COMMONWEALTH v. MARTINEZ PEGUERO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant raises two arguments in this consolidated appeal from his convictions and the denial of his motion for new trial.² First, he argues that trial counsel was ineffective for failing to file a motion to suppress. Second, he argues that the prosecutor's peremptory challenge to the only Hispanic juror violated his State and Federal constitutional rights. We affirm.

Background. We summarize the factual and procedural background pertinent to the defendant's arguments. A police officer observed the defendant and a companion sitting on a wall in a park. The location was used by drug dealers because of its remote location and layout, which allows one to observe those who approach. On the day in question, the police officer observed people walk up to the defendant and his companion and engage them in conversation. Based on complaints about possible drug transactions in that location, the officer believed that the defendant and his companion could be selling drugs. He accordingly called for two pairs of officers to assist in approaching the defendant and his companion in order to investigate.

One pair of officers approached from the east; the other from the west; the first officer approached from between those two points. Upon seeing the officers while they were still one hundred feet away, the defendant lay down to put one arm behind the wall as though to hide something. The defendant's companion stood up and began to walk away; when he observed the officers, he returned towards the wall. When the police arrived moments later, they found a clear plastic bag containing individually wrapped twist ties of white and brown powder that were subsequently determined to be cocaine and fentanyl behind the wall where the defendant had reached down.

At the outset of the jury empanelment process, the judge posed several questions to the venire that were designed to ferret out bias, partiality, prejudice, or any other factor that might prevent a juror from considering the evidence fairly. The judge then called each person to sidebar for follow-up inquiry. Juror number eleven stated that he had no affirmative responses to the judge's general questions, but disclosed that his brother had been involved in the criminal justice system in Wisconsin. He stated that the experience would not affect his ability to be fair and impartial. Neither side challenged the juror for cause, and the judge found him indifferent.

The following juror (number twelve) also stated that he had no affirmative responses to the judge's general questions, but disclosed that he had been subject to a misdemeanor charge that arose during a camping trip in South Dakota to which he pleaded no-contest and paid a fine. He stated that the experience would not affect his ability to be fair and impartial. Neither side challenged the juror for cause, and the judge found him indifferent.

The prosecutor then peremptorily challenged juror number eleven because his brother had been charged with murder.³ Defense counsel initially did not object but, when asked whether he was content with the jury, objected to the Commonwealth's peremptory challenge, noting on the record that juror eleven was the only Hispanic member of the venire and that the defendant is Hispanic.⁴ In response, the prosecutor stated:

“The Commonwealth would just put on the record that its use of the peremptory is the fact that that individual stated his brother was arrested and charged with murder in the State of Wisconsin. And, although he stated he had no emotional feeling one way or the other as a result, the Commonwealth is just not comfortable based on the charges in this hearing.”

The judge then found that the peremptory challenge was properly exercised and that “it was not motivated by any attempt to remove a juror of like race from the panel.”

Discussion. Ineffective assistance of counsel for failing to move to suppress. A judge may allow a motion for new trial, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), if “it appears that justice may not have been done.” “We review a judge's decision on a postconviction motion for a new trial for abuse of discretion.” Commonwealth v. Watson, 455 Mass. 246, 256 (2009). Where a new trial motion is based on ineffective assistance of counsel, we review to determine “whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004).

The defendant has failed to do so here. At bottom, the defendant's argument turns on the mistaken premise that he was stopped in a constitutional sense when he saw the officers one hundred feet away walking towards him. See Commonwealth v. Rodriguez, 456 Mass. 578, 587 (2010) (“No one has a reasonable expectation of privacy in items retrieved from the ground on a public park. However, if the defendant dropped the drugs on the ground after he had been stopped by the police, that is, after a reasonable person in view of all the surrounding circumstances would have believed that he was not free to leave, the drugs, even though found on the ground, could have been suppressed as the fruit of an unconstitutional seizure of his person”).

A person is seized only when police “objectively communicate[ ]” that they “would use [their] police power to coerce that person to stay.”⁵ Commonwealth v. Matta, 483 Mass. 357, 362 (2019). Thus, seizure may be effectuated “through words or conduct.” Id. Here, the officers merely walked toward the defendant and his companion. They were one hundred feet away and had done nothing to communicate to the defendant that he was not free to leave, whether by “block[ing] or impede[ing] the defendant's path, direction, or speed.” Commonwealth v. Sykes, 449 Mass. 308, 313 (2007) (no seizure when police initially pulled their vehicle alongside defendant's bicycle and asked if he would speak with them). See Commonwealth v. Helme, 399 Mass. 298, 299 (1987) (cruiser used to block defendant's car); Commonwealth v. King, 389 Mass. 233, 241 (1983) (same). Although the defendant characterizes the officers' action of walking towards him as “an official assertion of authority, which does not intend to be denied,” Commonwealth v. Stoute, 422 Mass. 782, 789 (1996), he has not shown that it “infringe[d] considerably on [his] freedom of action,” id.

Peremptory challenge to Hispanic juror. The defendant argues that the Commonwealth's reason for its peremptory challenge to juror number eleven, the sole Hispanic juror, was pretextual and, therefore, violated his rights under art. 12 of the Massachusetts Declaration of Rights, see Commonwealth v. Soares, 377 Mass. 461, 488 (1979), and the Fourteenth Amendment to the United States Constitution, see Batson v. Kentucky, 476 U.S. 79, 86 (1986). “A challenge to a peremptory strike, whether framed under State or Federal law, is evaluated using a burden-shifting analysis. In the initial stage, the burden is on the party challenging the peremptory strike to make a prima facie showing that the strike is improper. If the party does so, the burden shifts to the party attempting to strike the prospective juror to provide a group-neutral reason for doing so. The judge then must determine whether the proffered reason is adequate and genuine.” Commonwealth v. Jones, 477 Mass. 307, 319 (2017).

Establishing prima facie discrimination is “not an onerous task” and is a “low bar” for the defendant to meet. Id. at 321-322. Striking the lone member of the venire who represents a discrete class may meet the prima facie showing of impropriety. See Commonwealth v. Robertson, 480 Mass. 383, 392 (2018); Commonwealth v. Harris, 409 Mass. 461, 462-463 (1991) (improper to exclude lone black person on venire from jury); Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547, 553 (1981) (“the dismissal [from the jury venire] of the only member of [a discrete] group is as repugnant to the Declaration of Rights as the dismissal of all but one member of the [same] group”). Given that neither the prosecutor nor the judge disagreed with defense counsel's unequivocal statement that juror number eleven was the sole Hispanic member of the venire, we accept his membership in that group for purposes of meeting the defendant's prima facie burden here. See Commonwealth v. Long, 419 Mass. 798, 805 n.8 (1995) (when party asserts “that a particular venireperson is a member of a group, against whom the party alleges [a] peremptory challenge[ is] being discriminatorily used, and, the other side, being aware of the critical criteria and having had the opportunity to make similar observations, does not challenge that assertion, the fact will be deemed established” [citation omitted]).

The question then becomes whether the judge erred in concluding that the prosecutor's explanation for her peremptory challenge was both adequate and genuine. An explanation is adequate if it is “clear and reasonably specific, personal to the juror and not based on the juror's group affiliation ․ and related to the particular case being tried.” Commonwealth v. Maldonado, 439 Mass. 460, 464-465 (2003) (quotations and citations omitted). Here, although the prosecutor's proffered reason was not tied to the specifics of the defendant's case, her explanation was clear and personal to juror number eleven (i.e., his brother was arrested and charged with murder), and was not tied to the juror's group affiliation. A family member's involvement with the criminal justice system may provide a group-neutral reason for exercising a peremptory challenge. See, e.g., Commonwealth v. Lopes, 478 Mass. 593, 601 (2018). This is especially true where, as here, the family member's involvement is of utmost seriousness.

As to genuineness, we see no reason to disturb the judge's finding regarding the Commonwealth's motivation. The judge had the benefit of observing the prosecutor when making his assessment of the prosecutor's motivation. Although it is true that the prosecutor did not choose to exercise a peremptory challenge to juror number twelve, who had been involved in a minor misdemeanor that was resolved by a fine, the difference in magnitude between that juror's misdemeanor offense and the crime of murder is self-evident.⁶ There was thus no necessary inconsistency between the Commonwealth's positions with respect to the two jurors.

Likewise, although the disparate impact of excluding jurors based on their family members' involvement with the criminal justice system may bear on pretext, it is not conclusive especially where, as here, no evidence of disparate impact was placed before the trial judge. See Hernandez v. New York, 500 U.S. 352, 362 (1991) (“disparate impact should be given appropriate weight in determining whether the prosecutor acted with a forbidden intent, but it will not be conclusive”); Commonwealth v. Prunty, 462 Mass. 295, 313 (2012) (“if a party provides a reason that has ․ a disproportionate impact, the trial judge may consider that fact as evidence that the [party's] stated reason constitutes a pretext for racial discrimination” [quotation and citation omitted]).

Finally, the defendant argues that art. 12 protection is different from that of the equal protection clause of the Fourteenth Amendment because, while the Fourteenth Amendment's equal protection guarantee “turns on the right of the prospective juror to be free from discrimination in the exercise of his or her right to participate in the administration of law,” art. 12 protects “the defendant's right to be tried by a fairly drawn jury of his or her peers” (quotation and citation omitted; emphasis added). Jones, 477 Mass. at 319. From this distinction, the defendant argues that art. 12 not only protects against intentional discrimination, but also against unintentional discrimination having a disproportionate impact on particular groups. See Commonwealth v. Bastarache, 382 Mass. 86, 101 (1980) (noting that Soares, 377 Mass. 461, was “not ․ concerned solely with whether the discrimination was intentional because even unintentional discrimination against such a group would raise a constitutional question”). He further argues that, because Hispanics are disproportionately represented in the criminal justice system, allowing a Hispanic juror to be peremptorily struck based on a family member's involvement in the criminal justice system disproportionately excludes Hispanics from being jurors.

This argument was not presented below. In any event, we decline the defendant's invitation to create a per se rule that would prohibit peremptory challenges to jurors who have family members who have been involved in the criminal justice system where the juror is a member of a group that is disproportionately represented in the criminal justice system.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The jury convicted the defendant of possession with intent to distribute a class B substance (fentanyl), G. L. c. 94C, § 32A (a), possession with intent to distribute a class B substance (cocaine), G. L. c. 94C, § 32A (a), and a drug violation near a park, G. L. c. 94C, § 32J.

3.   This fact must have appeared on the juror questionnaire, which is not in the appellate record.

4.   We assume for our purposes that the objection was properly preserved.

5.   That the police subjectively intended to seize the defendant or his companion if they attempted to leave was insufficient to show that the police objectively communicated their intent to prevent the defendant from leaving. See Commonwealth v. Damelio, 83 Mass. App. Ct. 32, 35-36 (2012) (“The subjective intention of the officers to detain the defendant, had he attempted to leave, is irrelevant except insofar as it may have been conveyed to the defendant”).

6.   We note that the appellate record does not include the juror questionnaires, which may have included additional pertinent details.