Com. v. Carleton

• Decision Date: 10 November 1994
• Citation: 418 Mass. 773,641 N.E.2d 1057
• Parties: COMMONWEALTH v. Thomas CARLETON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1057

641 N.E.2d 1057

418 Mass. 773

COMMONWEALTH v. Thomas CARLETON.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 9, 1994.

Decided Nov. 10, 1994.

Daniel Olohan, Boston, Dwight G. Duncan, North Dartmouth, with him, for defendant.

Nancy W. Geary, Asst. Atty. Gen., for Com.

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

LYNCH, Justice.

After trial in the Superior Court the defendant was convicted of criminal contempt for violating an injunction, G.L. c. 12, §§ 11H & 11J (1992 ed.). The Appeals Court concluded that there were improprieties in the jury empanelment and reversed the judgment. See 36 Mass.App.Ct. 137, 629 N.E.2d 321 (1994). We granted the Commonwealth's application for further appellate review and now conclude, for substantially the same reasons as the Appeals Court, that the Commonwealth improperly exercised its peremptory challenges.

The only issue before us is the Commonwealth's contention that the Appeals Court was incorrect in concluding that the prosecutor impermissibly excluded three persons from the jury based on their ethnicity. ¹

We briefly summarize the facts which are relevant to the issue of peremptory challenges. During empanelment the defendant objected to the prosecutor's challenges of jurors Ceglio, Cantwell, McConaghy, Kellegher and Ferolito, arguing that the Commonwealth's challenges were based solely on the assumption that these jurors were potentially Irish or Italian Roman Catholics. Without making an explicit finding whether the defendant had established a prima facie case of improper use of peremptory challenges, the judge asked the prosecutor to explain her reasons for challenging the three prospective jurors whom the defendant had identified as possessing Irish-sounding surnames. ² The prosecutor explained that she challenged the first juror based on her visual assessment of him and on his level of education. She challenged the second juror for the same reasons. She challenged the third juror based on the fact that he was a widower and on her visual assessment of him. The judge found that the prosecutor presented legitimate reasons for her challenges of the prospective jurors who possessed Irish-sounding surnames. She also found that there was no pattern of excluding individuals with Italian-sounding surnames in light of the fact that there were other persons with Italian surnames on the venire who had not been challenged.

We assume, as did the Appeals Court, that the judge made an implicit finding that a pattern of improper exclusions based on ethnicity and religion had been established, since the judge asked the prosecutor to justify her challenges of the three jurors all of whom had Irish-sounding surnames. Commonwealth v. Mathews, 31 Mass.App.Ct. 564, 569, 581 N.E.2d 1304 (1991). See Stanley v. State, 313 Md. 50, 82-83, 542 A.2d 1267 (1988). ³

We agree with the Appeals Court's analysis and conclusion that the Commonwealth failed to satisfy its burden of demonstrating that the challenges were not based on the jurors' membership in a discrete ethnic group. In Commonwealth v. Burnett, 418 Mass. 769, 642 N.E.2d 294 (1994), we discussed in detail the principles to be applied in cases of this nature. One issue requires some additional comment. The Commonwealth argues that it is impermissible in this context to draw inferences of national origin based on a juror's surname. One might well ask, if it is improper to draw such an inference from a surname (an inference commonly drawn by most people outside the courtroom), how the issue of ethnicity could ever be raised in the context of juror selection. While we recognize that surnames are "less than a totally reliable badge...