Commonwealth v. Butler, No. 11–P–729.

CourtAppeals Court of Massachusetts
Writing for the CourtCYPHER, J.
Citation62 N.E.3d 536,90 Mass.App.Ct. 599
Decision Date04 November 2016
Docket NumberNo. 11–P–729.

90 Mass.App.Ct. 599
62 N.E.3d 536

Quincy BUTLER.

No. 11–P–729.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 9, 2015.
Decided Nov. 4, 2016.

62 N.E.3d 538

John M. Thompson for the defendant.

Cailin M. Campbell, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth.



90 Mass.App.Ct. 599

The defendant, Quincy Butler, appeals from his convictions of murder in the second degree (G.L. c. 265, § 1 ), and

90 Mass.App.Ct. 600

eight related offenses.1 The defendant was tried with a codefendant, William Wood, on a theory of joint venture for crimes committed in the course of a botched kidnapping and robbery attempt.2 Wood was convicted of murder in the first degree and various other charges.3 He appealed his convictions to the Supreme Judicial Court which found no reversible error and found no reason to reduce or reverse the conviction of murder in the first degree pursuant to its authority under G.L. c. 278, § 33E.4 See Commonwealth v. Wood, 469 Mass. 266, 14 N.E.3d 140 (2014).

On appeal, the defendant argues that he was deprived of equal protection and due process because the prosecutor engaged in

62 N.E.3d 539

racial and gender discrimination during jury empanelment. Specifically, he claims that the prosecutor attempted to select jurors who resembled the victim, a white female, and to avoid jurors who resembled the defendants, African American men. The defendant also argues several other issues, some of which were raised by Wood and reviewed and rejected by the Supreme Judicial Court in Wood, supra.5 We affirm.

The Supreme Judicial Court thoroughly explicated the facts of the case in Wood, supra. We will address relevant facts where necessary.

90 Mass.App.Ct. 601

Discussion. 1. Jury empanelment. “ Article 12 of the Massachusetts Declaration of Rights proscribes 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. Smith, 450 Mass. 395, 405, 879 N.E.2d 87 (2008), quoting from 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). “Peremptory challenges are presumed to be proper.” Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). However, that presumption may be rebutted by 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” in that group. Ibid., quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “A single peremptory challenge can constitute a prima facie showing that rebuts the presumption of proper use.” Commonwealth v. Curtiss, 424 Mass. 78, 79, 676 N.E.2d 431 (1997).

When the question of an improper use of a peremptory challenge is raised, the judge must make an initial finding as to whether the opposing party has made a prima facie showing that the use of the challenge was improper. Maldonado, 439 Mass. at 463, 788 N.E.2d 968, citing Commonwealth v. Burnett, 418 Mass. 769, 771, 642 N.E.2d 294 (1994). See Commonwealth v. Lacoy, 90 Mass.App.Ct. 427, 431, 60 N.E.3d 354 (2016). We do not disturb a judge's finding regarding whether a permissible ground for a peremptory challenge exists unless the judge abused his or her discretion. See Commonwealth v. Rodriguez, 431 Mass. 804, 811, 731 N.E.2d 71 (2000) ; Commonwealth v. Issa, 466 Mass. 1, 9–11, 992 N.E.2d 336 (2013). When reviewing such a claim we consider the totality of the circumstances presented to the judge, including the composition of the venire, the composition of the jury, the previous use of peremptory challenges, and other possible reasons that the juror could have been excluded. See Commonwealth v. LeClair, 429 Mass. 313, 321, 708 N.E.2d 107 (1999) (composition of final deliberating panel); Commonwealth v. Issa, supra.

If the judge determines that the opposing party has established a prima facie case that the challenge was used for a discriminatory purpose, the burden shifts to the party seeking to exercise the challenge to provide a permissible explanation for that challenge. The judge must then determine whether the reason provided is genuine. See Maldonado, 439 Mass. at 463–464, 788 N.E.2d 968, and cases cited.

The jury empanelment for the trial in this case occurred over two days. At the outset of empanelment, defense counsel objected to the “numbering system” and to the “strike method” and order

90 Mass.App.Ct. 602

in which the

62 N.E.3d 540

jurors were being selected. He objected, in part, as follows:

“I would note that for the first twenty-five jurors only five are males, so that means we're down to four to one during the first twenty-five. The second set of twenty-six, nineteen are females and seven are males. It's only when we get to the last twenty-four that we see what looks to be close to a 49 to 51 percent.

“In other words, Mr. Butler is being asked to pick a jury where the first, over first fifty potential jurors are predominantly, close to 70 percent female. And I would suggest, and I object on his behalf, but I suggest that is not a fair representation or cross section.”

The defendant has not demonstrated that any alleged underrepresentation in the venire was caused by systematic exclusion of a distinctive group.6 See Commonwealth v. Leitzsey, 421 Mass. 694, 700, 659 N.E.2d 1168 (1996), quoting from Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), and citing Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Commonwealth v. Pope, 392 Mass. 493, 500, 467 N.E.2d 117 (1984) (“[T]o prove that a petit jury selection process infringes a defendant's constitutional right to be tried by a jury representative of a fair cross section of the community, the defendant must show ‘that the group alleged to be excluded is a “distinctive group” in the community; ... that the representation of this group in venires ... is not fair and reasonable in relation to the number of such persons in the community; and ... that this underrepresentation is due to systematic exclusion of the group in the jury-selection process' ”). “[T]he procedure used in this Commonwealth to choose jury panels from lists of qualified jurors is random selection.... Inevitably, some panels drawn by this method will fail to represent proportionately various groupings in the population.” Commonwealth v. Soares, 377 Mass. at 482, 387 N.E.2d 499.

The total number of prospective jurors in the venire was 130 persons, of whom forty-nine were men and eighty-one were women. On the first day of empanelment, Wood and the defendant challenged fourteen females, who were excused from the group that the judge had found to be impartial. Wood and the

90 Mass.App.Ct. 603

defendant also challenged two males who had been found to be impartial, and the judge excused them.

The Commonwealth challenged and the judge excused four females and four males on the first day. The Commonwealth expressed a concern on one challenge about the juror's ability to serve because she was on summer break from college. The Commonwealth then challenged the juror and she was excused. Next, the Commonwealth challenged a male juror who was on summer break from college. The Commonwealth also challenged a young black male and explained that he should not have been found indifferent. The Commonwealth argued that because he had stated to the judge that he was only “ninety percent” (rather than one hundred percent) sure that he could be unbiased and that he felt that blacks were punished disproportionally to whites, he should not have been found to be indifferent. When the judge disagreed, the Commonwealth challenged the juror and the judge excused the juror. Compare Commonwealth v. Colon, 408 Mass. 419, 440–441, 558 N.E.2d 974 (1990). Upon the defendant's objection

62 N.E.3d 541

to the Commonwealth's challenge, the judge declared that there was no pattern of discrimination and therefore did not ask for an explanation for the challenge. In any event, the Commonwealth had just provided a detailed reason to the judge, prior to the defendant's objection, regarding why it believed this particular juror should have been excused for cause. Day one of the jury selection concluded with three females being seated.

The defendant and Wood opened day two of the empanelment process by filing a motion for a mistrial on the grounds that they had made a prima facie case of discrimination. The judge denied the motion. The Commonwealth challenged and excused a female. Two females were then seated. The Commonwealth next challenged and excused a male, juror number 100. An objection was made based on...

To continue reading

Request your trial
4 cases
  • Wood v. Ryan, Civil Action No. 15–13081–NMG
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • August 7, 2017
    ...appellate procedure and was decided in November, 2016, more than two years after Wood's appeal was filed. Commonwealth v. Butler, 90 Mass.App.Ct. 599, 599, 62 N.E.3d 536 (2016). Butler's appellate brief tracked Wood's brief in large part but included the Batson claims.The Massachusetts Appe......
  • Tavares v. Commonwealth, SJC–11829.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 10, 2016
    ...the single justice, we do not address them. See, e.g., Carvalho v. Commonwealth, 460 Mass. 1014, 954 N.E.2d 1127 (2011), and cases cited.62 N.E.3d 536The decision of the single justice, which denied relief pursuant to G.L. c. 211, § 3, but provided that Tavares may seek return of the forfei......
  • Commonwealth v. Butler, 11–P–729
    • United States
    • Appeals Court of Massachusetts
    • December 18, 2017
    ...during jury empanelment. In a published opinion dated November 4, 2016, we affirmed his convictions. Commonwealth v. Butler, 90 Mass. App. Ct. 599 (2016). By order dated November 6, 2017, the Supreme Judicial Court denied the defendant's application for further appellate review without prej......
  • Commonwealth v. Chen, 19-P-1044
    • United States
    • Appeals Court of Massachusetts
    • October 21, 2020
    ...prosecutor is doing so, "[t]he defendant's testimony and demeanor [can] be referred to in closing argument." Commonwealth v. Butler, 90 Mass. App. Ct. 599, 607 (2016). Kozec is distinguishable because it involved comment on the facial expression of the defendant during the victim's testimon......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT