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
22-P-209
COMMONWEALTH
vs.
DELANEAU PIERRE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted, after a jury trial, of murder,
G. L. c. 265, § 1, on the theories of murder in the second
degree (second degree murder), and felony-murder in the second
degree (second degree felony-murder). The jury also convicted
the defendant of unlawful possession of a firearm (which served
as the predicate for the murder conviction on the basis of
second degree felony-murder), pursuant to G. L. c. 269,
§ 10 (a), unlawful possession of a loaded firearm pursuant to
G. L. c. 269, § 10 (n), and unlawful possession of ammunition
pursuant to G. L. c. 269, § 10 (h). 1 The possessory convictions
were dismissed at sentencing based on the judge's understanding
1 The defendant was acquitted on charges of murder in the first degree (under theories of both premeditation and felony-murder) and armed assault with intent to rob. of the felony-murder merger doctrine. 2 See Commonwealth v.
Foster, 471 Mass. 236, 244 (2015) (underlying felonies dismissed
when "conviction of the predicate felony is duplicative as a
lesser included offense of the homicide").
In this consolidated appeal, the defendant appeals from his
murder conviction and from the denial of his motion to set aside
the verdict or for a new trial and motion for reconsideration of
that motion. After oral argument occurred in this appeal, the
Supreme Judicial Court issued Commonwealth v. Guardado, 491
Mass. 666 (2023) (Guardado I). We accordingly requested
supplemental memoranda from the parties as to whether Guardado I
was implicated in this appeal and, if so, how. The parties
responded by jointly requesting a stay to permit the
Commonwealth to pursue a motion for reconsideration of Guardado
I in the Supreme Judicial Court. We allowed that motion, and
the appeal was accordingly stayed until the Supreme Judicial
2 The judge's understanding of the merger doctrine was incorrect. Because the defendant was convicted of murder on multiple theories, the underlying possession convictions should not have been dismissed. See Commonwealth v. Foster, 471 Mass. 236, 244 (2015) ("where, as here, a defendant is convicted of murder in the first degree on a theory of felony-murder, and also is convicted of murder in the first degree on another theory, and where we affirm the convictions on both theories, the conviction of the predicate felony is not duplicative, and the felony conviction stands"). However, the Commonwealth did not object below, nor does it argue error in this regard on appeal. The issue is accordingly waived.
2 Court issued Commonwealth v. Guardado, 493 Mass. 1 (2023)
(Guardado II), at which point we again solicited additional
memoranda from the parties. In response, the parties have both
taken the position that, in light of Guardado I and Guardado II,
the evidence failed to support the conviction of murder on the
theory of second degree felony-murder because the Commonwealth
did not introduce any evidence of lack of licensure. We agree.
What remains of this appeal, therefore, are the defendant's
arguments vis-à-vis his conviction under the theory of second
degree murder. Those arguments are: (1) whether racial
discrimination factored into jury selection or composition; (2)
whether the evidence was sufficient to permit the jury to find
beyond a reasonable doubt that he acted with malice; and (3)
whether trial counsel's failure to ask that the jury be
instructed on manslaughter constituted ineffective assistance of
counsel warranting a new trial. 3 We affirm the second degree
murder conviction.
1. Jury composition. The defendant argues that racial
discrimination affected the composition of the jury in two ways
3 Because the evidence of murder on the theory of second degree felony-murder cannot support the conviction as a consequence of Guardado I and Guardado II, there is no need to consider the defendant's argument of instructional error on that theory.
3 and that his conviction must be reversed as a result. 4 The
defendant first argues that the judge erred in allowing the
prosecutor to exercise a peremptory challenge to juror no. 74,
who was Black, without going beyond the first step of the
Batson-Soares inquiry. See Batson v. Kentucky, 476 U.S. 79
(1986); Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444
U.S. 881 (1979), overruled in part by Commonwealth v. Sanchez,
485 Mass. 491, 511 (2020). More specifically, the defendant
claims that he satisfied his burden to establish a prima facie
showing of discriminatory purpose and, accordingly, the judge
erroneously terminated the Batson-Soares inquiry prematurely,
resulting in structural error. In the alternative, the
defendant argues that we should abandon the first prong of the
Batson-Soares framework entirely. This argument has fairly
recently been rejected by the Supreme Judicial Court. See
Sanchez, 485 Mass. at 513-514 ("we do not join those States that
have eliminated entirely the first step of Batson, . . . in
accordance with our long-standing jurisprudence and the Federal
standard"). 5 Secondly, the defendant argues that the judge
4 The defendant does not challenge the process by which the venire was constituted, nor does he challenge the racial composition of the venire.
5 This court has "no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
4 should have allowed the defendant's request that the only Black
juror be removed from the random drawing to select alternate
jurors before deliberations.
a. Juror no. 74. Jury selection took place over two days
using the following process. The judge first posed broad
questions to the entire venire. The judge then called
individual prospective jurors to the sidebar, where the judge
conducted individual voir dire following up on any responses
elicited during the general questioning. The judge also
permitted counsel to ask follow-up questions. The judge then
determined whether to excuse the juror on his own initiative
and, if he did not do so, allowed the parties to challenge the
potential juror for cause. Once the jury box was filled with
qualified jurors, the judge allowed the parties to exercise
peremptory challenges. This process was then repeated as
necessary to fill any vacancies created by the exercise of
peremptory challenges.
The prospective juror at the heart of the defendant's
Batson-Soares challenge was juror no. 74. During her individual
voir dire, juror no. 74 acknowledged that she had suffered from
a drug addiction and that her son had been tried and recently
acquitted in the same court house that served as the venue for
the defendant's trial. Despite that, she stated that she could
5 be a fair and impartial juror. The prosecutor moved to
challenge juror no. 74 for cause, stating:
"she has related to the court a very fresh case right here in the Superior Court prosecuted by my office. I would suggest that she certainly would harbor some bias or prejudice towards the prosecuting office that brought her son to trial in Brockton Superior Court, particularly where it just happened Tuesday, presumably last week, here in this very courthouse."
The defendant responded that juror no. 74 was the only Black
juror, and that "her answers were all that she could be fair and
impartial to both sides." The judge declined to excuse juror
no. 74 for cause, but he remarked that "certainly the
Commonwealth can exercise a peremptory" at the appropriate time.
When that time arrived, the prosecutor as foretold peremptorily
challenged juror no. 74. Defense counsel objected, stating:
"I want to make a challenge to 74. I know there's a separate reason for this but I think that her answers stand. Her answers are that she could be fair and impartial. I think there's three, but I think under Soares I can make a challenge even though there's only one."
The judge responded that he "[didn't] think that's a pattern,"
and dismissed juror no. 74.
"The use of peremptory challenges to exclude prospective
jurors solely because of bias presumed to derive from their
membership in discrete community groups is prohibited both by
art. 12 [of the Massachusetts Declaration of Rights] and the
equal protection clause [of the Fourteenth Amendment to the
United States Constitution]" (citations omitted). Commonwealth
6 v. Ortega, 480 Mass. 603, 605 (2018). The exercise of a
peremptory challenge is presumed proper; to rebut that
presumption, "the challenging party '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.'" Commonwealth
v. Kozubal, 488 Mass. 575, 580 (2021), quoting Commonwealth v.
Jackson, 486 Mass. 763, 768 (2021). In some circumstances, "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.'"
Commonwealth v. Issa, 466 Mass. 1, 9 (2013), quoting
Commonwealth v. Prunty, 462 Mass. 295, 306 n.15 (2012). "In
determining whether a prima facie case of discriminatory purpose
has been established, a judge may consider all relevant
circumstances." Commonwealth v. Carter, 488 Mass. 191, 196
(2021), citing Batson, 476 U.S. at 96-97. These circumstances
include:
"(1) the number and percentage of group members who have been excluded from jury service due to the exercise of a peremptory challenge; (2) any evidence of disparate questioning or investigation of prospective jurors; (3) any similarities and differences between excluded jurors and those, not members of the protected group, who have not been challenged (for example, age, educational level, occupation, or previous interactions with the criminal justice system); (4) whether the defendant or the victim are members of the same protected group; and (5) the composition of the seated jury" (footnotes omitted).
7 Sanchez, 485 Mass. at 512. Once the presumption has been
rebutted, "the burden shifts to the party exercising the
challenge to provide a 'group-neutral' explanation for it. The
judge must then determine whether the explanation is both
'adequate' and 'genuine.'" (Citation omitted.) Commonwealth v.
Oberle, 476 Mass. 539, 545 (2017). Although "the possibility of
an objective, group-neutral explanation for the strike,"
Commonwealth v. Jones, 477 Mass. 307, 322 (2017), is more
properly applicable at the second and third stages of the
Batson-Soares framework, "a readily apparent, group-neutral
reason that already has been raised by the striking party in a
for-cause challenge . . . might cut against an inference of
discriminatory intent." Sanchez, supra at 513 n.17. "An
appellate court reviews the trial judge's decision to allow the
juror to be struck for abuse of discretion." Jones, supra at
319-320.
The defendant correctly argues that he was not required to
prove a pattern of exclusion to establish a prima facie case
that a discriminatory purpose was behind the Commonwealth's
peremptory challenge to juror no. 74. 6 See Kozubal, 488 Mass. at
6 The judge's explanation for ending the Batson-Soares inquiry at the first stage on the ground that he didn't "think that's a pattern" does not reflect current jurisprudence. The specific language of Soares, 377 Mass. at 490, requiring defendants to
8 580 ("The issue is not whether there is a pattern of improper
challenges, but whether a single challenge is based
impermissibly on a juror's membership in a protected group").
And we acknowledge that certain circumstances surrounding juror
no. 74 could support an inference of discriminatory intent,
including that the defendant and juror no. 74 are both Black,
and that juror no. 74 was the only Black prospective juror
seated in the jury box when the peremptory challenge was
exercised.
But even at the first stage of Batson-Soares, the judge was
permitted to consider the prosecutor's previously stated race-
neutral explanation for seeking to have juror no. 74 struck for
cause: the same district attorney's office had tried juror no.
74's son in the same court house only one week before the
defendant's trial, and the prosecutor was concerned the juror
would hold resulting bias against the prosecutor's office. The
defendant does not now, nor did he contemporaneously, contest
show that "a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group" to make a prima facie case was retired six years after the defendant's trial. See Sanchez, 485 Mass. at 511. Nevertheless, the Supreme Judicial Court explained in Sanchez that it had previously "made the two-part first-step inquiry of Soares, which predated Batson, conform to Federal usage," and explicitly adopted the Federal language: "the presumption of propriety is rebutted when the totality of the relevant facts gives rise to an inference of discriminatory purpose" (quotation and citation omitted). Sanchez, 485 Mass. at 511.
9 the legitimacy of the prosecutor's given explanation. Moreover,
the record in no way suggests that juror no. 74 faced any
disparate questioning or inquiry during individual voir dire, or
that she was treated differently from any other prospective
juror with a similar experience or connection with the district
attorney's office. 7 In addition, juror no. 74 was not the only
Black member of the venire.
Considering the relevant circumstances in their totality,
the judge did not abuse his discretion by ending the Batson-
Soares inquiry at the first stage, thereby allowing the
prosecutor's peremptory challenge to juror no. 74 without first
repeating her race-neutral reasons for doing so.
b. Juror no. 34. General Laws c. 234A, § 68
"requires that, to select an alternate juror, 'the court shall direct the clerk to place the names of all of the available jurors except the foreperson into a box or drum and to select at random the names of the appropriate number of jurors necessary to reduce the jury to the proper number of members required for deliberation in the particular case.'" 8
7 Arguing otherwise, the defendant points to juror no. 24, who the prosecutor did not challenge despite her brother's drug- related arrest. Juror no. 24's brother, however, was arrested twenty-five years before the defendant's trial. She was not similarly situated to juror no. 74, whose son had been acquitted a week prior.
8 The judge prudently empanelled sixteen jurors at the outset of this multi-day murder trial. See G. L. c. 234A, § 68 ("In every twelve-person jury case, the court shall impanel at least two additional jurors").
10 Commonwealth v. Santa Maria, 97 Mass. App. Ct. 490, 498 (2020),
quoting G. L. c. 234A, § 68. The judge followed the mandated
statutory procedure. Nonetheless, the defendant argues error,
on the ground that the judge erred as a matter of law by not
asking the prosecutor if she would stipulate to excluding juror
no. 34 (who was Black) from the random draw. 9
Juror no. 34 was selected during the second day of jury
selection over the prosecutor's peremptory challenge. 10 As the
9 The defendant's argument relies on the last sentence of § 68, see G. L. c. 234A, § 68 ("Nothing in this section shall prevent the court from entering a valid judgment based . . . upon procedures other than that specified in this section where all parties have by stipulation agreed to such . . . procedures"), as well as a footnote in Santa Maria, 97 Mass. App. Ct. at 498 n.12. Contrary to the defendant's suggestion, however, Santa Maria does not favor or encourage deviations from the statutorily mandated procedure for selecting alternate jurors. Rather, Santa Maria explicitly cautions against "the use of nonrandom procedures." Id. at 499. The defendant's argument, which, if adopted, would encourage judges to ask if parties would stipulate to which jurors should (or should not) be considered for alternate selection to ensure specific demographic representation would not "promote public confidence in the administration of justice," id., nor does it find support in this Commonwealth's case law. See, e.g., Commonwealth v. Arriaga, 438 Mass. 556, 562 (2003) ("a requirement that each jury include members of every group in the community is impracticable"); Commonwealth v. Mora, 82 Mass. App. Ct. 575, 579 (2012) ("there is no right to the particular impartial jurors [who] the [defendant] speculates may be most favorably disposed to his defense" [quotation omitted]).
10The defendant made a Batson-Soares objection to the peremptory challenge of juror no. 34, referencing his earlier challenge to juror no. 74 as the basis. The judge stated that,
11 case was to be submitted to the jury, the judge instructed the
clerk to reduce the number of deliberating jurors to twelve.
Before the clerk randomly selected the alternate jurors, the
defendant requested that the judge eliminate juror no. 34 from
alternate consideration "given the racial composition of the
jury." The judge responded that "[i]t's not my practice to fool
around with the system. I don't think there is any statutory
authority and I'm not going to do it. I note your objection."
Juror no. 34 was then randomly selected as an alternate juror
and did not deliberate on the outcome of the case. There was no
error of law; the judge precisely followed the prescribed
statutory procedure in selecting alternate jurors.
"there are two other potential jurors that haven't been called. There is one African American in the jury box. One African American has been challenged. Very few African Americans in this pool. And I make the finding under Soares that there's been a pattern of exclusion of African American, blacks, on the jury."
The judge remarked that he thought the prosecutor had exercised a peremptory challenge because juror no. 34 had expressed a concern that there were very few Black people in the venire, which the judge did not think was "a basis for excluding her." The prosecutor responded that the peremptory challenge was due to juror no. 34's admission that juror no. 34 was attending Alcoholics Anonymous and was in therapy for addiction-related issues, and suggested that juror no. 34 had "a bias and a prejudice against the process itself." The judge did not accept the prosecutor's stated reasons, reiterated that juror no. 34 could be a fair and impartial juror, and overruled the peremptory challenge.
12 2. Sufficiency of the evidence. The defendant argues that
the evidence was insufficient to permit the jury to find beyond
a reasonable doubt that he acted with malice. We disagree. 11
"In assessing the sufficiency of the evidence, we consider
'whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.'"
Commonwealth v. Davis, 487 Mass. 448, 462 (2021), quoting
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "Proof of
the essential elements of the crime may be based on reasonable
inferences drawn from the evidence, . . . and the inferences a
jury may draw need only be reasonable and possible and need not
be necessary or inescapable" (citation omitted). Commonwealth
v. Kapaia, 490 Mass. 787, 791 (2022). "A conviction of murder
in the second degree requires proof, beyond a reasonable doubt,
that a defendant committed an unlawful killing with 'malice'"
(citation omitted). Commonwealth v. Fahey, 99 Mass. App. Ct.
304, 307 (2021).
"Malice can be established by proving any of three facts, or 'prongs': (1) the defendant intended to cause the
11The defendant filed a motion for a required finding of not guilty at the close of the Commonwealth's presentation of evidence, renewing that motion at the close of all evidence, but those motions were limited to the charge of murder in the first degree. The defendant did not challenge the sufficiency of the evidence with respect to second degree murder until his postconviction motion to set aside the verdict or, in the alternative, for a new trial.
13 victim's death; (2) the defendant intended to cause grievous bodily harm to the victim; or (3) the defendant committed an intentional act which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death."
Commonwealth v. Earle, 458 Mass. 341, 346 (2010).
The evidence permitted the jury to find the following. On
June 2, 2011, the victim and his brother picked up a friend from
his home in Brockton. The brother was driving, the victim sat
in the front passenger's seat, and the friend sat in the
backseat on the passenger's side. The trio drove to nearby 33
Harvard Street, intending to purchase 200 Percocet pills from
the defendant, from whom they had purchased 100 Percocet pills
on a prior occasion.
Upon arriving at 33 Harvard Street, the brother parked in a
parking lot at the end of a long driveway, leaving the vehicle
running while awaiting the defendant. The defendant entered the
vehicle and immediately pulled out a gun, cocked it, pointed it
at the victim's head at close range, and demanded that the
others "give [him] all their shit." The friend asked the
defendant if he was serious, then quickly rushed out of the car.
The victim told the defendant that he was not getting anything
and screamed at his brother to drive. The brother hesitated at
first, but complied at the victim's continued urging. The
brother tried to swerve the car to "get the gun off my brother's
head," which caused him to drive the car into a tree, at which
14 point the brother heard one gunshot. The brother saw the
defendant hopping over a fence; the victim was slouched down,
with "blood gushing out" of his head. The victim died from his
wounds several hours later. 12
The defendant, citing Commonwealth v. Colas, 486 Mass. 831,
837 (2021), contends that an intent to kill cannot be inferred
solely from the act of pointing a gun at another person. But
viewing the evidence in the light most favorable to the
Commonwealth, the defendant did not merely point a gun at the
victim -- he intentionally pointed a loaded, cocked gun at the
victim's head at close range immediately upon entering an
enclosed space with the intent to commit a robbery. A
reasonable jury could find that the defendant exhibited an
intent to kill the victim by readying the firearm he was
pointing at the victim's head such that it "could be fired at
any moment." Commonwealth v. Tavares, 471 Mass. 430, 436
(2015).
Moreover, the same action created a plain and strong
likelihood of death. See Commonwealth v. Childs, 445 Mass. 529,
533 (2005) ("cocking a loaded gun and pointing it into a car in
which three people are seated creates a plain and strong
likelihood of death"). To put it mildly, the defendant's action
12 The victim was also shot in his left thigh.
15 posed an obvious risk, and a jury could reasonably infer the
defendant acted with malice, thus sustaining the defendant's
conviction for murder in the second degree.
3. Ineffective assistance of counsel. Finally, the
defendant argues that his motion for a new trial should have
been allowed because his trial counsel was ineffective for
failing to request jury instructions on both voluntary and
involuntary manslaughter. "On appeal from a ruling on a motion
for a new trial, we review for 'a significant error of law or
other abuse of discretion.'" Commonwealth v. Harris, 101 Mass.
App. Ct. 308, 311 (2022), quoting Commonwealth v. Grace, 397
Mass. 303, 307 (1986). We agree with, and have little to add
to, the motion judge's analysis that no reasonable view of the
evidence presented at trial supported giving a jury instruction
on either voluntary or involuntary manslaughter.
"Under the familiar Saferian test, a defendant is denied
constitutionally effective assistance of counsel if the
representation fell 'measurably below that which might be
expected from an ordinary fallible lawyer,' and that the
performance inadequacy 'likely deprived the defendant of an
otherwise available, substantial ground of defence.'"
Commonwealth v. Kolenovic, 471 Mass. 664, 673 (2015), quoting
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Failure to
request an instruction to which the defendant is not entitled
16 does not constitute ineffective assistance of counsel. See,
e.g., Commonwealth v. DeMarco, 444 Mass. 678, 685 (2005);
Commonwealth v. Moore, 92 Mass. App. Ct. 40, 49 (2017).
"A manslaughter instruction is required if the evidence,
considered in the light most favorable to a defendant, would
permit a verdict of manslaughter and not murder. Voluntary
manslaughter is an unlawful killing arising not from malice, but
from sudden passion induced by reasonable provocation, sudden
combat, or excessive force in self-defense" (quotations and
citations omitted). Commonwealth v. Garcia, 482 Mass. 408, 410-
411 (2019). The uncontroverted testimony, even in the light
most favorable to the defendant, was that the defendant was the
aggressor from the moment he entered the vehicle, cocked his
firearm, and held it to the victim's head. The defendant's
theory of the case -- that the victim and his brother provoked
the defendant, who was trapped in an errantly driven vehicle and
acted either in self-defense or by accident -- is purely
speculative and uncorroborated by the evidence. The defendant
was not entitled to an instruction based "on a hypothesis not
supported by the evidence" (citation omitted). Commonwealth v.
Pina, 481 Mass. 413, 422 (2019).
The same rationale applies to the defendant's argument that
he was entitled to an involuntary manslaughter instruction.
17 "An instruction on involuntary manslaughter is required where any view of the evidence will permit a finding of manslaughter and not murder. When it is obvious, however, that the risk of physical harm to the victim created a plain and strong likelihood that death will follow, an instruction on involuntary manslaughter is not required" (citations omitted).
Commonwealth v. Pierce, 419 Mass. 28, 33 (1994). We need go no
further than to observe that the defendant's decision to ready a
loaded firearm and aim it at the victim's head created a plain
and strong likelihood that death would result and that, as a
result, he was not entitled to an instruction on involuntary
manslaughter.
Conclusion. Although we conclude that the evidence was
insufficient to support the defendant's conviction on the theory
of felony-murder in the second degree, we affirm the defendant's
judgment of conviction on the theory of murder in the second
degree. We also affirm the March 19, 2018 order denying the
defendant's motion to set aside the verdict, or for a new trial,
18 as well as the December 5, 2019 order denying the defendant's
motion to reconsider the denial of that motion.
So ordered.
By the Court (Meade, Wolohojian & Walsh, JJ. 13),
Assistant Clerk
Entered: January 19, 2024.
13 The panelists are listed in order of seniority.