Com. v. Green

• Decision Date: 17 July 1995
• Citation: 420 Mass. 771,652 N.E.2d 572
• Parties: COMMONWEALTH v. Nathaniel GREEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 572

652 N.E.2d 572

420 Mass. 771

COMMONWEALTH v. Nathaniel GREEN.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued May 2, 1995.

Decided July 17, 1995.

Wendy Sibbison, Greenfield, for defendant.

Jill P. Furman, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

A jury of the Superior Court convicted the defendant of murder in the first degree, two armed assaults with intent to murder, unlawful possession of a firearm, and unlawful possession of ammunition. ¹ On appeal, the defendant asserts several grounds for reversal. We conclude that the trial judge erred in denying the defendant the right to exercise peremptory challenges and by charging the jury on a joint venture theory and a theory of accessory before the fact when those instructions were not warranted. Either of these errors requires reversal, and, accordingly, we reverse. We also discuss one other issue that may arise during retrial.

From the evidence adduced at trial, the jury could have found the following facts. At around 8:30 P.M. on July 7, 1991, the victim, Clive Anthony Allen, ² was sitting in the driver's seat of a rented Chevrolet automobile. The victim's girl friend, Keisha Hood, was sitting next to him with their two month old daughter, Kyoishi. A light blue automobile pulled up next to the Chevrolet. From the passenger's side of the blue automobile, four to six shots were fired into the driver's side of the Chevrolet. The blue automobile then backed away and drove off.

As the bullets entered the Chevrolet, Hood covered Kyoishi with her body and the victim covered both of them with his body. One bullet hit the victim, entering his left rear shoulder and piercing both lungs. Holding Kyoishi, Hood slipped out of the passenger side of the Chevrolet and crawled away. Neither she nor Kyoishi was hit. The victim exited the Chevrolet, walked to the front of it, and collapsed. He was taken to Boston City Hospital where he was pronounced dead at 9:02 P.M.

At trial, Hood testified that, after the first shot was fired, she turned and saw the defendant, whom she knew as "Damien." Hood testified that she identified the defendant from about six feet away, and that he was in the passenger seat of the blue automobile. She testified that she looked directly at the defendant for "a good five minutes" before covering Kyoishi and that she asked the victim, "Is that really Damien?" Both before and after the victim answered, Hood testified, she was sure that the assailant was Damien. After four more shots were fired, Hood looked up and saw the defendant pointing a gun at them. After a minute or two, the blue automobile backed away. The victim then said to Hood, "Damien fucked up."

Andre Wright, a bystander at the scene of the shooting, testified that the shooter sat on the passenger side of the blue automobile and wore a hat. Wright could not identify the shooter because the shooter sank low into his seat as the blue automobile backed away.

Prior to the shooting, Hood had met the defendant a few times over the course of several months, when she and the victim had engaged in some drug transactions with him. Three weeks before the shooting, the defendant sold the victim a quantity of cocaine. The victim withheld $200 because the weight of the cocaine was less than the agreed-upon weight.

On the Tuesday before the shooting, the defendant had chased Hood down the stairs from her apartment door, held up a stick and said, "If Gary [i.e., the victim] don't pay me my $200, I'm going to fuck you and your kids up." The next day, the victim came home with his ear "split open." Over the defendant's objection, Hood testified that the victim told her who had assaulted him, but Hood did not testify as to the identity of the assailant given by the victim in that conversation.

1. Denial of peremptory challenges. During the jury empanelment, the judge denied the defendant's peremptory challenges against two jurors who were black. The defendant is black, as are Hood and Kyoishi. The victim was black also.

After several venire members were excused for cause, sixteen prospective jurors were seated in the jury box. At that time, two of the prospective jurors were black. The Commonwealth exercised two peremptory challenges. Defense counsel exercised seven challenges, none of which was against the two black prospective jurors. The challenges resulted in two additional black venirepersons being seated, Juror 6-10 and Juror 6-13.

Defense counsel then asked the judge to conduct a voir dire of Juror 6-10, on the basis that the juror had the same last name as the victim in a recent murder case. Defense counsel represented the defendant in that previous case, and the victim in that case had a large family. The judge conducted the voir dire, resulting in the revelation that Juror 6-10 had a sister-in-law who was the victim of a shooting. That case, however, had not yet gone to trial.

Defense counsel requested that Juror 6-10 be excused for cause. The judge then inquired of Juror 6-10 whether he could be unbiased despite his sister-in-law's shooting. Juror 6-10 replied affirmatively, and the judge ruled him indifferent. The judge then refused to excuse Juror 6-10 for cause, stating that defense counsel could peremptorily challenge him.

Defense counsel then attempted peremptorily to challenge Juror 6-10, along with Juror 6-13 and Juror 6-9. The prosecution objected, asserting that there was a pattern by defense counsel of challenging black jurors. See Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Defense counsel then requested that the judge determine if Juror 6-10 was related to the victim in the earlier murder trial. The judge made the inquiry, but Juror 6-10 indicated that he did not know.

The judge then inquired of defense counsel, "What do you say about the Commonwealth's objection to your challenging two of the three blacks on the jury? Do you have cause to state for either one of these folks?" Defense counsel replied that as for Juror 6-10, he was concerned about the juror's impartiality given that his sister-in-law was a shooting victim. With respect to Juror 6-13, defense counsel stated that he was concerned because her father and brother were Boston police officers, and the credibility of witnesses who were Boston police officers would be an issue at trial. ³ Furthermore, the defendant had unrelated charges in a highly publicized pending case regarding the shooting of a Boston police officer.

The judge disallowed the challenges, finding that there "seems to be somewhat of a pattern of knocking off black people from this jury," characterizing defense counsel's reasons for the peremptory challenges as "arbitrary." ⁴ Jurors 6-10 and 6-13 were seated on the jury, resulting in a jury with four black jurors. Subsequently, the judge selected Juror 6-13 as the foreperson.

The defendant argues that the judge committed reversible error by denying him the two peremptory challenges. The defendant also asserts that the judge forced the inclusion of Jurors 6-10 and 6-13 in violation of the jurors' equal protection rights. ⁵

While not explicitly guaranteed by the Federal Constitution or the Constitution of this Commonwealth, the purpose of peremptory challenges is to aid in assuring the constitutional right to a fair and impartial jury. Commonwealth v. Wood, 389 Mass. 552, 559-560, 451 N.E.2d 714 (1983). Therefore, the erroneous disallowance of a peremptory challenge is reversible error without a showing of prejudice. Commonwealth v. Hyatt, 409 Mass. 689, 692, 568 N.E.2d 1148 (1991), S.C., 419 Mass. 815, 647 N.E.2d 1168 (1995). Commonwealth v. Wood, supra at 564, 451 N.E.2d 714, and cases cited. ⁶

There is an initial presumption that the use of a peremptory challenge is proper. This presumption may be rebutted, however, 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, supra at 489-490, 387 N.E.2d 499. Once the issue of racially-based peremptory challenges is raised, the judge must determine whether the requisite prima facie showing of impropriety has been made. Id. at 490, 387 N.E.2d 499. If the judge determines that a sufficient showing has been made, the burden shifts to the allegedly offending party to provide a group-neutral reason for challenging the prospective juror. Id. at 491, 387 N.E.2d 499.

In this case, the judge shifted the burden to the defendant without first making a finding that the Commonwealth had made a sufficient showing of impropriety. We note that by requiring defense counsel to provide reasons for his peremptory challenge before making a finding of impropriety, the judge failed to follow the procedure set forth in Commonwealth v. Soares, supra. Furthermore, we question whether the judge actually made any finding of impropriety, given that he merely stated, in a qualified manner, that there was "somewhat of a pattern" of striking black jurors, and that he did not find a likelihood of exclusion on the basis of race.

Even if the judge had made a finding of impropriety, that finding would have been clearly erroneous. In Soares, we enumerated the factors to be applied in determining whether there is a likelihood that prospective jurors were being excluded on the basis of group membership. These factors include assessing the numbers or percentages of group members excluded, common group membership of the defendant and the jurors excluded, and common group membership of the victim and remaining jurors. Id. at 490, 387 N.E.2d 499.

Here, out of the twenty-three prospective jurors presented to him, defense counsel challenged two of four (50%) black...