Commonwealth v. Michael Wayne Johnson.

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-786

COMMONWEALTH

vs.

MICHAEL WAYNE JOHNSON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant was

convicted of (1) assault and battery and (2) strangulation or

suffocation against the victim. 1 The defendant is white; the

victim is Black. The defendant did not initially request

individual voir dire on the interracial aspect of the case.

During empanelment and after five jurors had been seated,

however, the defendant asked the judge to ask all subsequent

jurors whether they could be impartial given the racial

difference between the defendant and the victim, and the judge

included such a question in his voir dire of the jurors from

that point on. The defendant did not ask that the first five

seated jurors be asked the race-based voir dire question, and

1 The jury acquitted the defendant of a second count of assault
and battery against a third person.
the judge did not do so sua sponte. Although he did not raise

any challenge to the voir dire in the trial court, on appeal,

the defendant now contends that by failing to ask all the jurors

seated on the case about the impact of the racial difference

between the defendant and the victim, the judge committed

structural error that requires reversal of his convictions. We

do not agree that the judge abused his discretion in conducting

the voir dire as he did. Accordingly, we affirm.

Background. The defendant and the victim had separate

tents within the same homeless encampment. Upon occasion, the

victim permitted the defendant to stay in her tent because the

defendant’s tent was "older, wet and moldy." At one point, the

victim needed surgery and was away from the tent for

approximately two weeks. When the victim returned, she found

that the defendant had moved his belongings into her tent, and

she removed them. On the following day, the victim was asked to

leave by a security guard. As the victim was packing up and

dismantling the tent, the defendant arrived. He immediately

became agitated and said, "Don't take my tent." An argument

ensued during which the defendant struck the victim and

strangled her. Through argument and cross examination, the

defendant asserted that the tent had been abandoned and that he

was protecting his property when the altercation occurred.

There is no suggestion that race played a role in either party's

2
theory of the case, and initially, neither defense counsel nor

the prosecutor asked the trial judge to inquire about race as

part of the jury voir dire.

However, after five jurors had been seated, 2 defense counsel

raised a concern about race. The issue arose during the

individual voir dire of juror no. 23 at sidebar. Almost

immediately, juror no. 23 expressed his distrust of the police

and his resulting concern about his ability to serve as an

impartial juror in the defendant's case. Juror no. 23 explained

that his reservations related to both his own past drug

conviction and an incident in which the police "beat up on" him

and his brother before wrongly arresting them. The juror

stepped back while the judge and counsel discussed his answer.

The judge made what he termed an "editorial comment" expressing

concern and regret that experiences like those described by

juror no. 23 had "poisoned [the] well" for some jurors, and

counsel agreed that the juror should be excused for cause. In

the same conversation, defense counsel commented that "we do

have an interracial assault here, so I'm a little nervous that

2 Several other prospective jurors had been excused either for
cause or based on peremptory challenges that are not at issue in
this appeal.

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that might affect [juror no. 23's] thinking, too." 3 After this

conversation, the judge excused juror no. 23 for cause. 4

Before questioning the next prospective juror, the judge

asked whether the parties had additional questions for the

remainder of the venire. Defense counsel noted that although he

had not moved in limine for individual voir dire on racial bias

because there were "[no] racial overtones" to the incident and

the crimes alleged were based on non-sexual assault, he had

changed his mind; defense counsel asked that the judge "bring it

up [to the prospective jurors] that there is a black woman and a

white man accused of a crime." The judge agreed to do so,

framing the voir dire question as, "the defendant in this case

is white and one of the alleged victims is African-American.[ 5]

Can you fairly and impartially decide this case without regard

to the race or color of these individuals?" Both counsel agreed

with the inclusion of that question in the ongoing voir dire,

3 The record does not reflect juror no. 23's race or ethnicity,
but we infer that he was not white.
4 The judge clearly explained that his decision was not based on

the juror's description of his own negative experience with the
police: "I'm not excusing you because you had that experience
. . . it's valuable for somebody who's had that experience to be
involved in cases, but the fact that you say you might be
uncomfortable here, that's . . . why I'm going to excuse you."
See Commonwealth v. Williams, 481 Mass. 443, 452 (2019) ("a
judge should not require a prospective juror to disregard his or
her life experiences and resulting beliefs in order to serve").
5 We infer from the record that the second alleged victim was

white.

4
and the judge asked that question of each of the remaining

jurors until a jury was seated. 6 Defense counsel did not ask the

judge to put the new question to the five jurors who had been

seated before the voir dire of juror no. 23, and the judge did

not do so sua sponte.

Discussion. 1. Standard of review. Generally, both the

decision to conduct individual voir dire and the scope of the

questions put to the prospective jurors rests within "the sound

discretion of the trial judge." Commonwealth v. Espinal, 482

Mass. 190, 195 (2019). See Commonwealth v. Colon, 482 Mass.

162, 182 n.17 (2019). We uphold the judge's rulings on those

issues absent a clear showing of abuse of discretion. See

Espinal, supra, at 197-198. Where, as here, the defendant's

challenge on appeal was not preserved, to the extent we discern

an abuse of discretion, our review is for a substantial risk of

a miscarriage of justice. 7 See Commonwealth v. Heywood, 484

Mass. 43, 45 (2020).

6 None of the prospective jurors who were asked answered that
their impartiality would be affected by the race or color of the
defendant or the victim.
7 The defendant contends that the judge's failure to put the

racial voir dire question to the five jurors seated before the
defendant made his request for that question amounted to
structural error. As we explain, infra, we are not persuaded
that the judge abused his discretion in this regard. Even were
we to decide otherwise, however, by failing to preserve the
issue in the trial court, the defendant waived the structural
error argument. See Commonwealth v. Heywood, 484 Mass. 43, 45
(2020), quoting Commonwealth v. McCoy, 456 Mass. 838, 842 (2010)

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2. Judge's obligation. The defendant's contention that

individual voir dire regarding race and ethnicity is required

"whenever the victim and defendant are of different races or

ethnicities" is not correct. "Unless 'there exists a

substantial risk of extraneous issues that might influence the

jury,' the judge is not required to ask any questions beyond

those required by G. L. c. 234A, § 67A." 8 Commonwealth v.

Robertson, 480 Mass. 383, 389 (2018), quoting Commonwealth v.

Lao, 443 Mass. 770, 777 (2005). In the circumstances of this

case, there was no such risk, and the judge was not obligated to

ask any questions about race or ethnicity as part of the jury

voir dire.

While such inquiry is required where a defendant is tried

for interracial rape, interracial murder, or an interracial

sexual offense against a child, see Espinal, 482 Mass. at 196;

Colon, 482 Mass. at 182, that rule has not been extended to

("[w]here a defendant fails to challenge a juror for cause, the
questions of the impartiality of that juror and the adequacy of
voir dire are waived").
8 Chapter 234A, § 67A, provides in relevant part:

"if it appears [to the judge] that, as a result of the
impact of considerations which may cause a decision to be
made in whole or in part upon issues extraneous to the
case, including, but not limited to, . . . preconceived
opinions toward the credibility of certain classes of
persons, the juror may not stand indifferent, the court
shall . . . examine the juror specifically with respect to
such considerations."

6
apply to the offenses for which the defendant was indicted in

this case, and we decline to apply it here. See Robertson, 480

Mass. at 389.

The defendant has failed otherwise to explain how he met

his burden of "show[ing] that there [was] some basis for finding

that a substantial risk of extraneous influences on the jury

exist[ed], . . . and that there [was] a substantial risk that

jurors would be influenced by such considerations" (citations

omitted). Commonwealth v. Mason, 485 Mass. 520, 523-524 (2020).

Here, defense counsel's request for voir dire on the issue of

race was triggered by juror no. 23's account of his experiences

with the police 9; juror no. 23 did not specifically identify any

racial component to the incident he described and defense

counsel otherwise disclaimed race as a factor in the defendant's

case. Further, nothing in the judge's response or related

comments indicated that the judge had a concern about the impact

of the racial disparity in the defendant's case on the jury's

impartiality. Put another way, it is evident that defense

counsel made his request for the additional voir dire question

out of an abundance of caution, and that the judge simply

acquiesced to the defense counsel's request. Because nothing in

9 The defendant does not suggest that he had any concerns about
the impartiality of the five jurors already seated before the
judge began asking the race-based voir dire questions, at least
on the basis of race.

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the record suggests that the judge harbored doubts during

empanelment about the prospective jurors' impartiality on the

basis of race here -- in other words, where it did not "appear[]

that" any juror was swayed by the racial disparity between the

defendant and the victim -- we are unpersuaded by the

defendant's argument that the judge was obligated to ask any

voir dire questions based on the fact that the defendant and one

victim were of different races. 10 See Commonwealth v. Williams,

481 Mass. 443, 447 (2019).

The defendant's challenge to the judge's failure to ask the

same voir dire question of the first five jurors seated that he

asked of the remaining jurors questioned at sidebar rests on the

unwarranted presumption that the judge was required to ask the

race-based question in the first place. Given our conclusion

that the judge was not required to ask that question at all, the

defendant has not persuaded us that the judge abused his

discretion by failing to recall the first five jurors on his own

initiative and to put the same question to them. Where we

discern no abuse of discretion in the judge's voir dire of the

jury we need not and do not reach the question whether the

10In his brief, the defendant also relies on G. L. c. 234, § 28.
That statute has been repealed.

8
conduct of the voir dire resulted in a substantial risk of a

miscarriage of justice. See Heywood, 484 Mass. at 45.

Judgments affirmed.

By the Court (Vuono, Milkey &
Hand, JJ. 11),

Assistant Clerk

Entered: January 8, 2024.

11 The panelists are listed in order of seniority.

9