Opinion
No. 11–P–1894.
2013-03-21
COMMONWEALTH v. Victor LOPEZ.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of indecent assault and battery on a person over fourteen years of age in violation of G.L. c. 265, § 13H.
On appeal, he claims error in the prosecutor's use of peremptory challenges, and in the use of his nickname during the trial. We affirm.
The jury acquitted the defendant of rape.
1. Peremptory challenges. The defendant claims the judge improperly evaluated the prosecutor's use of peremptory challenges to strike males and minorities from the jury. We disagree. After thirteen jurors had been seated, the prosecutor exercised a peremptory challenge to juror no. 66. The defendant objected and claimed the prosecutor was striking only male jurors, and later expanded the objection to note that some minority males had been challenged as well.
Following the procedure outline in Commonwealth v. Soares, 377 Mass. 461, 489–491, cert. denied, 444 U.S. 881 (1979), the judge determined that the defendant had made a prima facie showing of an impropriety and asked the prosecutor to justify her peremptory challenges. The prosecutor noted that the first juror on the panel was African–American and that she challenged juror no. 66 based on his “lack of experience in life.” She further explained that she harbored no animus toward men and was seeking diversity on the jury. The prosecutor's stated reason was “clear and reasonably specific” and was “personal to the juror,” not based on his gender. Commonwealth v. Garrey, 436 Mass. 422, 428 (2002) (citation omitted). When the judge told the defendant his objection was stale,
According to defense counsel, two Hispanic males and one African–American male had been challenged.
he asked what relief the defendant was seeking. The defendant replied that his objection was not just to juror no. 66 but to the “entire panel,” but he sought no specific relief. In the end, the judge found the reason for the challenge to juror no. 66 was age, and he overruled the objection. Implicit in the judge's conclusion was his determination that the prosecutor's reason was bona fide, and we note that age is not a protected class. See Commonwealth v. Samuel, 398 Mass. 93, 95 (1986).
During the prosecutor's explanation, an effort was made to return juror no. 66 to the courtroom, but the clerk informed the judge that the juror had been excused and released.
When jury selection was concluded, the defendant renewed his objection (without any specification), but did not request the judge to take any action. The sworn jury consisted of eight women and six men; the deliberating jury were composed of eight women and four men .
That six men were seated on the jury, with four of them actually having deliberated, and that the first seated juror was African–American, all serve as a rebuttal to any presumed impropriety in the prosecutor's peremptory challenges. See Commonwealth v. Sanchez, 79 Mass.App.Ct. 189, 192 (2011). The proper procedure was followed, and the record supports the judge's decision to find the prosecutor had an adequate and genuine explanation for the challenge. See Commonwealth v. Rodriguez, 457 Mass. 461, 471 (2010). There was no error.
One male juror was excused when it was discovered that he knew one of the witnesses, and another male was chosen as the alternate.
2. The defendant's nickname. The defendant claims for the first time on appeal that the prosecutor's and the witnesses' continual use of the defendant's nickname, “Macho,” was error creating a substantial risk of a miscarriage of justice. We disagree. The defendant maintains that the use of his nickname served no other purpose but to denigrate his character. He claims this is derived from a culturally driven understanding that the nickname symbolizes machismo, bravado, and chauvinism. However, there was a specific relevant purpose for the use of the defendant's nickname. The victim and her friend, who testified as the first complaint witness, testified that they knew the defendant only by the name “Macho,” which made it relevant to his identification.
See Commonwealth v. Martinez, 458 Mass. 684, 697–698 (2011). We also do not believe there is anything inherently prejudicial in the defendant's nickname that would outweigh its probative value.
During the victim's friend's testimony, the defendant did request that his nickname not be used and that he be referred to by his surname. Although the prosecutor attempted to comply with this request, the witness continued to refer to the defendant as “Macho,” without objection, because she did not know him by any other name.
There was no error, and thus, no substantial risk that justice miscarried.
The defendant also claims the judge should have given a limiting instruction relative to the use of his nickname. However, because the defendant did not request such an instruction, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Washington, 449 Mass. 476, 488 (2007). Given the relevance of the evidence, the lack of any inherent prejudice, the ambiguity of any negative connotation the nickname presented, and an acquittal on the greater charge, there was no substantial risk that justice miscarried.
The defendant also claims his counsel was ineffective for not objecting to the continued use of his nickname. However, because we have determined that there was no error creating a substantial risk of a miscarriage of justice, there can be no ineffective assistance. See Commonwealth v. Curtis, 417 Mass. 619, 625 n. 4 (1994); Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 100 (2010).
Judgment affirmed.