COMMONWEALTH v. ADRIAN ZAPATA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant Adrian Zapata was convicted after a jury trial of one count of rape, in violation of G. L. c. 265, § 22 (b), and one count of assault and battery upon a family or household member, in violation of G. L. c. 265, § 13M. On appeal, he argues that he was denied his right to a peremptory challenge of juror no. 59 because the judge erred in deciding that his stated reason given pursuant to Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979), for the peremptory challenge was not “genuine.”

At voir dire, prospective jurors were asked, “Have you ever supported or worked with an organization that helps victims of sexual assault?” Juror no. 59 raised her hand, and when asked about her experience, she said, “It was after college. It was 1980, 1981, [a] volunteer job I did for a couple months in the Atlanta area.” She said her job “was just -– it was to be available to victims.” She also answered no as to whether she or somebody close to her had ever been the victim of domestic violence or a sexual crime.

Defense counsel moved to strike the juror peremptorily. The judge noted that defense counsel had used three peremptory challenges previously, and that those three and juror no. 59 were all white women. The judge said, “On my own motion, I'm going to ask that you give us a lawful, neutral reason why you want to exercise this peremptory?” See Commonwealth v. LeClair, 429 Mass. 313, 322-323 (1999)(judge may draw inference of discrimination in use of peremptory challenges sua sponte).

Where, as here, the judge draws a reasonable inference that a peremptory challenge may be based on an improper characteristic, the burden shifts to counsel who exercised the challenge to disprove the inference by providing a reason that is both “adequate,” that is, a group-neutral reason, in this case a reason that is both race- and gender-neutral, and “genuine,” that is, the real reason for the strike, not a pretext. Commonwealth v. Mason, 485 Mass. 520, 530 (2020). The judge must determine if that party, here the defendant, has met its burden. Id.¹

Defense counsel said, “Well, I mean, I can't recall the other three off the top of my head, but I just think she had experience with sexual assault victims or an experience with sexual assault victims.”²

The judge said, “I find that the stated reason is –- is adequate in the sense that it is not based on gender or any other impermissible category. But I find that it is not genuine that the witness’ work ․ decades ago, there's nothing in her answer or demeanor that suggests she's unable to be completely fair to [the defendant] and completely fair to the Commonwealth. And so I am going to overrule the exercise of the peremptory challenge.”³

The defendant argues that instead of determining whether the proffered reason was a sham or pretext, the judge merely used the standard whether the juror could be fair and impartial, the standard used to determine whether a juror should be struck for cause. See Commonwealth v. Ruell, 459 Mass. 126, 136 (2011) (in deciding for-cause challenge judge must determine whether prospective juror is impartial). This is what happened in Commonwealth v. Green, 420 Mass. 771, 775 n.4 (1995), where the judge disallowed peremptory strikes because the challenged jurors had “answered the questions affirmatively from this court that they can decide this case pursuant to their sworn oath, under the facts and law in this case.” See Commonwealth v. Gonzalez, 99 Mass. App. Ct. 161, 166 (2021) (judge gave no explanation for inadequacy of proffered reason except stating that prospective juror had been fair and impartial).

In contrast, here, the judge explicitly said that he did not find the reason given by counsel genuine. And he did not merely rely on his conclusion that the juror could be fair to the defendant and fair to the Commonwealth. Rather, the first thing he noted after saying that he did not find counsel's reason genuine was that the work to which counsel referred took place “decades ago.” It is clear that the judge understood the burden-shifting scheme under Soares, 377 Mass. at 491, that he did not find the reason given plausible, and that he therefore concluded that the inference of discrimination had not been rebutted. Because we see no abuse of discretion or other error of law in the judge's decision to disallow the peremptory strike, the judgments are affirmed.

Judgments affirmed.

FOOTNOTES

1.   See generally Batson v. Kentucky, 476 U.S. 79, 95 (1986); Soares, 377 Mass. at 486-492, and their progeny.

2.   The reason was no deeper than that. It was not, for example, as the defendant argues here, that people who volunteered to work with sexual assault victims even forty years ago may well continue to have sympathy with those alleging sexual assault. Nor did counsel, for example, compare the juror with other jurors, such as those on whom he had exercised a peremptory challenge or those on whom he had not. His proffered reason was only that juror no. 59 had an experience with sexual assault victims.

3.   In the transcript the line reads, “that it is not genuine that the witness’ (sic) work on serious, decades ago, there's nothing in her answer or demeanor ․” Given the importance of this statement to the case, we have listened more than once to the recording of the jury voir dire. Although we are not certain of the words transcribed as “on serious,” given their placement and the judge's inflection, we are certain that the way we have quoted the judge in the text contains his explanation.