Commonwealth v. Sanchez

• Decision Date: 01 April 2011
• Docket Number: No. 08–P–1441.,08–P–1441.
• Citation: 79 Mass.App.Ct. 189,944 N.E.2d 625
• Parties: COMMONWEALTHv.Dagoberto SANCHEZ.
• Court: Appeals Court of Massachusetts

79 Mass.App.Ct. 189

944 N.E.2d 625

COMMONWEALTH

v.Dagoberto SANCHEZ.

No. 08–P–1441.

Appeals Court of Massachusetts, Suffolk.

Argued June 8, 2010.Decided April 1, 2011.

Ruth Greenberg for the defendant.Lynn D. Brennan, Assistant District Attorney, for the Commonwealth.Present: DUFFLY, BROWN, & VUONO, JJ.¹VUONO, J.

A Superior Court jury convicted the defendant of murder in the second degree and unlawful possession of a firearm. At trial, the defendant admitted that he shot the victim, Jose Portillo, during a street confrontation. He claimed, however, that he acted in self-defense and in defense of his aunt, who had intervened in the fight to protect him. The defendant appeals his convictions on the grounds that the Commonwealth's peremptory challenges during jury impanelment were used improperly and that the judge's instructions on defense of another were inadequate. We affirm.

Background. We briefly summarize the facts as the jury could have found them. ² Around seven o'clock in the evening on May 21, 2005, the defendant and his aunt, Theresa Cordero, were driven home from a family party by Enrique Calderon. As they approached the defendant's neighborhood, they saw Portillo standing in the middle of the street, holding an aluminum baseball bat. Portillo had been involved in a physical altercation with two or three other men.³ Upon arriving at the scene, the defendant exchanged words with Portillo and the others. The defendant then left the car, went into his house, and returned a few moments later, at which time he brandished a gun and told Portillo to leave.

Portillo did not leave. Instead, he approached the defendant while “wielding” the bat and yelling, “I'll get you,” and “I'm not scared.” Cordero, who by this point was out of the car, stepped between the defendant and Portillo and urged the defendant to leave. Portillo continued to swing the bat and walked toward Cordero and the defendant. Then, with the bat raised as if he was about to take a swing, Portillo stepped forward and stated, “I'm going to kill you.” Believing that Portillo was about to hit her with the bat, Cordero moved out of the way. At about the same time, the defendant yelled, “Watch out,” and shot Portillo twice, once in the chest and once in the abdomen. Portillo died as a result of his wounds one day later.

Discussion. 1. Peremptory challenges. Jury selection proceeded over two days. By the second day, the Commonwealth had exercised eleven peremptory challenges to remove eight white jurors, one forty-one year old man described by the parties as Hispanic, and two males described as African–American, both of whom were in their twenties.⁴ In addition, ten jurors, five of whom were African–American (three women and two men),⁵ had been seated. When the Commonwealth exercised its twelfth peremptory challenge to remove an eighteen year old African–American male (juror no. 261), defense counsel objected, contending that a pattern of challenges directed at “African American ... young males” had been established. See Commonwealth v. Soares, 377 Mass. 461, 488–490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). After some discussion, the judge overruled the objection,⁶ explicitly finding that a prima facie showing of impropriety had not been made. As a result, the prosecutor was not required to justify the challenge.⁷

“Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race.” Commonwealth v. Douglas, 75 Mass.App.Ct. 643, 648, 915 N.E.2d 1111 (2009), citing Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). The defendant claims that the prosecutor's use of peremptory challenges to exclude juror no. 261 and other “young men of color” from the jury violated the State and Federal Constitutions and, therefore, that the judge's conclusion that the defendant had not met his burden of establishing a prima facie case of improper challenges was erroneous. ⁸

“Peremptory challenges are presumed to be proper, but that presumption may be rebutted on a showing that ‘(1) there is a pattern of excluding members of a discrete group and (2) it is likely that individuals are being excluded solely on the basis of their membership’ in that group.” Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003), quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). If the judge finds that a prima facie showing of an improper use of peremptory challenges has been made, “the burden shifts to the party exercising the challenge to provide a ‘group-neutral’ explanation for it.” Commonwealth v. Maldonado, supra. Because “[a] trial judge is in the best position to decide if a peremptory challenge appears improper and requires an explanation by the party exercising it[,] ... ‘we do not substitute our judgment ... for his if there is support for it on the record.’ ” Commonwealth v. LeClair, 429 Mass. 313, 321, 708 N.E.2d 107 (1999), quoting from Commonwealth v. Colon, 408 Mass. 419, 440, 558 N.E.2d 974 (1990).

In this case, the judge determined that the presumption of propriety had not been rebutted. He found it unlikely, in light of the fact that five other African–Americans had been seated, that the Commonwealth's challenges had been based solely on race. He also found that, to the extent the defendant's objection was based on the ages of the challenged jurors, it was not valid because age is not a suspect classification under Soares, 377 Mass. at 489, 387 N.E.2d 499. The judge also rejected the defendant's argument that “persons of color” constitute a discrete group under Soares, supra. Therefore, he refused to consider the prosecutor's challenge of the juror believed to be Hispanic in determining whether the defendant had established a pattern of improper exclusion based on race.

The record supports the judge's finding that no pattern of discrimination had been established. First, the fact that other members—here, five—of an allegedly targeted group were seated is an appropriate factor to consider in determining whether the presumption of propriety had been rebutted. See and compare Commonwealth v. Walker, 69 Mass.App.Ct. 137, 142, 866 N.E.2d 958 (2007).

Second, the judge correctly ruled that age is not a protected class under either the Declaration of Rights, see Commonwealth v. Samuel, 398 Mass. 93, 95, 495 N.E.2d 279 (1986) (“[t]here is no constitutional basis for challenging the exclusion of young persons”), or the United States Constitution. See United States v. Cresta, 825 F.2d 538, 545 (1st Cir.1987) (holding that young adults do not constitute a “cognizable group” for the purpose of an equal protection challenge to the composition of a petit jury).

Third, the judge did not err in rejecting the defendant's assertion that “persons of color” includes both African–American and Hispanic jurors and constitutes a discrete aggregate group under Soares, supra. Although “[t]here is no dispute that Hispanic persons [like African–Americans] are members of a racial or ethnic group protected under art. 1 of the Declaration of Rights,” Commonwealth v. Rodriguez, 457 Mass. 461, 467 n. 15, 931 N.E.2d 20 (2010), we are not aware of any authority requiring a trial judge to combine challenges to members of discrete racial or ethnic groups into one “catch all” category.⁹ Cf. Gray v. Brady, 592 F.3d 296, 306 (1st Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3478, 177 L.Ed.2d 1072 (2010) (rejecting claim that “minorities” constitute a cognizable group under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1976), and expressing “serious” doubt whether classes such as “minorities” or “non-whites” possess “the definable quality, common thread of attitudes or experiences, or community of interests essential to recognition as a ‘group’ ”).

The defendant further argues that the procedure set forth in Soares, supra at 489–490, 387 N.E.2d 499, and its progeny fails to protect against discrimination in the jury selection process and, therefore, the use of peremptory challenges should be abolished. As the defendant acknowledges, it is beyond our authority “to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided.” Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485, 796 N.E.2d 859 (2003) (citing cases).¹⁰

2. Jury instructions. At the conclusion of the trial, the judge instructed the jury on both self-defense and defense of another. Upon the request of the Commonwealth, the judge also agreed to instruct the jury on the original aggressor rule, which provides that “self-defense ... cannot be claimed by a [defendant] who provokes or initiates an assault.” Commonwealth v. Espada, 450 Mass. 687, 693, 880 N.E.2d 795 (2008), quoting from Commonwealth v. Maguire, 375 Mass. 768, 772, 378 N.E.2d 445 (1978). The defendant objected and requested that the judge either refrain from giving an original aggressor instruction or explicitly inform the jury that the original aggressor rule is inapplicable to the defense of another. Eventually, the judge gave the instruction without any specific restrictions.

The defendant claims that because the judge refused to instruct the jury exactly as he had requested, he was deprived of his due process right to establish a defense. Because the issue was properly preserved, we review for prejudicial error. Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994).

Our cases have not specifically addressed whether the original aggressor rule applies to defense of another.¹¹ Assuming without deciding that the original aggressor rule is wholly or partially inapplicable to the defense of another as that defense was asserted here, the error was not prejudicial.¹² “The judge is not required to grant a particular instruction so long as...