Opinion
SUCV2011-02755 137988
08-16-2017
Debra Tanen v. MA-Center Plaza, LLC et al. [1]
Filed August 23, 2017
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR A NEW TRIAL
Gregg J. Pasquale, Justice
During a February 2011 snow storm, plaintiff Debra Tanen (" Tanen") slipped and fell on a sidewalk adjacent to the property commonly known as Center Plaza. Tanen subsequently sued MA-Center Plaza, LLC, then the owner of Center Plaza, Equity Office Management, LLC, the property management company for Center Plaza, and C& W Facility Services, Inc. which provided snow and ice removal and treatment services at Center Plaza during the winter of 2010-2011. Tanen alleged that she fell and sustained injuries as a result of the defendants' negligence in failing to prevent slippery conditions on the sidewalk. Tanen's injuries were serious and included a multiple fracture of her ankle. The case proceeded to trial in May 2016 and the jury returned a verdict in favor of the defendants. Tanen now moves for a new trial arguing, among other things, that during the jury selection process, the court erred in permitting defense counsel to exercise peremptory challenges against several African-American jurors. For the reasons that follow, the motion is ALLOWED.
During the pendency of the case Center Plaza was sold to a new entity.
At the time of the incident, the company was known as UGL Services Unicco Operations Co.
Because the court allows the motion based on Tanen's concerns regarding the jury selection process, the court does not address her argument that the court erred in allowing evidence of her pre-incident medical history or her argument that the jury's verdict was against the weight of evidence.
BACKGROUND
In February 2011, during a snow storm, the plaintiff slipped on a sidewalk adjacent to the property commonly known as Center Plaza, which is located in Boston. The plaintiff alleged that she fell as a result of invisible or " black ice" on the sidewalk and that the defendants were negligent in preventing the ice from forming.
Jury impanelment began on Thursday, May 12, 2016 and took place over the course of two days. It is unclear from the record the exact size of the jury pool or the age, gender, racial, and ethnic backgrounds of each prospective juror.
Following standard preliminary screening questions by the court to the venire, each individual was brought to side bar to determine their potential indifference. The court first inquired about positive responses to the screening questions and asked a series of written questions requested by the plaintiff along with relevant follow up questions. The court, after asking some submitted questions, then allowed plaintiff's counsel, Charles R. Capace (" Attorney Capace"), and defendants' counsel, Jeffrey C. McLucas (" Attorney McLucas"), to conduct individual voir dire. The questions included topics relating to whether the prospective jurors were responsible for clearing snow where they lived or whether that responsibility fell to a landlord as well as any personal experience they had with slip and fall incidents. Each side had fifteen peremptory challenges.
At the close of the first day of jury selection, the court found fourteen jurors indifferent and Attorney Capace exercised several peremptory challenges. The next day, the voir dire process continued and Attorney Capace exercised additional challenges. At midday, the Court once again seated a panel of fourteen indifferent jurors. Attorney Capace declared that the plaintiff was content with the panel. Attorney McLucas then exercised his first peremptory challenges. He struck six jurors--jurors 9 (seat 5), 25 (seat 14), 32 (seat 12), 111 (seat 4), 121 (seat 8), and 123 (seat 10). Soon afterward, the following colloquy took place among the court, Attorney McLucas, and Attorney Capace:
At the beginning of the second day, the Court provided each side an additional challenge because one juror was lost due to scheduling issues.
MR. CAPACE: Your Honor, I'm going to call to the Court's attention that of the jurors dismissed almost all but one were black, and I'm very concerned about that they're basically taking all the black people out of this jury and that that's been a big issue in the and [sic] courts recent years.
THE COURT: Mr. McLucas?
MR. MCLUCAS: That's, that's outrageous, Your Honor, That's outrageous. I based this on responses to questions and while raised by Attorney Capace, race and color have absolutely nothing to do with it. How jurors represented themselves here at sidebar individually.
THE COURT: I'm sorry. Close to the microphone so we can get it.
MR. MCLUCAS: How the jurors presented themselves here. Sidebar is the absolutely only reason I challenged any of these jurors.
THE COURT: Mr. Capace?
MR. CAPACE: Yes, Your Honor. I mean the numbers speak for themselves. There was four out of five, all black. I'm not suggesting Mr. McLucas is racist, he's not, but he certainly knows as we all know that black people tend to favor plaintiffs and they were systematically removed from the jury because of their race.
MR. MCLUCAS: I would, I would suggest that in and of itself is a racist comment, and, absolutely no decision about any individual juror was made of any other basis then a response to questions up here. It has been a lengthy and extensive voir dire, including lengthy questioning by the Court itself.
THE COURT: Mr. Capace, are you, can you point out any study that says African American people are more favorable to plaintiffs?
MR. CAPACE: Study, no. Experience, yes. I think you and I both have it.
THE COURT: Oh, I haven't. I mean actually, I've had, one of the recent cases had paneled I think people that [sic] of color. I have queried. I found them to be fair and your know unbiased in their answers and they don't at least to me say that they lean one way or the other, so I, are you asking me for any type of relief or--
MR. CAPACE: Yes. I mean I think some of those, if they haven't left courthouse, I think they should be recalled. I mean I had that happen back in September and they were recalled, and Justice Giles, I had it happen with Justice Walker the same way and they did the same thing. This is a huge issue these days and it's really become a problem for getting a, a jury of one's peers.
THE COURT: I can't say that I find there's any racial motive to the challenges exercised by Mr. McLucas, and I decline to recall the jurors at this time . . .
Trial Transcript 5/13/2016 at 116-18. There is nothing in the record indicating which of the six jurors Attorney McLucas struck were African-American.
According to the transcript, the jurors Attorney McLucas challenged included: a juror who stated he was against for profit corporations; a juror who worked as a cashier at a supermarket and who had been trained to recognize and alleviate dangerous conditions arising from spills inside the store as well as ice and snow accumulations outside the store; a juror who leased her apartment from a landlord whose responsibility was to clear snow after a storm but who took great care in stepping over snow so as not to fall when her landlord had not yet cleared the snow; a juror who worked for a company that provided rehabilitative services to people with disabilities; and two jurors who had fallen on snow but did not file claims because they deemed their injuries not to be serious enough to warrant such action.
Jury selection continued and was completed over the next few hours. Attorney McLucas did not use any additional peremptory challenges. Once a total of fourteen jurors were selected, Attorney McLucas indicated he was content with the jury and Attorney Capace stated " [w]e're good with this jury." Id. at 164-65. The Court then noted:
All right . . . I will state for the record that when Mr. McLucas made his challenges, I think, I forget there were five or six but when he made them we lost three African Americans and for the record, those have been replaced by at least two African-Americans. So, currently it's a jury that's situated, there are two African Americans on the jury.Id. at 165. A short while later both attorneys, upon being prompted by the court, again repeated that they were content with the jury, and the court excused the jurors for the weekend.
The court may have been incorrect when it noted that three (rather than four) African-American jurors were struck. Attorney Capace's comments when he raised his objection indicate that four African-American jurors were struck.
On Monday, May 16, 2016, the first day of testimony, three jurors were excused for cause, leaving eleven total jurors to decide the case. After the third juror was excused, the following exchange ensued:
MR. CAPACE: Well [that] puts us with 11 jurors.
THE COURT: What, can the parties agree to 11?
MR. MCLUCAS: The defense will.
MR. CAPACE: Yeah, we'll have to. We can't start again. But what would the choice be, empanel all over again?
MR. MCLUCAS: Yeah.
MR. CAPACE: Oh God. May I, may I, may I have a conversation with my associate?
THE COURT: Well, why don't you think about, talk about it during the break--
MR. CAPACE: Yeah.
THE COURT: --cause I thought that I heard something very recently at a conference that indicated, and I could be wrong about this that's why I want to double check it as to whether or not people can agree to less than 12.
MR. MCLUCAS: I don't know that.
MR. CAPACE: I don't know the rule.
THE COURT: And I'd always assume that it could be, I guess it was, I guess it was. I always assumed that I could over anybody's objection go down to 10, but then I heard something about, something that I didn't know about. Let me brush up, let me find out and I [sic] check the rules.
Trial Transcript 5/16/2016, at 68-69. There was no further discussion about the number of jurors sitting on the jury.
The trial continued and Attorney Capace rested on May 20, 2016. Attorney McLucas also rested on May 20. He called no witnesses. The jury returned a verdict at the close of day on May 20, finding that all three defendants were not negligent. Shortly thereafter, the plaintiff filed the present motion, which the defendants opposed.
A hearing on the motion was held in August 2016. After a full trial transcript was generated a further hearing was held on the motion in March of 2017. The parties also engaged in supplemental briefing.
DISCUSSION
The Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights each prohibit the use of peremptory challenges on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499 (1979). This prohibition applies in equal force and to the same extent in both criminal and civil trials. See Anderson-Mole v. University of Mass., 49 Mass.App.Ct. 723, 724, 732 N.E.2d 351 (2000) (" Civil litigants, as well . . . as parties in criminal cases, are entitled to a jury that has not been unfairly skewed"); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (" courts must entertain a challenge to a private litigant's racially discriminatory use of peremptory challenges in a civil trial").
Under both State and Federal law, a party's challenge to a peremptory strike is to be contemporaneously evaluated using a burden-shifting analysis. Commonwealth v. Jones, 477 Mass. 307, 319, 77 N.E.3d 278 (2017). At the first stage of the analysis, the party contesting a peremptory challenge has the burden of making a prima facie showing that the strike is improper. Jones, 477 Mass. at 319; Commonwealth v. Issa, 466 Mass. 1, 8, 992 N.E.2d 336 (2013). The burden at the first stage of the analysis is not " an onerous task." Jones, 477 Mass. at 321; see also Commonwealth v. Maldonado, 439 Mass. 460, 463 n.4, 788 N.E.2d 968 (2003) (" the burden of making [the prima facie] showing ought not be a terribly weighty one"); Sanchez v. Roden, 753 F.3d 279, 302 (1st Cir. 2014) (describing first stage burden as " not substantial"). It is " merely a burden of production, not persuasion." Jones, 477 Mass. at 321.
When determining whether the challenging party has made a prima facie showing, the court " considers all of the relevant facts and circumstances." Id. at 322. Factors the court may consider include but are not limited to:
the number and percentage of group members who have been excluded[; ] . . . the possibility of an objective group-neutral explanation for the strike or strikes; any similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck; differences among the various members of the allegedly targeted group who were struck; whether those excluded are members of the same protected group as the defendant or the victim; and the composition of the jurors already seated.Id. The first factor listed above will " in certain circumstances, itself suffice to make the requisite prima facie showing." Id.
If the challenging party successfully makes a prima facie showing of impropriety, the burden shifts to the party exercising the challenge to offer a group-neutral reason for doing so. Jones, 477 Mass. at 319. This reason must be both adequate and genuine. Id.; Commonwealth v. Benoit, 452 Mass. 212, 219-20, 892 N.E.2d 314 (2008). " 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 . . . An explanation is genuine if it is in fact the reason for the exercise of the challenge. The mere denial of an improper motive is inadequate to establish the genuineness of the explanation." Maldonado, 439 Mass. at 464-65 (internal quotations and citations omitted); see also Benoit, 452 Mass. at 219-20. If the party exercising the challenge fails to proffer an adequate and genuine explanation, the court must disallow it.
The exclusion of jurors based on race constitutes a structural error. See Jones, 477 Mass. at 325-26. As such, on a motion for a new trial, there is no need for the moving party to show prejudice, i.e., that the exclusion likely changed the outcome of the trial. See id.
In the present case, the court, in asking Attorney McLucas to respond to Attorney Capace's objection, implicitly found that Attorney Capace had made a prima facie showing of impropriety when he pointed out that most of the six peremptory challenges made by Attorney McLucas were used to exclude African-American jurors and that the challenges resulted in the elimination of all the African-Americans then empanelled. Nevertheless, the court concluded that Attorney McLucas's justification for the use of his peremptory challenges was sufficient and thus, that there was no racial motive to the challenges he exercised. This was an error. Because the court must assiduously guard a prospective juror's right to serve, a new trial is required.
Prospective jurors have the right to be free from discrimination in the exercise of their right to participate in the administration of the law. Benoit, 452 Mass. at 218 n.6; Edmonson, 500 U.S. at 616. Thus, the fact that two different African-American jurors were ultimately seated on the jury did not cure the error.
Attorney McLucas provided a generalized response to Attorney Capace's assertion, denying any racial motive and claiming he had based his challenges only on the answers the prospective jurors had provided during voir dire. He did not, however, point to particular responses that gave him concern or otherwise offer any specific, alternative non-discriminatory reason for the challenges. Attorney McLucas, thus, failed to provide an adequate or genuine explanation justifying his actions, and the court should have disallowed the challenges and recalled the prospective jurors that were stricken.
While the majority of the six jurors struck were likely African-American, it is impossible to state with certainty, based on the record, what the race of each juror was. Had the court explicitly required Attorney McLucas to state with specificity a non-group-based reason for his challenges, as the court was required to do, or had the court recalled the jurors, as Attorney Capace requested, there would be no doubt as to the race of the challenged jurors. Absent knowledge about the race of each particular juror, the court is unable to determine from the record whether or not Attorney McLucas' challenges of the African-American jurors were, based on their responses during voir dire, potentially valid. The court recognizes that it should have applied the burden shifting framework in a more explicit manner.
The defendants nevertheless contend that Attorney Capace twice failed to properly preserve his objection on this issue and that therefore the plaintiff is now precluded from arguing that there was any constitutional violation. This argument is without merit. The defendants assert that Attorney Capace first waived his objection by stating that he was " content" with the final composition of the jury at the conclusion of the jury empanelment process. However, absent other circumstances, such a statement, when coming after an objection to a peremptory challenge, is generally viewed as having been made under protest (i.e. subject to the prior objection) and therefore not a waiver. See Commonwealth v. Fruchtman, 418 Mass. 8, 12, 633 N.E.2d 369 & n.7 (1994); Anderson-Mole, 49 Mass.App.Ct. at 726-27.
The court also rejects the defendants' assertion that Attorney Capace failed to make an immediate objection.
The defendants also assert that Attorney Capace waived his objection when the number of jurors dropped to eleven and Attorney Capace was offered, but did not take, the opportunity to move for a mistrial and begin empanelment anew. However, no such opportunity in fact existed. General Laws c. 234, § 34B requires a trial to proceed unless the panel falls to less than 10 jurors. Thus, Attorney Capace had no right to demand a mistrial on the basis of the number of jurors. The failure to assert a non-existent right cannot be considered any sort of waiver. Accordingly, the plaintiff is not precluded from seeking a new trial.
In concluding that a new trial is required, the court acknowledges that Attorney Capace's handling of the objection was decidedly distasteful. His claim that " black people tend to favor plaintiffs" reflected a specious stereotype. Such racially-based assumptions are detrimental both to society and to the administration of justice. However, Attorney Capace's statements, while offensive, do not change the fact that he made prima facie showing that the challenges to which he objected may have been racially motivated. Nor does it change the fact that Attorney McLucas did not provide a bona fide group-neutral reason for those challenges.
ORDER
For the forgoing reasons, Plaintiff's Motion for a New Trial is ALLOWED.