Commonwealth v. Terrelle Rosario-Thomas. ( 2024 )


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  • 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-1433
    COMMONWEALTH
    vs.
    TERRELLE ROSARIO-THOMAS.
    MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
    After a jury trial in the District Court, the defendant was
    convicted of five charges, including firearms offenses and
    possession with the intent to distribute both class A and class
    B substances. 1    On appeal, the defendant, who is Black, argues
    that the trial judge erred in allowing the Commonwealth's
    peremptory challenge of the only Black person initially chosen
    to be on the jury, juror 38.         Because we conclude that the
    record establishes an adequate basis for the challenge, and that
    the challenge was genuine, we affirm.
    1The defendant's motion for a required finding of not
    guilty was allowed with respect to a sixth charge.
    Discussion.   1.   Batson-Soares test.   "The Fourteenth
    Amendment to the United States Constitution and art. 12 of the
    Massachusetts Declaration of Rights prohibit a party from
    exercising peremptory challenges on the basis of race, sex, or
    sexual orientation, among other groupings."     Commonwealth v.
    Kozubal, 
    488 Mass. 575
    , 580 (2021).    Although the exercise of a
    peremptory challenge is presumptively proper, see Commonwealth
    v. Lacoy, 
    90 Mass. App. Ct. 427
    , 431 (2016), quoting
    Commonwealth v. Benoit, 
    452 Mass. 212
    , 218 (2008), where there
    is a question of whether a "challenge is based impermissibly on
    a juror's membership in a protected group, . . . . [a] three-
    step burden shifting analysis [Batson-Soares test] is applied to
    determine whether a peremptory strike of a potential juror is
    proper."   Kozubal, supra.   See Batson v. Kentucky, 
    476 U.S. 79
    ,
    94-95 (1986); Commonwealth v. Soares, 
    377 Mass. 461
    , 489-491,
    cert. denied, 
    444 U.S. 881
     (1979), overruled in part by
    Commonwealth v. Sanchez, 
    485 Mass. 491
    , 511 (2020).
    "First, to rebut the presumption that the peremptory
    challenge is proper, the [opponent of the peremptory challenge]
    must make out a prima facie case that it was impermissibly based
    on race or other protected status by showing that the totality
    of the relevant facts gives rise to an inference of
    discriminatory purpose" (quotation and citation omitted).
    Kozubal, 488 Mass. at 580.    Second, if the opponent makes the
    2
    required initial showing, "the burden shifts to the party
    exercising the challenge to provide a group-neutral explanation
    for it."    Id. at 580, quoting Commonwealth v. Jackson, 
    486 Mass. 763
    , 768 (2021).   "Third, 'the judge must then determine whether
    the explanation is both adequate and genuine.'"    Kozubal, supra
    at 580-581, quoting Jackson, supra.
    "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. . . .
    Challenges based on subjective data such as a juror's looks
    or gestures, or a party's 'gut' feeling should rarely be
    accepted as adequate because such explanations can easily
    be used as pretexts for discrimination. . . . An
    explanation is genuine if it is in fact the reason for the
    exercise of the challenge. The mere denial of an improper
    motive is inadequate to establish the genuineness of the
    explanation."
    Benoit, 452 Mass. at 219–220, quoting Commonwealth v. Maldonado,
    
    439 Mass. 460
    , 464-465 (2003).
    At the third step, the judge is obligated to make specific
    findings.   Benoit, 452 Mass. at 220.   While the judge need not
    use a particular form of words in making those findings,
    Commonwealth v. Rodriguez, 
    431 Mass. 804
    , 810 (2000), the
    findings must be sufficient to enable an "appellate court . . .
    to ascertain that the judge considered both the adequacy and the
    genuineness of [counsel's] proffered explanation, and did not
    conflate the two into a simple consideration of whether the
    3
    explanation was reasonable or group neutral"    (quotation and
    citation omitted).    Benoit, supra.
    2.   Standard of review.   Ordinarily, our review at each
    step of the Batson-Soares analysis is for an abuse of the
    judge's discretion.    Jackson, 486 Mass. at 768.   Where, as here,
    however, we conclude that the judge failed "to make a specific
    determination or specific findings, in some form" sufficient to
    enable us to review the judge's assessment of both the adequacy
    and genuineness of an attorney's proffered reasons for a
    peremptory challenge, we review the third step de novo.
    Commonwealth v. Gonzalez, 
    99 Mass. App. Ct. 161
    , 166 (2021),
    quoting Benoit, 452 Mass. at 221.
    3.   De novo review.   Here, the prosecutor effectively (and
    correctly) conceded the first step, recognizing that by striking
    the only Black juror on the panel, she had set up a prima facie
    case that "[the challenge] was impermissibly based on race."
    Kozubal, 488 Mass. at 580, quoting Jackson, 486 Mass. at 768.
    Cf. Gonzales, 99 Mass. App. Ct. at 165-166, quoting Commonwealth
    v. Mason, 
    485 Mass. 520
    , 530 (2020) ("because the judge asked
    for a reason . . ., the first phase of the analysis, i.e.,
    rebutting the presumption that the peremptory challenge was
    proper, implicitly was satisfied").
    We discern no abuse of discretion in the judge's implicit
    determination that at the second step, the prosecutor met the
    4
    Commonwealth's burden to provide a "race-neutral" explanation
    for her challenge by explaining her concerns about juror 38's
    "empathy" for the defendant and the juror's reluctance to
    participate as a juror in a decision that "impacted" "someone's
    life."
    The third step of the analysis requires us to determine
    whether the Commonwealth's explanation was "both adequate and
    genuine."   Kozubal, 488 Mass. at 581, quoting Jackson, 486 Mass.
    at 768.   As we have explained, we review the Commonwealth's
    showing at this stage de novo.
    On voir dire, juror 38 answered affirmatively when the
    judge asked, "Is there anything about the charges in this case
    that make it difficult for you to be fair and impartial?"
    Called to sidebar, juror 38 explained her answer by saying,
    among other things, that she was "stuck in the middle . . .
    because [she knew] people who have been in that place before and
    . . . [she] also [knew] what it looks like when you choose not
    to take that direction."   She explained that the "emotional
    piece" of her concern about serving as a juror on the
    defendant's case involved her belief that "reflecting . . .
    would be tough for [her] after the fact" because "when this is
    over[,] someone's life is impacted."   From these answers, the
    prosecutor concluded that juror 38 "had some empathy toward
    someone in the defendant's situation," and that "[the juror]
    5
    would struggle with the decision of conviction . . . [as]
    something she'd have to carry with her."      These were fair
    inferences from the juror's explanation of the reasons for her
    concerns about her ability to sit as a juror on the defendant's
    case.   The concerns the prosecutor raised were "clear,"
    "reasonably specific," and "personal to the juror and not based
    on the juror's group affiliation."      Kozubal, supra, quoting
    Maldonado, 439 Mass. at 464-465.       Accordingly, the reasons were
    "adequate."
    We do not agree with the defendant's charge that the
    prosecutor's explanation was "rife with inaccuracies."      It is
    apparent from a fair reading of the transcript that the
    prosecutor's conclusions, even where they were characterized as
    the juror's "statements," were either paraphrasings of the
    salient points of the juror's voir dire exchanges with the
    judge, or summaries of the prosecutor's inferences drawn from
    the juror's answers.   There is nothing to suggest that the
    prosecutor was misstating what the juror actually said.
    We likewise discern nothing "illogical" about the
    prosecutor's proffered reasons for the challenge.      Contrast
    Benoit, 452 Mass. at 223 ("it is illogical to conclude that a
    person who indicates that she felt sympathy for the victim in a
    prior criminal case is likely to identify or align her
    sympathies with the defendant"); Commonwealth v. Calderon, 431
    
    6 Mass. 21
    , 27 (2000) ("Common sense suggests that the prosecutor
    may not have been acting fairly when, after questioning one
    juror's antipathy to the police, he challenged [a different
    juror] on the basis that she might be prejudiced in favor of the
    police"); Maldonado, 439 Mass. at 462, 467 ("no apparent reason"
    why fifty-five year old childless person would be less inclined
    to credit police than person of similar age who had children);
    Commonwealth v. Burnett, 
    36 Mass. App. Ct. 1
    , 5, S.C., 
    418 Mass. 769
     (1994) (record lacked support for "prosecutor's belief
    regarding the unexplained propensities of those who work with
    youth" as basis for peremptory challenge to Black juror who
    worked as youth services program director).
    Contrary to the defendant's contention, the prosecutor did
    not argue that juror 38 was biased against conviction because
    she grew up in Springfield, Massachusetts, or Kingston, Jamaica.
    Our review of the transcript leads us to conclude that the
    prosecutor's reference to the juror's having lived in
    Springfield and Kingston was little more than an attempt to
    orient herself and the judge to juror 38's answers to a voir
    dire that had happened earlier in the day. 2 Given our
    2 Between the time of the voir dire of that juror and the
    Commonwealth's opportunity to exercise its peremptory challenges
    to the seated jurors, the judge had made individual inquiry of
    eleven other jurors, and court had taken a midday recess. Given
    the break in time between the voir dire of juror 38 and the
    prosecutor's opportunity to exercise her peremptory challenges,
    7
    conclusion, we do not address further the defendant's argument
    that excusing juror 38 based on her ties to Springfield would
    condone peremptory strikes that would disproportionally impact
    people of color.
    After careful review of the record, we also conclude that
    the prosecutor's proffered reason for the challenge was
    "genuine."   Kozubal, 488 Mass. at 581, quoting Jackson, 486
    Mass. at 768.   Finding no merit in the defendant's claims that
    the prosecutor made "false statements" in explaining her
    concerns about juror 38's voir dire responses, we discern
    nothing else in the record to suggest that the prosecutor's
    proffered reasons for the peremptory challenge were "sham"
    explanations.   Gonzales, 99 Mass. App. Ct. at 167.   While it is
    true that the Commonwealth would have been well-advised to have
    explored juror 38's views by asking additional questions about
    the concerns the juror expressed in response to the judge's
    questions, we are not persuaded that the prosecutor's failure to
    as well as the amount of information counsel, the judge, and the
    defendant heard from the jurors who came to sidebar after juror
    38 was seated, it was reasonable (if not best practice in this
    case) for the prosecutor to return both her own focus and that
    of the others at sidebar to juror 38 by reviewing certain
    identifying points made by that juror during her voir dire.
    8
    do so warrants an inference that the challenge to juror 38 was
    pretextual. 3
    Judgments affirmed.
    By the Court (Singh, Hand &
    D'Angelo, JJ. 4),
    Clerk
    Entered:    October 21, 2024.
    3 The cases on which the defendant relies with respect to
    this point are distinguishable from the case before us. Cf.
    Flowers v. Mississippi, 
    588 U.S. 284
    , 312 (2019), quoting
    Miller-El v. Dretke, 
    545 U.S. 231
    , 246 (2005) (where prosecutor
    challenged Black juror based on "some sort of connection" to
    people involved in case, but did not challenge or inquire of
    three white jurors with apparently similar connections, failure
    to ask follow-up questions of white jurors "is evidence
    suggesting that the explanation is a sham and a pretext for
    discrimination"); Commonwealth v. Carter, 
    488 Mass. 191
    , 199-200
    (2021) (convictions reversed where judge did not require
    prosecutor to provide race-neutral reason for challenge to Black
    juror after judge found juror indifferent); Kesser v. Cambra,
    
    465 F.3d 351
    , 364 (9th Cir. 2006) (prosecutor's failure to ask
    any follow up questions to tie his perception of Native American
    juror's "unusually pretentious [attitude] about her work" on HUD
    application for tribe to facts of case at issue permitted
    inference of improper motive).
    4   The panelists are listed in order of seniority.
    9
    

Document Info

Docket Number: 23-P-1433

Filed Date: 10/21/2024

Precedential Status: Non-Precedential

Modified Date: 10/21/2024