Commonwealth v. Carter

Decision Date16 August 2021
Docket NumberSJC-11517,SJC-11518
PartiesCOMMONWEALTH v. ANTWAN CARTER (and three companion cases[1]).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Heard: May 7, 2021.

Homicide. Firearms. Joint Enterprise. Jury and Jurors. Constitutional Law, Jury, Sex discrimination, Equal protection of laws. Practice Criminal, Jury and jurors, Challenge to jurors, Capital case. Evidence, Prior misconduct, Relevancy and materiality, Inflammatory evidence, Joint enterprise Statement of codefendant, Acts and declarations of conspirator.

Indictments found and returned in the Superior Court Department on November 16, 2007. The cases were tried before Linda E. Giles, J.

David J. Nathanson for Antwan Carter.

Donald A. Harwood for Daniel Pinckney.

Shane T. O'Sullivan, Assistant District Attorney (David D. McGowan, Assistant District Attorney, also present) for the Commonwealth.

Ethan Rice &Richard Saenz, of New York, Katharine Naples-Mitchell, Mary L. Bonauto, Gary D. Buseck, Chris Erchull, & Anthony Lombardi, for Charles Hamilton Houston Institute for Race and Justice &others, amici curiae, submitted a brief.

Present: Budd, C.J., Lowy, Cypher, Kafker, &Georges, JJ.


Following two mistrials, a Superior Court jury convicted the defendants, Antwan Carter and Daniel Pinckney, of murder in the first degree on a theory of joint venture.[2] On appeal, the defendants assert reversible error by the judge in allowing the Commonwealth's peremptory challenges of five prospective jurors over the defendants' objections pursuant to Batson v. Kentucky, 476 U.S. 79, 95 (1986), and Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979) -four based on the prospective jurors' race and one based on a juror's sexual orientation. The defendants also assert numerous errors in the trial proceedings.

We conclude that it was an abuse of discretion for the judge not to require the Commonwealth to provide a race-neutral reason for its challenge of at least one African-American juror. Because the judge's decision constitutes structural error for which prejudice is presumed, see Commonwealth v. Sanchez, 485 Mass. 491, 514 (2020), we vacate the defendants' convictions and remand their cases for further proceedings consistent with this opinion. We also conclude that sexual orientation is a protected class for purposes of a Batson-Soares challenge, although the defendants did not satisfy their burden of production under the first step of the Batson-Soares inquiry with respect to that particular challenge. See Commonwealth v. Jones, 477 Mass. 307, 321-322 (2017). Finally, we address other claimed errors insofar as they may recur at any new trial.[3]


1. Facts.

We summarize the relevant facts as the jury could have found them, reserving certain details for discussion of specific issues.

In late February 2007, Rashawn Hills, a friend of Carter and Pinckney, was shot and wounded. Carter was present at the time but could not identify the shooter. Subsequently, in conversations overheard by Pinckney's girlfriend, Latoya Thomas-Dickson, Pinckney and Carter discussed the idea of retaliating against "the Highland Street kids," whom they believed were responsible for shooting Hills.

On March 14, 2007, Thomas-Dickson overheard Carter and Pinckney speaking with a third person about "get[ting] one of them Highland Street kids." The men appeared "amped" and "riled up." Pinckney then asked Thomas-Dickson to join them on a drive in his vehicle, a black Pontiac; Pinckney drove while Thomas- Dickson sat in the front passenger's seat and Carter in the back seat. The trio first stopped on Dorr Street, where Pinckney left the vehicle and walked along the street until he was shot at by someone described only as a "dark skinned chubby dude." Unhurt but "pissed off," Pinckney got back into the vehicle and quickly drove toward Centre Street.

The trio then stopped at the corner of Centre and Highland Streets, where a man and two women were standing. One of the women recognized Thomas-Dickson and knew the driver, Pinckney, by the name of "D." Pinckney asked the man, Jermaine Davis, whether he was "from Highland Street," to which Davis responded, "No." Pinckney then drove away. Davis and the two women, in turn, walked toward a local convenience store (market) located on Highland Street.

Pinckney drove back to Centre Street and parked in an alley, where he told Carter to "get [his gun] ready so when [he is] ready to shoot there's no complications." Pinckney further instructed Carter to "hit anybody, just shoot, hit anybody." At Pinckney's direction, Thomas-Dickson gave Carter her black cotton gloves, after which Carter got out of the vehicle and Pinckney drove along Highland Street, turned onto Norfolk Street, and parked.

Meanwhile, the victim, Cedric Steele, mistakenly had locked his keys inside his car, which was outside the market. Davis and his two female companions approached Steele, who "looked nervous" and expressed a desire to get away from Highland Street. As Davis and a manager at the market helped Steele try to get into his locked vehicle, gunfire erupted. The manager saw a young man wearing blue jeans and a green hooded sweatshirt running on Highland Street with a gray pistol. Davis, who had seen a black Pontiac being driven by moments earlier, saw an individual wearing a "dark colored hoodie" run along Highland Street, firing off several shots in quick succession, and then turn onto Norfolk Street.[4] Steele was shot eight times by a nine millimeter handgun and died at the scene.

As the shooting was unfolding, Pinckney and Thomas-Dickson remained in the black Pontiac on Norfolk Street. After hearing gunshots nearby, Thomas-Dickson saw Carter running with a silver handgun from Highland Street onto Norfolk Street. As he ran, Carter took off the green hooded sweatshirt and black gloves he was wearing and threw them underneath a nearby car. Carter then got into the vehicle, whereupon Pinckney attempted to get Thomas-Dickson to take control of the gun, but she refused and asked Pinckney to drop her off at her mother's house a few blocks away. Later, Thomas-Dickson called Pinckney to express her anger for involving her in the situation, to which Pinckney replied that he "wanted to see if [she] was a ride or chick," meaning whether she was willing to go to jail for A few days later, she overheard the defendants discussing the shooting, during which the defendants stated, "We got one them Highland Street kids."

2. Procedural history.

The defendants were indicted for murder in the first degree, G. L. c. 265 § 1; and possession of a firearm without a license, G. L. c. 269, § 10 (h).[5] After two mistrials, on both occasions due to deadlocked juries, the defendants were convicted at a third joint jury trial on both indictments. The present appeals followed.


1. Race-based peremptory challenges.

During jury selection in the third trial, the judge, relying on the racial composition of the then-seated jury, concluded that the defendants could not establish the necessary prima facie case of racial discrimination to warrant requiring the prosecutor to account for exercising peremptory challenges of four African- American prospective jurors. The defendants contend that this was an abuse of discretion. For context, we summarize the relevant proceedings.

a. Background.

Carter first raised a race-based Batson-Soares challenge when he objected to the Commonwealth striking juror no. 165, an African-American female. By then, the Commonwealth had exercised fourteen peremptory challenges, including three to strike other African-Americans. After noting that the Commonwealth's prior two challenges were of Caucasian females and that two African-American females already were seated on the jury, the judge determined that Carter had not established a prima facie case of racial discrimination as to juror no. 165.

Carter again objected when the Commonwealth struck juror no. 171, another African-American female. As the judge acknowledged, by that point the Commonwealth had used four of seventeen challenges to strike African-Americans. After further noting that five of the ten seated members of the jury were African-American, however, the judge again concluded that Carter had failed to make a prima facie showing of irregularity as to the Commonwealth's challenge.

Subsequently, Carter objected to the Commonwealth's challenge to juror no. 187, an African-American male in his twenties. This time, Pinckney also objected and noted that the juror was one of few considered by that point who would qualify as a "peer" of the defendants and thus potentially could relate to their life experiences in a way the other seated African- American jurors, all in their fifties, could not. The judge, however, was unpersuaded, noting that six of the twelve seated jurors were African-Americans, that Batson-Soares objections are "not extended to age," and that there were four Caucasians in their twenties already on the panel. Accordingly, the judge declined to inquire into the prosecutor's strike of juror no. 187.

Finally, the defendants objected to the Commonwealth's challenge to juror no. 227, another African-American female. Once again, however, the judge declined to inquire of the prosecutor, having concluded that she did not discern any pattern of impermissible use of peremptory challenges by the Commonwealth given that five of the fourteen seated jurors were African-American.

b. Analysis.

"The Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights prohibit a party from exercising a peremptory challenge on the basis of race." Jones, 477 Mass. at 319. See Batson, 476 U.S. at 95;...

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