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-219
COMMONWEALTH
vs.
TERRANCE MONTGOMERY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals his judgments of conviction, after a
jury trial, of murder in the second degree, G. L. c. 265, § 1,
unlicensed possession of a firearm, G. L. c. 269, § 10 (a), and
unlicensed possession of a loaded firearm, G. L. c. 269, § 10
(n), as well as the denial of his motion for a new trial. He
raises five arguments on appeal. First, he argues that
questioning prospective jurors about whether they would be
willing to convict a defendant without scientific or forensic
evidence resulted in a jury predisposed to conviction, violating
his right to a fair trial by an impartial jury, and that his
counsel's failure to object to this question deprived him of
effective assistance of counsel. Second, he argues that the
prosecutor improperly used a document to refresh a witness's
recollection without first establishing that her memory was exhausted. Third, the defendant argues that defense counsel was
ineffective by failing to object to the racial composition of
the jury. Fourth, he argues that his counsel was ineffective in
failing to object to a statement in the prosecutor's closing
argument relating to the trajectory of the bullet. Finally, he
argues that the trial judge should have struck a witness's
direct testimony after she invoked her Fifth Amendment privilege
against self-incrimination during cross-examination. The
defendant sought a new trial for all these reasons except the
second and fifth ones, but after an evidentiary hearing, his
motion was denied by the trial judge. We conclude that none of
the defendant's arguments merit reversal of the convictions or a
new trial. However, based on Commonwealth v. Guardado, 493
Mass. 1 (2023) (Guardado II), and Commonwealth v. Guardado, 491
Mass. 666 (2023) (Guardado I), we vacate the defendant's two
firearm convictions.1 We affirm the judgment of conviction of
1 Guardado I was decided shortly after oral argument in this case. In light of that decision, we stayed this appeal. After Guardado II was decided, we solicited and received a joint status report from the parties in which they agreed that the firearm convictions should be vacated as a result of the decision in Guardado II. We agree with the parties' assessments that the judgments of conviction should be vacated. We do not agree, however, with the parties' view that we should ourselves order a new trial on the firearm charges. It is the Commonwealth's prerogative to decide whether to retry those charges.
2 murder in the second degree and the order denying the motion for
a new trial.
1. Juror voir dire. Before trial, both the Commonwealth
and the defendant submitted proposed questions to be asked
through attorney-conducted voir dire. As pertinent here, the
Commonwealth sought to ask prospective jurors whether they
"would have difficulty convicting someone of a crime without
forensic evidence such as DNA, Fingerprints, etc.?" and whether
they could "find someone guilty of a crime based solely upon
witness testimony if you found the witnesses credible and
believable?" The judge permitted inquiry into this so-called
"CSI effect." As a result, although the precise wording of each
question was not identical,2 each prospective juror was asked
2 Examples of the different phrasing used during the questioning of jurors who sat on the defendant's jury are:
"And in this case[,] the evidence will primarily come from eyewitnesses rather than DNA or fingerprints. Would you have trouble convicting somebody of a serious crime without DNA or fingerprint evidence?
"And in this case[,] the primary evidence will come from eyewitnesses rather than DNA or fingerprints, forensic evidence. Would you be able to convict somebody of a crime without DNA or fingerprint evidence?
"And in this particular case[,] the majority of the evidence will come from eyewitnesses rather than DNA or fingerprints, forensic evidence. Would you be able to convict somebody of a serious crime without DNA or fingerprint evidence if you found the other evidence credible?
3 some variation of the question that included the word "convict."
The defendant argues that he was deprived of his right to a fair
jury because the questioning committed the empaneled jurors to a
verdict before the trial began. The judge did not abuse his
discretion when he rejected this claim.
"Article 12 of the Massachusetts Declaration of Rights and
the Sixth Amendment to the Constitution guarantee a criminal
defendant the right to a trial before an impartial jury."
Commonwealth v. Philbrook, 475 Mass. 20, 30 (2016). "[P]art of
the guarantee of a defendant's right to an impartial jury is an
adequate voir dire to identify unqualified jurors" (citation
omitted), Commonwealth v. Steeves, 490 Mass. 270, 284 (2022),
but the scope of voir dire "is in the sound discretion of the
trial judge" (citation omitted), Commonwealth v. Dabney, 478
Mass. 839, 848 (2018). During voir dire, "[t]he judge's duty is
to 'examine jurors fully regarding possible bias or prejudice
where it appears that there is a substantial risk that jurors
may be influenced by factors extraneous to the evidence
presented to them.'" Commonwealth v. Perez, 460 Mass. 683, 688
(2011), quoting Commonwealth v. Garuti, 454 Mass. 48, 52 (2009).
The Supreme Judicial Court has questioned the "need for
voir dire questions designed to counter any 'CSI effect,'"
"And would you be able to convict somebody of a serious crime based solely on eyewitness identification?"
4 describing it as a largely speculative theory. Commonwealth v.
Gray, 465 Mass. 330, 338-339, cert. denied, 571 U.S. 1014
(2013). "CSI effect" questions "should be posed sparingly," id.
at 339, and "it may prove difficult to frame [such a] question
in a way that jurors can fully comprehend," Perez, 460 Mass. at
691 n.13. Nevertheless, such questions do not provide a basis
for disturbing a verdict, Gray, supra at 339, if they "suggested
to potential jurors that they should evaluate fairly the
evidence introduced at trial," "did not commit the jury to a
verdict in advance," and "did not have the effect of creating a
jury comprised only of individuals predisposed to convicting the
defendant," id. at 340, such as the question in Gray, supra at
337 ("Would the absence of DNA or fingerprint evidence prevent
you from fairly evaluating the evidence in this case?"). See,
e.g., Commonwealth v. Brown, 490 Mass. 171, 189 n.5 (2022) ("Do
you think you would need to have forensic science to make a
decision on a criminal case?"); Commonwealth v. Andrade, 468
Mass. 543, 546-547 (2014) ("Would the fact that you will not
hear eyewitness testimony to the actual shooting in and of
itself prevent you from finding the defendant guilty if the
Commonwealth, through circumstantial evidence, is able to
convince you beyond a reasonable doubt of the defendant's
guilt?"). Contrast Charles v. State, 414 Md. 726, 736, 739
(2010) (asking jurors if they were "currently of the opinion or
5 belief that you cannot convict a defendant without 'scientific
evidence,' regardless of the other evidence in the case,"
improper because it "suggested that the jury's only option was
to convict").
The voir dire questions at issue here "could have been
better and more neutrally phrased," Brown, 490 Mass. at 191, by
avoiding the word "convict" or any variant of it. Nonetheless,
the defendant's argument fails because he has not demonstrated
that the question led to the selection of a biased jury or one
predisposed to convict him.3 See Commonwealth v. Curran, 488
Mass. 792, 795 (2021). Contrary to the defendant's argument,
absent any suggestion of bias among the jurors who decided the
defendant's case, the fact that equally impartial jurors were
excused is not enough to show prejudice, because "the
presumption is that that individual was replaced by another fair
and impartial juror." Commonwealth v. Williams, 481 Mass. 443,
454 (2019) (no prejudice shown when "defendant has not argued
that any member of the jury that ultimately convicted him was
biased"). The defendant was entitled to a fair and impartial
3 At oral argument, the defendant argued for the first time that he should not be required to show prejudice as the voir dire question constituted structural error. This proposition has been rejected by the Supreme Judicial Court. See Commonwealth v. Hampton, 457 Mass. 152, 163 (2010) (the defendant "must show bias. The process by which the jury were selected does not necessarily determine whether there has been structural error").
6 jury, not to one of his choice. See Taylor v. Louisiana, 419
U.S. 522, 538 (1975).
Deciding this issue as we do, the defendant's argument that
trial counsel was ineffective for failing to object to the voir
dire question also fails. See Commonwealth v. Randolph, 438
Mass. 290, 296 (2002) ("when a defendant alleges that his
failure to preserve an issue for appeal stems from ineffective
assistance of counsel, as this defendant has, we do not evaluate
the ineffectiveness claim separately").
2. Refreshed recollection. The defendant argues that the
prosecutor should not have used a document containing a
witness's prior statement to police to refresh her recollection
without first establishing that her memory on the subject had
been exhausted. The defendant is correct that a witness's
recollection may be refreshed only on a "showing that the
witness's memory is clearly exhausted," and the Commonwealth
concedes that the prosecutor did not lay the proper foundation
here. Commonwealth v. Sun, 490 Mass. 196, 214 (2022), quoting
Commonwealth v. O'Brien, 419 Mass. 470, 478 (1995). See Mass.
G. Evid. § 612(a) (2019). Accordingly, we review to determine
whether the error "created a substantial risk of a miscarriage
of justice." Commonwealth v. Pagan, 471 Mass. 537, 546, cert.
denied, 577 U.S. 1013 (2015). We conclude that it did not.
7 Three separate witnesses (including the witness whose
recollection was refreshed) testified that the defendant pulled
out a gun, pointed it at the victim, and shot him. In this
broad sense, the witness's testimony was cumulative of the
central testimony of the other eyewitnesses. Commonwealth v.
Pires, 97 Mass. App. Ct. 480, 488 (2020) (no substantial risk of
miscarriage of justice where improperly-admitted testimony was
"cumulative of other evidence at trial, evidence that was
overwhelming, at least on the central issues underlying the
question of the defendant's guilt"). It is true that the
witness's testimony differed with respect to the direction the
victim was facing when he was shot, and it was on this point
that her memory was refreshed.4 But that point was tangential to
the crux of the inquiry for the jury. Moreover, the
inconsistency gave the defendant an additional basis to argue in
closing the witnesses should not be credited -- which was the
central theme of the defense. Finally, the evidence of guilt
was strong and one-sided. Indeed, no alternate theory for the
killing was argued or suggested at trial; the defense was based
only on attacking the credibility of the Commonwealth's
witnesses -- a defense which, as we have already noted, was
4 The two other witnesses did not say (nor were they asked) whether the victim "turned back around" to the defendant before he was shot.
8 strengthened by the inconsistency created by the refreshed
testimony. Taken in the context of the case as a whole, we
conclude that no substantial risk of a miscarriage of justice
resulted from refreshing the witness's recollection with her
prior statement without first establishing that her memory was
exhausted. See Commonwealth v. Miranda, 22 Mass. App. Ct. 10,
21 (1986).
3. Racial composition of venire and jury. The defendant,
who is Black, argues that his right to a jury drawn from a fair
cross section of the community was violated, premised on an
assertion that the jury (which was all white)5 was selected from
a venire that did not adequately represent a fair cross section
of the community. Specifically, the defendant argues that "non-
whites were not fairly and reasonably represented." For
support, the defendant offers demographic information of the
venire, and a side comment made by the trial judge during jury
selection.6 We agree with the judge in his conclusion that the
5 One member of the jury, who was randomly selected to be an alternate and did not participate in deliberations, identified her race as "other" and her ethnicity as Hispanic.
6 After a prospective juror expressed "I do have a concern because I look at the jury and there's not a man of color on the jury," the judge noted "[t]his is now the second time in the past month I've heard this particular comment expressed by a juror."
9 record does not support the defendant's claim of
unconstitutional underrepresentation.
"A defendant is entitled to a jury selection process free
from discrimination against groups in the community," under both
the Sixth and Fourteenth Amendments to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights. Commonwealth v. Arriaga, 438 Mass. 556, 561-562 (2003).
The Supreme Judicial Court has nevertheless "recognized that a
requirement that each jury include members of every group in the
community is impracticable. . . . Instead, what both parties
are constitutionally entitled to expect is a petit jury that is
as near an approximation of the ideal cross-section of the
community as the process of random draw permits" (citation and
quotation omitted). Id. at 562.
"To establish a prima facie case of unconstitutional jury selection . . ., the defendants must show that (1) the group allegedly discriminated against is a 'distinctive group' in the community, (2) that the group is not fairly and reasonably represented in the venires in relation to its proportion of the community, and (3) that underrepresentation is due to systematic exclusion of the group in the jury selection process." Id. at 562-563.
It is undisputed that Black persons comprise a "distinctive
group" in Hampden County, see, e.g., Commonwealth v. Mcfarlane,
102 Mass. App. Ct. 264, 270 (2023), but the defendant's argument
that "non-white" persons constitute a distinctive group lacks
10 the same legal support.7 Cf. Commonwealth v. Sanchez, 79 Mass.
App. Ct. 189, 193, cert. denied, 565 U.S. 948 (2011), S.C., 485
Mass. 491 (2020) ("Although [t]here is no dispute that Hispanic
persons [like African-Americans] are members of a racial or
ethnic group protected under art. 1 of the Declaration of
Rights, we are not aware of any authority requiring a trial
judge to combine challenges to members of discrete racial or
ethnic groups into one 'catch all' category [citations and
quotation omitted]); Gray v. Brady, 592 F.3d 296, 306 (1st
Cir.), cert. denied, 561 U.S. 1015 (2010) (doubting "whether
['minorities' or 'non-whites'] possess[] the definable quality,
common thread of attitudes or experiences, or community of
interests essential to recognition as a 'group'").
Moreover, the defendant has only submitted complete
demographic information of the jury pools on the days his jury
was selected, "an unacceptably small sample for the purpose of
7 Even were we to recognize "non-whites" as a distinctive group for the purposes of evaluating the defendant's claim, there are significant flaws in the methodology the defendant uses to determine the proportion of "non-white" Hampden County residents. Using census data, the defendant added together those who identified as Black and those who identified as Hispanic, without including any other respondents identifying as a race other than white. The defendant also neglected to consider that many individuals identify as both Black and Hispanic, thus double counting any respondent so identifying. See Commonwealth v. Bastaldo, 472 Mass. 16, 28 (2015) ("Ethnicity is generally distinct from race; for instance, a person who identifies as Hispanic may be of any race").
11 any statistical showing of underrepresentation." Arriaga, 438
Mass. at 564. "A defendant must present evidence of a
statistically significant sample, usually requiring analysis of
the composition of past venires." Id. The defendant has not
provided us with such an analysis. The defendant attempts to
remedy this defect by pointing to the judge's anecdotal comment
during jury selection that a potential juror in a previous trial
had remarked that it looked to them as though there were no men
of color on the jury. But this anecdotal information is also
insufficient to establish a statistically significant disparity,
and "visual observations alone are not a reliable guide to the
true makeup of a jury venire." Commonwealth v. Tolentino, 422
Mass. 515, 520 (1996). The judge expressed neither agreement
nor disagreement with that previous juror's comment.
The defendant has not satisfied the absolute disparity test
used "to determine whether underrepresentation of a group is
substantial." Arriaga, 438 Mass. at 565. The census data
provided by the defendant states the percentage of Hampden
County residents identifying as Black at 10.9 percent. Of the
132 members of the venire, nine identified as Black, a
percentage of 6.81 percent. "To calculate absolute disparity,
the percentage of a group's population in the jury venire is
subtracted from the percentage of the group's population in the
community." Id. A disparity below ten percent generally does
12 not support a claim of constitutional violation -- the absolute
disparity here is 4.09 percent. See id. (disparity of 4.04
percent insufficient to support underrepresentation claim).
What remains is the defendant's argument that trial counsel
was ineffective for failing to object to the all-white jury.
Trial counsel submitted an affidavit stating that the lack of
objection was a matter of deliberate trial strategy. More
specifically, trial counsel averred that based on his
experience, his view was that Black jurors from the same urban
area tend to be harder on defendants because of the high rate of
crime, especially involving firearms, in Springfield. A
tactical decision by trial counsel is considered ineffective
assistance only if such a decision was manifestly unreasonable
when made. See Commonwealth v. Diaz, 448 Mass. 286, 288 (2007).
The judge did not err in concluding that the defendant had not
met that standard here.
4. Closing argument. The defendant also argues that
counsel was ineffective for failing to object to what he
characterizes as the prosecutor's own expert opinion offered
during closing argument. Specifically, the defendant challenges
the prosecutor's statement: "when somebody turns to walk away
and then somebody yells back at them and you turn back, you
lower your head a little bit. Just natural. Human instinct.
13 So whether they were the same height or taller or shorter
doesn't matter."
Prosecutors may argue "forcefully for a conviction based on
the evidence and on inferences that may reasonably be drawn from
the evidence" (citation omitted), Commonwealth v. Carriere, 470
Mass. 1, 19 (2014), but they may not "misstate the evidence or
refer to facts not in evidence" (citation omitted), Commonwealth
v. Martinez, 476 Mass. 186, 200 (2017). "We consider the
prosecutor's remarks 'in the context of the entire argument, and
in light of the judge's instructions to the jury and the
evidence at trial.'" Commonwealth v. Johnson, 102 Mass. App.
Ct. 195, 203 (2023), quoting Martinez, supra.
Here, taken in context, the prosecutor's statement was not
offering an expert opinion so much as inviting the jury to draw
on their own experiences with the physical reactions of human
beings, a matter well within their "experience and common
knowledge." Commonwealth v. Ridge, 455 Mass. 307, 330 (2009).
In addition, the trial judge instructed -- on three separate
occasions -- that closing statements were not evidence for the
jury to consider, negating any risk of a miscarriage of justice
that would justify a new trial. See, e.g., Commonwealth v.
Fernandes, 478 Mass. 725, 743 (2018) (jurors presumed to follow
instructions).
14 5. Direct testimony. The defendant's final argument is
that his right to confront the witnesses against him was
violated by the trial judge's decision not to strike the
entirety of a witness's direct testimony after she invoked her
Fifth Amendment rights on cross-examination. Because the
defendant objected below, "[w]e must determine, first, whether
the defendant's constitutional rights were violated, and,
second, if a violation is found, whether reversal is warranted
because the error was not harmless beyond a reasonable doubt."
Commonwealth v. Vardinski, 438 Mass. 444, 450 (2003).
The witness testified under a cooperation agreement, but
without immunity from prosecution. During cross-examination,
she invoked her Fifth Amendment rights when questioned about the
criminal charges that were brought against her for taking her
neighbor's cell phone immediately after the shooting. The
neighbor's husband had used the phone to film the partygoers
fleeing after the shooting took place.
When the judge asked defense counsel what he hoped to
elicit by asking the witness about the theft of the cell phone,
counsel responded that "it goes to her bias and to her motives
to lie." He also stated that "[t]his isn't some unrelated
crime. This all happened in one event," and that "it hasn't
come out yet but it will come out that she despises [the
defendant] so she didn't steal the phone to protect him." The
15 defendant's motion was denied; counsel was not allowed to
continue examining the witness about the robbery, but fulsome
cross-examination continued about the shooting, the cooperation
agreement, and the witness's feelings toward the defendant.
"Both the Sixth Amendment and art. 12 guarantee a criminal
defendant's right to confront the witnesses against him through
cross-examination. . . . The right to confrontation guarantees
that, in most circumstances, a criminal defendant as a matter of
right may cross-examine the prosecution's witnesses."
Commonwealth v. Miles, 420 Mass. 67, 71 (1995). "[R]efusal to
answer the cross-examiner's questions may so distort the fact-
finding process that the Constitution compels a remedy. Some or
all of the direct testimony may be struck." Commonwealth v.
Funches, 379 Mass. 283, 292 (1979). "Whether the Sixth
Amendment has been violated in such a situation depends upon 'an
analysis of the purpose of the inquiry [on cross-examination]
and the role which the answer, if given, might have played in
the defense.'" Commonwealth v. Turner, 393 Mass. 685, 690
(1985), quoting United States v. Cardillo, 316 F.2d 606, 612
(2d. Cir.), cert. denied, 375 U.S. 822 (1963). "If the
witness's testimony would merely have been collateral or
cumulative, the direct testimony need not be struck." Turner,
supra.
16 Such was the case here. To the extent that questioning the
witness about the robbery would have revealed her bias against
the defendant, it would have been cumulative of her other
answers on cross-examination. As an example, counsel elicited
that the witness despised the defendant, and that she called him
"a straight bitch" in a series of Facebook posts. Counsel was
also permitted to explore the witness's motives to lie,
including cross-examining her on the pending charges, her
dealings with the police, her cooperation agreement, and that
she did not expect the charges to result in a prison sentence.
Finally, the details of the robbery, the witness's interactions
with the neighbors both before and after the shooting, the theft
of the cell phone, the information that the phone had been used
to film the scene, and the fact that the phone ended up in the
witness's house, were all facts testified to by the neighbor.
Because the witness's testimony would have been cumulative,
there was no error in declining to strike her direct testimony.
6. Conclusion. We affirm the judgment of conviction on
count one of the indictment, murder in the second degree, G. L.
c. 265, § 1, and the order denying the motion for a new trial.
We vacate the judgments of conviction on counts two and three of
the indictment, unlicensed possession of a firearm, G. L.
c. 269, § 10 (a), and unlicensed possession of a loaded firearm,
17 G. L. c. 269, § 10 (n). The verdicts on those counts are set
aside.
So ordered.
By the Court (Wolohojian, Shin & Hodgens, JJ.8),
Assistant Clerk
Entered: January 4, 2024.
8 The panelists are listed in order of seniority.