Com. v. Harris

• Decision Date: 06 March 1991
• Citation: 409 Mass. 461,567 N.E.2d 899
• Parties: COMMONWEALTH v. Stacey HARRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 899

567 N.E.2d 899

409 Mass. 461

COMMONWEALTH v.Stacey HARRIS.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 6, 1990.

Decided March 6, 1991.

Willie J. Davis, Boston, for defendant.

Judy G. Zeprun, Asst. Atty. Gen., for Com.

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

GREANEY, Justice.

We granted further appellate review to determine whether the prosecutor improperly used a peremptory challenge to exclude the sole black person from the venire from which the trial jury was picked for the defendant's trial.A divided panel of the Appeals Court concluded that the judge did not abuse his discretion in allowing the challenge.See28 Mass.App.Ct. 724, 728, 555 N.E.2d 884(1990).We disagree, and conclude that the trial judge should have disallowed the challenge.Accordingly, we reverse the defendant's conviction and order a new trial.

The defendant, a black man, was convicted of murder in the second degree as the result of the stabbing death of a student at a fraternity party at a college in Cambridge.The Appeals Court opinion states the following account of the juror challenge issue which we quote in full.

"During the empanelment of the jury, the prosecutor used one of his peremptory challenges to exclude a black woman.The defendant's counsel objected, pointing out that she was the only black person on the panel.The judge asked the prosecutor for his reasons.The latter responded as follows:

'First of all, Your Honor, I would note that this is not a black on white crime ... [both the victim and the defendant are black].She reminds me, frankly, of the defendant's mother who collapsed hysterically at the arraignment and I assume will be here continually through the trial.I'm just afraid that would affect her ability--the resemblance that I find between her and the mother would affect her ability to sit impartially.She is also from Cambridge and there is going to be a young woman I understand is going to testify for the defense from Cambridge.Even though she says she does not know her, I'm afraid she might tend to believe that woman more who is going to represent a different view of the evidence, I assume a different view of the evidence, than witnesses who are going to be called on behalf of the Commonwealth.

'There is certainly no pattern of challenging jurors because of race.It's the only black on the panel at this point.'

"The defendant objected on the grounds that, despite the prosecutor's disclaimers, the only reason for the challenge was that the woman was black.He said, 'the only resemblance [to the defendant's mother] is that she's black,' and the witness from Cambridge also is black.The only reason 'you think this [juror] might relate to her [is] because [the witness is] black.'

"The judge ruled:

'I'm not going to prevent the challenge.It's not a pattern.I think it's unfortunate that the one black juror isn't--one black potential juror won't end up sitting as a juror on this particular case.I think that's regrettable, but there is not a pattern and the government submits sufficient reason that I don't think that I should bar the peremptory challenge.It should only be done under certain carefully articulated circumstances.As I say, I feel it's unfortunate, but I'm not in a position to block it.'

"On the next day of trial--the jury had not yet been sworn--the prosecutor informed the judge that although the Commonwealth's position was that the peremptory challenge was exercised with appropriate reasons, he would not object to a request that the judge, in his discretion, discharge the jury and begin again simply to avoid any appearance of impropriety.The defendant rejected the offer 'for the simple reason that there is no guarantee that a new panel will produce any blacks, considering the situation in Middlesex County.'The judge put on the record that he had ruled in the lobby that he would not start a fresh empanelment.While expressing his 'personal regret that ... the one individual who was black was excluded through a peremptory challenge,'he was 'satisfied' with the Commonwealth's reasons.

'One of the reasons was the Commonwealth desired to strike individuals who lived in Cambridge.I carefully monitored the Commonwealth's challenges during the empanelment process, and all but one Cambridge person were in fact challenged by the Commonwealth.For those reasons, as I said, I'm not going to interfere with the process.' "28 Mass.App.Ct. at 725-727.

With this background in mind, we turn to the defendant's argument that the allowance of the challenge violated rights guaranteed him by both art. 12 of the Massachusetts Declaration of Rights and the equal protection clause of the Fourteenth Amendment to the United States Constitution.

The use of peremptory challenges to exclude prospective jurors solely because of bias presumed to derive from their membership in discrete community groups is prohibited both by art. 12, seeCommonwealth v. Soares, 377 Mass. 461, 486-488, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110(1979), and the equal protection clause, seeBatson v. Kentucky, 476 U.S. 79, 84-88, 106 S.Ct. 1712, 1716-1718, 90 L.Ed.2d 69(1986).Under these decisions, once the party contesting a peremptory challenge rebuts the ordinary presumption that the challenge was properly used by making a showing of an improper basis for the challenge, the challenging party must provide, if possible, a neutral explanation establishing that the challenge is unrelated to the prospective juror's group affiliation.SeeCommonwealth v. Soares, supra377 Mass. at 491, 387 N.E.2d 499;Batson v. Kentucky, supra476 U.S. at 97-98, 106 S.Ct. at 1723- 1724.Evidence of a pattern of challenges of members of the same discrete group as the defendant is sufficient to rebut the presumption of proper use of challenges.SeeCommonwealth v. Soares, supra377 Mass. at 473 n. 8, 486-488, 387 N.E.2d 499(involving challenges to twelve black persons in the venire);Commonwealth v. Hutchinson, 395 Mass. 568, 571, 481 N.E.2d 188(1985)(involving challenges to twelve female persons in the venire).

However, a pattern of challenges is not the exclusive basis on which a party can make a prima facie showing of impropriety, because the principles stated in the Soares and Batson decisions apply as well to the peremptory challenge of a single prospective juror within a protected class.SeeCommonwealth v. Clark, 378 Mass. 392, 407 n. 17, 393 N.E.2d 296(1979)(assuming that the peremptory challenge of the lone black member of venire could be improper under Soares );Commonwealth v. DiMatteo, 12 Mass.App.Ct. 547, 553, 427 N.E.2d 754(1981)("[T]he dismissal [from the jury venire] of the only member of a [discrete] group is as repugnant to the Declaration of Rights as the dismissal of all but one member of the [same] group").See, e.g., Harrison v. Ryan, 909 F.2d 84, 88(3d Cir.1990);United States v. Lane, 866 F.2d 103, 105(4th Cir.1989);United States v. David, 803 F.2d 1567, 1571(11th Cir.1986).¹Relying on this premise, courts of other jurisdictions have held or assumed that the use of a peremptory challenge to remove the only prospective juror who belongs to the same discrete group as the defendant by itself constitutes a prima facie case of impropriety or discrimination in the use of the challenge.SeeUnited States v. Horsley, 864 F.2d 1543, 1544-1546(11th Cir.1989);United States v. Cloyd, 819 F.2d 836, 837-838(8th Cir.1987);United States v. Love, 815 F.2d 53, 54-55(8th Cir.), cert. denied, 484 U.S. 861, 108 S.Ct. 177, 98 L.Ed.2d 130(1987);Stanley v. State, 313 Md. 50, 84-87, 542 A.2d 1267(1988);Mitchell v. State, 295 Ark. 341, 348-351, 750 S.W.2d 936(1988);Pearson v. State, 514 So.2d 374, 375-376(Fla.App.1987);Saadiq v. State, 387 N.W.2d 315, 326(Iowa), appeal dismissed, 479 U.S. 878, 107 S.Ct. 265, 93 L.Ed.2d 242(1986);Brown v. State, 762 P.2d 959, 961-962(Okla.Crim.App.1988);State v. Henderson, 94 Or.App. 87, 91-92, 764 P.2d 602(1988).²

In Commonwealth v. Soares, supra, we identified as a fundamental feature of a fair jury representation of a broad cross-section of the community.See377 Mass. at 478, 387 N.E.2d 499.This basic characteristic of a fair jury should be maintained, we stated, because it furthered a "key objective," the "assurance of a diffused impartiality" on the part of the jury.Id. at 480, 387 N.E.2d 499, quotingTaylor v. Louisiana, 419 U.S. 522, 530-531, 95 S.Ct. 692, 697-698, 42 L.Ed.2d 690(1975).This objective remains one of critical importance, and is no less pressing when, as in this case, there is only one person in the particular jury venire who belongs to the same discrete community group as the defendant.Indeed, because there is a very real risk in such cases that all members of a particular group might be excluded from service, the chances that a final jury of truly diffuse impartiality will be assembled are significantly reduced.To make the objective of diffuse impartiality meaningful when this occurs, we hold that a party contesting the use of a single peremptory challenge can make a prima facie showing rebutting the presumption that the challenge was properly used simply by demonstrating that he is a member of a constitutionally protected, discrete community group, and that the only prospective juror of the same group has been peremptorily challenged.

In this case, ³ the judge allowed the disputed challenge because: (1) there was no pattern of challenges, and (2)he concludedthat the Commonwealth's purported reasons for the challenge were sufficient.The judge's reliance on the fact that there was no pattern of challenges of black persons was incorrect as a matter of law.The defendant made a prima facie showing that the challenge was improper by pointing out that the challenged person was the only black person on the venire.The second basis on which the judge allowed...