Opinion
18-P-1640
12-24-2019
COMMONWEALTH v. Richard DUDLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of incest and indecent assault and battery. The convictions were based on evidence that the defendant repeatedly raped his biological daughter when she was fifteen years old. After the judgments were affirmed on direct appeal, see Commonwealth v. Dudley, 84 Mass. App. Ct. 1127 (2014), the defendant filed a motion for a new trial claiming, among other things, that the Commonwealth's peremptory challenge of a black juror violated the defendant's rights under the equal protection clause of the State and Federal Constitutions. Following a nonevidentiary hearing, a judge other than the trial judge (motion judge) denied the motion for a new trial, concluding that the prosecutor articulated an adequate and genuine reason for the peremptory challenge that did not relate to the juror's race. The defendant presses the same claim on appeal and also argues that his appellate counsel was ineffective for failing to raise the argument on direct appeal. We affirm.
Background. We summarize the relevant facts. The jurors were asked to complete a biographical questionnaire as part of the jury selection process. Each juror was then called to sidebar and questioned individually by the judge and lawyers. During questioning, the judge observed that juror number (no.) forty-one, the only remaining black juror, had not answered all of the questions on the questionnaire. The judge and the lawyers inquired further regarding the juror's age, occupation, place of birth, and educational background. When the prosecutor asked, "[W]hat city do you live in?" the juror initially responded, "Georgia." In response to the follow-up question, "Where do you live now?" the juror responded, "Worcester, Massachusetts." The judge found that juror no. forty-one was indifferent and the prosecutor then exercised a peremptory challenge. Defense counsel objected.
DEFENSE COUNSEL : "Judge, I have a problem. She is -- we've had two black jurors, and one had to be excused as a rape victim. She's the only black woman in the venire, and I'd like diversity on the jury. She seems to have nothing against her, so I would challenge it. I would ask your Honor to seat her."
JUDGE : "Well, the Commonwealth has a right to exercise a peremptory challenge. Is there any reason why you --"
PROSECUTOR : "Nothing to do with the color of her skin, obviously, it's simply because I think that the way she filled out the form, and even the way she answered some of the questions, to me seemed a little confused, and --"
JUDGE : "Frankly, I agree."
DEFENSE COUNSEL : "But just for purposes of appeal, if there is one, we can agree she is a black juror and that she appears to be the only one left in the venire."
JUDGE : "That's okay. I'll let you note that for the record."
DEFENSE COUNSEL : "Yes. That's exactly what I wanted to do."
Discussion. We review a judge's decision to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion" (citation omitted). Commonwealth v. Ellis, 475 Mass. 459, 476 (2016). The order denying a motion for a new trial should not be reversed unless there is "an abuse of discretion that produces a manifestly unjust result." Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997).
As a preliminary matter, we agree with the Commonwealth that the defendant's argument regarding the peremptory challenge of juror no. forty-one was available to him at the time of his direct appeal and that he failed to raise it. The claim is therefore waived. See Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). We review a waived claim only for whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294 (2002).
"[W]hen a defendant alleges that his failure to preserve an issue for appeal stems from ineffective assistance of counsel, ... we do not evaluate the ineffectiveness claim separately. If we determine that an error has been committed, we ask whether it gives rise to a substantial risk of a miscarriage of justice -- ineffectiveness is presumed if the attorney's omission created a substantial risk, and disregarded if it did not."
Id. at 296.
The "use of peremptory challenges to exclude prospective jurors solely because of bias presumed to derive from their membership in discrete community groups is prohibited both by art. 12 [of the Massachusetts Declaration of Rights] ..., and the equal protection clause [of the United States Constitution]." Commonwealth v. Benoit, 452 Mass. 212, 217-218 (2008), citing Batson v. Kentucky, 476 U.S. 79, 84-88 (1986) ; Commonwealth v. Soares, 377 Mass. 461, 486-488, cert. denied, 444 U.S. 881 (1979). "Peremptory challenges are presumed to be proper, but the presumption may be rebutted on a showing that (1) there is a pattern of excluding members of a discrete grouping and (2) it is likely that individuals are being excluded solely on the basis of their membership in that group." Commonwealth v. Oberle, 476 Mass. 539, 545 (2017). "Once such a pattern is found, the burden shifts to the party exercising the challenge to provide a ‘group-neutral’ explanation for it. The judge must then determine whether the explanation is both ‘adequate’ and ‘genuine’ " (citations omitted). Id. The "prosecutor must give a ‘clear and reasonably specific’ explanation of his [or her] ‘legitimate reasons’ for exercising the challenges." Commonwealth v. Burnett, 418 Mass. 769, 771 (1994), quoting Batson, supra at 98 n.20.
Here, the trial judge did not follow the procedural requirements set forth in Burnett. He did not make explicit findings of a pattern of exclusion, followed by explicit findings that the prosecutor's stated reasons for the challenge were adequate and genuine. But "[p]rocedural mistakes in the allowance of a peremptory challenge by the Commonwealth, of course, do not constitute a per se basis for reversal. The mistakes and omissions require us to make our own determination whether the Commonwealth's reasons for the challenge were race-neutral." Commonwealth v. Calderon, 431 Mass. 21, 27 (2000). By asking the prosecutor for an explanation of the peremptory challenge of the only remaining black juror, the judge implicitly found that the challenge might be improper. Id. at 25. The burden was then on the Commonwealth to establish a race-neutral explanation. The Commonwealth's explanation, that juror no. forty-one seemed confused and had difficulty answering basic questions, is supported by the record. Juror no. forty-one had not completed her questionnaire, seemed confused by basic questions regarding her personal history, and hesitated for long periods of time before responding, as if she did not understand. The trial judge, who was in the best position to observe the manner in which the juror responded, immediately agreed. Because the prosecutor's explanation was unrelated to the juror's race and was clearly supported by the record, we discern no error in the motion judge's conclusion that "the proffered reason for the challenge was both adequate and genuine." Accordingly, the motion judge acted within his discretion in rejecting the defendant's equal protection claim and appellate counsel was not ineffective for failing to raise the issue on direct appeal.
We are not persuaded by the defendant's argument that the trial judge allowed the peremptory challenge because he mistakenly believed that "a white defendant accused by white witnesses was not entitled to raise an equal protection objection to the prosecution's use of a peremptory strike of a black juror." Although the judge observed that the defendant and the witnesses were white, nothing in the record suggests that he allowed the peremptory challenge for that reason. A fair reading of the record suggests that the juror was stricken because of her failure to fully execute the questionnaire, her apparent confusion, and her delayed responses to questions at sidebar.
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Order denying motion for new trial affirmed.