Com. v. Tolentino

• Decision Date: 22 April 1996
• Citation: 663 N.E.2d 846,422 Mass. 515
• Parties: COMMONWEALTH v. Manlio TOLENTINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 846

663 N.E.2d 846

422 Mass. 515

COMMONWEALTH v.Manlio TOLENTINO.

Supreme Judicial Court of Massachusetts Essex.

Submitted March 7, 1996.

Decided April 22, 1996.

COMPLAINT received and sworn to in the Salem Division of the District Court Department on June 9, 1993.

On transfer to the jury session of the Peabody Division, a motion to dismiss the jury venire was heard by Robert E. Hayes, J., and the case was tried before him.

The Supreme Judicial Court granted an application for direct appellate review.

Charles K. Stephenson, Granby (Raymond Buso, Salem, with him), for defendant.

Anne J. Sperry, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

GREANEY, Justice.

The Beverly police obtained a complaint in the Salem Division of the District Court Department alleging that the defendant, Manlio Tolentino, an Hispanic man, had been in possession of cocaine with intent to distribute, seeG.L. c. 94C, § 32A (1994 ed.), and that the offense was committed within 1,000 feet of a school, seeG.L. c. 94C, § 32J (1992 ed.).¹After preliminary proceedings, the complaint was transferred to the Peabody District Court for trial before a jury of six.Before the trial, the defendant moved to dismiss the jury venire as failing to represent the ethnic composition of Essex County.The motion was denied, and members of that venire were seated as the jury.

After trial, the jury returned guilty verdicts on both counts of the complaint, and the defendant was sentenced.The defendant appealed to the Appeals Court, raising as the sole issue the denial of his motion to dismiss the jury venire.We granted the defendant's application for direct appellate review.We conclude that the motion properly was denied, and affirm the defendant's convictions.

The background facts having to do with the challenge to the composition of the venire are as follows.At the outset of the jury selection procedure, "based upon [his] observations of the jury pool,"the defendant's trial counsel filed a motion to dismiss the venire brought to the courtroom for his trial, which was composed of "twelve or thirteen"people, all of whom appeared (in the opinion both of the defendant's trial counsel and the trial judge) to be "caucasian."The motion was supported by an affidavit of counsel, in which he stated, in pertinent part, that:

" I have tried in excess of one hundred jury cases in this county during [the last ten years] the vast majority of those being in Salem and Peabody courts....

" I have also taught in numerous continuing legal education programs within the county and conferred with dozens of other criminal trial lawyers in this county regarding their experiences regarding the representation or underrepresentation of minorities in the jury pools in this county.

" I have lived in Essex County for most of the last ten years and have worked in Lynn, Salem and Lawrence courts for significant periods of time.

" As a result of the above I am familiar with the community make-up of towns including Salem, Lynn and Lawrence all of which have substantial minority population of blacks and Hispanics.

" In my experience in the last several years jury empanelments in this county I have personally participated in selection of juries with more than two thousand persons who were part of the panels.

" During this time to the best of my memory and belief I have only on two occasions ever seen either blacks or Hispanics seated on one of my juries.

" The vast majority of all cases that I have been involved in have had ordinarily no minorities of black or Hispanic origin in the panel, and I have never seen more than two in my memory even when the panel was in excess of sixty-five persons.

" I am personally aware that in Lynn and Lawrence minority population of blacks and Hispanic[s] exceeds fifteen percent of the population and according to information provided to me by other local attorney[s] could be as high as thirty percent.

" I have confirmed my observations that as a result it appears that black and Hispanic minorities are seldom if ever seated on juries and only rarely seen in jury pools with other experienced members of the trial bar in this county who have similar experiences.

" I have personally made investigation of the United States census bureau who have provided me with the following information regarding minority population in the County of Essex, that according to the most recent census information:

"a.the total population of Essex County is 670,080 and

"b.the Hispanic portion of the population within this county is 48,440, thus providing 7.2 percent of the total county population....

" I have been provided with information from a survey conducted of the most active trial lawyers representing defendants in Essex County.This research entailed contacting all member[s] of the [Committee for Public Counsel Services]Superior Court list advocates in Essex county via both written and oral communication regarding their experiences in minority representation in jury cases in this county.According to this research Hispanic jurors constitute less than 1% of Essex County jury venires, despite the fact that 7.2% of the population is Hispanic."

The defendant's trial counsel also represented that he had made contact with the office of jury commissioner, and that all juror questionnaires and follow-up telephone calls were exclusively in English.The affidavit also incorporated by reference portions of the 1994 report prepared under the auspices of this court by the Commission to Study Racial and Ethnic Bias in the Courts(commission).The commission's report, entitled Equal Justice: Eliminating the Barriers (report), discusses the racial and ethnic composition of jury venires in Suffolk, Worcester and Hampden Counties, and concludes that in Suffolk and Hampden Counties, minority groups are underrepresented in jury venires in relation to their population in those counties.

The judge inquired whether the defendant intended to present any evidence on the motion beyond the affidavit, and, although the defendant's trial counsel responded in the affirmative, no such evidence was offered or discussed.The Commonwealth presented no conflicting material and the judge made no express findings in denying the motion to dismiss.Represented by new counsel on appeal, the defendant argues that the denial of the motion deprived him of his right, guaranteed by the Sixth Amendment to the United States Constitution, andart. 12 of the Declaration of Rights of the Massachusetts Constitution, to a trial before a jury selected from a fair cross section of his community.

1.In support of his challenge to the entire venire, the defendant asserts that Hispanics, a recognizable and distinct group, seeCommonwealth v. Bastarache, 382 Mass. 86, 96, 414 N.E.2d 984(1980), are generally, and were in his case, substantially underrepresented in the venires in Essex County from which petit juries are drawn.To establish a prima facie case of unconstitutional jury selection under the Sixth Amendment, ²the defendant was required to demonstrate that "(1) the group allegedly discriminated against is a 'distinctive' group in the community, (2) that the group is not fairly and reasonably represented in the venires in relation to its proportion of the community, and (3) that underrepresentation is due to systematic exclusion of the group in the jury selection process."Id. at 96-97, 414 N.E.2d 984.SeeDuren v. Missouri, 439 U.S. 357, 364, 366-367, 99 S.Ct. 664, 668, 669-670, 58 L.Ed.2d 579(1979).The Commonwealth contends, we conclude correctly, that the defendant has failed to make an adequate showing on the second and third prongs of his prima facie case.

The Commonwealth does not dispute that Hispanics are a "distinctive" group for the purpose of the defendant's motion.SeeCommonwealth v. Aponte, 391 Mass. 494, 462 N.E.2d 284(1984).See alsoUnited States v. Pion, 25 F.3d 18, 22-23(1st Cir.), cert. denied, 513 U.S. 932, 115 S.Ct. 326, 130 L.Ed.2d 286(1994).In other critical respects, however, the affidavit of the defendant's trial counsel failed to meet the standards required for proof of a prima facie case of unconstitutional jury selection.The affidavit failed to establish that Hispanics are not fairly represented in Essex County venires in proportion to their numbers in the community.While we might be willing to accept the Federal 1990 census figure as sufficient to establish the Hispanic population in Essex County in 1995, see, however, Commonwealth v. Colon, 408 Mass. 419, 437, 558 N.E.2d 974(1990), the affidavit presented to the judge by the defendant appears to assume that the entire Hispanic population of Essex County would be eligible for jury service.In this respect, the defendant ignores the fact that some undetermined percentage of the population in question would be ineligible because its members were under the age of eighteen years, or for other reasons.³See, e.g., Commonwealth v. Leitzsey, 421 Mass. 694, 699 & n. 4, 659 N.E.2d 1168(1996).The defendant's motion thus failed to establish, to a reasonable degree of certainty, what percentage of the Essex County population of persons eligible for jury service was Hispanic.ContrastCommonwealth v. Aponte, supra at 496, 462 N.E.2d 284(indicating that approximately 1.98% of 1980 adult population of Essex County was Hispanic).

The motion, as presented, relied primarily on the jury venire brought to the courtroom for the defendant's trial (at twelve to thirteen persons which is obviously an unacceptably small sample for the purpose of any statistical showing of underrepresentation), and the motion provided no information at all about the racial and ethnic makeup of the entire venire that had been summoned for jury service on the day of his trial.SeeCommonwealth v. Lopes, 21 Mass.App.Ct. 11, 14, 483 N.E.2d 479(1985).The defendant's trial ...