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Commonwealth v. Cross

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 18, 2012
11-P-591 (Mass. Apr. 18, 2012)

Opinion

11-P-591

04-18-2012

COMMONWEALTH v. KARIM CROSS.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

There was sufficient evidence of the defendant's struggle with the police to support his conviction of disorderly conduct. See G. L. c. 272, § 53. Taking the evidence in the light most favorable to the Commonwealth, as we are required to do, see Commonwealth v. Kelley, 370 Mass. 147, 150 (1976), we conclude the jury could have found the defendant was fighting or that he engaged in tumultuous behavior, and that he recklessly created a risk of public inconvenience. Under our rules regarding inconsistent verdicts, the fact that the defendant was acquitted of resisting arrest does not preclude our consideration of all the evidence in the record in assessing the sufficiency of the evidence to convict the defendant of disorderly conduct. '[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.' Commonwealth v. Scott, 355 Mass. 471, 475 (1969).

We have long followed the preference that claims of ineffective assistance of counsel be brought in the first instance in the trial court. Commonwealth v. Madeiros, 456 Mass. 52, 61 (2010). Based on the record we have before us, we cannot say that defendant's counsel rendered ineffective assistance in failing to raise in closing either the absence of evidence of disorderly conduct, or the argument that the defendant had a legitimate purpose in refusing to get out of his car, since there was, in fact, evidence of fighting in the record, i.e., there was evidence that would support a conviction on a theory of disorderly conduct with respect to which the legitimate purpose argument was irrelevant. See Commonwealth v. Sholley, 432 Mass. 721, 728 & n.8 (2000) (proof of the absence of a legitimate purpose only required with respect to prosecutions undertaken on theory that defendant created hazardous or physically offensive condition). Nor on this record can we say that failing to mention the disorderly conduct charge at all in closing was ineffective -- i.e., a manifestly unreasonable strategic choice, see Commonwealth v. Vardinski, 438 Mass. 444, 455 (2003) -- given that defense counsel successfully obtained acquittals on all other charges.

As to the defendant's claim under Batson v. Kentucky, 476 U.S. 79 (1986), he argues that the judge erred in declining to question the prosecutor regarding her use of two peremptory challenges to excuse two African-American jurors after she had unsuccessfully challenged them for cause, the judge having found them to be indifferent. The judge stated on the record that there were two other 'people of color' in the jury box as well as another three in the venire and did not require an explanation of the strikes by the Commonwealth. We agree with the Commonwealth that this was an implicit determination by the judge that the exclusion of the two black jurors did not create a prima facie case of race discrimination.

The defendant acknowledges that he does not know if the other jurors to whom the judge referred were African-American. He argues correctly that the mere presence of minorities on a jury will not necessarily suffice to demonstrate the absence of a prima facie case in circumstances where those people are not of the same race as the excluded jurors. But that argument is not available to him if the other jurors to whom the judge referred are, in fact, African-American. The defendant did not create a record at trial that demonstrates that they are not, nor has he taken any steps to supplement the record concerning the race of those remaining jurors. On this record, therefore, the defendant has not met his burden of showing that the judge erred in concluding that no prima facie case of race discrimination had been made out.

Judgment affirmed.

By the Court (Mills, Meade & Rubin, JJ.),


Summaries of

Commonwealth v. Cross

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 18, 2012
11-P-591 (Mass. Apr. 18, 2012)
Case details for

Commonwealth v. Cross

Case Details

Full title:COMMONWEALTH v. KARIM CROSS.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 18, 2012

Citations

11-P-591 (Mass. Apr. 18, 2012)