COMMONWEALTH v. COLEMAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In the early morning hours of March 1, 2014, brothers Shawn and Harold Coleman were involved in a parking lot brawl that culminated in Shawn fatally stabbing Christopher Borgella. Following a joint trial in the Superior Court, a jury convicted the brothers of the second degree murder of Borgella, among other offenses.³ On appeal, both defendants claim that (1) the indictments against them should have been dismissed, (2) the trial judge abused her discretion in declining to find a pattern of irregularity in the Commonwealth's use of peremptory challenges to exclude African-American jurors,⁴ (3) the evidence at trial was insufficient to support their convictions, (4) the trial judge erroneously denied their request for a missing witness instruction, and (5) the judge should have reduced the murder verdicts to manslaughter. Harold additionally claims error in the judge's decisions to allow the Commonwealth to use a chalk in closing argument, and not to give a lesser included offense instruction. We reverse.

1. Sufficiency of indictments. Relying on Commonwealth v. Walczak, 463 Mass. 808, 810 (2012), the defendants claim that the indictments should have been dismissed because the integrity of the grand jury proceeding was impaired by the prosecutor's failure to instruct on the elements of murder and the significance of mitigating circumstances and defenses. The defendants' reliance is misplaced, as the holding in Walczak applies only to juveniles. We decline the defendants' invitation to extend the holding to adult defendants, whom the Supreme Judicial Court recently confirmed are “not entitled to have the grand jury instructed on the significance of mitigating evidence.” Commonwealth v. Fernandes, 483 Mass. 1, 8 (2019).

2. Empanelment. On the first day of empanelment, the Commonwealth used peremptory challenges to exclude three potential jurors who appear from the record to have been African-American or black, the same race as the defendants. The defendants objected to one of the challenges, and the judge found a prima facie showing of irregularity with respect to that challenge. The judge required the Commonwealth to provide a race-neutral reason for the challenge and excluded the juror after accepting the proffered reason.

Thereafter, two black jurors apparently were empanelled before the Commonwealth sought to challenge another African-American juror. Both defendants objected. Stating that she was “entitled to look at the composition of the jury,” the judge found that the defendants had not made a prima facie showing of irregularity “because there are African-Americans on the jury.” The judge excused the juror without requiring the Commonwealth to give a race-neutral reason for its challenge.

The defendants also objected the next day when the Commonwealth sought to exercise a peremptory challenge to exclude another black juror. In response to the objection, the judge stated, “I am entitled to look at the composition of the jury, and because there are a number of African-Americans empanelled on this jury, I can't find ․ that you've made a prima facie showing to rebut the presumption of regularity.” The judge allowed the challenge without requiring the prosecutor to provide a race-neutral reason for its challenge.

As the objecting parties, the defendants bore the burden of making a prima facie showing that the challenged strikes were improper. Commonwealth v. Jones, 477 Mass. 307, 319 (2017). This “is not an onerous task.” Id. at 321. A trial judge must consider “all of the relevant facts and circumstances” in deciding whether the prima facie showing has been made. Id. at 322. These circumstances include whether the prospective jurors are of the same race as the defendants, as is the case here. See Commonwealth v. Robertson, 480 Mass. 383, 393 (2018). The presence of one empanelled African-American juror is not dispositive. Jones, supra at 325. Indeed, “[a] single peremptory challenge may be sufficient to make a prima facie showing that rebuts the presumption of proper use.” Commonwealth v. Ortega, 480 Mass. 603, 606 (2018). See Robertson, supra.

The judge did not have the benefit of the decisions in Jones, Robertson, or Ortega when she declined to find a prima facie showing of irregularity, as all three issued after the defendants were convicted. However, “[s]imilar to the judge's decision in the case underlying Jones, 477 Mass. at 325, the judge in this case relied exclusively on the presence of ․ African-American[s] who at that point had been seated in concluding that the defendant[s] had not met [their] prima facie burden.” Ortega, 480 Mass. at 607. This was an abuse of discretion. See id.; Robertson, 480 Mass. at 396-397; Jones, supra at 325-326. As the error was structural, prejudice is presumed, and the judgments must be reversed. Robertson, supra. There is no need to discuss several of the defendants' remaining claims of error in light of our disposition. Decisions regarding jury instructions, the use of chalks, and whether to reduce any verdict must be made anew in the event of retrial.

3. Sufficiency of the evidence. The defendants claim that there was insufficient evidence to support their convictions because the Commonwealth failed to disprove self-defense and defense of another beyond a reasonable doubt. It is well settled that the right to self-defense “cannot be claimed by a person who provokes or initiates an assault unless that person withdraws in good faith from the conflict and announces his intention to retire.” Commonwealth v. Maguire, 375 Mass. 768, 772 (1978). The defendants testified that they made conscious decisions to leave the hotel room. Harold was carrying the detachable steering wheel from his car, while Shawn was armed with a knife. They went outside because they suspected a fight, which Harold initiated by striking Samuel Ulysse with the steering wheel. Harold then smashed the windows of a Mercedes and a Honda Accord in which the victim and everyone in his group were attempting to retreat, preventing them from doing so. Shawn chased Ulysse with a knife once Ulysse was forced out of the Accord, then he ran over to where the victim was alone with Harold and the defendants' cousin, Justin Choice, and stabbed the victim (whom Harold observed to be unarmed). Shawn then walked to his nearby BMW, got in, and drove uninhibited to another area of the parking lot. Harold simply walked away. Neither defendant testified that he tried or desired to retreat before the victim was stabbed but were unable to do so. Commonwealth v. Pike, 428 Mass. 393, 399 (1998). There was no evidence that either defendant announced an intention to retreat before the fatal stabbing. Maguire, 375 Mass. at 772. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was sufficient to disprove self-defense beyond a reasonable doubt. See Commonwealth v. Avila, 454 Mass. 744, 769 (2009) (no right of self-defense where defendant met victim on public street in his own car); Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 820 (2006) (no right of self-defense where defendants sought out physical confrontation and “were the first to use force of any kind against the rival [group],” and there was no evidence that they were unable to walk away). Evidence that the defendants continued the fight “by [their] own volition,” Commonwealth v. Adams, 458 Mass. 766, 775 (2011), and were alone with Choice and the victim when the unarmed victim was stabbed, sufficed to disprove defense of another. See Commonwealth v. Martin, 369 Mass. 640, 649 (1976) (justification for use of deadly force in defense of another lost if defendant “uses excessive force, e.g., aggressive or deadly force unwarranted for the protective purpose”).

Significant evidence of the defendants' consciousness of guilt also “tips the scale in favor of sufficiency” in this case. Commonwealth v. Summers, 93 Mass. App. Ct. 260, 265 (2018). Harold ran from the scene and past a State Police barracks, but did not stop to report that he had been attacked by a knife-wielding group. See Commonwealth v. Carrion, 407 Mass. 263, 277 (1990) (“Flight is perhaps the classic evidence of consciousness of guilt”). Nor did Harold immediately provide the police with the steering wheel, even though he knew they would want it. Shawn stayed at the scene of the stabbing but did not call the police, even though his cellular telephone was located in the console beside him, and he did not get out of the BMW to speak to police responding to calls about the fight. Instead, Shawn sought to hide his involvement in the brawl by obscuring his license plate, hiding behind the headrest, and lying to the police. See Commonwealth v. Vick, 454 Mass. 418, 424 (2009) (false statements to police may be evidence of consciousness of guilt). Shawn also declined to be photographed at the police station, inferentially so that the police could not identify him by his clothing on video recordings of the brawl.

There is no merit to Harold's claim that the evidence was insufficient to establish that he caused the victim's death. An eyewitness saw Harold make a stabbing motion at the victim before the victim collapsed from a stab wound that the witness observed when she immediately ran over to him. Harold's challenges to the reliability of that witness's testimony does not affect our sufficiency analysis; we take the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 676-677. Even without this testimony, however, evidence that Harold told Shawn to “come on” outside, where Harold then initiated a physical confrontation, prevented the victim from retreating, and did nothing to prevent Shawn from stabbing the victim, whom Harold knew to be unarmed, was sufficient to prove beyond a reasonable doubt that Harold knowingly participated in stabbing the victim, alone or with Shawn, with the intent required for second degree murder. See Commonwealth v. Connors, 95 Mass. App. Ct. 46, 51 (2019), quoting Commonwealth v. Earle, 458 Mass. 341, 346 (2010) (malice required for second degree murder includes committing an intentional act “which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death”).

Judgments reversed.

Verdicts set aside.

FOOTNOTES

3.   The brothers also were convicted of assault and battery by means of a dangerous weapon, and Harold was convicted of malicious destruction of property valued over $250.

4.   The Commonwealth's motion to strike this argument is denied.