Commonwealth v. Lugo

237 N.E.3d 1206

104 Mass.App.Ct. 309

COMMONWEALTH

v.Richard LUGO.

No. 22-P-1011

Appeals Court of Massachusetts, Suffolk.

Argued March 14, 2024

Decided June 20, 2024

Indictments found and returned in the Superior Court Department on December 4, 2019.

The cases were tried before Janet L. Sanders, J.

Homicide. Firearms. Jury and Jurors. Constitutional Law, Jury, Right to bear arms, Harmless error. Due Process of Law, Elements of criminal offense. Evidence, Admission by silence, Consciousness of guilt, Firearm, Argument by prosecutor. Error, Harmless. Practice, Criminal, Jury and jurors, Argument by prosecutor, Instructions to jury, Hannless error.

William M. Driscoll, Pepperell, for the defendant.

Kyle E. Siconolfi, Assistant District Attorney, for the Commonwealth.

Present: Meade, Neyman, & Hand, JJ.

MEADE, J.

₃₁₀After a jury trial on an indictment that charged first-degree murder, the defendant was convicted of the lesser included offense of voluntary manslaughter. He was also found guilty of unlawful possession of a firearm and unlawful possession of a loaded firearm.¹ On appeal, he claims the judge abused her discretion by allowing the Commonwealth’s peremptory challenge₃₁₁ to a venire member, the judge abused her discretion by admitting evidence of the defendant’s prearrest silence, and the judge erred in her jury instructions on the firearm offenses. We affirm the conviction for voluntary manslaughter, and we vacate his convictions for the firearm offenses.

Background. In 2019, the defendant shot and killed the victim, Pascual Casiano, at the car repair shop where the defendant was employed as a mechanic. The victim operated the car dealership adjacent to the repair shop and worked in sales with his nephew, Javier Fonseca.

On the day of the shooting, the defendant and the victim had an argument that escalated into a physical altercation and culminated in the defendant using a handgun to shoot the victim in his abdomen. The defendant also fired the weapon at Fonseca, who suffered a gunshot wound to his hand. The bullet that struck the victim ultimately caused his death.

After the shooting, the defendant fled the Commonwealth, where he had lived since 1986. In the process, he abandoned his cell phone, his job, and several family members, including five of his six children. Arriving in New York, where a son lived, the defendant altered his appearance by cutting off his lengthy dreadlocks, a hair style he had maintained for fifteen years.

The Commonwealth and the defendant offered different theories on who initiated the conflict, who first brandished the gun, whether the defendant had acted in self-defense, and the existence of other mitigating factors in the shooting. The Commonwealth’s witnesses portrayed a mutual fist fight between the defendant and the victim that Fonseca attempted to break up, with only the defendant ever being in possession of a gun. The defendant pushed Fonseca and the victim away and then shot them both. Fonseca attempted to retrieve his cell phone from the victim’s car to call for help, but the defendant threatened to kill him if he did not get out of the car.

The defendant, on the other hand, testified that it was he who was attacked by the victim and Fonseca. He claimed the duo struck him in the head with a gun as well as a bat and kicked and punched him repeatedly. As a result, the defendant was bleeding, light-headed, dizzy, and he feared for his life. According to the defendant, near the conclusion of the beating, the victim dropped the gun, which the defendant retrieved and fired more than once, stinking both men. The defendant claimed he acted in self-defense.

₃₁₂Discussion. 1. The peremptory challenge. The defendant claims for the first time on appeal that the judge abused her discretion by permitting the Commonwealth to exercise a peremptory challenge to exclude an African-American venire member (juror no. 31), who was being treated for a mental health disorder, because the challenge violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. See G. L. c. 234A, §§ 3, 4. The defendant also claims for the first time on appeal that exclusion of juror no. 31 due to his brother being incarcerated in Federal prison on a gun conviction was "disability discrimination clothed as implicit bias." Both assertions lack merit.

[1–5] Article 12 of the Massachusetts Declaration of Rights, and the Sixth and Fourteenth Amendments to the United States Constitution, guarantee to criminal defendants the right to a trial by an impartial jury. Commonwealth v. Susi, 394 Mass. 784, 786, 477 N.E.2d 995 (1985); Commonwealth v. Soares, 377 Mass. 461, 478-480, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), overruled in part by Commonwealth v. Sanchez, 485 Mass. 491, 511, 151 N.E.3d 404 (2020). Pursuant to these same protections, a party is prohibited from exercising a peremptory challenge on the basis of race or other protected classes. Sanchez, supra at 493, 151 N.E.3d 404; Commonwealth v. Jones, 477 Mass. 307, 319, 77 N.E.3d 278 (2017). See Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). With that said, the analysis of a peremptory challenge begins with a presumption that the challenge is proper. See Soares, supra at 489, 387 N.E.2d 499. To analyze an objected-to peremptory challenge, the trial judge must follow a three-step, burden shifting procedure. "[T]o rebut the presumption that the peremptory challenge is proper, 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, 174 N.E.3d 1169 (2021), cert. denied, — U.S. —, 142 S. Ct. 2723, 212 L.Ed.2d 787 (2022), quoting Commonwealth v. Jackson, 486 Mass. 763, 768, 162 N.E.3d 48 (2021). "If a party makes such a showing, the burden shifts to the party exercising the challenge to provide a ‘group-neutral’ explanation for it" (quotation and citation omitted). Sanchez, supra. "Finally, the judge must then determine whether the explanation is both ‘adequate’ and ‘genuine’ " (quotation and citation omitted). Id. See Commonwealth v. Kalila, 103 Mass. App. Ct. 582, 587-588, 223 N.E.3d 1220 (2023). We review a judge’s decision relative to a peremptory challenge for an abuse of discretion. Commonwealth v. Lopes, 478 Mass. 593, 599, 91 N.E.3d 1126 (2018).

₃₁₃Here, during a voir dire on the second day of trial, juror no. 31 disclosed both his personal and familial experiences with being arrested and prosecuted, as well as his own history of mental illness. Upon inquiry from the judge, juror no. 31 reported that both he and his brother had been arrested. Juror no. 31’s sole arrest from two years prior stemmed from a breaking and entering in the nighttime when he was not taking his medication for his schizoaffective disorder. He reported that he was now stable and had been for the past year, his medication was under control,² he had completed "mental health court," and he would be able to hear the evidence and to participate in deliberations. Juror no. 31’s brother, with whom he was not close, had been arrested for "drugs and [a] gun," and he was currently in Federal prison. Juror no. 31 did not participate in his brother’s trial, and nothing in that case led him to believe that his brother had been treated unfairly or that he would harbor any bias against the police, the prosecutor, or other witnesses in this case.

After defense counsel made a further inquiry related to juror no. 31’s medication, and issues related to jury service, the prosecutor exercised a peremptory challenge to juror no. 31. The judge then noted that she considered excusing the juror for cause based on him being treated for a severe mental illness, but she chose not to do so based on juror no. 31’s assurances related to being properly medicated. Defense counsel objected because juror no. 31 was the second African-American venire member that the prosecutor sought to strike.

When asked by the judge to provide a group-neutral explanation for the challenge, the prosecutor noted the mental health issue but explained that she was concerned that juror no. 31’s brother was in Federal prison for a firearm conviction and the defendant in this case was charged with violent firearm offenses. The prosecutor added that her concern was similar to the other African-American juror she had challenged, who had friends that had been charged and convicted of murder.³

Defense counsel’s position was that in Boston, a large percentage of African-American venire members will have friends or family that have been "arrested, charged or involved in some sort of gun crime." Counsel also noted his initial concern about juror ₃₁₄no. 31’s medication, and what could occur if he did not take his medication during trial, but added that those concerns were resolved given how the medication was administered on a monthly basis. "[F]or those reasons," the defendant objected. The judge found that the prosecutor’s reasons for the peremptory challenge were "group neutral," as well as being "genuine and adequate."

Here, although the defendant’s objection at trial noted that juror no. 31 was being medicated for his mental illness, it was not lodged based on the protections of the ADA or any associated claim of "disability discrimination clothed as implicit bias." Rather, the objection was based on juror no. 31 being the second African-American the prosecutor had challenged.⁴ In this posture, we are presented with an issue that was not raised at trial, and one that does not comfortably avail itself of an ordinary waiver analysis to determine if a substantial risk of a miscarriage of justice exists. See Commonwealth v. Randolph, 438 Mass. 290, 294-295, 780 N.E.2d 58 (2002). See also Commonwealth v. Bourgeois, 391 Mass. 869, 877-878, 465...