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-1157
COMMONWEALTH
vs.
MARK LOVE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of the lesser included offense
of voluntary manslaughter on an indictment charging him with
second-degree murder. The defendant appeals, arguing that the
trial judge abused her discretion by permitting the Commonwealth
to exercise a peremptory challenge of a prospective juror, who
identified as a Black Jamaican woman (juror no. 30), over his
objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986),
and 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). We affirm.
Background. In April of 2018, the defendant, the victim,
and two other men were outside near the TD Garden in Boston and were drinking alcohol. All four individuals were friendly with
one another, and each had a history of homelessness. The victim
asked to borrow some money from the defendant. The defendant and
the victim subsequently engaged in a verbal argument about the
money and, according to at least one witness, the argument
became physical. The victim suffered a fatal stab wound to the
chest, and the defendant was later charged with his murder.
The defendant's case proceeded to trial. On the first day
of jury selection, the Commonwealth exercised eight peremptory
challenges. On the second day of jury selection, the
Commonwealth exercised seven peremptory challenges, including
juror no. 30. During voir dire, juror no. 30 stated that she
was employed as a certified nursing assistant. She was Black
and stated that she was born in Jamaica and had moved to the
Boston area approximately seven years ago. The judge then said
to juror no. 30, "I sense that English is your second language."
Juror no. 30 responded that English was her first language and
that she had no trouble understanding it. When asked about having
any strong feelings towards homeless people that may result in
bias, juror no. 30 explained that although she had firsthand
experience working in a homeless environment, she would be able to
maintain impartiality.
The Commonwealth exercised a peremptory challenge and
counsel for the defendant made a timely Batson-Soares objection.
2 Batson; Soares. The judge, believing the defendant had made the
requisite prima facie showing, inquired into the prosecutor's
reasoning. The prosecutor stated his reason for exercising a
peremptory challenge was that he had some difficulty
understanding juror no. 30's responses to voir dire questions
due to a "very heavy accent" and was concerned that this may
also impact juror no. 30's ability to communicate with other
jurors during deliberations. 1 The prosecutor noted that the
trial judge had inquired whether English was juror no. 30's
first language due to her accent. The prosecutor added that his
challenge was also based upon juror no. 30's employment with a
homeless shelter as this case involved members of the homeless
community, expressing his concern that juror no. 30's prior
employment may cause her to be more compassionate. In response,
the judge clarified that juror no. 30 had been employed as a
housekeeper at the Pine Street Inn, had limited interaction with
1 The prosecutor, when asked a second time to articulate his reasons for the peremptory challenge, stated the following:
"The reasons were I was having trouble understanding her. I was having -- I believe she had some difficulty on my questions that I asked her. I was concerned that when you sit on a jury and when you are listening to evidence from a lot of different people that she may have some issues not necessarily understanding, but a lot of the job once the jury is selected and goes to the deliberation room is to communicate with the other jurors. If I'm having a problem listening to her and understanding her, honestly, I think that perhaps becomes an issue when there's a deliberation on a murder case."
3 the people who were served there, and left the job to pursue her
passion of being a caretaker. The judge then heard from the
defendant's attorney who stated that he did not have any
difficulty understanding juror no. 30 and that her answers to
the questions showed she could be impartial.
The judge stated that, despite initially having difficulty
communicating with juror no. 30, she believed that juror no. 30
could understand English and commented that she would make a
"great juror." The judge then correctly stated that the
standard was not whether she agreed or disagreed that juror no.
30 should be seated as a juror, but rather her role was to
decide whether the prosecutor's stated reason for the challenge
was "adequate and genuine." The judge then heard from both
counsel and, in allowing the challenge, cited to the relevant
case law, emphasizing that the role of the trial judge was to
determine whether the proffered reason "is clear, reasonably
specific and personal to the juror rather than based on some
group affiliation . . . and that it was genuine; that is, that
is was in fact the reason for the exercise of the challenge."
The judge found that the reason was indeed adequate and genuine.
Discussion. 1. Batson-Soares framework. On appeal, the
defendant argues that the Commonwealth's peremptory challenge of
juror no. 30 was an unconstitutional race-based challenge. In a
criminal trial, a defendant is entitled to a trial by an
4 impartial jury and neither party may exercise a peremptory
challenge on the basis of race or other protected classes. See
Sanchez, 485 Mass. at 493. If there is an objection to a
peremptory challenge, the trial judge must follow a three-step,
burden shifting analysis. See Commonwealth v. Jackson, 486
Mass. 763, 768 (2021). "To rebut the presumption that the
peremptory challenge is proper, 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" (citation omitted). Commonwealth v. Kozubal, 488 Mass.
575, 580 (2021). Next, if the prima facie case has been
established, "the burden shifts to the party exercising the
challenge to provide a group neutral explanation for it." Id.
Finally, the judge must determine whether the proffered
explanation is both adequate and genuine.
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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
22-P-1157
COMMONWEALTH
vs.
MARK LOVE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of the lesser included offense
of voluntary manslaughter on an indictment charging him with
second-degree murder. The defendant appeals, arguing that the
trial judge abused her discretion by permitting the Commonwealth
to exercise a peremptory challenge of a prospective juror, who
identified as a Black Jamaican woman (juror no. 30), over his
objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986),
and 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). We affirm.
Background. In April of 2018, the defendant, the victim,
and two other men were outside near the TD Garden in Boston and were drinking alcohol. All four individuals were friendly with
one another, and each had a history of homelessness. The victim
asked to borrow some money from the defendant. The defendant and
the victim subsequently engaged in a verbal argument about the
money and, according to at least one witness, the argument
became physical. The victim suffered a fatal stab wound to the
chest, and the defendant was later charged with his murder.
The defendant's case proceeded to trial. On the first day
of jury selection, the Commonwealth exercised eight peremptory
challenges. On the second day of jury selection, the
Commonwealth exercised seven peremptory challenges, including
juror no. 30. During voir dire, juror no. 30 stated that she
was employed as a certified nursing assistant. She was Black
and stated that she was born in Jamaica and had moved to the
Boston area approximately seven years ago. The judge then said
to juror no. 30, "I sense that English is your second language."
Juror no. 30 responded that English was her first language and
that she had no trouble understanding it. When asked about having
any strong feelings towards homeless people that may result in
bias, juror no. 30 explained that although she had firsthand
experience working in a homeless environment, she would be able to
maintain impartiality.
The Commonwealth exercised a peremptory challenge and
counsel for the defendant made a timely Batson-Soares objection.
2 Batson; Soares. The judge, believing the defendant had made the
requisite prima facie showing, inquired into the prosecutor's
reasoning. The prosecutor stated his reason for exercising a
peremptory challenge was that he had some difficulty
understanding juror no. 30's responses to voir dire questions
due to a "very heavy accent" and was concerned that this may
also impact juror no. 30's ability to communicate with other
jurors during deliberations. 1 The prosecutor noted that the
trial judge had inquired whether English was juror no. 30's
first language due to her accent. The prosecutor added that his
challenge was also based upon juror no. 30's employment with a
homeless shelter as this case involved members of the homeless
community, expressing his concern that juror no. 30's prior
employment may cause her to be more compassionate. In response,
the judge clarified that juror no. 30 had been employed as a
housekeeper at the Pine Street Inn, had limited interaction with
1 The prosecutor, when asked a second time to articulate his reasons for the peremptory challenge, stated the following:
"The reasons were I was having trouble understanding her. I was having -- I believe she had some difficulty on my questions that I asked her. I was concerned that when you sit on a jury and when you are listening to evidence from a lot of different people that she may have some issues not necessarily understanding, but a lot of the job once the jury is selected and goes to the deliberation room is to communicate with the other jurors. If I'm having a problem listening to her and understanding her, honestly, I think that perhaps becomes an issue when there's a deliberation on a murder case."
3 the people who were served there, and left the job to pursue her
passion of being a caretaker. The judge then heard from the
defendant's attorney who stated that he did not have any
difficulty understanding juror no. 30 and that her answers to
the questions showed she could be impartial.
The judge stated that, despite initially having difficulty
communicating with juror no. 30, she believed that juror no. 30
could understand English and commented that she would make a
"great juror." The judge then correctly stated that the
standard was not whether she agreed or disagreed that juror no.
30 should be seated as a juror, but rather her role was to
decide whether the prosecutor's stated reason for the challenge
was "adequate and genuine." The judge then heard from both
counsel and, in allowing the challenge, cited to the relevant
case law, emphasizing that the role of the trial judge was to
determine whether the proffered reason "is clear, reasonably
specific and personal to the juror rather than based on some
group affiliation . . . and that it was genuine; that is, that
is was in fact the reason for the exercise of the challenge."
The judge found that the reason was indeed adequate and genuine.
Discussion. 1. Batson-Soares framework. On appeal, the
defendant argues that the Commonwealth's peremptory challenge of
juror no. 30 was an unconstitutional race-based challenge. In a
criminal trial, a defendant is entitled to a trial by an
4 impartial jury and neither party may exercise a peremptory
challenge on the basis of race or other protected classes. See
Sanchez, 485 Mass. at 493. If there is an objection to a
peremptory challenge, the trial judge must follow a three-step,
burden shifting analysis. See Commonwealth v. Jackson, 486
Mass. 763, 768 (2021). "To rebut the presumption that the
peremptory challenge is proper, 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" (citation omitted). Commonwealth v. Kozubal, 488 Mass.
575, 580 (2021). Next, if the prima facie case has been
established, "the burden shifts to the party exercising the
challenge to provide a group neutral explanation for it." Id.
Finally, the judge must determine whether the proffered
explanation is both adequate and genuine. See Sanchez, supra at
493. A party's explanation is considered adequate if it is
"clear and reasonably specific" and "personal to the juror and
not based on the juror’s group affiliation." Jackson, supra at
779, quoting Commonwealth v. Maldonado, 439 Mass. 460, 464-465
(2003). "An explanation is genuine if it is in fact the reason
for the exercise of the challenge." Jackson, supra.
We review a judge's decision regarding a peremptory
challenge for an abuse of discretion. See Jackson, 486 Mass. at
5 768. "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 omitted). Commonwealth v. Rosa-Roman, 485
Mass. 617, 636 (2020).
2. The peremptory challenge of juror no. 30. The parties
agree that the question before us is whether the judge abused
her discretion in the third step of this analysis: whether the
proffered explanation was both adequate and genuine. As stated
earlier, one of the prosecutor's reasons for exercising a
peremptory challenge was that the prosecutor had some difficulty
understanding juror no. 30's responses to voir dire questions
and was concerned that this may also impact juror no. 30's
ability to communicate with other jurors during deliberations.
The judge thoroughly examined the reasons offered for the
challenge and conducted an in-depth examination of the challenge
to juror no. 30. The judge engaged with counsel at side bar,
and although the judge initially considered whether she herself
believed juror no. 30 would make a good juror, she soon turned
back to the correct question: whether the prosecutor's
reasoning was adequate and genuine. The judge concluded that
the prosecutor's reason for exercising the peremptory challenge
was both adequate and genuine. This conclusion was not an abuse
of discretion.
6 The prosecutor's expressed concern over juror no. 30's
ability to speak and understand English was detailed and
specific, and was, in fact, also a concern that the trial judge
initially shared. Moreover, the judge did not automatically
accept the prosecutor's reason for challenging juror no. 30.
Instead, the judge independently evaluated through questioning
whether the reason was "bona fide or a pretext." Jackson, 486
Mass. at 63. We note that one of the prosecutor's reasons for
challenging juror no. 30, her employment with a homeless
shelter, was quickly dismissed by the trial judge. However,
because more than one reason was offered to support the
peremptory challenge, the judge properly analyzed both reasons,
and found the prosecutor's concern about juror no. 30's ability
to communicate was genuine and adequate. We see no abuse of
discretion in the judge's determination, after thoughtful
7 consideration, that the prosecutor's reasoning was both adequate
and genuine.
Judgment affirmed.
By the Court (Vuono, Rubin & Walsh, JJ. 2),
Clerk
Entered: June 26, 2024.
2 The panelists are listed in order of seniority.