authentication, or whether its probative value was outweighed by

the risk of unfair prejudice from its introduction, there was no

objection to its introduction, and the defendant does not claim
                                                                     5


it was error.   Questions about the timing of the video

recording, however, do not call into question the sufficiency of

the evidence.

    2.     Juror bias.   The defendant's other argument relates to

comments made by a juror at the beginning of the third day of

trial.   When the court officer went to say hello to the jurors,

none of whom was African-American in the juror room before the

commencement of proceedings on that day, juror no. ten said,

"Good morning, it's a good day for a hanging."    Although the

court officer stated that most jurors said, "I can't believe you

said that," juror no. six claimed that he thought some jurors

laughed.

    The court officer informed the judge, who conferred with

counsel.   The judge and defense counsel agreed that, given the

sorry history of lynchings of African-Americans in the United

States, this comment by a juror who was not African-American had

overtones of racial bias.    The prosecutor did not concede that

one could infer racial bias from juror no. ten's comment, but

understood that this was a valid interpretation, and agreed that

a voir dire of all the jurors was proper.    The judge then

interviewed juror no. ten and dismissed him.    Subsequent to the

voir dire of that juror, the judge apologized to the defendant

and said, apparently reflecting her understanding of the racial
                                                                   6


overtones of the comment, "I really do believe that most jurors

don't believe, or have the beliefs that this juror expressed."

     She then conducted a voir dire of each juror, asking them,

in substance, whether they heard juror no. ten's comments, how

the other jurors reacted,2 whether juror no. ten's comment

affected their ability to be fair and impartial, and whether

they were satisfied that they could fairly and impartially

decide the case.   She also requested that the jurors not discuss

the matter with each other.   It was during this voir dire that

juror no. six stated that he thought some of the other jurors

laughed at juror no. ten's comment.   The judge concluded that

each juror could continue to serve.   While defense counsel did

not request that the judge conduct further or more detailed

inquiry, and thanked the judge for the process she had

undertaken, he nonetheless moved for a mistrial, which motion

was denied.   It is from that ruling and the resulting judgments

that he appeals.

     "[J]ustice must satisfy the appearance of justice."

Commonwealth v. Patry, 48 Mass. App. Ct. 470, 475 (2000),

quoting from Levine v. United States, 362 U.S. 610, 616 (1960).

Particularly in the context of this case, with a jury with no

African-American members but with an African-American defendant,

     2 The judge did not ask all jurors how the other jurors
reacted.
                                                                         7


a comment like juror no. ten's is a very serious matter.       Cf.

Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868-869 (2017)

("[R]acial bias [is] a familiar and recurring evil that, if left

unaddressed, would risk systemic injury to the administration of

justice.    This Court's decisions demonstrate that racial bias

implicates unique historical, constitutional, and institutional

concerns.   An effort to address the most grave and serious

statements of racial bias is not an effort to perfect the jury

but to ensure that our legal system remains capable of coming

ever closer to the promise of equal treatment under the law that

is so central to a functioning democracy. . . .   All forms of

improper bias pose challenges to the trial process.   But there

is a sound basis to treat racial bias with added precaution.         A

constitutional rule that racial bias in the justice system must

be addressed -- including, in some instances, after the verdict

has been entered -- is necessary to prevent a systemic loss of

confidence in jury verdicts, a confidence that is a central

premise of the Sixth Amendment trial right").

    We do not, however, write on a blank slate with respect to

the question before us.    Our decision is controlled by the

Supreme Judicial Court's decision in Commonwealth v. Tavares,

385 Mass. 140, cert. denied, 457 U.S. 1137 (1982).    There,

deliberating jurors were exposed to a racially charged comment

by one of their number, and the judge learned of it before the
                                                                    8


verdict was returned.    The Supreme Judicial Court held that "the

judge interrogat[ing] the jurors and conclud[ing] that they

could fairly and impartially render a verdict," id. at 156 -- as

the judge did here -- sufficed to address the risk of the other

jurors' exposure to what the court described as "extraneous

prejudicial information."   Id. at 154.   Thus, under Tavares, no

further questioning, for example, including questions to each

juror about whether he or she laughed at juror no. ten's

comment, and why,3 nor application of any heightened burden,

presumption, or per se rule, to ensure impartiality, was

required in this case.

     Defendants, the courts, and the community should be left

with no doubt about whether jurors harbor racial prejudice.     See

Pena-Rodriguez, 137 S. Ct. at 869.   The risk even of the

appearance that racial prejudice might have infected the

judicial process, notwithstanding the sensitive efforts of the

experienced trial judge, requires strong medicine.   Whether

Tavares provides adequate guidance to trial judges seeking to

assess the potential effects of racial prejudice expressed in

the jury room in all circumstances is something that requires


     3 Of course, if a juror did laugh, it would not necessarily
reflect racial prejudice; it could have been the result of
nervousness or politeness, or some jurors might have been
unaware of the history that, the judge found, imbued the "joke"
with a racial gloss.
                                                                    9


fresh, principled, and rigorous reexamination.    Indeed, the

Supreme Judicial Court has recently introduced a more rigorous

procedure judges should follow when they are informed, after the

verdict has been returned, of racially charged statements made

by jurors.     See Commonwealth v. McCowen, 458 Mass. 461, 497

(2010) (when postverdict allegations are raised of racially

charged statements by jurors, the defendant has the "burden of

proving, by a preponderance of the evidence, that the jury were

exposed to [such] statements"; if this burden is satisfied, then

the Commonwealth must prove beyond a reasonable doubt that the

jury's exposure to the statements was not prejudicial to the

defendant).4    And other jurisdictions have recognized that

Tavares-type procedures in the preverdict context will not

always suffice to grant the defendant a fair trial.    See, e.g.,

United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986)

(after discovering that anti-Semitic "jokes" had been made and

laughed at in the jury room, a mistrial was required, even


     4 Although we believe something like the McCowen standard
would be appropriate when a judge learns of problematic
statements before a verdict is returned, we do not interpret the
Supreme Judicial Court as so holding. See McCowen, supra at 497
(juror statements reflecting actual bias, of which the judge
learns postverdict, are evaluated under a two-step process
applied to the jury's exposure to extraneous prejudicial
information). See also Commonwealth v. Kamara, 422 Mass. 614,
615-617 (1996) (different procedures apply to preverdict and
postverdict disclosures when the jury were exposed to extraneous
prejudicial information).
                                                                  10


though when the judge asked each juror during a subsequent voir

dire whether they could be impartial, the jurors responded in

the affirmative, because "anti-Semitic 'humor' is by its very

nature an expression of prejudice on the part of the maker," and

"[t]hose who made the anti-Semitic 'jokes' at trial and those

who reacted to them with 'gales of laughter' displayed the sort

of bigotry that clearly denied the defendant Heller the fair and

impartial jury that the Constitution mandates"); People v.

Jones, 105 Ill. 2d 342, 351, 352 (1985) (after a typewritten

racist "joke" was found in the jury room during deliberations,

the judge's voir dire, in which the jurors were questioned as to

whether they had seen the material and, if so, whether it would

affect their deliberations, was insufficient, and a mistrial was

required, because, "[w]here black racist material is found in

the jury room during the trial of an accused black man, and the

material has admittedly been read by three members of an all-

white jury, such circumstances are intolerable, and prejudice to

defendant will be presumed").   Cf. State v. Johnson, 630 N.W.2d

79, 84 (S.D. 2001) (juror's statement during voir dire that "I

got a rope," and the defendant was African-American, created a

"presumption of prejudice" that the prosecution did not rebut,

and a mistrial was required).   Of course, whatever standard or

procedure is employed, the myriad circumstances that may arise

in the trial courts may render it difficult to articulate
                                                                 11


specific inquiries to be utilized in all cases.   But in light of

the length of time that has passed since Tavares and our keen

awareness of the potential for racial bias to infect jury

deliberations, we believe it would be appropriate for the

Supreme Judicial Court to consider furnishing additional

guidance to trial judges seeking to assess the potential for

juror taint resulting from discriminatory statements made during

deliberations.

      Nonetheless, unless and until Tavares is modified by the

Supreme Judicial Court, we are bound by it, and bound to apply

it.   In the present case, the judge dismissed the juror who made

the racially insensitive remark and conducted an inquiry into

the impartiality of the remaining jurors who heard it,

concluding that they were not affected by it.    Under current law

as articulated in Tavares, that is what was required, and the

scope of the judge's inquiry did not constitute an abuse of her

discretion, nor consequently was denial of the motion for a

mistrial beyond the scope of that discretion.    The judgments

therefore must be affirmed.

                                   So ordered.
