Commonwealth v. Pierre

• Docket Number: 22-P-209
• Decision Date: 19 January 2024
• Parties: COMMONWEALTH v. DELANEAU PIERRE.
• Court: Appeals Court of Massachusetts

1

COMMONWEALTH
v.
DELANEAU PIERRE.

No. 22-P-209

Appeals Court of Massachusetts

January 19, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted, after a jury trial, of murder, G. L. c. 265, § 1, on the theories of murder in the second degree (second degree murder), and felony-murder in the second degree (second degree felony-murder). The jury also convicted the defendant of unlawful possession of a firearm (which served as the predicate for the murder conviction on the basis of second degree felony-murder), pursuant to G. L. c. 269, § 10 (a), unlawful possession of a loaded firearm pursuant to G. L. c. 269, § 10 (n), and unlawful possession of ammunition pursuant to G. L. c. 269, § 10 (h).^[1] The possessory convictions were dismissed at sentencing based on the judge's understanding

2

of the felony-murder merger doctrine.^[2] See Commonwealth v. Foster, 471 Mass. 236, 244 (2015) (underlying felonies dismissed when "conviction of the predicate felony is duplicative as a lesser included offense of the homicide").

In this consolidated appeal, the defendant appeals from his murder conviction and from the denial of his motion to set aside the verdict or for a new trial and motion for reconsideration of that motion. After oral argument occurred in this appeal, the Supreme Judicial Court issued Commonwealth v. Guardado, 491 Mass. 666 (2023) (Guardado I). We accordingly requested supplemental memoranda from the parties as to whether Guardado I was implicated in this appeal and, if so, how. The parties responded by jointly requesting a stay to permit the Commonwealth to pursue a motion for reconsideration of Guardado I in the Supreme Judicial Court. We allowed that motion, and the appeal was accordingly stayed until the Supreme Judicial

3

Court issued Commonwealth v. Guardado, 493 Mass. 1 (2023) (Guardado II), at which point we again solicited additional memoranda from the parties. In response, the parties have both taken the position that, in light of Guardado I and Guardado II, the evidence failed to support the conviction of murder on the theory of second degree felony-murder because the Commonwealth did not introduce any evidence of lack of licensure. We agree.

What remains of this appeal, therefore, are the defendant's arguments vis-à-vis his conviction under the theory of second degree murder. Those arguments are: (1) whether racial discrimination factored into jury selection or composition; (2) whether the evidence was sufficient to permit the jury to find beyond a reasonable doubt that he acted with malice; and (3) whether trial counsel's failure to ask that the jury be instructed on manslaughter constituted ineffective assistance of counsel warranting a new trial.^[3] We affirm the second degree murder conviction.

1. Jury composition.

The defendant argues that racial discrimination affected the composition of the jury in two ways

4

and that his conviction must be reversed as a result.^[4] The defendant first argues that the judge erred in allowing the prosecutor to exercise a peremptory challenge to juror no. 74, who was Black, without going beyond the first step of the Batson-Soares inquiry. See Batson v. Kentucky, 476 U.S. 79 (1986); Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), overruled in part by Commonwealth v. Sanchez, 485 Mass. 491, 511 (2020). More specifically, the defendant claims that he satisfied his burden to establish a prima facie showing of discriminatory purpose and, accordingly, the judge erroneously terminated the Batson-Soares inquiry prematurely, resulting in structural error. In the alternative, the defendant argues that we should abandon the first prong of the Batson-Soares framework entirely. This argument has fairly recently been rejected by the Supreme Judicial Court. See Sanchez, 485 Mass. at 513-514 ("we do not join those States that have eliminated entirely the first step of Batson, . . . in accordance with our long-standing jurisprudence and the Federal standard").^[5] Secondly, the defendant argues that the judge

5

should have allowed the defendant's request that the only Black juror be removed from the random drawing to select alternate jurors before deliberations.

a. Juror no. 74.

Jury selection took place over two days using the following process. The judge first posed broad questions to the entire venire. The judge then called individual prospective jurors to the sidebar, where the judge conducted individual voir dire following up on any responses elicited during the general questioning. The judge also permitted counsel to ask follow-up questions. The judge then determined whether to excuse the juror on his own initiative and, if he did not do so, allowed the parties to challenge the potential juror for cause. Once the jury box was filled with qualified jurors, the judge allowed the parties to exercise peremptory challenges. This process was then repeated as necessary to fill any vacancies created by the exercise of peremptory challenges.

The prospective juror at the heart of the defendant's Batson-Soares challenge was juror no. 74. During her individual voir dire, juror no. 74 acknowledged that she had suffered from a drug addiction and that her son had been tried and recently acquitted in the same court house that served as the venue for the defendant's trial. Despite that, she stated that she could

6

be a fair and impartial juror. The prosecutor moved to challenge juror no. 74 for cause, stating:

"she has related to the court a very fresh case right here in the Superior Court prosecuted by my office. I would suggest that she certainly would harbor some bias or prejudice towards the prosecuting office that brought her son to trial in Brockton Superior Court, particularly where it just happened Tuesday, presumably last week, here in this very courthouse."

The defendant responded that juror no. 74 was the only Black juror, and that "her answers were all that she could be fair and impartial to both sides." The judge declined to excuse juror no. 74 for cause, but he remarked that "certainly the Commonwealth can exercise a peremptory" at the appropriate time. When that time arrived, the prosecutor as foretold peremptorily challenged juror no. 74. Defense counsel objected, stating:

"I want to make a challenge to 74. I know there's a separate reason for this but I think that her answers stand. Her answers are that she could be fair and impartial. I think there's three, but I think under Soares I can make a challenge even though there's only one."

The judge responded that he "[didn't] think that's a pattern," and dismissed juror no. 74.

"The use of peremptory challenges to exclude prospective jurors solely because of bias presumed to derive from their membership in discrete community groups is prohibited both by art. 12 [of the Massachusetts Declaration of Rights] and the equal protection clause [of the Fourteenth Amendment to the United States Constitution]" (citations omitted).

7

Commonwealth v. Ortega, 480 Mass. 603, 605 (2018). The exercise of a peremptory challenge is presumed proper; to rebut that presumption, "the challenging party 'must make out a prima facie case that it was impermissibly based on race or other protected status by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" Commonwealth v. Kozubal, 488 Mass. 575, 580 (2021), quoting Commonwealth v. Jackson, 486 Mass. 763, 768 (2021). In some circumstances, "a single peremptory challenge may be sufficient to rebut the presumption, especially where 'the challenged juror is the only member of his or her protected class in the entire venire.'" Commonwealth v. Issa, 466 Mass. 1, 9 (2013), quoting Commonwealth v. Prunty, 462 Mass. 295, 306 n.15 (2012). "In determining whether a prima facie case of discriminatory purpose has been established, a judge may consider all relevant circumstances." Commonwealth v. Carter, 488 Mass. 191, 196 (2021), citing Batson, 476 U.S. at 96-97. These circumstances include:

"(1) the number and percentage of group members who have been excluded from jury service due to the exercise of a peremptory challenge; (2) any evidence of disparate questioning or investigation of prospective jurors; (3) any similarities and differences between excluded jurors and those, not members of the protected group, who have not been challenged (for example, age, educational level, occupation, or previous interactions with the criminal justice system); (4) whether the defendant or the victim are members of the same protected group; and (5) the composition of the seated jury" (footnotes omitted).

8

Sanchez, 485 Mass. at 512. Once the presumption has been rebutted, "the burden shifts to the party exercising the challenge to provide a 'group-neutral' explanation for it. The judge must then determine whether the explanation is both 'adequate' and 'genuine.'" (Citation omitted.) Commonwealth v. Oberle, 476 Mass. 539, 545 (2017). Although "the possibility of an objective, group-neutral explanation for the strike," Commonwealth v. Jones, 477 Mass. 307, 322 (2017), is more properly applicable at the...