Com. v. Curtiss

• Decision Date: 11 June 1996
• Docket Number: No. 94-P-385,94-P-385
• Parties: , 64 USLW 2763 COMMONWEALTH v. David P. CURTISS.
• Court: Appeals Court of Massachusetts

Page 461

664 N.E.2d 461

40 Mass.App.Ct. 350, 64 USLW 2763

COMMONWEALTH v. David P. CURTISS.

No. 94-P-385.

Appeals Court of Massachusetts Berkshire.

Argued Oct. 19, 1995.

Decided April 29, 1996.

Further Appellate Review Granted June 11, 1996.

Indictments found and returned in the Superior Court Department on March 20, 1992. The cases were tried before William W. Simons, J.

Patricia A. O'Neill, Committee for Public Counsel Services, for the defendant.

Eric Neyman, Assistant District Attorney, for the Commonwealth.

Before DREBEN, PORADA and GREENBERG, JJ.

GREENBERG, Justice.

According to the complainant (a mentally handicapped black woman), a white man took her into his car, pulled off her undergarments, and sexually assaulted her, stopping only after two acts of forced intercourse. Afterwards, he drove her across the Massachusetts border, leaving her in a rural part of New Lebanon, New York. The next morning, she told Pittsfield police officers that the defendant was the rapist. Two days later, the police arrested the defendant and advised him of the accusations. He offered a different version of the events: their initial meeting took place at a local pub in Pittsfield where both drank; later, inside his car, they started kissing, went further, and had consensual intercourse.

Seeking reversal of the various convictions arising out of the events, the defendant assigns two grounds of error: (1) the trial judge improperly denied his peremptory challenge to a prospective juror on the venire and (2) the prosecutor's improper closing speech to the jury was not cured by the judge's instructions. Although the evidence presented against the defendant was persuasive on the issue of lack of consent, we reverse the convictions and order a new trial because of constitutional violations in the course of selecting a jury. We also comment on the prosecutor's closing argument.

1. Jury empanelment. Juror selection occurred over two days, with the defendant requesting an individual voir dire of prospective jurors. At the start, the judge made it clear to the venire that the case involved "intercourse between people of different races" and that the question of consent was the sole issue. Three of the four questions posed to each prospective juror addressed racial prejudices rather than general impartiality. See Commonwealth v. Hobbs, 385 Mass. 863, 873, 434 N.E.2d 633 (1982).

During this aspect of impanelling jurors, the judge agreed to defense counsel's request to inquire of the only black potential juror on the venire, whom we shall refer to as Juror 13, whether his wife, a direct care worker for the Department of Social Services (DSS), worked with persons who were sexually abused. In response to the judge's additional questions on this point, Juror 13 said that his wife, in fact, did work with sexually abused children. That circumstance, he felt, would not interfere with his ability to remain impartial. The judge declared Juror 13 indifferent, prompting the defendant to exercise one of his peremptory challenges.

Because Juror 13 was the only minority person in the venire, the judge then intervened. Without making a finding that the defendant's peremptory challenge was exercised improperly, he required defense counsel to support his challenge with a nonracial justification. See Commonwealth v. Harris, 409 Mass. 461, 466, 567 N.E.2d 899 (1991). Defense counsel's proffer repeated the same rationale: Juror 13's wife worked for a State agency that dealt with child sexual abuse cases. Additionally, defense counsel explained that Juror 13's wife's employment might taint the way the juror himself viewed the case. After a prolonged colloquy with defense counsel, reproduced in an appendix to this opinion, the judge denied the defendant's requested challenge, noting that DSS was not involved in the instant case, nor was the complainant a child. In explaining why he thought defense counsel's reasons inadequate, the judge stated:

"Let me put it this way. I think the circumstances of this case and the fact that two panels, two arrays, and two separate days produced but one black potential juror, eliminate the need for establishing a pattern and require me to make a judgment as to whether your challenge has a nonracial basis. The fact that this man's wife works for a department of the State that investigates, among other things, children victims and family victims, is insufficient to take it out of the area of a potential challenge based on racial grounds. Now, I want to be careful. I'm not accusing counsel of doing something improper in the sense that he should be admonished, but I am sensitive to the need for there to be a racial balance."

The defendant objected on the grounds that his use of peremptory challenges did not create any pattern of invidious discrimination and that his challenge to Juror 13 was "consistent in taking certain types of people off the jury...." No findings of the judge on this crucial point appear in the record.

While both State and Federal Constitutions guarantee criminal defendants the right to an impartial jury, Commonwealth v. Long, 419 Mass. 798, 802, 647 N.E.2d 1162 (1995), there is no corresponding right to the exercise of peremptory challenges. Commonwealth v. Reid, 384 Mass. 247, 253-254, 424 N.E.2d 495 (1981). Commonwealth v. Wood, 389 Mass. 552, 559, 451 N.E.2d 714 (1983). Commonwealth v. Hutchinson, 395 Mass. 568, 571, 481 N.E.2d 188 (1985). Rather, art. 12 of the Massachusetts Declaration of Rights constitutionally circumscribes the use of peremptory challenges by prohibiting both prosecution and defense from removing prospective jurors exclusively because of bias presumed to stem from their membership in discrete community groups based on creed or national origin. See Commonwealth v. Soares, 377 Mass. 461, 489 n. 35, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); Commonwealth v. Brown, 11 Mass.App.Ct. 288, 290, 416 N.E.2d 218 (1981); Commonwealth v. Carleton, 36 Mass.App.Ct. 137, 140, 629 N.E.2d 321, S.C., 418 Mass. 773, 641 N.E.2d 1057 (1994). ¹

Our review of whether the judge properly denied the defendant's peremptory challenge is governed by certain well-settled principles contained in the cases. We begin with the presumption that the peremptory challenge was proper. Commonwealth v. Long, 419 Mass. at 806, 647 N.E.2d 1162. "[T]his presumption may be rebutted by 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. Burnett, 418 Mass. 769, 770 (1994). Commonwealth v. Soares, supra at 490 ." Ibid. Where the total number of members in a discrete group in the venire is small, we have acknowledged the difficulty inherent in establishing a pattern of conduct. See Commonwealth v. Brown, 11 Mass.App.Ct. at 293-294, 416 N.E.2d 218. But the cases say that "the challenge of even a single prospective juror within a protected class can, in certain instances, constitute a prima facie showing of impropriety." Commonwealth v. Long, 419 Mass. at 807, 647 N.E.2d 1162. See also Commonwealth v. Harris, 409 Mass. at 465, 467, 567 N.E.2d 899; Commonwealth v. Burnett, 418 Mass. at 771, 642 N.E.2d 294; Commonwealth v. DiMatteo, 12 Mass.App.Ct. 547, 553, 427 N.E.2d 754 (1981). Contrast Commonwealth v. Valentin, 420 Mass. 263, 267-269, 649 N.E.2d 1079 (1995) (finding no error in removal of sole Hispanic venireman because of his difficulty understanding English language).

So far as the case before us is concerned, the judge, himself, raised the issue of whether the presumption was rebutted by his own observations. See Commonwealth v. Reid, 384 Mass. at 251 n. 7, 424 N.E.2d 495; Commonwealth v. Wood, 389 Mass. at 560, 451 N.E.2d 714; Commonwealth v. Perry, 15 Mass.App.Ct. 932, 932, 444 N.E.2d 1298 (1983); Commonwealth v. Legendre, 25 Mass.App.Ct. 948, 518 N.E.2d 872 (1988). His language, however, did not rise to an initial determination of impropriety. See Commonwealth v. Green, 420 Mass. 771, 776, 652 N.E.2d 572 (1995) (error for judge to require defense counsel to provide reasons for peremptory challenge before making a finding of impropriety).

Once a prima facie showing of impropriety of the peremptory challenge is made, the challenging party has the burden of providing a group-neutral reason for challenging the prospective juror. See Commonwealth v. Soares, 377 Mass. at 491, 387 N.E.2d 499; Commonwealth v. Burnett, 418 Mass. at 771, 642 N.E.2d 294; Commonwealth v. Long, 419 Mass. at 807, 647 N.E.2d 1162. In surmounting the constitutional hurdle, the challenging party's reason need not rise to the level required by a challenge for cause, Commonwealth v. Hamilton, 411 Mass. 313, 316, 582 N.E.2d 929 (1991); Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986), but must be "clear and reasonably specific" and " 'personal to the juror and not based on the juror's group affiliation.' " Commonwealth v. Burnett, 418 Mass. at 771, 642 N.E.2d 294, quoting from Commonwealth v. Young, 401 Mass. 390, 401, 517 N.E.2d 130 (1987). Moreover, the " 'neutral explanation [must be] related to the particular case to be tried.' " Commonwealth v. Carleton, 36 Mass.App.Ct. at 143, 629 N.E.2d 321, quoting from Batson v Kentucky, 476 U.S. at 98, 106 S.Ct. at 1724. ² Once the challenging party proffers an explanation for the challenge, "the judge should ... specifically determine[ ] whether [it is] bona fide or a mere sham." Commonwealth v. Burnett, 418 Mass. at 771, 642 N.E.2d 294. Commonwealth v. Futch, 38 Mass.App.Ct. 174, 177, 647 N.E.2d 59 (1995). See also Purkett v. Elem, 514 U.S. 765, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (explanation need only be facially valid).

Here, the defendant provided "a persuasive...