Com. v. Mathews

• Decision Date: 31 December 1991
• Docket Number: No. 90-P-1037,90-P-1037
• Citation: 581 N.E.2d 1304,31 Mass.App.Ct. 564
• Parties: COMMONWEALTH v. Larry MATHEWS.
• Court: Appeals Court of Massachusetts

Page 1304

581 N.E.2d 1304

31 Mass.App.Ct. 564

COMMONWEALTH v. Larry MATHEWS.

No. 90-P-1037.

Appeals Court of Massachusetts,

Suffolk.

Argued Sept. 16, 1991.

Decided Nov. 20, 1991.

Further Appellate Review

Denied Dec. 31, 1991.

Eric Brandt, Committee for Public Counsel Services, Boston, for defendant.

Walter Shea, Asst. Dist. Atty., for Com., submitted a brief.

Before DREBEN, FINE and JACOBS, JJ.

FINE, Justice.

A black man forced his way into a white woman's Commonwealth Avenue, Boston, apartment, held a knife to her throat causing a slight injury, robbed her of her money, bound and gagged her, and began to assault her sexually, stopping only when she told him she had AIDS. The police responded as soon as the assailant left, and the victim provided them with a description. The same day she was shown several hundred photographs. None of the photographs she was shown was of the defendant, and the victim did not identify any of the persons depicted as her assailant. A few days later, the victim saw the defendant sitting on the steps of the building next to her apartment house. Something clicked in her mind, and she notified the police that she thought the defendant was her assailant. The police arrested the defendant and brought him to where the victim was waiting. She confirmed that he was the assailant. She also made an in-court identification at trial. Two Boston police officers testified as expert witnesses that a fingerprint, taken from a manila folder that the assailant had touched while in the victim's apartment, matched the defendant's fingerprint.

Seeking reversal of the various convictions arising out of the incident, the defendant makes three contentions on appeal: that there were improprieties of constitutional dimension in the jury empanelment process; that the prosecutor made improper closing argument; and that the judge erred in ruling a proposed defense expert unqualified. Despite the straightforward and strong evidence that the defendant was the individual who committed the serious criminal offenses, ¹ 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 improper closing argument.

1. Jury empanelment. The jury empanelment process spanned two days and involved a total of eighty-four people from the jury pool. Of the forty-seven potential jurors in the venire called on the first day, two were black. The judge asked questions of the group and directed them to approach the bench only if they had a response to any of the questions. A white prospective juror approached the bench and informed the judge that she had an ex-boyfriend who was black. In addition, five prospective jurors, one of whom was black, approached the bench, but not for the purpose of responding to the questions. ² During individual voir dire, the same black juror answered all questions, appropriately, either "yes" or "no." Of the four other members of the venire who approached the bench for no reason related to the questions asked, three were later excused for cause and one remained. Both of the blacks and the white with a black ex-boyfriend also remained. At the end of the day a total of thirteen prospective jurors were left on the venire. Since it was expected that a jury of sixteen would be chosen, the judge postponed the exercise of peremptory challenges.

The venire called on the second day had three blacks. The defendant moved to have the two venires struck and replaced with new venires more representative of the community, but the judge denied the motion, noting that they were selected randomly by computer. During the group voir dire session on the second day, all three of the black prospective jurors called on that day were removed for cause. Defense counsel immediately renewed her objection to both venires, with the same result.

By the end of the second day of voir dire, a total of twenty-six prospective jurors remained. The seats in the jury box were filled at random from that group, and the judge then called upon the prosecutor to exercise his peremptory challenges. He used three of his sixteen available challenges to strike one of the two black jurors, the white juror with the black ex-boyfriend, and another white juror. When the defendant objected to the removal of the juror with the black ex-boyfriend, the judge responded, "There is no indication that that's the reason the Commonwealth is challenging her. She is a white juror." The defendant then objected to the removal of the black juror. At this point, the judge asked the prosecutor if he wanted to respond. The prosecutor first noted that the juror had come up to the bench for no apparent reason. Defense counsel pointed out that the prosecutor was not challenging a white juror who had acted similarly. The judge then inquired of the prosecutor whether the reason advanced was his sole reason. The prosecutor responded: "[S]he didn't seem to be too clear in her answers, I guess she appeared somewhat flaky in her responses." He then stated "[f]or the record" that he did not object to the other black juror. Defense counsel renewed her objection, noting the racial overtones of the case. The judge disagreed that the case had racial overtones. When defense counsel argued that the prosecutor's statement that the juror appeared "flaky" was not a sufficient reason, the judge said, "[T]he problem with peremptory challenges [is] you don't need any reason." The judge then moved on, the defendant challenged nine of the prospective jurors, and trial commenced with fourteen jurors, thirteen white and one black.

A prosecutor's use of peremptory challenges to remove potential jurors solely because of their race interferes with a defendant's right to be tried by a jury chosen pursuant to nondiscriminatory criteria and violates his rights under art. 12 of the Massachusetts Declaration of Rights, see Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991), and under the equal protection clause of the Fourteenth Amendment to the United States Constitution, see Batson v. Kentucky, 476 U.S. 79, 82-84, 106 S.Ct. 1712, 1715-16, 90 L.Ed.2d 69 (1986). ³ The procedure for rebutting the presumption of proper use of peremptory challenges is similar under both authorities. First, the defendant must make a prima facie showing that the prosecutor improperly removed one or more members of a discrete racial group from the jury. See id. at 94, 96, 106 S.Ct. at 1721, 1722; Commonwealth v. Soares, 377 Mass. at 488-490, 387 N.E.2d 499. In order to do so, the defendant initially must show that the prosecutor has exercised peremptory challenges to remove from the venire one or more members of a cognizable racial group. "Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' [Citation omitted.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Batson v. Kentucky, 476 U.S. at 96, 106 S.Ct. at 1723. In deciding whether the requisite showing has been made, the court may consider patterns in the selection of jurors in the particular case. See id. at 93, 96-97, 106 S.Ct. at 1721, 1722-23. A pattern is not required, however. An inference of impropriety may be drawn on the basis of "the peremptory challenge of a single prospective juror within a protected class." Commonwealth v. Harris, 409 Mass. at 465, 567 N.E.2d 899. " 'A single invidiously discriminatory governmental act' is not 'immunized by the absence of such discrimination in the making of other comparable decisions,' " Batson v. Kentucky, 476 U.S. at 95, 106 S.Ct. at 1722, quoting from Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 n. 14, 97 S.Ct. 555, 564 n. 14, 50 L.Ed.2d 450 (1977).

Once an inference of discrimination has been raised, the burden shifts to the prosecutor to present a race-neutral reason for the challenge. See Batson v. Kentucky, 476 U.S. at 97, 106 S.Ct. at 1723; Commonwealth v. Soares, 377 Mass. at 491, 387 N.E.2d 499. Although the reason need not meet the standard for removal for cause, see Batson v. Kentucky, 476 U.S. at 97, 106 S.Ct. at 1723; Commonwealth v. Soares, 377 Mass. at 491, 387 N.E.2d 499, general assertions are not sufficient. "[T]he prosecutor must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Batson v. Kentucky, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20, quoting from Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981).

When the issue of improper peremptory challenges is raised, the trial judge should make a determination, preferably with findings, whether the requisite prima facie showing of impropriety has been made. See Batson v. Kentucky, 476 U.S. at 96-97, 106 S.Ct. at 1722-23; Commonwealth v. Soares, 377 Mass. at 490, 387 N.E.2d 499; Stanley v. State, 313 Md. 50, 70 n. 11, 542 A.2d 1267 (1988). If the showing is adequate in the judge's view, he should proceed to determine the sufficiency of any justification advanced for the exercise of the challenge. See Batson v. Kentucky, 476 U.S. at 98, 106 S.Ct. at 1723; Commonwealth v. Soares 377 Mass. at 491, 387 N.E.2d 499; Jackson v. Virginia, 8 Va.App. 176, 184-186, 380 S.E.2d 1, aff'd on rehearing en banc, 9 Va.App. 169, 384 S.E.2d 343 (1989). An appellate court will accord substantial deference to such determinations made by the trial judge if supported by the record. See Batson v. Kentucky, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21;...