Commonwealth v. Kerr Carrington.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-736

COMMONWEALTH

vs.

KERR CARRINGTON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a 2009 Superior Court jury trial, the defendant was

convicted of larceny of a motor vehicle, the theft of a vehicle

from a car dealership. That conviction and an order denying his

motion for a new trial were affirmed by a panel of this court in

an unpublished decision. See Commonwealth v. Carrington, 82

Mass. App. Ct. 1106 (2012).1 In 2022, the defendant filed his

fifth motion for a new trial, arguing that as a Black man

charged with a crime "featuring white victims," he was deprived

of what he claimed was his right to ask the predominantly white

prospective jurors individual voir dire questions concerning

racial bias.2 The trial judge having retired, a motion judge

1 The defendant's subsequent three motions for a new trial --
filed in 2013, 2014, and 2016, respectively -- were also denied.
2 The defendant's motion was vague, but we construe it as

directed to individual voir dire conducted by attorneys or
heard the motion and denied it on the ground that the defendant

was not entitled to individual voir dire regarding race. The

defendant has appealed; we affirm.

On appeal of a ruling on a motion for a new trial, we

ordinarily review for "a significant error of law or other abuse

of discretion." Commonwealth v. Grace, 397 Mass. 303, 307

(1986). Where, as here, "the motion judge did not preside at

trial and did not conduct an evidentiary hearing," an appellate

court is "in as good a position as the motion judge to assess

the trial record and therefore review[s] the motion judge's

decision de novo." Commonwealth v. Watkins (No. 1), 486 Mass.

801, 803-804 (2021).

The defendant's motion argued that racial bias voir dire is

now "mandated" for Black defendants in all Superior Court

trials. But neither the statute, nor the rule, nor the case law

he cites supports that claim. The defendant's equal protection

argument is also unavailing.

1. G. L. c. 234A, § 67D. The defendant's motion argued

that individual racial bias voir dire was required under G. L.

c. 234A, § 67D, inserted by St. 2016, c. 36, § 4. That statute,

however, provides in pertinent part that "the court shall

parties rather than by the judge. His appellate brief refers to
current practices in regard to "informing Black and Brown
defendants of their [r]ight to inquire whether potential jurors
are biased based upon skin color/race" (emphasis added).

2
permit, upon the request of any party's attorney or a self-

represented party, the party's attorney or self-represented

party to conduct an oral examination of the prospective jurors

at the discretion of the court" (emphasis added). Id. See

Commonwealth v. Colon, 482 Mass. 162, 181 (2019) (under § 67D,

"attorneys seeking to ask questions about ethnic bias would now

have some leeway to do so during attorney-directed voir dire,

which was not available to defense counsel at the time of the

defendant's trial").

Here, a review of the docket and trial transcript shows

that neither the defendant (who was proceeding pro se) nor his

standby attorney ever requested voir dire, let alone proposed

any specific individual voir dire questions regarding racial

bias.3 The defendant does not claim otherwise. Nor can the

defendant point to anything in the statute that requires a judge

to inform attorneys or parties of the opportunity to request

attorney- or party-conducted voir dire. Thus, even if the

statute was fully retroactive, or had been in effect at the time

of the defendant's trial, he was not denied any right under the

statute.

3 The trial judge did ask the venire, "Is any of you aware of any
bias, prejudice, or preconceived notion of any kind which would
affect your ability to be a fair and impartial juror in the
case?" No prospective juror answered in the affirmative.

3
2. Superior Court Rule 6. The defendant also argued that

the voir dire he sought was mandated by Rule 6(1) and 6(3) of

Rules of the Superior Court (2017). Rule 6(1) by itself,

however, creates no mandates. Rather, it provides that a trial

judge "has discretion to determine a procedure for examining and

selecting jurors designed to . . . identify explicit and

implicit bias," among other things. Rule 6(1) also states that

the remainder of the rule "provides a standard procedure for

each civil and criminal case unless otherwise ordered by the

trial judge, while permitting attorneys and self-represented

parties a fair opportunity to participate in voir dire so as to

identify bias."

The defendant fares no better under rule 6(3). Under rule

6(3)(a), by a specified time prior to trial, parties may request

attorney/party voir dire, including "proposed subject matters or

questions for inquiry." Under rule 6(3)(b), "[t]he trial judge

shall allow attorney or party voir dire if properly requested at

or before the time set forth in paragraph 3(a)" (emphasis

added). And when such voir dire is properly requested and

allowed, "the trial judge should generally approve a reasonable

number of questions that . . . (ii) may reveal preconceptions or

biases relating to the identity of the parties." Rule 6(3)(c)

of the Rules of the Superior Court. Here, however, it was never

requested. As with the statute, therefore, even if rule 6 was

4
fully retroactive, or had been in effect at the time of the

defendant's trial, he was not denied any right under that rule.

3. Case law. The defendant's motion also relied upon

Commonwealth v. Espinal, 482 Mass. 190 (2019). There the court

held that under G. L. c. 234A, § 67A, and the court's

superintendence powers, "whenever the victim and the defendant

are of different races or ethnicities, and the crime charged is

murder, rape, or sexual offenses against children . . . on the

request of a defendant, judges are required to conduct

individual voir dire regarding race and ethnicity" (emphasis

added). Id. at 196. Here, the defendant was charged with

larceny of a motor vehicle,4 and he never requested individual

voir dire regarding racial bias. Thus, even if G. L. c. 234A,

§ 67A, had been in effect at the time of the defendant's trial

(instead of having been enacted, as it was, by St. 2016, c. 36,

§ 4), and even if Espinal were fully retroactive, the defendant

was not denied any right under that stature or that decision.

The defendant's motion also relied in part on Commonwealth

v. Prunty, 462 Mass. 295 (2012). There the court held that

requesting individual voir dire on racial bias carried risks as

well as benefits for the defense. See id. at 314-315.

4 He was also charged with forgery and with credit card fraud,
but the jury found him not guilty of the former and the judge
ordered a required finding of not guilty of the latter.

5
"Defendants are the only ones who can make this choice for

themselves, and we will not place our collective thumb on the

scale." Id. at 315. As this language suggests, nothing in

Prunty, even if fully retroactive, mandated individual voir dire

on racial bias in every case.

4. Equal protection. The defendant's motion argued

finally that equal protection principles required that the

statutes, rules, and decisions discussed above be given

retroactive effect. We need not reach this argument,5

however, because we have concluded supra that treating those

authorities as fully retroactive would not benefit the

defendant.

Order denying motion for new
trial affirmed.

By the Court (Sacks, Grant &
Smyth, JJ.6),

Clerk

Entered: August 25, 2023.

5 The argument faces a significant hurdle. "The mere fact that
some persons were at some later date governed by a law more
favorable to them than the law which applied to the defendant is
insufficient to strike down an otherwise valid statute; to hold
the opposite would be either to eradicate all new statutes or to
make them all retroactive." Commonwealth v. Purdy, 408 Mass.
681, 685 (1990). See Commonwealth v. Tate, 424 Mass. 236, 240,
cert. denied, 522 U.S. 832 (1997).
6 The panelists are listed in order of seniority.

6