Commonwealth v. Concepcion-Pesquera

COMMONWEALTH v. JORGE CONCEPCION-PESQUERA.

18-P-921

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

February 6, 2020

NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28

Following a jury trial, the defendant, Jorge Concepcion-Pesquera, was convicted of murder in the second degree, unlawful possession of a firearm, and malicious destruction of property. On appeal, the defendant raises multiple claims of error regarding jury selection, a jury instruction, the sufficiency of the evidence, the prosecutor's use of a photographic comparison as a chalk, evidentiary rulings at trial, and statements made in closing argument. We affirm.

1. Peremptory challenges. During jury empanelment, defense counsel objected to the prosecutor's use of a peremptory challenge to excuse a Hispanic female juror, claiming that the challenge was discriminatory. The defendant argues on appeal that the trial judge abused her discretion by failing to require the prosecutor to provide a reason for the challenge.¹

"Sorting out whether a permissible or impermissible reason underlies a peremptory challenge is the function of the trial judge, and we do not substitute our judgment for [the judge's] if there is support for it on the record." Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547, 552 (1981). "Peremptory challenges are presumed to be proper." Commonwealth v. Scott, 463 Mass. 561, 570 (2012). This presumption of propriety may be rebutted, however, if the challenging party makes a prima facie 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 because of their membership in this group." Commonwealth v. Benoit, 452 Mass. 212, 218 (2008).

In determining whether a pattern exists, a trial judge must consider all of the relevant circumstances, which may include "(1) 'the number and percentage of group members who have been excluded'; (2) 'the possibility of an objective group-neutral explanation for the strike'; (3) 'any similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck'; (4) 'differences among the various members of the allegedly targeted group who were struck'; (5)'whether those excluded are members of the same protected group as the defendant or the victim'; and (6) 'the composition of the jurors already seated.'" Commonwealth v. Ortega, 480 Mass. 603, 606 (2018), quoting Commonwealth v. Jones, 477 Mass. 307, 322 (2017).²

A prima facie showing of impropriety is a "relatively low bar," Jones, 477 Mass. at 322, and "[t]he challenging party need not show much to satisfy this low burden." Commonwealth v. Robertson, 480 Mass. 383, 392 (2018). "We have often declared that a single peremptory challenge may be sufficient . . . 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, 462Mass. 295, 306 n.15 (2012). If the requisite prima facie showing of impropriety has been made, the burden then shifts to the exercising party to provide a "group-neutral" reason for the challenge. Robertson, supra at 391, quoting Scott, 463 Mass. at 570. The judge "must then specifically determine whether the reasons advanced by the exercising party are bona fide or a mere sham." Commonwealth v. Suarez, 59 Mass. App. Ct. 111, 114 (2003).

"We review the judge's finding that there was no prima facie showing of a discriminatory pattern for an abuse of discretion," Robertson, 480 Mass. at 390, and we note that on appeal, the issue "is not whether the judge was permitted to find that the presumption [of propriety] had been rebutted, but whether [she] was required to have so found." Issa, 466 Mass. at 10.

Here, defense counsel objected to the Commonwealth's use of a peremptory challenge to strike juror eighty-one, a Hispanic woman, on the grounds that the challenge would not "withstand scrutiny under Soares." See Commonwealth v. Soares, 377 Mass. 461, 486-488, cert. denied, 444 U.S. 881 (1979). The judge asked the basis for the defendant's objection, noting that "several Hispanic[] jurors have been challenged by both sides," and that there were five African-American jurors and one Hispanic male juror currently seated.

Defense counsel stated that juror eighty-one "share[d] a racial affinity with the defendant." He then stated that the defense had not challenged any Hispanic jurors, and that, "look[ing] at the Commonwealth's history . . . they challenged one Hispanic male. In terms of females, they've challenged one, two, three, four, five females . . . and . . . there's not a lot of Hispanics in the venire." The prosecutor indicated that he did not believe that any of the Commonwealth's challenges "seem[ed] to be overtly Hispanic names."³ Defense counsel responded that on the prior day of empanelment the Commonwealth had "one, two, three, four challenges as a Hispanic male . . . All together."⁴ The judge declined to require an explanation from the Commonwealth, stating, "I just don't see that there has been a pattern with respect to the Commonwealth's challenges." During the trial, the judge revisited the issue briefly, making additional findings regarding the identity status of some, but not all, of the jurors challenged by the Commonwealth. As thedefendant does not contest these findings on appeal, we rely on them in reviewing this issue.

The defendant had the burden to not only state his objection to the Commonwealth's peremptory challenge, but also to state the grounds for that objection. See Commonwealth v. Smith, 450 Mass. 395, 405-406 (2008). Though the defendant clearly articulated a race-based Soares objection to the Commonwealth's challenge of juror eighty-one, his recitation of the purported evidence of a pattern was muddled at best. Though defense counsel clearly intended to claim that the Commonwealth had used peremptory challenges to strike multiple Hispanic jurors, he was unclear and inconsistent as to the number of such strikes he alleged, and he did not specify which jurors he claimed comprised the pattern. Because the Commonwealth contemporaneously disputed the defendant's claims regarding the group membership of previously challenged jurors, we need not accept defense counsel's statements as fact. Contrast Commonwealth v. Long, 419 Mass. 798, 805 n.8 (1995) (unchallenged assertions of counsel regarding juror's group membership are deemed established).

The record is of limited assistance in fleshing out the defendant's claim. Prior to juror eighty-one, the Commonwealth challenged nine jurors. Four days later, during the trial, the judge issued findings that two of these jurors were Caucasian, athird was "not Hispanic," and a fourth did "not have a Hispanic surname." She found a fifth to be African-American,⁵ and noted the specific name of a sixth juror, which was not overtly Hispanic, apparently implying that the juror was not Hispanic. The judge made no mention of the remaining three jurors challenged by the Commonwealth, and the defendant did not supply additional argument or commentary at that time. As to the three jurors not mentioned by the judge in her findings, no additional information is present in the transcripts that would identify their races, and neither party has included any juror questionnaires for the challenged or seated jurors in the record on appeal.

We are mindful that "where a juror's membership in a protected class is reasonably in dispute, trial judges, in performing the first step of the Batson-Soares analysis, ought to presume that the juror is a member of the protected class at issue." Robertson, 480 Mass. at 395. See Batson v. Kentucky, 476 U.S. 79 (1986). Here, however, the defendant failed to make a record of which jurors he claimed were in the protected class. We thus cannot deem the issue to be "reasonably in dispute," and the defendant is not entitled to a presumption of group membership. Contrast Robertson, supra at 394 (presumptionapplied where parties disagreed about race of specific juror from Dominican Republic).

It is the defendant's responsibility to preserve and present evidence in support of his objection to a peremptory challenge where such support is not apparent from the record. See Commonwealth v. Dolliver, 52 Mass. App. Ct. 278, 282 (2001). Given the deficiencies in the defendant's showing of a pattern and attendant lack of factual foundation, combined with the facts that the record reflects at least one Hispanic juror seated on the jury⁶ and that both the defendant and victim were Hispanic,⁷ we cannot say that the judge abused her discretion in declining to require that the prosecutor offer a race-neutral explanation for the challenge.

On appeal, the defendant presses additional arguments related to the challenge of juror eighty-one, based on gender and the juror's intersectional status in a group defined by both race and gender. Neither of these arguments were clearlyarticulated at the time of the defendant's objection, and we thus need not consider them on appeal. See Smith, 450 Mass. at 406-407 (declining to consider defendant's claim of error where objection to Commonwealth's challenge was not explicit and parties focused on different aspects of juror's identity). We nonetheless do not discern any abuse of...