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

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SJC-11933
COMMONWEALTH vs. ANTHONY ROBERTSON.
Suffolk. February 9, 2018. - August 31, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Homicide. Robbery. Firearms. Cellular Telephone.
Identification. Jury and Jurors. Fair Trial.
Constitutional Law, Search and seizure, Jury, Fair trial,
Fair trial. Search and Seizure, Warrant, Affidavit.
Practice, Criminal, Capital case, Motion to suppress,
Warrant, Affidavit, Jury and jurors, Empanelment of jury,
Challenge to jurors, Voir dire, Fair trial.
Indictments found and returned in the Superior Court
Department on September 27, 2011.
A pretrial motion to suppress evidence was heard by Patrick
F. Brady, J., and the cases were tried before him.
Elizabeth A. Billowitz for the defendant.
Kathryn E. Leary, Assistant District Attorney (David J.
Fredette, Assistant District Attorney, also present) for the
Commonwealth.
CYPHER, J. The defendant, Anthony Robertson, appeals from
his convictions of murder in the first degree, armed robbery,
2
and carrying a firearm without a license. He argues that he did
not receive a fair trial because eyewitnesses improperly
identified him in court; the prosecutor misstated evidence in
closing argument; the judge erred in declining to question
jurors about potential racial bias; the Commonwealth improperly
excluded black men from the jury in violation of Batson v.
Kentucky, 476 U.S. 79 (1986), and Commonwealth v. Soares, 377
Mass. 461, cert. denied, 444 U.S. 881 (1979); cellular telephone
(cell phone) records that should have been suppressed were
introduced; hearsay testimony was improperly admitted; a police
officer offered extensive irrelevant testimony about the
condition of the apartment where the defendant was arrested; and
voluntary manslaughter is the degree of guilt most consonant
with justice. The defendant also submitted a separate brief,
pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981),
arguing that the jury instructions and the prosecutor's closing
argument were erroneous and trial counsel was ineffective.1
Because the defendant's right to a fair trial as provided
by Batson, supra, and Soares, supra, was violated, we vacate the
1 "Because we find no error, we need not address the
Commonwealth's contention that our decision in Commonwealth v.
Moffett, 383 Mass. 201, 208, 216–217 (1981), was not intended to
permit 'hybrid representation,' and that we should not consider
these claims of error." Commonwealth v. Brown, 462 Mass. 620,
634 n.14 (2012). We remind the Commonwealth that it is often
difficult for defense counsel to coordinate filings with a
client who is incarcerated.
3
verdicts and remand for a new trial. We address other claims of
error that are likely to recur upon retrial.
Background.2 On June 26, 2011, the victim, Aaron Wornum,
was with two friends, Erik Hicks and Jason Heard. The victim,
who was wearing a necklace with a gold cross, was driving his
friends to Hicks's home, through the Dorchester neighborhood in
Boston. On the way, the victim said he had to meet a friend to
pick up some money that the friend owed to him. The victim
stopped the vehicle in a parking lot and spoke to the defendant
on a cell phone about where to meet. The victim drove to a
nearby street and spoke again to the defendant on the cell phone
about where to find him. The defendant and his longtime friend,
Emmitt Perry, walked around the corner from a nearby street.
The victim then told the defendant on the cell phone that the
victim saw him. The victim told Hicks and Heard that he saw the
person he was meeting and got out of the vehicle.
The victim, the defendant, and Perry spoke briefly and then
started arguing, and the defendant or Perry grabbed the victim's
shirt. The victim backed away from the defendant and Perry.
Hicks got out of the vehicle to help the victim. The defendant
drew a gun. The victim then ran to other side of the vehicle,
leaving Hicks closest to gun. While the defendant pointed the
2 We recite the facts as the jury could have found them,
viewed in the light most favorable to the Commonwealth, and
reserve certain details for later discussion.
4
gun at Hicks, Perry searched Hicks's pockets, taking a pack of
cigarettes and two cell phones. The victim asked the defendant
what he was doing and to not do this, repeatedly calling the
defendant "Ant."3 The defendant fired the gun in the direction
of the victim. The defendant and Perry ran around the vehicle,
toward the victim, and the defendant fired the gun again. The
victim was on the ground when the gun was fired for a third
time. At some point during this altercation, Heard ran from the
vehicle. Emergency personnel quickly responded to the scene.
The victim was pronounced dead at the hospital that evening.
The defendant and Perry fled and went to the house of Tinea
Jones. Jones was the mother of one of Perry's children and a
friend of the defendant since childhood. According to Jones,
the defendant looked scared and paranoid. He took a shower and
asked for a ride to a nearby public transit station. A friend
of Jones picked up the defendant and drove him to the station.
Discussion. 1. Cell site location information evidence.
The defendant argues that the judge erroneously denied his
motion to suppress historical cell site location information
(CSLI). He alleges that the warrant used to acquire this data
lacked probable cause because the underlying affidavit was
defective.
3 The Commonwealth introduced testimony that the defendant's
nicknames are "Ant," "Little Ant," and "Animal."
5
The affidavit included the following information. Boston
police officers were called to the corner of Sumner Street and
East Cottage Street at 9:20 P.M. on June 26, 2011. The victim
was lying on the ground, bleeding from the neck and head,
suffering from several gunshot wounds. He was pronounced dead
twenty-five minutes later at a local hospital. Two witnesses --
identified as witnesses nos. 1 and 2 -- told officers that on
the victim's way to drive them home, the victim made and
received several cell phone calls making plans to meet someone.
Both witnesses stated that as the victim drove down Sumner
Street, two males came into view, and the victim said, "I see
you now," stopped the vehicle, and got out. The witnesses
provided descriptions of both men. After a very brief time, the
men began pushing the victim back toward the vehicle, and both
witnesses saw a gun in the hand of one of the men. Witness no.
1 got out of the vehicle to offer aid and saw the man with the
gun shoot the victim. The defendant matched the initial
descriptions provided by the two witnesses, and later, in a
photographic array, witness no. 1 identified the defendant as
the man with the gun. The victim's cell phone records revealed
that a telephone number ending in 4076 (number 4076) appeared in
incoming and outgoing calls seven times in the hours leading up
to the shooting, and was the number from which the last call was
made that was received by the victim moments before the
6
shooting. During the investigation, a source identified number
4076 as the defendant's telephone number.
We have "applied the requirement of probable cause to the
defendant's historical CSLI because . . . where the information
at issue covered a two-week period, analysis of this information
was akin to tracking the defendant's movements for an extensive
time period, and constituted a search under art. 14" of the
Massachusetts Declaration of Rights. Commonwealth v. Augustine,
472 Mass. 448, 453-454 (2015) (Augustine II), citing
Commonwealth v. Augustine, 467 Mass. 230, 254-255 (2014)
(Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015).
See Carpenter v. United States, 138 S. Ct. 2206, 2212, 2216-2217
(2018) (seven days of CSLI constituted search under Fourth
Amendment to United States Constitution). When considering the
sufficiency of a search warrant application, our review "begins
and ends with the 'four corners of the affidavit'" (citation
omitted). Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011).
"In determining whether an affidavit justifies a finding of
probable cause, the affidavit is considered as a whole and in a
commonsense and realistic fashion. . . ." Id. The affidavit
should not be "parsed, severed, and subjected to hypercritical
analysis." Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).
We evaluate whether the affidavit underlying the warrant
application satisfies the probable cause standard required by
7
art. 14 de novo. Commonwealth v. Foster, 471 Mass. 236, 242
(2015).
When reviewing the sufficiency of a search warrant
application for historical CSLI, we determine whether, based on
the affidavit in support of the search warrant, (1) the
magistrate had a substantial basis to conclude that a
particularly described offense has been, is being, or is about
to be committed; and (2) the CSLI being sought will produce
evidence of such offense or will aid in the apprehension of a
person who the applicant has probable cause to believe has
committed, is committing, or is about to commit such offense.
Commonwealth v. Estabrook, 472 Mass. 852, 870 (2015).
Inferences drawn from the affidavit must be reasonable and
possible, but no showing that the inferences are correct or more
likely true than not true is required. See Commonwealth v.
Matias, 440 Mass. 787, 794-795 (2004) (contraband found in trash
of multiunit apartment building examined in whole supplied
probable cause to conclude that contraband came from defendant's
apartment).
The defendant argues that the affidavit was insufficient
because it relied primarily on unsourced police information and
misrepresented the quality of one of the eyewitnesses as having
unequivocally identified the defendant from the photographic
array. However, if the portions of the affidavit to which the
8
defendant objects were redacted, the remaining facts
nevertheless would satisfy the requirements of probable cause.
The affidavit provided two percipient witness accounts of
the shooting and stated that police had found the victim
suffering from gunshot wounds, thus satisfying the first
requirement for the search warrant. See Augustine I, 467 Mass.
at 256 (first requirement for search warrant is satisfied when
affidavit demonstrates probable cause that "offense has been, is
being, or is about to be committed").
The search warrant also fulfils the second requirement.
The defendant does not contest the two witnesses' accounts of
the victim meeting with the shooter through a cell phone call,
nor that the victim's cell phone records identify number 4076 as
the telephone number that the victim called just before his
death. Had the affidavit only indicated that the victim was on
his cell phone immediately before the murder, speaking with one
of the individuals with whom he likely met, and that the last
seven calls in his cell phone records were between his cell
phone and number 4076, that evidence would be sufficient to
establish probable cause to believe the CSLI of the cell phone
associated with number 4076 number would provide evidence of the
murder. For example, in Commonwealth v. Dorelas, 473 Mass. 496,
503 (2016), the search warrant affidavit stated that the
defendant had been using his cell phone to argue with an
9
individual in the hours leading up to and immediately prior to
the shooting. We held that this information provided a nexus
between the shooting and information on the defendant's cell
phone, establishing probable cause that it likely contained
"evidence of communications both received as well as initiated
. . . by the defendant that would link [the defendant] . . . to
that shooting." Id. Therefore, the motion to suppress was
correctly denied. Id. at 505.
2. In-court identifications. The victim's friends who
were present at the scene of the shooting, Hicks and Heard, each
independently identified a photograph of the defendant as the
man who shot the victim. Each witness signed his name to the
back of the defendant's photograph and wrote "possibly." The
defendant argues that the judge, over objection, erred in
admitting Hicks's and Heard's in-court identifications because
each witness did not make an unequivocal out-of-court
identification of the defendant. The defendant relies on our
decision in Commonwealth v. Collins, 470 Mass. 255, 261-262
(2014), which prohibits such identifications.4 Collins, however,
4 The defendant argues, in the alternative, that if we do
not apply the holding of Commonwealth v. Collins, 470 Mass. 255,
261-262 (2014), the identifications nonetheless created
prejudicial error. Any analysis of this argument implicates the
particular evidence presented to the jury at this trial.
Because we are remanding for a new trial, any consideration of
potential prejudicial error would not be meaningful. We decline
to conduct such an analysis in the abstract.
10
by its own terms, applies prospectively only to trials beginning
after the issuance of that opinion. Id. at 265. Collins was
decided after the defendant's trial concluded; therefore, the
defendant does not receive the benefit of that new rule in our
assessment of his convictions.
However, upon any retrial, it will be the judge's task to
determine the admissibility of the in-court identifications.
See Commonwealth v. Dew, 478 Mass. 304, 315 (2017). All current
case law, including our holding in Collins, may apply to that
consideration.
3. Voir dire questioning. The defendant, an African-
American man, requested that the judge ask potential jurors if
the defendant's race would affect the juror's ability to be fair
and impartial. The judge declined, stating that race was not an
issue in the case because both the defendant and the victim are
African-American. The defendant argues this was an abuse of
discretion because, had the judge asked this question during
voir dire, the defendant could have determined "whether a
potential juror would be receptive to defense arguments that
police prejudice against young African-American men involved in
the drug trade negatively affected the quality of the
investigation and the ultimate strength of the case."
The judge has "broad discretion" to determine what
questions to ask during voir dire. Commonwealth v. Lao, 443
11
Mass. 770, 777 (2005). 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, § 67.5 Id. We have held that such a risk exists
as a matter of law in trials involving interracial murder,
5 General Laws c. 234A, § 67, requires, among other things,
that the judge to ask the following question:
"Upon motion of either party, the court shall, or the
parties or their attorneys may under the direction of the
court, examine on oath a person who is called as a juror,
to learn whether he is related to either party or has any
interest in the case, or has expressed or formed an
opinion, or is sensible of any bias or prejudice. . . . In
a criminal case such examination shall include questions
designed to learn whether such juror understands that a
defendant is presumed innocent until proven guilty, that
the commonwealth has the burden of proving guilt beyond a
reasonable doubt, and that the defendant need not present
evidence on the defendant's behalf. . . .
"To determine whether a juror stands indifferent in
the case, if it appears that, as a result of the impact of
considerations which may cause a decision or decisions to
be made in whole or in part upon issues extraneous to the
case, including, but not limited to, community attitudes,
possible exposure to potentially prejudicial material or
possible preconceived opinions toward the credibility of
certain classes of persons, the juror may not stand
indifferent, the court shall, or the parties or their
attorneys may, with the permission and under the direction
of the court, examine the juror specifically with respect
to such considerations, attitudes, exposure, opinions or
any other matters which may cause a decision to be made in
whole or in part upon issues extraneous to the issues in
the case."
In 2016, G. L. c. 234A, § 67, replaced G. L. c. 234, § 28, the
statute in effect at the time of the defendant's trial; § 67
contains substantially the same language as that statute did.
St. 2016, 36, §§ 1, 4.
12
interracial rape, and sexual offenses against children.
Commonwealth v. Lopes, 440 Mass. 731, 737 (2004). The defendant
does not request that we expand that rule, nor do we elect to do
so at this juncture. The facts of this case do not fall within
those enunciated categories, and the defendant presents nothing
to suggest that "extraneous issues" might have influenced the
jury. Therefore, the judge did not abuse his discretion when he
declined to ask a question about racial bias as requested by the
defendant. However, we reiterate that "a motion to have jurors
asked about racial prejudice should usually be granted."
Commonwealth v. Ramirez, 407 Mass. 553, 555 (1990). Racial bias
can, of course, have an impact on juror impartiality, even where
the victim and the defendant are of the same race.
4. Batson-Soares challenge. Rule 20 (c) of the
Massachusetts Rules of Criminal Procedure, 378 Mass. 889 (1979),
permits the Commonwealth and the defendant to exercise
peremptory challenges to prevent venire members, declared
indifferent by the judge, from being seated on the jury. "The
essential nature of the peremptory challenge is that it is one
exercised without a reason stated, without inquiry and without
being subject to the court's control." Swain v. Alabama, 380
U.S. 202, 220 (1965). However, the equal protection clause of
the Fourteenth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights place
13
limitations on the use of peremptory challenges. See Batson,
476 U.S. at 85-86 ("Exclusion of black citizens from service as
jurors constitutes a primary example of the evil the Fourteenth
Amendment was designed to cure"); Soares, 377 Mass. at 486 (art.
12 proscribes "the use of peremptory challenges to exclude
prospective jurors solely by virtue of their membership in, or
affiliation with, particular, defined groupings in the
community" in order to guarantee "the right to a jury drawn from
a representative cross section of the community").
The defendant argues that the prosecutor impermissibly used
peremptory challenges to exclude black men from the jury, in
violation of the Fourteenth Amendment and art. 12. The judge
did not find a discriminatory pattern in the prosecutor's
peremptory challenges and, as a result, did not inquire about
the prosecutor's reasoning. We review the judge's finding that
there was no prima facie showing of a discriminatory pattern for
an abuse of discretion.
A judge's evaluation of a Batson-Soares objection follows a
three-step process.6 First, the burden is on the objecting party
6 Our three-step process mirrors the procedure in Batson v.
Kentucky, 476 U.S. 79, 96 (1986). See Commonwealth v. Lopes,
478 Mass. 593, 598 (2018). The majority of other States follow
the same process. See Ex parte Floyd, 191 So. 3d 147, 156 (Ala.
2015); Gottschalk v. State, 36 P.3d 49, 51 (Alaska Ct. App.
2001); State v. Escalante-Orozco, 241 Ariz. 254, 271 (2017);
Woods v. State, 2017 Ark. 273, at 1-2; People v. Parker, 2 Cal.
5th 1184, 1211 (2017); People v. Beauvais, 2017 CO 34, ¶ 19;
14
to make "a prima facie showing of impropriety" that overcomes
the presumption of regularity afforded to peremptory challenges.
Commonwealth v. LeClair, 429 Mass. 313, 319 (1999). Next, if
the judge finds that the objecting party has established a prima
facie case, the party attempting to exercise a peremptory
challenge bears the burden of providing a "group-neutral" reason
Sells v. State, 109 A.3d 568, 576 (Del. 2015); Johnson v. State,
302 Ga. 774, 779 (2018); State v. Daniels, 109 Haw. 1, 5-6
(2005); State v. Foster, 152 Idaho 88, 91 (Ct. App. 2011);
People v. Davis, 233 Ill. 2d 244, 261-262 (2009); Cartwright v.
State, 962 N.E.2d 1217, 1220 (Ind. 2012); State v. Mootz, 808
N.W.2d 207, 215 (Iowa 2012); State v. Gray, 306 Kan. 1287, 1300-
1301 (2017); Roe v. Commonwealth, 493 S.W.3d 814, 826-827 (Ky.
2015); State v. Crawford, 2014-2153, p. 27 (La. 11/16/16);
Elliott v. State, 185 Md. App. 692, 712-713 (2009); Pellegrino
v. AMPCO Sys. Parking, 486 Mich. 330, 339 (2010); State v.
Wilson, 900 N.W.2d 373, 378 (Minn. 2017); Flowers v. State, 240
So. 3d 1082, 1120 (Miss. 2017); State v. James, 2010 MT 175,
¶ 23; State v. Wofford, 298 Neb. 412, 423-424 (2017); McCarty v.
State, 371 P.3d 1002, 1007 (Nev. 2016); State v. Ouahman, 164
N.H. 413, 415 (2012); State v. Thompson, 224 N.J. 324, 339
(2016); State v. Salas, 2010-NMSC-028, ¶ 31; People v.
Bridgeforth, 28 N.Y.3d 567, 571 (2016); State v. Waring, 364
N.C. 443, 474-475 (2010); State v. Garnder, 2016 ND 161, ¶ 11;
State v. Pickens, 2014-Ohio-5445, ¶ 63; Coddington v. State,
2006 OK CR 34, ¶ 11; State v. Longo, 341 Or. 580, 595-596
(2006); Commonwealth v. Johnson, 635 Pa. 665, 706-707 (2016);
State v. Porter, 179 A.3d 1218, 1224-1225 (R.I. 2018); State v.
Scott, 2014 SD 36, ¶ 14; State v. Echols, 382 S.W.3d 266, 281-
282 (Tenn. 2012); Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex.
1997); State v. Harris, 2012 UT 77, ¶ 15; State v. Yai Bol, 2011
VT 99, ¶ 6; Lawlor v. Davis, 288 Va. 223, 230 (2014); Seattle v.
Erickson, 188 Wash. 2d 721, 732 (2017); State v. Boyd, 238 W.
Va. 420, 434 (2017); State v. Lamon, 2003 WI 78, ¶¶ 27-32;
Roberts v. State, 2018 WY 23, ¶ 13. See generally Provost,
Excavating From the Inside: Race, Gender, and Peremptory
Challenges, 45 Val. U. L. Rev. 307, 355 (2010) ("Connecticut,
Florida, Missouri, South Carolina, and the Military Court of
Appeals have eliminated the prima facie step [of the Batson
test]").
15
for the challenge. Commonwealth v. Scott, 463 Mass. 561, 570
(2012). Finally, the judge then evaluates whether the proffered
reason is "adequate" and "genuine." Commonwealth v. Maldonado,
439 Mass. 460, 464 (2003). Only if it is both may the
peremptory challenge be allowed.
A prima facie showing of impropriety is present when "(1)
there is a pattern of excluding members of a discrete group and
(2) it is likely that individuals are being excluded solely on
the basis of their membership in that group" (quotation and
citation omitted). Scott, 463 Mass. at 570. The trial judge
evaluates "all of the relevant facts and circumstances" to
determine if the objecting party has met that "relatively low
bar." Commonwealth v. Jones, 477 Mass. 307, 322 (2017).
We have never established an exhaustive list of relevant
factors, but have long considered concerns such as "the number
and percentage of group members who have been excluded," id.,
and "whether the challenged jurors are members of the same
constitutionally protected group as the defendant or the
victim," Commonwealth v. Issa, 466 Mass. 1, 9 (2013). Recently,
we noted that "the possibility of an objective group-neutral
explanation for the strike or strikes," despite containing
elements of the second and third steps of this analysis, "may
play a role in the first-step analysis as well." Jones, supra
at 322 & n.25. See Commonwealth v. Lopes, 478 Mass. 593, 601
16
(2018) (judge did not err in finding no pattern of racial
discrimination where prospective juror's "two significant
experiences with the law provided a sufficient and obvious basis
for the prosecutor's peremptory challenge").
The challenging party need not show much to satisfy this
low burden. Maldonado, 439 Mass. at 463 n.4 (objecting party's
burden "ought not be a terribly weighty one"). Indeed, "a
single peremptory challenge may be sufficient to rebut the
presumption, especially where the challenged juror is the only
member of his or her protected class in the entire venire"
(quotation and citation omitted). Issa, 466 Mass. at 9. The
makeup of the venire can be difficult to assess from the bench
given that a judge might not necessarily be able to discern the
diversity of the jury pool by looking at the court room. Such
difficulty, in part, informs why "we urge judges to think long
and hard" before they decide not to require an explanation from
the prosecutor for the challenge. Id. at 11 n.14.
The judge may consider whether some members of the group in
question have already been seated on the jury, but that is not
dispositive. "[T]o place undue weight on this factor not only
would run counter to the mandate to consider all relevant
circumstances, but also would send the unmistakable message that
a[n] [attorney] can get away with discriminating against some
[group members] so long as [that attorney] does not discriminate
17
against all such individuals" (quotation and citation omitted).
Jones, 477 Mass. at 325.
At trial, the defendant objected to two of the
Commonwealth's peremptory challenges. Each time, the judge
found that the defendant did not satisfy his burden in the first
step of a Batson-Soares challenge and therefore did not inquire
about the Commonwealth's reasons for the exercise of the
challenge. When reviewing a judge's decision not to inquire
about a party's reason for exercising a peremptory challenge, we
may consider the absence of a neutral reason apparent in the
record. See Jones, 477 Mass. at 324 ("the possibility that [the
juror] was struck because of her race is heightened by the fact
that the record reveals no race-neutral reason that might have
justified the strike").
The Commonwealth used its second peremptory challenge on
the first black man who was a potential juror.7 The defendant
objected and defense counsel stated, "My client is a black male
and this is the first black male to come before the court to be
a potential juror." The judge found no prima facie evidence of
7 Although "the numbers considered in isolation are
inconclusive," United States v. Mensah, 737 F.3d 789, 802 (1st
Cir. 2013), it is worth noting that the Commonwealth had only
used one other peremptory challenge at this point (to challenge
a man who had immigrated from India); the defendant, in
contrast, had used six.
18
impropriety, noting that several "people of color" had already
been seated on the jury.
We have often noted that a single peremptory strike can be
sufficient to support a prima facie case, especially where the
juror is the only member of the venire of the particular group.
Issa, 466 Mass. at 9. See Snyder v. Louisiana, 552 U.S. 472,
478 (2008), quoting United States v. Vasquez-Lopez, 22 F.3d 900,
902 (9th Cir. 1994) ("[T]he Constitution forbids striking even a
single prospective juror for a discriminatory purpose"). The
judge's reasoning that there was not yet a pattern fails to
consider this well-established principle that one peremptory
strike can sustain the objecting party's prima facie case. We
have also turned a keen eye toward the use of peremptory
challenges on jurors who are members of the same protected class
as the defendant. Issa, supra.
Here, the Commonwealth used the peremptory challenge on a
juror who, after twenty-one other potential jurors came before
the court, was the first of the same race and gender as the
defendant. The record offers little insight into what potential
neutral reason the Commonwealth might have offered. The juror
did not answer any questions on his questionnaire that
necessitated further discussion, and he affirmed that he could
be fair and impartial. See Sanchez v. Roden, 753 F.3d 279, 303
(1st Cir. 2014) ("we do find it significant that the record
19
fails to disclose any obvious infirmity in [the juror's]
background or voir dire answers that would translate to an
apparent reason for the Commonwealth's peremptory challenge").
The only additional information about the juror that can be
gleaned from this record is that he had two children, ages five
and eight. He did not indicate that child care problems would
arise if he were seated. The judge's failure to inquire about
the Commonwealth's reason for excluding this juror was, alone,
insufficient to warrant a new trial.
The defendant raised a second objection to the
Commonwealth's use of a peremptory challenge to exclude a man
from the Dominican Republic. The defendant objected, and the
parties disagreed about the potential juror's race. The
Commonwealth argued that the potential juror was "Hispanic" and
the defendant argued that he was black. This highlights the
challenges of justly administering the mandates of Batson and
Soares. "The usual tools we rely on to measure one's ethnicity,
primarily name and appearance, are often deceptive."
Commonwealth v. Calderon, 431 Mass. 21, 25 n.2 (2000)
(dismissing Commonwealth's argument that peremptory challenge of
African-American juror was proper because juror was likely not
the only racial minority who could have been seated, simply
because "other jurors on the panel 'had surnames which could
have been Hispanic'"). See Commonwealth v. Garrey, 436 Mass.
20
422, 428 (2002) (when ruling on defendant's Soares challenge,
judge "expressed doubt that the prospective juror was African–
American," but nonetheless asked prosecutor to provide reason
for her challenge, aiding in our assessment on appeal).
Discerning whether a juror is a member of a particular
protected class is a decision that often must be made by the
judge immediately during the jury selection. The judge does not
have much information with which to make this determination, and
there is often little information in the record for the
reviewing court to consider. See Commonwealth v. Obi, 475 Mass.
541, 551 (2016) (when analyzing claim defendant used peremptory
challenge to improperly exclude Muslim juror, "the judge
observed that the juror's headscarf was of a type traditionally
worn by Muslim women" and was similar to headscarf worn by
Muslim victim, thus providing sufficient evidence of prima facie
showing that defense counsel improperly exercised challenge on
basis of religion); Commonwealth v. Carleton, 36 Mass. App. Ct.
137, 141-145, S.C., 418 Mass. 773 (1994) (juror surnames may be
used as reliable indicia of national origin or ethnicity, but
are insufficient to indicate juror's religion).
We confronted an analogous challenge in Commonwealth v.
Bastaldo, 472 Mass. 16, 27 (2015), when considering when a judge
should instruct the jury about cross-racial identifications. We
said, "Because differences in race based on facial appearance
21
lie in the eye of the beholder, we shall not ask judges to
determine whether a reasonable juror would perceive the
identification to be cross-racial." Id. Rather, we held "that
a cross-racial instruction be given unless all parties agree
that there was no cross-racial identification." Id. We now
apply a similar approach to peremptory challenges. Consistent
with our cautious jurisprudence when analyzing Batson and Soares
challenges, where a juror's membership in a protected class is
reasonably in dispute, trial judges, in performing the first
step of the Batson-Soares analysis, ought to presume that the
juror is a member of the protected class at issue.
The judge observed that the potential juror was "lighter
skinned than [the defendant]," and without deciding how to
consider the juror's race, the judge asked the Commonwealth to
respond to the defendant's allegation of a pattern, but did not
ask for a neutral explanation for the use of the peremptory
challenge.8 The Commonwealth offered the following response:
"The court found there was no pattern up until now.
This individual came in. He said there were incidents on
his record that he didn't tell the court.[9]
8 "[I]t would have been well within the judge's discretion
to require an explanation, even without finding a pattern. Such
questioning could have facilitated our task on appeal . . . ."
Lopes, 478 Mass. at 600 n.6.
9 This prospective juror had been arrested eleven years
prior to the trial for an incident of domestic violence. It
appears from the colloquy with the judge that the juror provided
that information on his juror questionnaire. It is unclear from
22
"To be perfectly blunt and I'm going to keep my voice
down, he didn't seem like the most intelligent guy. He's
like a nice enough guy but he didn't seem all that
intelligent.
"And, most importantly, I don't consider him African-
American. Whether he has African blood in him or not, I
have no idea. He was born in the Dominican, I consider him
Hispanic.
". . .
"His client is African-American and the victim in this
case is African-American. Okay. That's what the law is.
Not, I mean, is every person who was not born in Cambridge,
Massachusetts subject to a Soares challenge?
"I mean, that's ridiculous. So, if the court's
finding a pattern, I think I've given it a neutral reason
for the pattern.
"I'd ask the [c]ourt not to find a pattern at this
point."
After the Commonwealth concluded its argument, the judge
reiterated that he was "careful not even to inquire" about the
Commonwealth's reasons, stating that if he did not find a
pattern, he did not have any right to ask for the Commonwealth's
the trial record to what "incidents" the Commonwealth was
alluding. The juror failed to note on his form that he had a
teenage son, but mentioned his child to the judge and did not
indicate that jury service could cause any child care problems.
Compare Commonwealth v. Issa, 466 Mass. 1, 11 n.13 (2013) ("We
do not consider in our analysis the prospective juror's arrest
thirteen years earlier in Kansas for criminal trespass, which
resulted in his spending forty-eight hours in jail. Where there
is nothing in the record to suggest that this experience would
have affected the prospective juror in his evaluation of the
case, we would not find it reasonable for a prosecutor to rely
on this arrest as a basis for challenging a prospective juror,
especially where, as here, the prosecutor did not challenge
other jurors with similar criminal experiences").
23
reasons.10 The judge ruled that he did not find a pattern so he
did not "reach the issue of the truthfulness or the genuineness
and the nonracial basis for the challenge."11
The judge explained that he did not see a pattern because,
in part, there were two black women on the jury. This reasoning
fails for two reasons. First, the defendant was not challenging
10This was inaccurate as a matter of current law.
Previously, we had required a trial judge to make a
determination whether the objecting party had made a prima facie
showing of impropriety. See Commonwealth v. Maldonado, 439
Mass. 460, 463-464 (2003); Commonwealth v. Burnett, 418 Mass.
769, 770-771 (1994); Commonwealth v. Soares, 377 Mass. 461, 490,
cert. denied, 444 U.S. 881 (1979). However, we later recognized
that such a finding is implicit where a judge inquires about the
neutral reasons for a peremptory challenge. See Commonwealth v.
Carleton, 418 Mass. 773, 774 (1994); Commonwealth v. Matthews,
31 Mass. App. Ct. 564, 569 (1991). We have since evolved to the
current state of the law: judges have "broad discretion" to
seek explanations for peremptory challenges "without having to
make the determination that a pattern of improper exclusion
exists." Lopes, 478 Mass. at 598, quoting Issa, 466 Mass. at 11
n.14.
11We therefore confine our evaluation to whether the judge
abused his discretion when he did not find a pattern, despite
the Commonwealth's unsolicited explanation of its ostensibly
neutral reasons. At the time of trial, we had not yet said that
the possible existence of a reason that was free from
impermissible bias for a peremptory challenge could be a factor
in analyzing a pattern, so it is unlikely that the judge
considered those reasons when finding no pattern.
Even if we consider the Commonwealth's proffered reasons,
our analysis is not altered. The claim that the juror withheld
information about his criminal background on his form does not
appear to be borne out by the record, and the Commonwealth has
not directed us to any such record references. That factual
error appears to be the underpinning of the Commonwealth's other
argument, that the juror did not seem intelligent. These
reasons are insufficient in these circumstances to overcome the
other considerations in the first step of the analysis.
24
the exclusion of all black people from the jury, but
specifically black men. "[A]rticle 12 proscribes the use of
peremptory challenges to exclude prospective jurors solely by
virtue of their membership in a group delineated by race and
gender." Commonwealth v. Jordan, 439 Mass. 47, 62 (2003) (no
abuse of discretion or error of law where judge found prima
facie evidence of pattern of discrimination in defendant's use
of peremptory challenges to strike white males). Second, the
mere presence on the jury of members of the group at issue is
not dispositive whether there is a pattern; the totality of the
circumstances must be taken into account. See Sanchez, 753 F.3d
at 303 (seating of five African-Americans on jury when juror at
issue was challenged did not preclude Batson-Soares challenge).
"Consideration of all relevant circumstances compels the
conclusion that the defendant made the limited showing necessary
to make out a prima facie showing of discrimination." Jones,
477 Mass. at 326. We conclude therefore that the judge abused
his discretion in finding no pattern after the defendant's
second objection to the Commonwealth's use of peremptory
challenges on black men. Because such an error is structural,
carrying the presumption of prejudice, we vacate the convictions
and remand the case for a new trial. Id. at 325-326.
So ordered.