Commonwealth v. Rainier Dapena Colon. ( 2024 )

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
23-P-989
COMMONWEALTH
vs.
RAINIER DAPENA COLON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
violating a G. L. c. 209A abuse prevention order.1 On appeal, he
claims the judge abused his discretion by not permitting him to
retroactively exercise a peremptory challenge to a juror after
he had informed the judge that he was content with the jury. We
affirm.
"We grant deference to a judge's ruling on whether a
permissible ground for the peremptory challenge has been shown
and will not disturb it so long as it is supported by the
record." Commonwealth v. Rodriguez, 431 Mass. 804, 811 (2000).
1The defendant was found not guilty of malicious damage to
a motor vehicle.
We will not conclude that a judge has abused this considerable
discretion "unless juror prejudice is manifest." Commonwealth
v. Seabrooks, 433 Mass. 439, 443 (2001).
In general, attorneys shall exercise a peremptory challenge
"before the jurors are sworn and may be made after the
determination that a person called to serve as a juror stands
indifferent in the case." Mass. R. Crim. P. 20 (c) (2), 378
Mass. 891 (1979). Pursuant to District Court Standing Order 1-
18 (II) (C) (3) (2018), within this period, a district court
judge is provided the choice of ordering the exercise of
peremptory challenges at any of the following times: (1) "after
filling the jury box with jurors found to stand indifferent,"
(2) "after completion of side bar inquiry of an individual
juror," (3) "or at some other time after the judge’s finding of
indifference" (4) "or, if employing panel voir dire, after the
attorneys have completed questioning the panel."
Here, before empanelment, the judge explained his jury
selection practice, but he did not specifically address the
exercise of peremptory challenges. After seven jurors (1, 2, 3,
6, 7, 8, and 10) were seated, the prosecutor informed the judge
that she was content with the jury. When asked if he was
content with the jury, the defendant sought additional time
before peremptorily challenging juror 3. Juror 11 took that
2
seat. When asked if he was content with the jury, the defendant
again asked for more time and then stated that he was.
The prosecutor then peremptorily challenged juror 11 and
juror 12 took the seat. The prosecutor stated that she was
content with the jury. At this point, for the first time, the
defendant asked to peremptorily challenge juror 6, who was
already a member of the jury with which the defendant had
previously stated he was content. The defendant provided no new
information or any reason for his late challenge. The judge
found that the defendant had "passed on" juror 6 and denied the
request over the defendant's objection. After each party
peremptorily challenged one more juror each, the prosecutor said
she was content to with jury; the defendant refused to do so
because of his denied challenge to juror 6.
As the defendant concedes, a familiar principle of jury
empanelment is the prohibition against "going back" to strike a
juror who a party has previously passed on.2 Nonetheless, once a
defendant waives his right to exercise a peremptory challenge, a
judge has discretion to permit a defendant to "withdraw his
statement of satisfaction with the jury" and to exercise a
2 The defendant is correct that former Superior Court Rule 6
(1989), which expressly forbade a party to "go back" to
challenge jurors once they had passed on their chance to
challenge them, does not apply to this District Court case.
3
peremptory challenge. See Commonwealth v. Barnes, 40 Mass. App.
Ct. 666, 670 (1996). Of course, as a corollary, a judge would
have the discretion to deny such a request, which is what
occurred here.
While it would have been better for the judge to have
expressly explained how was going to conduct peremptory
challenges, see Commonwealth v. Hinds, 487 Mass. 212, 232-233
(2021), it is apparent from the record that defense counsel had
appeared before this judge in the past and was familiar with the
judge's "jury empanelment process." Even if this were not the
case, when the judge asked the defense counsel whether he was
content with the jury, counsel had the option of either
challenging a juror or express that he was content with the
jury. This was not a matter upon which any greater edification
should be necessary.
Also informing the judge's exercise of his discretion is
that when the defendant sought to retroactively challenge juror
6, he did not offer any reason for his tardy challenge, let
alone did he offer any new reason for it. See Commonwealth v.
Mason, 485 Mass. 520, 530-531 (2020). Finally, we note that
none among the four methods in District Court Standing Order 1-
18 for the timing of peremptory challenges includes a
retroactive challenge to a juror who was among those with whom
4
the defendant had previously stated his satisfaction. At
bottom, the judge's decision to deny the late challenge to juror
6 was not "a clear error of judgment in weighing the factors
relevant to the decision, such that the decision falls outside
the range of reasonable alternatives” (quotation and citation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).3
Judgment affirmed.
By the Court (Meade, Walsh &
D'Angelo, JJ.4),
Clerk
Entered: August 19, 2024.
3 Because we discern no error or abuse of discretion, we do
not address the question of prejudice.
4 The panelists are listed in order of seniority.
5