James Ross, Jr. v. Theodore Ristaino , 508 F.2d 754 ( 1974 )

McENTEE, Circuit Judge.

We are required in this case to decide whether it was a denial of due process, where the defendant was a black man accused of violent crimes against a white security officer, for a state court judge to deny a defense request to interrogate prospective jurors specifically on the issue of racial prejudice.¹

The Commonwealth of Massachusetts appeals from a memorandum and order entered by the district court granting a writ of habeas corpus to appellee, who was convicted of armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder. The Massachusetts Supreme Judicial Court unanimously affirmed these convictions, Commonwealth v. Ross, 1972 Mass.Adv.Sh. 873, 282 N.E.2d 70, but the United States Supreme Court granted certiorari, vacated the judgment and remanded the case for further consideration in light of Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Ross v. Massachusetts, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973). On remand the Supreme Judicial Court held that Ham did not affect the result reached in its earlier deliberation, Commonwealth v. Ross, 1973 Mass.Adv.Sh. 839, 296 N.E.2d 810.² Ross sought a writ of habeas corpus from the district court, which the court granted, saying:

“The questions propounded to the jurors in the present case were directed to the general issue of bias and prejudice, and were far more extensive and carefully worded than those given in Aldridge [v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931),] and Ham. They were exemplary in every respect, except the failure to specifically direct the attention of the jurors to the issue of racial prejudice. In substance, they were no different than the ones given in Ham. The fact that one juror responded that he suffered from racial prejudice and was excused does not cover the situation, because his perception cannot be imputed to the twelve who were chosen.

“In the instant case, there was a white victim. The offense in Ham was victimless, i. e., possession of marijuana. The likelihood of infection of the verdict was at least as great as it was in Ham. . . The petitioner had a constitutional right to have the issue of racial prejudice specifically called to the attention of the prospective jurors on the voir dire examination.”

In Ham v. South Carolina, supra, the defendant was a black civil rights leader charged with possession of marijuana. His defense was that the police were out to get him and were framing him on the drug charge. His counsel requested the judge to ask on voir dire two questions designed to ferret out any possible racial prejudice against the defendant.³ The judge did put three general questions to the prospective jurors on the issue of bias, but he refused to ask any question directed specifically to racial prejudice. The Supreme Court, in a unanimous opinion, held “that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice.” 409 U.S. at 527, 93 S.Ct. at 850. The contours of the Ham decision were not sharply defined by the Court. Justice Rehnquist’s opinion did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so. Nor did the opinion explicitly state that the defense request for specific questions directed to racial prejudice need only be honored where the defendant was a civil rights leader .or other “special target of racial prejudice,”⁴ which was the construction the Supreme Judicial Court gave Ham.⁵ Commonwealth v. Ross, 1973 Mass.Adv.Sh. 839, 296 N.E.2d 810.

Under the view we take of the facts in this case, however, we are not required to resolve this ambiguity. In Ham the defendant was a civil rights leader, while in this case the black defendant is for the purpose of this inquiry an ordinary black citizen. But in this case, the charges against the defendant involved violence against a white, not a victimless crime like possession of marijuana. Moreover, the white victim, a security officer at Boston University, had a status close to that of a police officer. In addition, the eyewitness testimony of a white gas station attendant was a major part of the state’s case against Ross. On these facts the district court was not in error in concluding that “[t]he likelihood of infection of the verdict [by racial prejudice] was at least as great as it was in Ham.’’ In effect, the court held that a black defendant charged with violent crimes against a white security officer would be likely to be a special target of racial prejudice.

Our dissenting brother suggests that the rule of Ham should only apply to cases brought to trial after the date Ham was decided. However, we do not feel the writ should be denied on the ground that Ham should not be given retroactive application. The Supreme Court implicitly decided that Ham applied to this case when it summarily vacated the judgment of the Supreme Judicial Court of Massachusetts and remanded the case to that court for reconsideration in light of Ham. See Ross v. Massachusetts, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973).

It is not a significant distinction between this case and Ham that Ham took the stand and put his credibility in issue, while Ross did not take the stand. If a juror is prejudiced against blacks, he would not be able to appraise the defense offered by the black defendant impartially, whether or not that defense included the defendant’s taking the stand. Nor is it particularly relevant that the trial court here doubted that questions directed to discovering racial prejudice would result in any admissions of bias. This objection would apply equally well to other questions the court is required to put to proposed jurors. See Mass.Gen.Laws Ann. c. 234, § 28 (Supp.1974). For example, a proposed juror biased by pretrial publicity might aver he is not biased or a juror who believes anyone indicted is guilty as charged might answer that he believes the defendant is innocent until proven guilty, yet we do not allow the possibility of a false answer to serve as an excuse for not asking these questions.

By deciding in this case that the trial judge should have questioned the proposed jurors specifically on the question of racial prejudice, we do not hold that he had to ask the specific questions sought by Ross’s counsel. “[T]he trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.” Ham v. South Carolina, supra, 409 U.S. at 527, 93 S.Ct. at 850. See Featherston v. United States, 491 F.2d 96 (5th Cir.), cert. denied, 417 U.S. 971, 94 S.Ct. 3176, 41 L.Ed.2d 1142 (1974). The trial judge has broad discretion as to the questions to be asked regarding racial prejudice.⁶

The writ of habeas corpus shall issue unless within 90 days from the date of this opinion the Commonwealth has either instituted proceedings to retry the petitioner or applied for a writ of certio-rari. If certiorari is sought and granted, the issuance of the writ of habeas corpus shall be stayed pending further order of the Supreme Court. If certiorari is sought and denied, the writ of habeas corpus shall issue unless the Commonwealth has instituted proceedings to retry the petitioner within 30 days after the date certiorari is denied.

So ordered.

1 . The defendant’s motion for examination of proposed jurors asked that various questions be put to the voir dire panel. The question which this litigation involves was “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?”

2 . After the decision of the Massachusetts Supreme Judicial Court on remand, Ross again filed a petition for certiorari with the United States Supreme Court. The Court denied the petition, Ross v. Massachusetts, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), but Justice Marshall filed an opinion, in which Justices Douglas and Brennan joined, dissenting from the denial. This part of the procedural history of this case has no legal effect in this court. The denial of a petition for certiorari from a state court judgment affirming a conviction has no legal significance when an application for a writ of habeas corpus thereafter comes before a district court. Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (opinion of Justice Frankfurter, for a majority of the Court). That only three Justices voted to grant Ross’s second petition for certiorari does not mean that five or more Justices were voting, or even would have voted, to affirm on the merits the decision of the Massachusetts Supreme Judicial Court on remand. That the three dissenting Justices filed a lengthy opinion with the denial of certiorari does not reverse the effect to be accorded the denial; the opinion only indicates how strongly those Justices feel about the case. Denial of certiorari may be motivated, among other reasons, by a desire “to have different aspects of an issue further illumined by the lower courts,” Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 918, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950) (opinion of Justice Frankfurter respecting denial of certiorari), or by a preference for administrative reasons to have the prisoner seek habeas corpus in the district court. See generally R. Stern & E. Gressman, Supreme Court Practice §5 5.4-5.7 (4th ed. 1969).

3 . The two questions sought to be asked were:

“1. Would you fairly try this case on the basis of the evidence and disregarding the defendant’s race?

“2. You have no prejudice against ne-groes? Against black people? You would not be influenced by the use of the term ‘black’?” 409 U.S. at 525 n. 2, 93 S.Ct. at 849.

4 . If a juror were prone to racial bias, we question whether it is reasonable to conclude that he would confine that bias, and its destructive effects on his impartiality, to cases where the defendant was a civil rights leader. That the juror might be particularly prone to vent his bias in such a case in no way supports the conclusion that he would be an impartial juror in the absence of such a special factor, as the due process clause requires, see Peters v. Kiff, 407 U.S. 493, 501, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (opinion of Justice Marshall).

5 . Other state cases suggest any black criminal defendant, target or not, who requests a specific inquiry about racial prejudice is entitled to it. Cochran v. State, 505 S.W.2d 520 (Ark.1974) (prosecution for assaulting an officer during an assemblage or riot); McNichols v. State, 279 So.2d 377 (Fla.App.1973) (state confessed error; facts not stated); Mize v. State, 131 Ga.App. 538, 206 S.E.2d 530 (1974) (black defendant charged with simple battery against white prosecutrix entitled to question on racial prejudice); Reid v. State, 129 Ga.App. 657, 200 S.E.2d 454 (1973) (error not to allow black woman charged with theft to have questions concerning racial bias); People v. Wray, 49 Mich.App. 344, 212 N.W.2d 78 (1973) (black defendant charged with carrying concealed weapon in motor vehicle entitled to question all-white jury on racial bias); Shabazz v. State, 506 S.W.2d 60 (Mo.Ct.App.1974) (dictum); People v. Rubicco, 42 A.D.2d 719, 345 N.Y.S.2d 624 (2d Dept. 1973), aff’d on another ground, 34 N.Y.2d 841, 359 N.Y.S.2d 62, 316 N.E.2d 344 (1974) (possession of gambling records; “reversible constitutional error” to deny motion to ask jurors whether they are biased against Italians); People v. Williams, 41 A.D.2d 611, 340 N.Y.S.2d 504 (1st Dept. 1973) (narcotics convictions reversed because of “direct conflict with Ham”). But see United States v. Walker, 491 F.2d 236 (9th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974) (prosecution for uttering forged U. S. treasury check; inquiry about racial prejudice not mandated because no racial overtones shown); Commonwealth v. Brown, 228 Pa. Super. 166, 323 A.2d 281 (1974) (conviction for forcible rape affirmed by 3 to 2 vote; requested racial question held irrelevant and overbroad).

6 . We observe with respect to our brother’s dissenting opinion that whenever trial judges are vested with broad discretion it is possible to evoke Pandora, but only if one assumes that discretion will be thrown to the winds. As for this and the other points made, we come to rest with the conviction that they would apply equally to the case presented in Ham.