Opinion
18-P-1625
01-10-2020
COMMONWEALTH v. Jerry CARRASQUILLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of two counts of distribution of a class A substance (heroin). The charges were based on purchases made from the defendant by undercover police officers. Concluding that neither argument made by the defendant on appeal warrants reversal, we affirm.
Peremptory challenge of a prospective juror. The Commonwealth used its first peremptory challenge on prospective juror number forty-two, who was the twentieth individual questioned by the judge during the individual voir dire phase of jury empanelment. Defense counsel objected to the challenge stating that the challenged juror was Latino and therefore "appears to be the same race as my client." At that point, eight jurors had been seated, including -- according to defense counsel -- two persons of color ("one Latino[ ] [and] one black person"). The judge declined to require the Commonwealth to provide a race neutral explanation for the use of the peremptory challenge. See Commonwealth v. Soares, 377 Mass. 461, 490-491, cert. denied, 444 U.S. 881 (1979). The judge explained his ruling as follows:
"I do not find a pattern in one. I know I can but I don't, given the nature of the current composition of the jury, and I'm not going to require an explanation at this time."
On appeal, the defendant argues that he sustained his burden to make a prima facie showing that the strike was improper, and that therefore the judge abused his discretion by not requiring the Commonwealth to provide a race-neutral reason for its peremptory challenge. We disagree.
A peremptory challenge is presumed to be proper, and the party challenging it bears the burden of making out a prima facie showing of discriminatory intent. Id. at 489-490. As recent case law has highlighted, that burden is not an onerous one. See Commonwealth v. Maldonado, 439 Mass. 460, 463 n.4 (2003) (characterizing burden of making out prima facie case of discriminatory intent as "not ... a terribly weighty one"). See also Commonwealth v. Jones, 477 Mass. 307, 321 (2017) (urging trial "judges to think long and hard before they decide to require no explanation ... for [a peremptory] challenge" of the same protected class as defendant [citation omitted] ). However, as the Commonwealth argues, while the bar may be low, it nevertheless exists. We discern no error in the judge's concluding that the defendant did not carry his burden here. Although it is true that a judge may find a pattern based on a single peremptory challenge -- as the judge here plainly recognized -- he is not required to do so in every case. The reported cases in which a pattern of discriminatory intent has been discerned involve markedly different fact patterns than the one presented here. In the circumstances here, where this was the prosecutor's first peremptory challenge and there were two persons of color among the eight jurors already seated, the judge was not required to conclude that a prima facie showing of discriminatory intent had been made.
The Supreme Judicial Court recently observed that some States "have eliminated the need to make a prima facie showing, and require a race-neutral reason whenever [such] a challenge is made." Jones, 477 Mass. at 322 n.23. The court did not follow suit.
See, e.g., Commonwealth v. Harris, 409 Mass. 461, 462, 467 (1991) (prima facie case of discriminatory intent shown where prosecutor struck only black member of jury venire).
Commonwealth v. Ortega, 480 Mass. 603, 606-608 (2018), is not to the contrary. In fact, that case itself recognizes that "the composition of seated jurors provides a prism through which to determine discriminatory intent, [albeit] only one factor among many[ ] [that] must be assessed in context" (quotation and citation omitted). Id. at 607.
Closing argument. For the first time on appeal, the defendant claims that the prosecutor made improper comments in his closing argument. Because the claims of error were not preserved, our review is limited to whether any errors caused a substantial risk of a miscarriage of justice. See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016).
In his own closing argument, defense counsel argued that the police witnesses were biased. Specifically, he argued as follows:
"Well, police officers are not disinterested witnesses, they're not like some independent witness that sees something that has no interest in the outcome. They have an interest in the outcome. They make arrests and they look for convictions, that's what the police do."
Counsel also sought to cast doubt on the sufficiency of the Commonwealth's evidence by emphasizing that the Commonwealth did not collect or present certain evidence that it should have. For example, counsel highlighted that there were no video recordings of the undercover purchases.
In his closing argument, the prosecutor argued that the police were not biased, noting, for example, that there was no evidence that their pay was based on convictions. In this vein, the prosecutor stated at one point that the jury "can assume of course that the officers are doing their job and you can by all means you should think about what a police officer does and the fact that there's police work underlying a case, such as this." The prosecutor also suggested that there would be reasons for the police not to attempt to video record undercover drug buys, and that the absence of evidence the defendant claimed should have been collected and admitted was of little import. In countering the arguments made on behalf of the defendant, the prosecutor referred to defense counsel by name twelve times, and at one point stated that defense counsel "sticks his head in the sand" by ignoring certain facts.
On appeal, the defendant argues that the prosecutor's "attack" on defense counsel and suggestion that police witnesses are to be believed because of the nature of their job were improper. See Commonwealth v. Lewis, 465 Mass. 119, 130 (2013), quoting Commonwealth v. Fernandes, 436 Mass. 671, 674 (2002) ("it is improper for an attorney in closing argument to disparage opposing counsel personally, or [to] characterize counsel as ‘obscuring the truth or intentionally misleading the jury’ "). For the most part, we disagree with the defendant's contentions, especially in light of the well-recognized principle that "enthusiastic rhetoric, strong advocacy, and excusable hyperbole ... [are] not grounds for reversal" (quotation and citation omitted). Commonwealth v. Siny Van Tran, 460 Mass. 535, 554 (2011). See Commonwealth v. Wilson, 427 Mass. 336, 350 (1998) (jurors "are presumed to have a certain measure of sophistication in sorting out excessive claims on both sides"). Moreover, because the defendant specifically had argued that police witnesses were biased because of the nature of their job, the prosecutor could "properly comment to correct an erroneous impression created by opposing counsel" (quotation and citation omitted). Commonwealth v. Kozec, 399 Mass. 514, 519 n.9 (1987). See Commonweallth v. Dargon, 457 Mass. 387, 401 (2010) (prosecutor rebutting defense argument that police should have conducted DNA test by calling defense theory "red herring" and "classic blame the police" tactic did not amount to improper argument).
The conduct of the prosecutor here in arguing for the credibility of the police was very different from that in Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 294-297 (2003), a case highlighted by the defendant in his brief.
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That said, the prosecutor at times ventured too close to the boundaries of propriety, perhaps even crossing them. In particular, the prosecutor should have avoided referring to defense counsel by name. Nevertheless, we conclude that any errors here did not cause a substantial risk of a miscarriage of justice. In this regard, we note that despite the prosecutor's repeated references to defense counsel by name, the overall thrust of his closing argument was to challenge the substance of counsel's arguments, not counsel himself. Contrast Commonwealth v. Awad, 47 Mass. App. Ct. 139, 141-142 (1999) (vacating convictions in part based on prosecutor's impugning motives of defense counsel). In addition, we note that the Commonwealth's evidence was strong, based as it was on undercover buys. Finally, the judge properly instructed the jury that they were the sole arbiters of witness bias and credibility. We are confident that any improprieties in the prosecutor's closing did not materially affect the jury's verdicts.
Judgments affirmed.