Commonwealth v. Serrano

718 N.E.2d 863, 48 Mass. App. Ct. 163, 1999 Mass. App. LEXIS 1125, 1999 WL 976503
CourtMassachusetts Appeals Court
DecidedOctober 28, 1999
DocketNo. 97-P-1942
StatusPublished

This text of 718 N.E.2d 863 (Commonwealth v. Serrano) 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. Serrano, 718 N.E.2d 863, 48 Mass. App. Ct. 163, 1999 Mass. App. LEXIS 1125, 1999 WL 976503 (Mass. Ct. App. 1999).

Opinion

Greenberg, J.

Three Hispanic men were jointly tried and convicted by a jury of the Superior Court of various drug [164]*164distribution charges. One of the common errors they assign on appeal is that the government improperly exercised one of its peremptory challenges to exclude the only potential black juror, thereby depriving them of a representative jury.

1. Jury impanelment.2 On the second day of the impanelment process, the prosecutor used a peremptory challenge to strike an African-American man (juror X) from the venire. The defendant Serrano’s trial counsel objected and asked the judge to adduce a race-neutral reason for the challenge. He argued that this particular juror was the only African-American member on the venire, and one of only four minority jurors remaining (the other three were Hispanic). A lengthy colloquy followed. It began with the judge asking the prosecutor the reason she sought to remove juror X as a potential juror in the case. The prosecutor explained that absent a pattern of challenging minority members of the venire, she was not required to provide any reason for the challenge. Satisfied that there was, in fact, no such pattern, the judge did not press the prosecutor for a race-neutral reason but cautioned the prosecutor that if she challenged any more minority jurors, she would have to provide a race-neutral rationale. The impanelment concluded with no further contested challenges and, in the end, three of the twelve jurors impaneled were Hispanic.

We start with the proposition that “a peremptory challenge may not be exercised either by the Commonwealth or by the defense to exclude a juror solely on grounds of that juror’s race.” Commonwealth v. Curtiss, 424 Mass. 78, 83 (1997) (Fried, J., dissenting). However, the analysis of whether a trial judge’s acceptance or rejection of peremptory challenges deprives defendants of their constitutional right to be tried by an impartial jury, as guaranteed by arts. 12 and 15 of the Declaration of Rights of the Massachusetts Constitution, begins with the presumption that the challenge is proper. Commonwealth v. Soares, 377 Mass. 461, 489, cert. denied, 444 U.S. 881 (1979). That presumption may be rebutted by showing that there exists a pattern of conduct whereby individuals from a discrete group have been challenged and by showing that exclusion of the individuals is based on their membership in that class of persons. See id. at 489-490. A pattern of racially [165]*165motivated peremptory challenges may be established by even a single improper challenge. See Commonwealth v. Harris, 409 Mass. 461, 465 (1991); Commonwealth v. Vann Long, 419 Mass. 798, 807 (1995). Our decisions have ceded to trial judges broad discretion to determine the motives of the respective advocates. A trial judge must assess all of the attendant circumstances, including the composition of the entire venire, the past conduct of the challenging party during the jury selection procedures, the nature of the offense charged, the race of the defendant, and the race of the challenged juror. “Sorting out whether a permissible or impermissible reason underlies a peremptory challenge is the function of the trial judge, and we do not substitute our judgment for his if there is support for it on the record.” Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547, 552 (1981). See Commonwealth v. Curtiss, 424 Mass. at 82.

In the present case, trial counsel asked for a race-neutral reason for the prosecutor’s challenge because juror X was the only African-American on the venire at the. time. While “the challenge of a single prospective juror within a protected class could, in some circumstances, constitute a prima facie case of impropriety,” Commonwealth v. Fryar, 414 Mass. 732, 738 (1993), the judge made no explicit finding that the defendants had satisfied their burden of proving purposeful discrimination. See Purkett v. Elem, 514 U.S. 765, 768-769 (1995); Commonwealth v. Burnett, 418 Mass. 769, 771-772 (1994). An express finding is preferable; however, we assume from the judge’s ruling that he made an implicit finding that the defendant had not established a prima facie case of impropriety. See Commonwealth v. Mathews, 31 Mass. App. Ct. 564, 569 (1991), cert. denied sub nom. Matthews v. Rakiey, 504 U.S. 922 (1992). In his side bar remarks to both counsel, he noted that a limited number of Hispanic jurors remained on the venire and expressed concern that any further challenges of minority persons on the venire might be impermissible.

After hearing the explanation from the prosecutor concerning the removal of juror X, the judge could reasonably have felt that no set pattern of impropriety then existed, and that he had given fair warning to the prosecutor. If the peremptory challenge of juror X had left the jury with no minority jurors, a prima facie case of discrimination would have been established. Commonwealth v. Harris, 409 Mass. at 465. That never happened because at the time of the challenge the venire still [166]*166contained three Hispanic jurors. The judge was responsive to the defendant’s concern that the remaining minority members of the venire receive heightened scrutiny if they were challenged. See Commonwealth v. Soares, 377 Mass. at 489-490 (composition of remaining venire after contested challenge is a significant factor to consider in assessing whether constitutional violation has" occurred). He emphasized that “[a]ny other challenges to minority jurors would be highly suspect, in my opinion.”

In this case it is of some import that the offenses charged were not of a type that might be expected naturally to excite racial biases. The issue of jury composition requires the greatest scrutiny where defendant and victim belong to different racial groups — particularly where the crimes in question are violent or sexual in nature. Cf. Commonwealth v. Sanders, 383 Mass. 637, 638-640 (1981). Such is not the case here.

Finally, it is significant, although certainly not dispositive, that the defendants, all Hispanics, were members of a different group than the challenged juror, who was African-American. See Commonwealth v. Harris, 409 Mass. at 465-466 (emphasizing extent to which strength of inference of impropriety in challenge is bolstered where juror and defendant are same race). While it is seldom addressed directly, the issue lurking behind contested peremptory challenges usually is some notion — whether anchored in reality or not — that group solidarity among members of traditionally disempowered minorities will encourage a juror of the same racial, ethnic, or even gender group as the defendant to be more inclined to render a verdict in the defendant’s favor. These considerations are less relevant where a contested juror and defendant are not members of the same minority group. For this reason, the prosecutor’s conduct in this case was not inherently suspect.

As we have stated in this opinion, a trial judge has broad discretion to determine whether or not peremptory challenges have been used to defeat the important institutional goal of providing juries that represent fair cross-sections of the community in which a case is tried.

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Related

Purkett v. Elem
514 U.S. 765 (Supreme Court, 1995)
Commonwealth v. Harris
567 N.E.2d 899 (Massachusetts Supreme Judicial Court, 1991)
Commonwealth v. Fryar
610 N.E.2d 903 (Massachusetts Supreme Judicial Court, 1993)
Commonwealth v. DiMatteo
427 N.E.2d 754 (Massachusetts Appeals Court, 1981)
Commonwealth v. Mathews
581 N.E.2d 1304 (Massachusetts Appeals Court, 1991)
Commonwealth v. Soares
387 N.E.2d 499 (Massachusetts Supreme Judicial Court, 1979)
Commonwealth v. Sanders
421 N.E.2d 436 (Massachusetts Supreme Judicial Court, 1981)
Commonwealth v. Burnett
642 N.E.2d 294 (Massachusetts Supreme Judicial Court, 1994)
Commonwealth v. Long
647 N.E.2d 1162 (Massachusetts Supreme Judicial Court, 1995)
Commonwealth v. Gaskins
647 N.E.2d 429 (Massachusetts Supreme Judicial Court, 1995)
Commonwealth v. Tolentino
663 N.E.2d 846 (Massachusetts Supreme Judicial Court, 1996)
Commonwealth v. Curtiss
676 N.E.2d 431 (Massachusetts Supreme Judicial Court, 1997)
Commonwealth v. Fernandes
707 N.E.2d 371 (Massachusetts Appeals Court, 1999)
Matthews v. Rakiey
504 U.S. 922 (Supreme Court, 1992)

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Bluebook (online)
718 N.E.2d 863, 48 Mass. App. Ct. 163, 1999 Mass. App. LEXIS 1125, 1999 WL 976503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-serrano-massappct-1999.