Commonwealth v. John A. Fontes. ( 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-829
COMMONWEALTH
vs.
JOHN A. FONTES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the
defendant, John Fontes, was convicted of operating under the
influence of liquor. On appeal he claims that (1) the judge
abused his discretion in allowing the Commonwealth's peremptory
challenge of a person of color, and (2) the evidence at trial
was insufficient to prove impairment. We affirm.
Background. We summarize the facts the jury could have
found, in the light most favorable to the Commonwealth,
reserving certain details for our analysis of the issues raised
on appeal. On November 4, 2021, Sergeant William Patterson of
the East Bridgewater Police Department was "on patrol" on
Central Street in East Bridgewater. At approximately 9:21 P.M.,
while stopped at the intersection of Central and Washington
Streets, he saw a "white Ram pickup truck coming south that was
taking a right." The truck "turned right onto Central Street
and it crossed into the opposite lane of travel, and then it
corrected and crossed back in" to the correct lane of travel.
Having seen the truck cross over double yellow lines and drive
in the wrong lane, Sergeant Patterson activated his blue lights
and "pull[ed] the vehicle over." Sergeant Patterson spoke with
the operator of the truck, the defendant. Sergeant Patterson
smelled a moderate odor of alcohol emanating from the defendant,
and noticed that the defendant's eyes were red and glassy. The
defendant first denied drinking any alcohol, then said that "he
had a beer, and then he stated he had two beers."
At Sergeant Patterson's request, the defendant exited the
truck to perform field sobriety tests. As the defendant moved
to the rear of the truck, he "staggered," was "unsteady on his
feet," and walked "in a serpentine manner." Sergeant Patterson
asked the defendant to produce his driver's license, and, in
response, the defendant handed him a debit card. Sergeant
Patterson then "swapped back" the debit card and took the
defendant's license. After watching the defendant perform the
nine-step walk and turn test and the one-legged stand test,
Sergeant Patterson formed the opinion that the defendant was
intoxicated, placed him under arrest, and transported him to the
2
police station.1 The ride from the place of arrest to the police
station was three to four minutes. As the police cruiser
arrived at the police station, the defendant "was nodding off."
The defendant testified at trial. He stated that he was
"emotional" on the date of the incident because his grandmother
had passed away, and he and his girlfriend were on "bad terms."
He also testified that he is "not a drinker" and consumed one
beer that day around 6:30 P.M. He acknowledged that he may have
"swerved" while driving and "did go partially into the other
lane" of travel, but denied driving on the wrong side of the
road.2 He disputed Sergeant Patterson's version of his
performance on the field sobriety tests, denied falling asleep
on the ride to the police station, denied feeling the effects of
the one beer he had consumed earlier, and stated that the
alcohol did not affect his ability to drive.3
1 A video depicting the defendant throughout the postarrest
booking process was played for the jury.
2 The defendant testified that he swerved because he "was
trying to hook [his] phone to the phone holder."
3 On November 10, 2023, the judge allowed the defendant's
assented-to motion under Mass. R. A. P. 8 (e), as appearing in
481 Mass. 1611 (2019), approving a stipulation as to the
contents of various sidebar discussions from trial that were
inaudible or partially audible on the trial recordings.
Additional facts gleaned from the stipulation are incorporated
into the discussion and analysis herein. We acknowledge the
efforts of counsel in this regard.
3
Discussion. 1. Peremptory challenge. Article 12 of the
Massachusetts Declaration of Rights prohibits the exercise of
peremptory challenges "to exclude members of discrete groups
solely on the basis of bias presumed to derive from that
individual's membership in the group." Commonwealth v. Oberle,
476 Mass. 539, 544 (2017), quoting Commonwealth v. Rodriguez,
431 Mass. 804, 807 (2000). "Peremptory challenges are presumed
to be proper, but that presumption may be rebutted on a showing
that (1) there is a pattern of excluding members of a discrete
grouping and (2) it is likely that individuals are being
excluded solely on the basis of their membership in that group."
Oberle, supra at 545. "Once . . . a pattern is found, the
burden shifts to the party exercising the challenge to provide a
'group-neutral' explanation for it." Id., quoting Commonwealth
v. Maldonado, 439 Mass. 460, 463 (2003). "The judge must then
determine whether the explanation is both 'adequate' and
'genuine.'" Oberle, supra, quoting Maldonado, supra at 464-465.
"[T]he critical point of focus for the trial judge as well as
the appellate court turns to the adequacy and genuineness of the
explanation proffered by the party seeking to exercise the
peremptory challenge." Oberle, supra at 546. See generally
Mass. G. Evid. § 1116 (2024).
In the present case, during jury empanelment the
Commonwealth exercised two peremptory challenges to which the
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defendant did not object.4 The empanelment process continued,
during which additional jurors were excused for cause and two
other jurors were excused on peremptory challenges by the
defendant. After the judge noted on the record that the defense
had exhausted its peremptory challenges, jury empanelment
continued, and the judge conducted voir dire of other
prospective jurors.
After the final juror had been seated, as empanelment
concluded, the defendant objected to the Commonwealth's earlier
peremptory challenge of juror 22, claiming that the juror was a
person of color and the only person of color in the jury venire.
The judge noted that the defense should have raised this
objection earlier. The judge also noted that he thought that
juror 22 was "Haitian." The judge then asked the Commonwealth
to explain the reason for challenging the juror. The
Commonwealth responded that "she was concerned about the juror's
response to the judge's question about whether or not he could
understand English and that, although his response was
affirmative, the Commonwealth was concerned about the juror's
demeanor or tone of voice, i.e., that it appeared ambivalent."
4 The defendant acknowledges in his brief that there was no
initial objection to the Commonwealth's peremptory challenge.
5
The judge found that the Commonwealth's explanation was both
adequate and genuine.
The following day of trial, the judge noted for the record
that the defendant's challenge of juror 22 was not timely
because defense counsel "waited till we replaced that juror and
three others. You need to make those challenges before they
exercise it so the Judge can put the brakes on it. So you
didn't do that till the end . . . . Once we've replaced the
juror and in fact, three others, it's too late." The judge
noted the defendant's objection and reiterated that he had
credited the Commonwealth's race-neutral explanation for the
challenge.
The defendant contends that the challenge to juror 22 was
timely because (1) it was "made before the jurors [were] sworn,"
see Mass. R. Crim. P. 20 (c) (2), 378 Mass. 891 (1979), and (2)
it comported with the judge's instructions on jury empanelment
wherein he stated, "[i]f you should object to any of the jurors,
you will do so after their names are called and before they are
sworn." We disagree.
As noted in the defendant's brief, "[t]o preserve the issue
of an improper peremptory challenge for appellate review, the
objection to the peremptory challenge must be made as soon as
the basis for the objection is apparent." Mass. G. Evid. § 1116
note. Here, there is no material dispute that the basis for the
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objection -- juror 22's status as a person of color -- was
apparent to the defendant at the time that the Commonwealth
exercised the peremptory challenge. That notwithstanding, the
defendant did not object. Indeed, no objection was made until
the judge had informed the defendant that he had exhausted his
peremptory challenges and jury selection had, in essence,
concluded. In these circumstances, the objection was not
timely. Accordingly, our review is limited to whether there was
error, and if so, whether the error created a substantial risk
of a miscarriage of justice.5 See Commonwealth v. Lacoy, 90
Mass. App. Ct. 427, 435 (2016).
The defendant contends that even assuming the objection was
untimely, the challenge of juror 22 constituted error that
created a substantial risk of a miscarriage of justice because
the race-neutral reasons proffered by the Commonwealth were not
adequate.6 Again, we disagree.7
5 We note that the defendant did not ask the judge for
additional peremptory challenges. See Commonwealth v. Berardi,
88 Mass. App. Ct. 466, 473 (2015).
6 The defendant does not challenge the judge's finding that
the peremptory challenge was "genuine."
7 Even assuming, arguendo, that the defendant's objection to
the peremptory challenge of juror 22 was timely, the outcome
would not change, as we discern no abuse of discretion in the
judge's determination that the basis for the challenge was
adequate.
7
"An explanation is adequate if it is clear and reasonably
specific, personal to the juror and not based on the juror's
group affiliation (in this case race) . . . and related to the
particular case being tried" (citations and quotations omitted).
Maldonado, 439 Mass. at 464-465. Here, we cannot say that the
judge erred in determining that the prosecutor's race-neutral
reason for the challenge was adequate. Contrary to the
defendant's claim, this was not a case where the record shows
that the peremptory challenge was based solely on the juror's
demeanor. Rather, the record reflects concerns regarding juror
22's ability to understand English and related communication
issues, as reflected by the judge's questions to that juror
during empanelment. We are mindful that "the judge was in a
position to evaluate both the prosecutor and the juror's
demeanor" (citation omitted), Commonwealth v. Rosa-Roman, 485
Mass. 617, 638 (2020), and "[r]estraint, in the review of fact
finding, is fundamental to an appellate judge's role."
Commonwealth v. Kalila, 103 Mass. App. Ct. 582, 590 (2023). "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" (citation
and quotation omitted). Commonwealth v. Prunty, 462 Mass. 295,
304 (2012).
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2. Sufficiency of the evidence of impairment. The
defendant's argument regarding the lack of evidence of
impairment is likewise unavailing. In view of the evidence
adduced at trial, viewed in the light most favorable to the
Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), the judge properly denied the motions for a required
finding of not guilty and the defendant’s postconviction motion
pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass.
1502 (1995). This evidence included, but was not limited to,
the odor of alcohol from the defendant, his admission to
consuming alcoholic beverages, his red and glassy eyes, his
unsteadiness, and his performance on field sobriety tests. See
generally Commonwealth v. Jewett, 471 Mass. 624, 636 (2015);
9
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393
(2017).
Judgment affirmed.
Order dated January 20, 2023,
denying postconviction
motion affirmed.
By the Court (Blake, Neyman &
Sacks, JJ.8),
Clerk
Entered: August 29, 2024.
8 The panelists are listed in order of seniority.
10