Commonwealth v. Curtiss

664 N.E.2d 461, 40 Mass. App. Ct. 350, 1996 Mass. App. LEXIS 151, 1996 WL 220908
CourtMassachusetts Appeals Court
DecidedApril 29, 1996
DocketNo. 94-P-385
StatusPublished
Cited by2 cases

This text of 664 N.E.2d 461 (Commonwealth v. Curtiss) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Curtiss, 664 N.E.2d 461, 40 Mass. App. Ct. 350, 1996 Mass. App. LEXIS 151, 1996 WL 220908 (Mass. Ct. App. 1996).

Opinions

Greenberg, J.

According to the complainant (a mentally handicapped black woman), a white man took her into his car, pulled off her undergarments, and sexually assaulted her, stopping only after two acts of forced intercourse. Afterwards, he drove her across the Massachusetts border, leaving her in a rural part of New Lebanon, New York. The next morning, she told Pittsfield police officers that the defendant was the rapist. Two days later, the police arrested the defendant and advised him of the accusations. He offered a different version of the events: their initial meeting took place at a local pub in [351]*351Pittsfield where both drank; later, inside his car, they started kissing, went further, and had consensual intercourse.

Seeking reversal of the various convictions arising out of the events, the defendant assigns two grounds of error: (1) the trial judge improperly denied his peremptory challenge to a prospective juror on the venire and (2) the prosecutor’s improper closing speech to the jury was not cured by the judge’s instructions. Although the evidence presented against the defendant was persuasive on the issue of lack of consent, we reverse the convictions and order a new trial because of constitutional violations in the course of selecting a jury. We also comment on the prosecutor’s closing argument.

1. Jury empanelment. Juror selection occurred over two days, with the defendant requesting an individual voir dire of prospective jurors. At the start, the judge made it clear to the venire that the case involved “intercourse between people of different races” and that the question of consent was the sole issue. Three of the four questions posed to each prospective juror addressed racial prejudices rather than general impartiality. See Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982).

During this aspect of impanelling jurors, the judge agreed to defense counsel’s request to inquire of the only black potential juror on the venire, whom we shall refer to as Juror 13, whether his wife, a direct care worker for the Department of Social Services (DSS), worked with persons who were sexually abused. In response to the judge’s additional questions on this point, Juror 13 said that his wife, in fact, did work with sexually abused children. That circumstance, he felt, would not interfere with his ability to remain impartial. The judge declared Juror 13 indifferent, prompting the defendant to exercise one of his peremptory challenges.

Because Juror 13 was the only minority person in the venire, the judge then intervened. Without making a finding that the defendant’s peremptory challenge was exercised improperly, he required defense counsel to support his challenge with a nonracial justification. See Commonwealth v. Harris, 409 Mass. 461, 466 (1991). Defense counsel’s proffer repeated the same rationale: Juror 13’s wife worked for a State agency that dealt with child sexual abuse cases. Additionally, defense counsel explained that Juror 13’s wife’s employment might taint the way the juror himself viewed the case. After a prolonged colloquy with defense counsel, [352]*352reproduced in an appendix to this opinion, the judge denied the defendant’s requested challenge, noting that DSS was not involved in the instant case, nor was the complainant a child. In explaining why he thought defense counsel’s reasons inadequate, the judge stated:

“Let me put it this way. I think the circumstances of this case and the fact that two panels, two arrays, and two separate days produced but one black potential juror, eliminate the need for establishing a pattern and require me to make a judgment as to whether your challenge has a nonracial basis. The fact that this man’s wife works for a department of the State that investigates, among other things, children victims and family victims, is insufficient to take it out of the area of a potential challenge based on racial grounds. Now, I want to be careful. I’m not accusing counsel of doing something improper in the sense that he should be admonished, but I am sensitive to the need for there to be a racial balance.”

The defendant objected on the ground that his use of peremptory challenges did not create any pattern of invidious discrimination and that his challenge to Juror 13 was “consistent in taking certain types of people off the jury. . . .” No findings of the judge on this crucial point appear in the record.

While both State and Federal Constitutions guarantee criminal defendants the right to an impartial jury, Commonwealth v. Long, 419 Mass. 798, 802 (1995), there is no corresponding right to the exercise of peremptory challenges. Commonwealth v. Reid, 384 Mass. 247, 253-254 (1981). Commonwealth v. Wood, 389 Mass. 552, 559 (1983). Commonwealth v. Hutchinson, 395 Mass. 568, 571 (1985). Rather, art. 12 of the Massachusetts Declaration of Rights constitutionally circumscribes the use of peremptory challenges by prohibiting both prosecution and defense from removing prospective jurors exclusively because of bias presumed to stem from their membership in discrete community groups based on creed or national origin. See Commonwealth v. Soares, 377 Mass. 461, 489 n.35, cert. denied, 444 U.S. 881 (1979); Commonwealth v. Brown, 11 Mass. App. Ct. 288, 290 (1981); Commonwealth v. [353]*353Carleton, 36 Mass. App. Ct. 137, 140, S.C., 418 Mass. 773 (1994).1

Our review of whether the judge properly denied the defendant’s peremptory challenge is governed by certain well-settled principles contained in the cases. We begin with the presumption that the peremptory challenge was proper. Commonwealth v. Long, 419 Mass. at 806. “[T]his presumption may be rebutted by showing that (1) a pattern of conduct has developed whereby prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood that they are being excluded from the jury solely on the basis of their group membership. Commonwealth v. Burnett, 418 Mass. 769, 770 (1994). Commonwealth v. Soares, supra at 490.” Ibid. Where the total number of members in a discrete group in the venire is small, we have acknowledged the difficulty inherent in establishing a pattern of conduct. See Commonwealth v. Brown, 11 Mass. App. Ct. at 293-294. But the cases say that “the challenge of even a single prospective juror within a protected class can, in certain instances, constitute a prima facie showing of impropriety.” Commonwealth v. Long, 419 Mass. at 807. See also Commonwealth v. Harris, 409 Mass. at 465, 467; Commonwealth v. Burnett, 418 Mass. at 771; Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547, 553 (1981). Contrast Commonwealth v. Valentin, 420 Mass. 263, 267-269 (1995) (finding no error in removal of sole Hispanic venireman because of his difficulty understanding English language).

So far as the case before us is concerned, the judge, himself, raised the issue of whether the presumption was rebutted by his own observations. See Commonwealth v. Reid, 384 Mass. at 251 n.7; Commonwealth v. Wood, 389 Mass. at 560; Commonwealth v. Perry, 15 Mass. App. Ct. 932, 932 (1983); Commonwealth v. Legendre, 25 Mass. App. Ct. 948 (1988).

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Related

Commonwealth v. Curtiss
676 N.E.2d 431 (Massachusetts Supreme Judicial Court, 1997)

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Bluebook (online)
664 N.E.2d 461, 40 Mass. App. Ct. 350, 1996 Mass. App. LEXIS 151, 1996 WL 220908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-curtiss-massappct-1996.