Opinion
No. 14–P–1477.
06-14-2016
COMMONWEALTH v. William Franklin ANDRADE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions of rape of a child and indecent assault and battery on a child under fourteen, each as subsequent offenses, the defendant raises several claims of error. We discern no cause to disturb the convictions and affirm, addressing the defendant's claims in turn.
1. Peremptory challenges. The defendant argues that the judge erred in rejecting three peremptory challenges made by defense counsel. Peremptory challenges are presumed to be proper, but that presumption can be overcome “by 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 on the basis of their membership in that group.” Commonwealth v. Scott, 463 Mass. 561, 570 (2012) (quotation omitted). When the question is raised, “the judge must make an initial finding as to whether the opposing party has made a prima facie showing that the use was improper.” Ibid. “[I]f the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that [a] prima facie case of discrimination has been made.” Commonwealth v. Maldonado, 439 Mass. 460, 463 n. 5 (2003). The burden then shifts to the party attempting to challenge the juror to provide a “group-neutral” explanation. Commonwealth v. Scott, supra. The judge must decide whether the reason provided is “bona fide” or a “sham.” Ibid. “A determination whether the explanation offered is adequate to establish a permissible, nondiscriminatory basis for the challenge is within the sound discretion of the judge, and will not be disturbed so long as there is support for the ruling in the record.” Ibid.
In this case, the defendant attempted to exercise peremptory challenges against four female jurors and two male jurors. The judge recognized that the defendant had challenged half of the female prospective jurors, but only a third of the men, and implicitly found that this constituted a prima facie showing of impropriety. There was no error. See, e.g., Commonwealth v. Benbow, 16 Mass.App.Ct. 970, 971 (1983) (“trial judge saw a complete picture” of venire, and there was “no basis in this record to second guess his judgment”); Commonwealth v. Issa, 466 Mass. 1, 8 (2013) (even a “pattern of one” can suffice for prima facie showing). At that point, the judge asked the defendant to provide an explanation, and she rejected the defendant's rationale that three of the challenged jurors were “looking askance,” finding that this excuse was “feeble” and “a pretext.” The explanation offered by the defendant was vague and overly general, and given the judge's ability to observe the venire, there was no error in her finding that the defendant's offered rationale was pretextual. See Commonwealth v. Carleton, 36 Mass.App.Ct. 137, 142–143 (1994), S.C., 418 Mass. 773 (1994) (rejecting peremptory challenge based on “visual assessment” and “limited education,” noting that “if vague and general assertions were accepted as rebutting a defendant's prima facie case, no peremptory challenge would be disallowed”).
The defendant's reliance on Commonwealth v. Barnoski, 418 Mass. 523, 533–534 (1994), for the proposition that we may consider other grounds apparent from the record, but not advanced by the defendant during empanelment to justify his exercise of peremptory challenges, is misplaced. In Barnoski, the defendant challenged a juror based on his demeanor and clothing, and the judge cited strange responses from the juror during individual voir dire as evidence that the juror may indeed have exhibited an odd demeanor. Ibid. The additional evidence cited by the judge elaborated and furnished context for the reason offered by the prosecutor for a peremptory challenge. Ibid. In the present case, by contrast, the information now cited by the defendant bears no relationship to his suggestion, during empanelment, that the jurors were “looking askance” at the defendant.
2. Closing argument. The defendant also takes issue with certain statements in the prosecutor's closing argument. Because the defendant did not object, we review to determine whether the statements were improper and, if so, whether they created a substantial risk of a miscarriage of justice. Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978). In closing, the prosecutor urged the jury to “think about” the victim testifying, asked whether the victim wanted to lie, and asserted that she had no reason to do so. It is settled that “there is no categorical prohibition against suggestion by a prosecutor that a prosecution witness has no motive to lie.” Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008). The prosecutor's comments did not suggest that the victim's testimony should be considered more credible simply because she was willing to come into court and undergo the rigors of trial, including cross examination. Compare Commonwealth v. Ramos, 73 Mass App.Ct. 824, 826 (2009). See also Commonwealth v. Beaudry, 445 Mass. 577, 586–587 (2005). Furthermore, the jury were properly instructed that closing arguments are not evidence and that the jury is the sole judge of witness credibility. Id. at 587–588. We discern no substantial risk that justice miscarried.
3. First complaint testimony. Finally, the defendant argues that certain questions asked by the prosecutor, and some testimony given in response, violates the first complaint doctrine. Commonwealth v. King, 445 Mass. 217, 218–219 (2005). The defendant did not object at trial; we accordingly consider whether the testimony created a substantial risk of a miscarriage of justice. To the extent the prosecutor's question referencing the “first” time the witness spoke with the victim about the abuse may have implied that the two had subsequent conversations on the topic, we discern no such risk, as no details of any such conversation emerged. See Commonwealth v. Stuckich, 450 Mass. 449, 456 (2008). The later exchange, concerning subsequent conversations between the witness and the victim, did not violate the rule, because neither the questions nor the testimony referenced a complaint of sexual assault; the dialogue established simply that the witness and victim had talked. See Commonwealth v. Murungu, 450 Mass. 441, 446 (2008). The judge, acting sua sponte, struck the only question and answer that arguably revealed a subsequent complaint.
We decline to consider the defendant's suggestion that the model instruction prescribed by the Supreme Judicial Court in Commonwealth v. King, supra, impermissibly infringes on the jury's fact-finding duties. See Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485 (2003).
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Judgments affirmed.