Commonwealth v. Gonzalez, No. 19-P-1767

• Court: Appeals Court of Massachusetts
• Writing for the Court: SHIN, J.
• Citation: 162 N.E.3d 1263,99 Mass.App.Ct. 161
• Parties: COMMONWEALTH v. Angelo GONZALEZ.
• Decision Date: 04 February 2021
• Docket Number: No. 19-P-1767

99 Mass.App.Ct. 161
162 N.E.3d 1263

COMMONWEALTH
v.
Angelo GONZALEZ.

No. 19-P-1767

Appeals Court of Massachusetts, Worcester..

Argued October 19, 2020.
Decided February 4, 2021.

Joseph Visone, for the defendant.

Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Kinder, & Shin, JJ.

SHIN, J.

162 N.E.3d 1266

99 Mass.App.Ct. 161

The defendant was convicted on five indictments charging deriving support from prostitution and one indictment charging human trafficking. He raises numerous arguments on appeal,

99 Mass.App.Ct. 162

including that the trial judge erred by disallowing defense counsel's exercise of a peremptory challenge. Among the reasons given by defense counsel for the challenge were that the juror in question, juror 48, had family in law enforcement and had negative opinions about a gang with which the defendant is affiliated. Noting that juror 48 is Hispanic, the judge rejected defense counsel's reasons as inadequate and denied the challenge. We agree with the defendant that this was error and, because the error was structural, reverse the convictions.

Background. We summarize the evidence in the light most favorable to the Commonwealth. The defendant and his brother, Elvin Gonzalez,¹ were both drug dealers associated with the Kilby Street Gang in Worcester. Elvin ran a prostitution operation that involved five women who provided sexual services, usually in hotel rooms. The women were addicted to drugs and would give the proceeds from their services to Elvin (either directly or through a "supervisor") in exchange for drugs. The value of the drugs provided was less than the amount of proceeds that the women turned over. One woman testified that she was incentivized to schedule more "dates"² because the amount of drugs that she received had started to decrease.

The defendant and his codefendant, Robert Nieves, supplied the drugs to compensate the women. Elvin paid the defendant for the drugs he supplied. Bradley Alberini, who was also associated with the Kilby Street Gang and supervised the prostitution operation, saw the defendant every day or every other day for several months when the operation was ongoing. Alberini saw the defendant deliver drugs to Elvin and receive money in exchange. Occasionally, Alberini and Elvin's girlfriend saw the defendant deliver drugs directly to the hotel rooms where the prostitution occurred.³ On those occasions, in the defendant's presence, the women talked on the phone about their "dates" and did not try to hide their activities.

The defendant frequently drove Alberini and Elvin to or from one of the hotels. During some of these rides, Alberini spoke with the defendant about the prostitution operation, including about

99 Mass.App.Ct. 163

how Elvin handled the money and how the women were treated. On one occasion the defendant drove one of the women to an "outcall" -- a meeting to exchange sexual services for money at a location designated by the client. On another occasion the defendant rented a hotel room in furtherance of the operation. Alberini saw the defendant make a transaction at the front desk, and the defendant then gave Alberini and Elvin a room key.

Discussion. 1. Denial of peremptory challenge. Prior to jury empanelment, defense counsel requested that the trial judge ask the prospective jurors whether "they have any opinions concerning the

162 N.E.3d 1267

fact that [the defendant] is Hispanic." The judge agreed and proceeded to ask each juror some version of the following questions: (1) whether the fact that the defendant and his codefendant, Nieves, are Hispanic, and the "complaining witnesses or alleged victims" are white, would affect the juror's ability to be fair and impartial; and (2) whether the juror had any prior experience with Hispanics that would lead him or her to conclude that Hispanics are more inclined to break the law than members of other ethnic groups. Juror 48 answered, "No," to both questions.

In response to further questioning from Nieves's counsel, juror 48 revealed that she had lived in Worcester for thirty years and was familiar with, and had negative feelings about, the Kilby Street Gang. She also disclosed on her juror questionnaire that she had two cousins serving in the Worcester Police Department and that she was working at a security firm. When Nieves's counsel questioned her about her job, juror 48 confirmed that she "w[ore] a uniform" and that she "look[ed] at that job as a stepping stone to get into law enforcement," "something that [she] want[s] to do in the future." When the defendant's counsel asked whether she accepted that a person charged with a crime has a right not to testify, juror 48 replied, "I think you should testify ... either you're guilty or innocent." Nonetheless, juror 48 consistently stated throughout voir dire that she could be fair and impartial.

After the judge found juror 48 indifferent, the defendant's counsel sought to exercise a peremptory challenge. The following exchange ensued:

THE COURT : "Well, hold on there. Clearly this is a member of a Hispanic ethnic group and I would ask the same question if she were a member of any other minority, but you specifically asked me to bring up ethnicity --"

99 Mass.App.Ct. 164

DEFENSE COUNSEL : "Yes."

THE COURT : "-- she consistently said [she] will be fair to every question that was put to her."

DEFENSE COUNSEL : "Yes."

THE COURT : "I strictly and specifically followed up on the issue of whether the defendant chooses not to testify ... if she could uphold the law and she said yes. I'm hesitant. I now have an issue with regard to member of a minority, let alone they're the same ethnic group.... I think there's an issue ... that has to be addressed with regard to the use of a peremptory challenge with regard to this person and I have to be convinced that any explanation you give is genuine and adequate. So, what do you say?"

Defense counsel replied that he had three reasons for the challenge: juror 48's "family experiences with people in law enforcement," her confusing answers to whether she believed that a defendant has a right not to testify, and her familiarity with the Kilby Street Gang. The exchange then continued:

THE COURT : "Yeah. Do you think there's ... anyone who has heard anything about Kilby Street Gang [who] takes away any positive image of that? ... The issue is whether you can be fair and impartial given the fact that there will be references to gang affiliation. She answered these questions as cogently, consistently and credib[ly] as I've ever heard anyone do ... and we go through this ethnic questioning with an eye towards making sure people can be fair and impartial and ... as difficult as it would be for me to ask a Hispanic person if they can be fair and impartial given that they are Hispanic defendants, you asked me to do that. And now you're challenging her[ ]."

DEFENSE COUNSEL : "Yes."

162 N.E.3d 1268

THE COURT : "I don't find so far that you've got an adequate basis for challenging her."

DEFENSE COUNSEL : [Inaudible.]

THE COURT : "All right. On the basis of Kilby, the issue that you raised with regard to whether the defendant is testifying and even the Worcester Police Department, each of those

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things in my mind were answered very thoroughly and consistently by her. I don't find that your explanation is adequate given the minority status of this individual and I'm going to override your use of a peremptory and seat [her]."

Defense counsel noted his objection.

On appeal the defendant argues that the judge erred in disallowing the peremptory challenge because there was no indication that defense counsel engaged in a pattern of excluding jurors on the basis of their race, and because defense counsel offered adequate, race-neutral reasons for challenging juror 48. We "generally presume that peremptory challenges are made and used properly during jury selection." Commonwealth v. Mason, 485 Mass. 520, 529, 151 N.E.3d 385 (2020). This presumption of propriety is rebutted, however, where "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Commonwealth v. Sanchez, 485 Mass. 491, 511, 151 N.E.3d 404 (2020), quoting Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). In that event the burden shifts to the party exercising the challenge to articulate a nondiscriminatory explanation for it. Mason, supra at 530, 151 N.E.3d 385. It is then for the judge to determine whether the explanation is both "adequate" and "genuine." Id. Initially, we reject the defendant's argument that a pattern of improper exclusion had to be established before the judge could require defense counsel to explain his use of a peremptory challenge on juror 48.⁴ The argument fails in light of the Supreme Judicial Court's recent decision in Sanchez, which clarifies that, at the first stage of...