Com. v. Burnett

• Decision Date: 10 November 1994
• Citation: 418 Mass. 769,642 N.E.2d 294
• Parties: COMMONWEALTH v. Ronald E. BURNETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 294

642 N.E.2d 294

418 Mass. 769

COMMONWEALTH v. Ronald E. BURNETT.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 9, 1994.

Decided Nov. 10, 1994.

George E. Hazel, Lynn, for defendant.

Paul B. Linn, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

The defendant appeals from his convictions of robbery, assault and battery, and threatening to commit assault and battery. The Appeals Court held that the Commonwealth impermissibly exercised one of its peremptory challenges and reversed. 36 Mass.App.Ct. 1, 626 N.E.2d 900 (1994). We granted the Commonwealth's application for further appellate review, and now conclude, for substantially the same reasons as stated in the opinion of the Appeals Court, that the Commonwealth improperly exercised a peremptory challenge. We reverse the judgments of the Superior Court.

Of the five indisputably black individuals in the venire, three stated that they could not be fair and impartial and they were excused for cause. The Commonwealth exercised two of its peremptory challenges to exclude the two remaining black jurors. The defendant argued that these two black jurors were impermissibly challenged based on bias presumed to derive from their race.

When the defendant objected to the prosecutor's peremptory challenges to the only two remaining black jurors, the judge did not make a finding that the defendant had made a sufficient showing of impropriety but responded by asking the prosecutor whether she wanted to say anything. The prosecutor then stated the reasons for her peremptory challenges. With respect to juror 9-6, the prosecutor stated that she challenged him because he listed his occupation as a director of a youth services program, and it was her view that "people who work with young people have certain feelings about youth and crime." With respect to juror 11-11, the prosecutor felt that the juror's answers to the judge's questions demonstrated a hostility toward the court and to the proceedings.

The judge agreed with the Commonwealth's characterization of juror 11-11. The judge did not make any rulings with respect to the validity of the prosecutor's explanation for challenging the youth service worker. Although we have no material disagreement with the reasoning of the Appeals Court, we reiterate the procedure to be followed in these cases in order to eliminate or to reduce to a minimum unnecessary and expensive retrials.

We start with the presumption that the peremptory challenges are made properly. This presumption, however, may be rebutted by a 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. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). We have pointed out that the challenge of a single prospective juror within a protected class could constitute a prima facie case of impropriety. Commonwealth v. Fryar, 414 Mass. 732, 738, 610 N.E.2d 903 (1993). When the issue of improper peremptory challenges is raised, the trial judge should make a finding as to whether the requisite prima facie showing of impropriety has been made. See Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1722-23, 90 L.Ed.2d 69 (1986); Commonwealth v. Soares, supra; Commonwealth v. Mathews, 31 Mass.App.Ct. 564, 569, 581 N.E.2d 1304 (1991).

Once a defendant makes a sufficient showing of impropriety, the burden shifts to the prosecutor to provide a group-neutral reason for challenging the venireperson in question. Commonwealth v. Fryar, supra 414 Mass. at 739, 610 N.E.2d 903. Although the prosecutor's explanation does not have to rise to the level of specificity required for a removal for cause, general assertions are not enough. See Commonwealth v. Soares, supra 377 Mass. at 491, 387 N.E.2d 499; Commonwealth v. Mathews, supra 31 Mass.App.Ct. at 568, 581 N.E.2d 1304, citing Batson v. Kentucky, supra 476 U.S. at 97, 106 S.Ct. at 1723. "The prosecutor must give a 'clear and reasonably specific' explanation of his ...