Commonwealth v. Sanchez, SJC-12778

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: GAZIANO, J.
• Citation: 485 Mass. 491,151 N.E.3d 404
• Parties: COMMONWEALTH v. Dagoberto SANCHEZ.
• Docket Number: SJC-12778
• Decision Date: 25 August 2020

485 Mass. 491
151 N.E.3d 404

COMMONWEALTH
v.
Dagoberto SANCHEZ.

SJC-12778

Supreme Judicial Court of Massachusetts, Suffolk..

Argued December 5, 2019.
Decided August 25, 2020.

Cailin M. Campbell, Assistant District Attorney (Mark T. Lee, Assistant District Attorney, also present) for the Commonwealth.

Ruth Greenberg for the defendant.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

485 Mass. 492

Throughout the thirteen years of his incarceration, the defendant pressed the same claim at every stage of appeal or motion for postconviction relief -- that the trial judge did not properly inquire as to whether the prosecutor unconstitutionally struck young African-American men from the jury. The Appeals Court affirmed the trial judge's decision not to probe deeper into the prosecutor's reasons, while the United States Court of Appeals for the First Circuit, on review of the defendant's petition for a writ of habeas corpus, concluded that the trial judge unreasonably applied Federal law.

In this appeal, we must determine what effects these divergent holdings have for a judge considering a subsequent motion for postconviction relief. We also must decide whether the motion judge¹ erred in reducing the verdict under Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), and whether principles of double jeopardy bar a new trial.

Lastly, we recognize and address apparent differences between Massachusetts and Federal procedures and remedies for impermissible peremptory challenges. In so doing, we adopt the language of the

151 N.E.3d 410

Federal standard for the first step of a challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We retire the language of "pattern" and "likelihood," which has long governed the first-step inquiry under Commonwealth v. Soares, 377 Mass. 461, 486, 489-490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), because we conclude that this language has resulted in persistent confusion for judges and litigants alike.

For the reasons that follow, we determine that the judge's decision to reduce the verdict in this case under rule 25 (b) (2) was improper, and that principles of double jeopardy do not preclude resentencing or retrying the defendant. Accordingly, we affirm the judge's alternative disposition, and remand the matter to the Superior Court for retrial.

485 Mass. 493

Background. 1. Batson and Soares challenges. "The Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights prohibit a party from exercising a peremptory challenge on the basis of race" or other protected classes. Commonwealth v. Jones, 477 Mass. 307, 319, 77 N.E.3d 278 (2017), citing Batson, 476 U.S. at 95, 106 S.Ct. 1712, and Soares, 377 Mass. at 486, 387 N.E.2d 499. Under the Federal Constitution, a racially motivated peremptory challenge violates both the rights of the defendant, Batson, supra at 85, 106 S.Ct. 1712, citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), and the rights of the impermissibly struck juror, Batson, supra at 87, 106 S.Ct. 1712. While the inquiry under the Massachusetts Declaration of Rights focuses on a "defendant's right to be tried by a fairly drawn jury of his or her peers," we have long concluded that "[r]egardless of the perspective from which the problem is viewed, the result appears to be the same." Jones, supra, quoting Commonwealth v. Benoit, 452 Mass. 212, 218 n.6, 892 N.E.2d 314 (2008). Both constitutions "forbid[ ] striking even a single prospective juror for a discriminatory purpose." Flowers v. Mississippi, ––– U.S. ––––, 139 S. Ct. 2228, 2244, 204 L.Ed.2d 638 (2019). See Commonwealth v. Robertson, 480 Mass. 383, 393, 105 N.E.3d 253 (2018). See also Sanchez v. Roden, 753 F.3d 279, 284-288, 300 (1st Cir. 2014) ( Sanchez V ) (" Batson's core rationale [is] that [a] person's race simply is unrelated to his [or her] fitness as a juror" [quotations and citation omitted] ).

Both Federal and Massachusetts courts employ a three-step burden-shifting analysis to examine whether a peremptory strike is being used impermissibly. See Flowers, 139 S. Ct. at 2244 ; Robertson, 480 Mass. at 393, 105 N.E.3d 253. First, the party challenging the strike must rebut a presumption that the peremptory challenge is proper. In Massachusetts, the presumption of propriety is "rebutted on a showing that (1) there is a pattern of excluding members of a discrete grouping and (2) it is likely that individuals are being excluded solely on the basis of their membership in that group." Commonwealth v. Oberle, 476 Mass. 539, 545, 69 N.E.3d 993 (2017). If a party makes such a showing, "the burden shifts to the party exercising the challenge to provide a ‘group-neutral’ explanation for it" (citation omitted). Id. Finally, the "judge must then determine whether the explanation is both ‘adequate’ and ‘genuine’ " (citation omitted). Id.

2. Voir dire. In the course of the circuitous appellate odyssey of this case, the underlying facts of the voir dire have been discussed repeatedly and at length. See, e.g., Commonwealth v. Sanchez, 79 Mass. App. Ct. 189, 190–191, 944 N.E.2d 625 (2011) ( Sanchez I );

485 Mass. 494

Sanchez V, 753 F.3d at 284-288. We briefly address only those underlying

151 N.E.3d 411

facts that are relevant to this appeal.

The original dispute centered on the prosecutor's twelfth peremptory challenge, in which he struck a nineteen year old African-American college student from the jury. Sanchez V, 753 F.3d at 286. Because two other young, African-American men also had been struck, defense counsel objected on Batson- Soares grounds. Id. at 286-287. Instead of seeking a reason from the Commonwealth or determining that the prima facie showing had been made, the judge responded, "I think his youth and the fact that he's a full-time college student could be a problem." Id. Upon further argument from defense counsel, the judge sought to "shortcut" the process by asking the prosecutor if he would proffer a race-neutral reason for the strike. Id. at 287. The prosecutor argued that age is not a protected characteristic and insisted that the judge formally find that a threshold showing of impropriety had been made before proceeding to the second step of the inquiry. Id. at 287-288. Noting that five African-American jurors had been seated, the judge declared that the prima facie showing had not been made, and then allowed the prosecutor to use the peremptory challenge without requiring him to give a race-neutral reason. Id. at 288. Defense counsel renewed her objection, and the case proceeded to trial, where the defendant was convicted of murder in the second degree and possession of a firearm without a license. Id.

3. Appellate history. a. Direct review. On appeal, the defendant argued error in the trial judge's decision not to continue past the first step of the Batson- Soares inquiry. The Appeals Court determined that there was no error in the judge's decision. See Sanchez I, 79 Mass. App. Ct. at 191-193, 944 N.E.2d 625. The court reasoned that "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." Id. at 192, 944 N.E.2d 625. The Appeals Court also determined that the judge was correct in deciding that neither age nor "persons of color" are protected classes under Batson and Soares. Id. at 193, 944 N.E.2d 625. This court denied further appellate review, and the United States Supreme Court denied the defendant's petition for certiorari. See Sanchez v. Massachusetts, 565 U.S. 948, 132 S.Ct. 408, 181 L.Ed.2d 267 (2011) ; Commonwealth v. Sanchez, 460 Mass. 1106, 950 N.E.2d 438 (2011).

b. Federal habeas proceedings. In considering the defendant's Federal petition for a writ of habeas corpus, the United States District Court for the District of Massachusetts noted an apparent

485 Mass. 495

conflict between Federal law under Batson and Massachusetts law under Soares with respect to the showing required at the first step of the inquiry. See Sanchez v. Roden, U.S. Dist. Ct., No. 12-10931-FDS, 2013 WL 593960 (D. Mass. Feb. 14, 2013) ( Sanchez IV ), vacated by Sanchez V, 753 F.3d 279. The District Court judge's view that "[t]he Massachusetts ‘likely’ standard is thus more stringent than the [F]ederal standard" led the court to conduct a de novo review of the defendant's Federal Batson claims, in accordance with Federal habeas jurisprudence.² Id.

The District Court judge concluded that, while specific racial or ethnic groups are

151 N.E.3d 412

constitutionally protected, the broader appellation of people "of color" did not represent a "cognizable group" for purposes of Batson. Sanchez IV, supra, citing Gray v. Brady, 592 F.3d 296, 302 (1st Cir. 2010).³ Similarly, he noted that age is not a cognizable group under Batson. Sanchez...