Commonwealth v. Kalila

• Docket Number: 22-P-817
• Decision Date: 30 November 2023
• Parties: COMMONWEALTH v. KHALID KALILA.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH v. KHALID KALILA.

No. 22-P-817

Appeals Court of Massachusetts, Suffolk

November 30, 2023

Heard: September 12, 2023.

Mayhem. Assault and Battery by Means of a Dangerous Weapon. Jury and Jurors. Practice, Criminal, Challenge to jurors, Empanelment of jury, Execution of sentence, Jury and jurors, Sentence Stay of proceedings, Voir dire.

Indictments found and returned in the Superior Court Department on June 28, 2018.

The cases were tried before Michael D. Ricciuti, J.

J.W Carney, Jr., for the defendant.

Darcy Jordan, Assistant District Attorney (Lynn Feigenbaum, Assistant District Attorney, also present) for the Commonwealth.

Present: Vuono, Singh, & Englander, JJ.

ENGLANDER, J.

The defendant was convicted by a jury of mayhem, assault and battery by means of a dangerous weapon, and violation of constitutional rights with bodily injury, arising from a physical confrontation that he had with a security guard at a restaurant and lounge in the Seaport area of Boston, during which the security guard was seriously injured. The security guard (victim) is Black, and witnesses testified that during the confrontation the defendant used racial slurs in reference to the victim.

This appeal involves the selection of the jury, and of one juror in particular -- juror no. 32. Juror no. 32 was a Black male of roughly the same age as the victim. During jury selection the defendant sought to use a peremptory challenge to strike juror no. 32. When the judge, sua sponte, asked defense counsel the reason, counsel stated that the juror's mother worked for the Boston Police Department, that the prosecution would be calling Boston police witnesses as part of its case, and that the defense intended to challenge the quality of the police investigation.

The judge refused to strike the juror. The judge expressly found that the reason defense counsel provided was "genuine," but then found that it was not "adequate" -- referring to the juror selection standards set forth in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), and its progeny. See Commonwealth v. Maldonado, 439 Mass. 460, 464-465 (2003). The juror accordingly was seated for trial, and the jury convicted the defendant. A few weeks later, at a hearing on the defendant's motion to stay execution of sentence, the judge again addressed his reasoning in denying the peremptory challenge, at one point stating that "here I think I was saying . . . that the real reason [for the defendant's challenge] was race."

On appeal the defendant argues that the judge erred in refusing to strike the juror, and that the error is considered "structural" under our case law. Our review of the precedent leads us to the same conclusion, and accordingly, the judgments must be vacated and the verdicts set aside.

Background.

1. The crime.

The evidence at trial showed that in the early morning of January 21, 2018, the defendant ended a night of celebration at the Empire restaurant and lounge (Empire) in the Seaport area of Boston. The defendant became involved in a physical altercation with another patron and, as a result, was ejected from the premises. As he was being escorted out, the defendant struck an Empire security guard in the face with a glass the defendant had been holding in his hand. Certain witnesses, including another Empire employee, heard the defendant use racial slurs toward the victim. Other witnesses could not recall any such statements. The victim sustained serious injuries and was transported to the hospital, where he underwent facial surgery. He has permanent scars and has lost feeling in part of his face.

2. The jury selection process.

The ten-day trial occurred in May of 2021. During empanelment, defense counsel challenged juror no. 32, a thirty-six year old Black male whose mother worked as a civilian in the internal affairs division (IAD) of the Boston Police Department -- the same police department that had arrested the defendant and investigated the case. At the time juror no. 32 was challenged, only four jurors had been seated -- one Black woman, one white man, and two white women.

In response to the trial judge's request for grounds, defense counsel stated that juror no. 32's "mother works for the Boston Police Department, and that would create . . . a bad situation if we are challenging the credibility of the Boston Police."^[1] The judge noted that the defense's proffered ground "didn't seem to play a role in [juror no. 32's] colloquy," and asked the Commonwealth for its views. The Commonwealth responded that there had been "other jurors with relatives [in] law enforcement who are actual law enforcement officers who have been seated without challenge, and . . . all of the answers that [juror no. 32] offered to the Court suggest[] that [the family connection to law enforcement] wouldn't have any impact on his ability to serve in this case." At this point, the judge brought juror no. 32 back and inquired whether his mother's employment would affect his impartiality, to which juror no. 32 responded, "[T]hat would not play a role."

Defense counsel then renewed his challenge. The following colloquy between the judge and defense counsel ensued:

The court: "I'm going to overrule the challenge. . . . [Juror no. 32 has] been completely straightforward in the answers he's given . . . . I find that he is able to be completely impartial with respect to this issue, and that his mother's work would not impact his ability to continue."

Defense counsel: "Your honor has given a great summary of why [juror no. 32] can't be challenged for cause, but I'm not challenging him for cause, I'm challenging him with a peremptory challenge, and . . . as long as I have a basis that's real, I can use a peremptory on him."

The court: "Unless I find it's not adequate." . . . Defense counsel: "I'm specifically referring to the fact that his mother works with the Boston Police Department every single day, and those two police officers, their testimony is going to be challenged . . . . If he had been white and his mother worked at the Boston Police Department, I would have challenged him."

. . .

The court: "I'm not challenging your genuineness. This is a [B]lack male, [thirty-six], from the Dorchester neighborhood of Boston. In order for me to find this challenge doesn't violate Soares, it must be both adequate and genuine. I find your reason is genuine, I don't find it's adequate. . . . I just don't see why a [B]lack individual who has no hesitation about hearing the evidence from a Boston Police Officer versus a witness should be challenged on this basis."^[2]

Juror no. 32 was seated over the defendant's objection.

During empanelment, the defendant exercised five additional peremptory challenges -- four of white women and one of a white man. He did not exercise peremptory challenges on juror no. 17, a white woman whose father was a former police officer in another State, or juror no. 21, a white man who hesitated before answering that he would not "weigh the testimony of a police officer any differently from that of a civilian." At the conclusion of empanelment, the jury consisted of nine white individuals, and five Black individuals.

3. The defendant's motion to stay execution of sentence.

After four days of jury deliberations, the defendant was convicted of all charges. After he was sentenced, the defendant then filed a motion to stay execution of his sentences under Mass. R. Crim. P. 31, as appearing in 454 Mass. 1501 (2009), in which he argued that he had a strong issue for appeal because his peremptory challenge of juror no. 32 had been erroneously denied. See Commonwealth v. Nash, 486 Mass. 394, 404 (2020). The trial judge held a hearing on the defendant's motion (stay hearing), and the judge began the hearing by revisiting his reasons for denying the peremptory challenge. The judge acknowledged that he made a finding at trial that the reasons defense counsel gave for the challenge were genuine and that defense counsel "was telling me what he genuinely thought and that he's not a racist." The judge went on, however, to expound on his views of the peremptory challenge:

"I was surprised by the strike. I thought it was substantively weak. I was surprised that the ground raised, that his mother worked for [the Boston Police Department], wasn't raised in the questioning. And what troubled me about that was his mother worked as a civilian and in the Internal Affairs Division; it would seem to me . . . someone in the Internal Affairs [Division] . . . wouldn't show favoritism towards police but might have the opposite impact: the IAD investigates police for wrongdoing. . . . I thought it was inconsistent with the lack of a strike on Juror 17, the white female whose father had been a police officer."

The judge then acknowledged that his statements at trial may have been less than clear, and indicated that his concern had been that the challenge was the result of "implicit bias":

"I found that there was very little ground to support the ground offered by the defense. . . . I found that the objection wasn't reasonably specific to that juror; that -- although I thought and believe [defense counsel] to have been telling the truth, that the strike was an unintended instance of unintended bias, and that that was within the scope of Soares."

After further discussion, the judge concluded that "here I think I was saying, although it wasn't intended, that the real reason was race." As to ruling on the motion to stay the defendant's sentence, the judge acknowledged that the defendant had presented a sufficiently significant appellate issue likely to satisfy the standard in Nash, 486 Mass. at 404, but denied the motion on the grounds that ...