Com. v. Roche, 97-P-0227

• Decision Date: 06 March 1998
• Docket Number: No. 97-P-0227,97-P-0227
• Citation: 44 Mass.App.Ct. 372,691 N.E.2d 946
• Parties: COMMONWEALTH v. Brian M. ROCHE.
• Court: Appeals Court of Massachusetts

Page 946

691 N.E.2d 946

44 Mass.App.Ct. 372

COMMONWEALTH v. Brian M. ROCHE.

No. 97-P-0227.

Appeals Court of Massachusetts,

Norfolk.

Argued Sept. 8, 1997.

Decided March 6, 1998.

Charles W. Rankin, Boston (Catherine J. Hinton, with him), for defendant.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

Before BROWN, SMITH and LENK, JJ.

SMITH, Justice.

The defendant, Brian Roche, was the subject of several indictments that arose out of two incidents involving alleged assaults on his former girlfriend. The first incident allegedly took place sometime between June 1 and July 1, 1992, in Quincy, the second on January 6, 1994, in Weymouth. As a result of the 1992 incident, the defendant was charged with assault and battery by means of a dangerous weapon (shod foot) and also assault and battery. With regard to the January 6, 1994, incident, the defendant was charged with unarmed burglary, attempted murder, assault and battery, and malicious destruction of property. After a trial, a jury found the defendant guilty of the above charges. ¹

On appeal, the defendant asserts several grounds for reversal. We conclude that the trial judge committed reversible error in denying the defendant the right to exercise a peremptory challenge. We also briefly consider those issues which may arise at retrial.

1. Facts. The complainant and the defendant first met in 1983, at which point they dated a few times. They did not see each other again until 1986, when they began a relationship that continued until January 6, 1994. On that date, at 8:00 P.M., the complainant opened the front door of her apartment building and let in the defendant. As she started up the stairs to her second-floor apartment, the defendant, who was behind her, said, "I smell a whore." Once inside the apartment, the defendant hit, punched, and kicked the complainant. He threw her to the floor and placed his hands on her throat until she nearly lost consciousness. The defendant finally left the complainant's apartment.

Minutes later, the complainant heard a commotion at her front door. She saw the defendant and heard him yelling and swearing at her to open the door. The complainant telephoned the police. She ran into the bathroom and locked the door. The defendant pushed in her front door, kicked in the bathroom door, grabbed the complainant and beat her.

The police arrived and found the apartment to be in disarray. The furniture was overturned, a broken telephone was on the floor and there was a hole in a wall. The complainant told the police that she had been assaulted. She had bruises on her face and fingermarks on her neck. The defendant told the police that there was "no problem."

The defendant testified that on January 6, 1994, he brought the complainant some lobsters at her request. He then left the apartment to do some errands. When he returned he saw the complainant with cocaine and they argued. When the defendant tried to throw the cocaine into the toilet, the two struggled. The defendant denied that he kicked, punched, or tried to strangle the complainant. After he flushed the cocaine down the toilet, he left the apartment. The defendant returned because he realized that his dog was still there. The complainant would not let him in and, according to the defendant, threatened to kill the dog. The defendant broke down the door in order to get his dog.

The complainant also testified that in 1992, the defendant kicked and beat her--acts which were the subject of indictments that were being tried with the indictments charging the defendant with the 1994 assaults. Hospital records concerning the complainant were also introduced in evidence. In regard to the 1992 incident, the defendant denied that he hit the complainant.

The complainant was also allowed to testify as to other assaults committed upon her by the defendant in 1988 and 1989--acts for which the defendant was not charged. Two doctors testified about the injuries received by the complainant as a result of the 1988 assault. Those injuries included a fracture of the fifth cervical vertebra and an orbital fracture. Several other witnesses, including the defendant, also testified about the prior assaults. The complainant's hospital records from 1988 were also introduced in evidence. In regard to the 1988 assault, the defendant testified that he saw the complainant at a club; she had white powder on her nose and was "wobbly"; the defendant and the complainant's companion got in a fight; the complainant got in the middle of the fight; and the defendant hit the complainant by accident. We now discuss the empanelment issue.

2. Denial of peremptory challenge. Both the defendant and the complainant are white. During the course of the jury empanelment, the judge denied the defendant's peremptory challenge of a prospective juror who was black. The defendant claims that the judge committed reversible error by denying his right to exercise the peremptory challenge.

After the defendant challenged the prospective juror, the judge, on his own, inquired of defense counsel, "Why?" Defense counsel responded, "She is a nurse." The judge then stated, "I don't care. She is the only black juror on the panel." Defense counsel acknowledged that to be true. The judge then stated, "I am not going to accept that challenge." Defense counsel objected.

A short time later, still during the empanelment process, the judge called a sidebar conference. The following took place:

THE COURT: "Just so the record is clear, I find that your reason given to excuse that juror is not a good one on the basis and fact that this is the only black juror not only sitting on the panel but the entire venire. The Commonwealth and the defendant have the right to a fair and impartial trial but not by an all white jury. I want that on the record."

DEFENSE COUNSEL: "I would like this on the record, that her race had absolutely nothing to do with it. As a matter of fact, I go out of my way to have black jurors."

THE COURT: "Well, then, you shouldn't be offended then."

DEFENSE COUNSEL: "But I don't want anyone with a medical background on the jury. We are going to have doctors testify."

THE COURT: "Yes."

DEFENSE COUNSEL: "We are going to have medical reports they are going to try to put in. I do not want anyone with a medical background on it. That's it."

THE COURT: "And I want to see a fair and impartial jury, too."

DEFENSE COUNSEL: "Well, [note] my objection again."

"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. Green, 420 Mass. 771, 776, 652 N.E.2d 572 (1995). "Traditionally, the latitude allowed in the exercise of peremptory challenges is wide: 'The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control.' " Commonwealth v. Wood, 389 Mass. 552, 560, 451 N.E.2d 714 (1983), quoting from Commonwealth v. Soares, 377 Mass. 461, 484, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). However, the exercise of a peremptory challenge is not without limitation because art. 12 of the Declaration of Rights does not allow "the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in, or affiliation with, particular, defined groupings in the community." Commonwealth v. Soares, 377 Mass. at 486, 387 N.E.2d 499. Therefore, the exercise of certain peremptory challenges may be challenged and thus, come under the scrutiny of the trial judge.

In order to "minimize the necessity for lengthy appellate examinations and retrials springing from confusion over jury selection," Commonwealth v. Curtiss, 424 Mass. 78, 81, 676 N.E.2d 431 (1997), the court in Commonwealth v. Soares, supra, established a procedure, later refined in Commonwealth v. Burnett, 418 Mass. 769, 770, 642 N.E.2d 294 (1994), that must be followed in those cases where the exercise of a peremptory challenge is the subject of an objection.

The procedure outlined in Soares is as follows: Peremptory challenges are presumed to be proper but the presumption is rebuttable on a showing that (1) there is a pattern of excluding members of a discrete group and (2) it is likely that individuals are being excluded solely on the basis of their membership within a group. Commonwealth v. Soares, supra at 490, 387 N.E.2d 499. Although Soares states that there must be a showing of a pattern, the court later ruled that "the challenge of a single prospective juror within a protected class could, in some circumstances, constitute a prima facie case of impropriety." Commonwealth v. Fryar, 414 Mass. 732, 738, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901 (1997).

"Confronted with a claim that a peremptory challenge is being used to exclude members of a discrete group, the judge must 'determine whether to draw the reasonable inference that peremptory challenges have been exercised so as to exclude individuals on account of their group affiliation.' " Commonwealth v. Curtiss, supra at 80-81, 676 N.E.2d 431, quoting from Commonwealth v. Soares, supra at 490, 387 N.E.2d 499. ²

If the required showing of impropriety is made by the opposing party, the burden shifts back to the party exercising the peremptory challenge "to provide a 'group neutral reason' for the challenge." Commonwealth v. Sarourt Nom, 426 Mass. 152, 155, 686 N.E.2d 1017 (1997), quoting from Commonwealth v. Burnett, supra at 771, 642 N.E.2d 294. "This reason need not be as specific as that required to justify a removal for cause, but general assertions are insufficient.... Rather, the challenging party 'must give a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenge[ ].' " Commonwealth v. Sarourt Nom...