Commonwealth v. Grier

Decision Date09 August 2022
Docket NumberSJC-11386
Citation490 Mass. 455,191 N.E.3d 1003
Parties COMMONWEALTH v. Patrick GRIER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

490 Mass. 455
191 N.E.3d 1003

Patrick GRIER.


Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 11, 2022
Decided August 9, 2022

Rosemary Curran Scapicchio, Boston, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Cypher, Kafker, & Wendlandt, JJ.


490 Mass. 456

Based on his fatal shooting of De'Andre Barboza, the defendant, Patrick Grier, was convicted by a Superior Court jury of murder in the first degree and unlawful possession of a firearm. On appeal from these convictions, the defendant argues reversible error in (1) the trial judge's failure to require the Commonwealth to provide a race-neutral explanation for its use of peremptory challenges; (2) the prosecutor's use of peremptory challenges to strike potential jurors based on their youth; (3) the judge's instructions to the venire that an impartial juror must put aside his or her personal experiences, thoughts, and opinions; (4) the judge's decision to excuse a juror for cause after it was revealed, based on a criminal record check, that the juror had not disclosed prior arrests and charges; (5) the prosecutor's closing argument, which the defendant claims vouched for a witness's credibility, appealed to the jurors’ emotions, shifted the burden of proof, and improperly undermined his Bowden defense, see Commonwealth v. Bowden, 379 Mass. 472, 485-486, 399 N.E.2d 482 (1980) ; and (6) the judge's allowance of opinion testimony by a detective. Because we conclude that the defendant's arguments are without merit, we affirm his convictions.

Background. We summarize the facts as the jury reasonably could have found them. On the evening of November 30, 2008, the defendant and his close friend, Tratasia Day, were at Ada's Market, a store in the Dorchester section of Boston.

191 N.E.3d 1011

While at the store, they encountered the victim, who was in the store with Jaquan Lewis. The defendant proceeded to have a conversation with the victim outside the store. After this encounter, the defendant appeared quiet and upset.

The next morning, December 1, 2008, Day -- who was sixteen years old at the time -- went to the house where her friend Anays Mercedes lived, with the intention of walking to school with her. Upon learning that Mercedes would not be going to school that day, Day decided to skip school, arranging instead to meet up with the defendant. The pair met at Elmhurst Street in Dorchester, proceeding from there to Washington Street. That morning, the defendant was wearing a black jacket with gray design elements, including Champion brand logos on the left sleeve and left and right chest areas. He was also wearing a black baseball cap with a pinwheel design.

490 Mass. 457

As the pair were passing the Caribbean Market on Washington Street, Day noticed Lewis and the victim inside. Lewis and the victim both then came out of the market. After Lewis called out to Day, she turned back to talk to him. Meanwhile, the defendant continued walking down Washington Street toward the corner with Lyndhurst Street, turning onto Lyndhurst Street when he reached the corner. The victim also headed toward that corner.

When the victim reached the corner of Washington and Lyndhurst Streets, the defendant shot him while advancing up Lyndhurst Street toward Washington Street, causing him to fall to the ground. With the victim on the ground, the defendant continued to open fire at him, firing at least two more shots. One shot struck the victim in the head, while two shots wounded his legs. The victim was subsequently transported to Boston Medical Center in an ambulance. He died two days later on December 3, 2008, as the result of fatal brain injuries caused by the gunshot wound to his head.

Immediately following the shooting, the defendant fled the scene, running across Washington Street. Upon hearing the shots, Day and Lewis also started running, dashing across Washington Street and down Aspinwall Road. When Day passed the Citizens Bank on Aspinwall Road, the defendant caught up with her and threw the gun he used to shoot the victim at her, telling her to take it. She caught the gun, a .22 caliber revolver with a shortened barrel, and tucked it in her waistband before continuing to run down Aspinwall Road. When the defendant was running past 18 Aspinwall Road, he threw his baseball cap into the yard, where it was later recovered by the police. The defendant and Day continued running down Aspinwall Road, where they were pursued by two police officers in a cruiser onto Talbot Avenue and then Colonial Avenue. Getting out of their cruiser on Colonial Avenue, the officers chased after the defendant and Day on foot, with one officer stopping Day and the other stopping the defendant. When approaching the defendant, the apprehending officer noticed a strong smell of gunpowder coming from him. The other officer, who stopped Day, performed a patfrisk of her and felt a weapon in her waistband. A third officer who subsequently arrived at Colonial Avenue recovered the .22 caliber gun from Day's waistband and brought it to police headquarters to be analyzed.

The defendant and Day were then separately transported to the police station. At the station, some items of clothing worn by Day

490 Mass. 458

and the defendant were collected, including a pair of gloves from Day and a jacket from the defendant. A criminalist took surface samples, known as "stubs," from the hands of both the defendant and

191 N.E.3d 1012

Day for gunshot primer residue testing.1 The stubs taken from both the defendant and Day's hands tested negative for gunshot residue, as did Day's jacket and gloves. When the defendant's jacket was subsequently tested, however, the cuffs were found to be positive for gunshot residue.

Discussion. 1. Peremptory challenges of potential jurors. a. Racial discrimination. The use of peremptory challenges to exclude potential jurors solely because of their race is prohibited by the equal protection clause of the Fourteenth Amendment to the United States Constitution, see Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ("the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race"). Article 12 of the Massachusetts Declaration of Rights similarly 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. Soares, 377 Mass. 461, 486, 387 N.E.2d 499 (1979). Groups defined by race are among the particular or "discrete" groups, membership of which is an impermissible basis for peremptorily striking a potential juror under art. 12. Id. at 488-489, 387 N.E.2d 499.

Under both Federal and Massachusetts law, a three-step framework guides the constitutional review of peremptory strikes. First, the party opposing a peremptory strike must rebut the presumption that the strike is constitutionally proper by making out a prima facie case that the purpose for the strike is discriminatory. Second, if the judge finds that a prima facie case of discrimination has been established, the burden shifts to the party seeking to exercise the peremptory strike to provide a group-neutral explanation for the challenged strike. Third, the judge must then determine whether that explanation is genuine and adequate, or whether instead the opponent of the strike has proved a discriminatory purpose behind the strike. See Flowers v. Mississippi, ––– U.S. ––––, 139 S. Ct. 2228, 2241, 204 L.Ed.2d 638 (2019) ; Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) ; Commonwealth v. Sanchez, 485 Mass. 491, 493, 151 N.E.3d 404 (2020) ;

490 Mass. 459

Commonwealth v. Oberle, 476 Mass. 539, 545, 69 N.E.3d 993 (2017).

The defendant contends that the trial judge erred in ruling that the defense had not made out a prima facie case of racial discrimination when the prosecutor exercised peremptory challenges to strike three Black women on the third day of jury selection, and consequently in failing to require the prosecutor to provide race-neutral explanations for the challenged strikes. We review the trial judge's ruling for an abuse of discretion: we do not ask "whether the judge was permitted to find that the presumption [of constitutional propriety] had been rebutted," but rather "whether [s]he was required to have so found" (emphases added). Commonwealth v. Issa, 466 Mass. 1, 10, 992 N.E.2d 336 (2013).

To make out the prima facie case required for the first Batson- Soares step, a party opposing a peremptory strike must "show[ ] that the totality of the relevant facts gives rise to an inference of discriminatory purpose."

191 N.E.3d 1013

Johnson, 545 U.S. at 168, 125 S.Ct. 2410, quoting Batson, 476 U.S. at 93-94, 106 S.Ct. 1712. See Sanchez, 485 Mass. at 511, 151 N.E.3d 404, quoting Johnson, supra ("the presumption [that...

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