Commonwealth v. Suarez

• Decision Date: 29 August 2003
• Docket Number: No. 01-P-1527.,01-P-1527.
• Citation: 59 Mass. App. Ct. 111
• Parties: COMMONWEALTH v. Francisco SUAREZ (and a companion case[ 1 ]).
• Court: Appeals Court of Massachusetts

Page 1

COMMONWEALTHv.

Francisco SUAREZ (and a companion case[¹]).

No. 01-P-1527.

Court of Appeals of Massachusetts.

April 4, 2003.

August 29, 2003.

Controlled Substances. Practice, Criminal, Challenge to jurors, Jury and jurors, Instructions to jury, Severance, Dismissal. Jury and Jurors. Accessory and Principal. Joint Enterprise. Evidence, Joint enterprise. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Probable cause. Probable Cause.

Indictments found and returned in the Superior Court Department on April 9, 1999.

A motion to dismiss was heard by Diane M. Kottmyer, J., and a pretrial motion to suppress evidence was also considered by her; a motion to sever was heard by Elizabeth B. Donovan, J., and the cases were tried before her.

Jose A. Espinosa for Francisco Suarez.

Edward E. Eliot for Amparo Arango.

Susanne Levsen Reardon, Assistant District Attorney, for the Commonwealth.

Present: Porada, Kass, & Greenberg, JJ.

PORADA, J.

A Suffolk county grand jury indicted the defendants, Francisco Suarez and Amparo Arango, each on charges of trafficking in 200 grams or more of cocaine transported into 71 Parker Street, Chelsea, by Maria Ortiz; trafficking in 200 grams or more of cocaine transported into 71 Parker Street, Chelsea, by Julio Mejia; and conspiracy to traffic in 200 grams or more of cocaine in violation of G.L. c. 94C, § 40. Before trial, the defendant Arango moved to dismiss the indictments and the defendant Suarez moved to suppress evidence seized in the execution of a search warrant and to sever his trial from that of another codefendant, Maria Ortiz. Those motions were denied. A jury in the Superior Court returned not guilty verdicts on the indictments charging Suarez and Arango with trafficking in 200 grams or more of cocaine transported into 71 Parker Street by Mejia but found the defendants guilty of trafficking in 200 grams or more of cocaine transported into 71 Parker Street by Ortiz. The conspiracy indictments were filed with the consent of the defendants.

On appeal from their convictions, the defendants claim multiple errors. The defendant Suarez claims that the trial judge erred (1) in ruling that the prosecutor's exercise of a peremptory challenge was not motivated by improper ethnic considerations, (2) in denying his motions for a required finding of not guilty, and (3) in her instructions to the jury on both joint venture and principal liability. Suarez also contends that the motion judges erred in denying his motion to suppress evidence seized in the execution of a search warrant and in denying his motion to sever his trial from that of codefendant Ortiz. The defendant Arango argues that the motion judge erred in denying her motion to dismiss the indictments and that the trial judge erred in denying her motion for a required finding of not guilty and in instructing the jury on both joint venture and individual liability. Arango also argues that her trial counsel was ineffective in not objecting to the judge's instructions and not requesting severance of her trial from that of the other defendants. We agree that the judge should not have instructed the jury on both joint venture and principal liability, as there was insufficient evidence to support the latter. We therefore reverse her conviction. We affirm the conviction of Suarez.

We address the defendants' claims of error.

1. Suarez's claims.

(a) Peremptory challenge. During the course of the jury impanelment, defense counsel objected to the prosecutor's exercise of a peremptory challenge of juror Diana Lugo. Defense counsel stated that "in this venire I haven't seen any Hispanic individuals. Based on the last name of this person, Ms. Lugo, she seems to be of Hispanic origin.... I would like the court to take note of the fact that my client—all the defendants here are Hispanic." The judge responded: "There is no indication whether she is Hispanic or Italian. So I am not even going to inquire of the Commonwealth...." Defense counsel contends that the judge failed to follow the procedures mandated by the Supreme Judicial Court to determine whether the challenge was proper and, thus, the defendant was denied his right to be tried by a jury selected on the basis of nondiscriminatory criteria as required by the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Specifically, the defense contends that the judge should have requested the prosecutor to state her reason for exercising the challenge.

Peremptory challenges are presumed to be proper, Commonwealth v. Burnett, 418 Mass. 769, 770 (1994), but the presumption is rebuttable 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 within a group. Commonwealth v. Soares, 377 Mass. 461, 489-490, cert. denied, 444 U.S. 881 (1979). Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003). Further, "the challenge of a single prospective juror within a protected class could, in some circumstances, constitute a prima facie case of impropriety." Commonwealth v. Fryar, 414 Mass. 732, 738 (1993), S. C., 425 Mass. 237, cert. denied, 522 U.S. 1033 (1997). Faced with a claim of improper exercise of a peremptory challenge, a judge is first required to determine whether the requisite prima facie showing of impropriety has been made and, if so, must then specifically determine whether the reasons advanced by the exercising party are bona fide or a mere sham. Commonwealth v. Burnett, 418 Mass. at 771. Commonwealth v. Maldonado, 439 Mass. at 463- 464. Implicit in the judge's response in this case is a finding that a prima facie showing of impropriety had not been made.

We will not overturn the judge's ruling if there is a sound basis in the record for her ruling. Here, the defendant bore the burden of establishing a prima facie case of impropriety by demonstrating that the juror in question was Hispanic. Apparently the defendant sought to meet his burden by drawing the inference from the juror's surname. This can suffice. Commonwealth v. Carleton, 418 Mass. 773, 775 (1994). However, because it was not clear from the surname whether the juror was Hispanic or Italian, the defendant should have done more to meet his burden, such as asking the judge to make an inquiry of the juror. This he failed to do.

Even if we were to assume that juror Lugo was Hispanic, the record does not disclose that a pattern of conduct had developed in which the prosecutor was ostensibly challenging jurors based on their membership in a discrete group or that there was a likelihood that jurors were being excluded from the jury solely on the basis of their group membership. Prior to the prosecutor's challenge to juror Lugo, the prosecutor had not exercised a challenge with respect to the two other jurors selected for the panel whose surnames of Demaina and Clemente indicated that they might be Hispanic.[²] In addition, prior to the prosecutor's exercise of her peremptory challenge of juror Lugo, counsel for a codefendant disclosed to the court that he had a number of clients by the name of Lugo who were being housed as prisoners at the Nashua Street jail. The judge declined to excuse juror Lugo for cause based on that information. The prosecutor then challenged juror Lugo. The judge's determination, therefore, that the defense had not made a prima facie showing of improper exercise of a peremptory challenge is supported by the record on the ground that neither a pattern of excluding jurors of a discrete group nor a likelihood that they were excluded based on their membership in a discrete group was shown.

(b) Motions for a required finding of not guilty. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676- 677 (1979), there was ample evidence to convict Suarez as a principal or as a joint venturer in trafficking in the cocaine transported into the apartment by Maria Ortiz. The Commonwealth presented evidence that, after months of surveillance of the activities of Suarez by the police, they executed a search warrant for the premises at 71 Parker Street in Chelsea. When they entered the apartment they found Suarez with two other codefendants, Jose Fernandez and Ramon Perez, seated in the living room and the defendant Arango in the kitchen. On a table in front of Suarez were a number of cell phones, a license plate, beepers, a large amount of cash, and a ledger containing notations of drug sales. On the couch next to a codefendant the police found more cell phones and beepers. In the kitchen area, the police also found cutting agents used in the preparation of drugs for distribution. Suarez admitted that he lived in the apartment.

The police did not find any drugs in the apartment, but during the execution of the warrant two people, Julio Mejia and Maria Ortiz, entered the apartment with large amounts of cocaine in their possession. Mejia testified as a government witness. He stated that Suarez had asked him to deliver a package to a third person, who never showed up, and that he was simply returning the package containing cocaine to Suarez but that he did not know it contained drugs. He also testified that Suarez admitted to him that he was in the business of selling drugs and that the other people in the apartment worked for him. He also testified that on one occasion in his presence Suarez had asked the codefendant Fernandez to get a "piece" from the third-floor apartment, and that he understood "piece" to mean drugs. Maria Ortiz testified that she lived in the third-floor apartment, that on the day of the execution of the search warrant Suarez had asked her to retrieve a backpack he had left in her apartment, and that she was simply delivering the backpack to the defendant but did not know that it contained cocaine. In the backpack was a package that...