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11-P-729 Appeals Court
COMMONWEALTH vs. QUINCY BUTLER.
No. 11-P-729.
Suffolk. November 9, 2015. - November 4, 2016.
Present: Cypher, Trainor, & Rubin, JJ.
Homicide. Constitutional Law, Jury. Jury and Jurors.
Practice, Criminal, Challenge to jurors, Jury and jurors,
Capital case, Argument by prosecutor, Witness, Conduct of
prosecutor. Evidence, Argument by prosecutor, Cross-
examination, Credibility of witness. Witness, Cross-
examination, Credibility. Perjury.
Indictments found and returned in the Superior Court
Department on May 4, 2004.
The cases were tried before Patrick F. Brady, J.
John M. Thompson for the defendant.
Cailin M. Campbell, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, with her) for the
Commonwealth.
CYPHER, J. The defendant, Quincy Butler, appeals from his
convictions of murder in the second degree (G. L. c. 265, § 1),
2
and eight related offenses.1 The defendant was tried with a
codefendant, William Wood, on a theory of joint venture for
crimes committed in the course of a botched kidnapping and
robbery attempt.2 Wood was convicted of murder in the first
degree and various other charges.3 He appealed his convictions
to the Supreme Judicial Court which found no reversible error
and found no reason to reduce or reverse the conviction of
murder in the first degree pursuant to its authority under G. L.
c. 278, § 33E.4 See Commonwealth v. Wood, 469 Mass. 266 (2014).
1
The defendant was also convicted of armed carjacking, in
violation of G. L. c. 265, § 21A; two counts of kidnapping, in
violation of G. L. c. 265, § 26; armed home invasion, in
violation of G. L. c. 265, § 18C; two counts of armed robbery,
in violation of G. L. c. 265, § 17; assault and battery by means
of a dangerous weapon, in violation of G. L. c. 265, § 15A(b);
larceny of a motor vehicle, in violation of G. L. c. 266,
§ 28(a); and possession of a firearm without a license, in
violation of G. L. c. 265, § 10(a). The armed home invasion
conviction was subsequently dismissed as duplicative.
2
There were four trials, two of which ended in mistrials
when the jury were unable to reach a unanimous verdict. A third
trial ended in a mistrial because the presiding judge became ill
during the trial. Commonwealth v. Wood, 469 Mass. 266, 268
(2014).
3
Wood was also convicted of armed carjacking, two counts of
kidnapping, armed home invasion, and larceny of a motor vehicle.
His convictions on two counts of armed robbery were dismissed as
duplicative by the judge but were reinstated by the Supreme
Judicial Court. Wood was acquitted of assault and battery by
means of a dangerous weapon. Wood, 469 Mass. at 268 & n.3.
4
Wood argued, in his appeal, that if he and the defendant
were both guilty of armed robbery as joint venturers, satisfying
the predicate felony for felony murder in the first degree, the
defendant should also have been convicted of murder in the first
3
On appeal, the defendant argues that he was deprived of
equal protection and due process because the prosecutor engaged
in racial and gender discrimination during jury empanelment.
Specifically, he claims that the prosecutor attempted to select
jurors who resembled the victim, a white female, and to avoid
jurors who resembled the defendants, African American men. The
defendant also argues several other issues, some of which were
raised by Wood and reviewed and rejected by the Supreme Judicial
Court in Wood, supra.5 We affirm.
The Supreme Judicial Court thoroughly explicated the facts
of the case in Wood, supra. We will address relevant facts
where necessary.
Discussion. 1. Jury empanelment. "Article 12 of the
Massachusetts Declaration of Rights proscribes the use of
peremptory challenges 'to exclude prospective jurors solely by
virtue of their membership in, or affiliation with, particular,
defined groupings in the community.'" Commonwealth v. Smith,
450 Mass. 395, 405 (2008), quoting from Commonwealth v. Soares,
377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979).
"Peremptory challenges are presumed to be proper." Commonwealth
degree. The Supreme Judicial Court noted that "[t]o be sure,
the jury could have so found. However, the jury have the
inherent power to enter into compromises in reaching their
verdict." Wood, 469 Mass. at 294.
5
The jury empanelment issue was not raised in Wood.
4
v. Maldonado, 439 Mass. 460, 463 (2003). However, that
presumption may be rebutted by showing that "(1) there is a
pattern of excluding members of a discrete group and (2) it is
likely that individuals are being excluded solely on the basis
of their membership" in that group. Ibid., quoting from
Commonwealth v. Garrey, 436 Mass. 422, 428 (2002). "A single
peremptory challenge can constitute a prima facie showing that
rebuts the presumption of proper use." Commonwealth v. Curtiss,
424 Mass. 78, 79 (1997).
When the question of an improper use of a peremptory
challenge is raised, the judge must make an initial finding as
to whether the opposing party has made a prima facie showing
that the use of the challenge was improper. Maldonado, 439
Mass. at 463, citing Commonwealth v. Burnett, 418 Mass. 769, 771
(1994). See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 431
(2016). We do not disturb a judge's finding regarding whether a
permissible ground for a peremptory challenge exists unless the
judge abused his or her discretion. See Commonwealth v.
Rodriguez, 431 Mass. 804, 811 (2000); Commonwealth v. Issa, 466
Mass. 1, 9-11 (2013). When reviewing such a claim we consider
the totality of the circumstances presented to the judge,
including the composition of the venire, the composition of the
jury, the previous use of peremptory challenges, and other
possible reasons that the juror could have been excluded. See
5
Commonwealth v. LeClair, 429 Mass. 313, 321 (1999) (composition
of final deliberating panel); Commonwealth v. Issa, supra.
If the judge determines that the opposing party has
established a prima facie case that the challenge was used for a
discriminatory purpose, the burden shifts to the party seeking
to exercise the challenge to provide a permissible explanation
for that challenge. The judge must then determine whether the
reason provided is genuine. See Maldonado, 439 Mass. at 463-
464, and cases cited.
The jury empanelment for the trial in this case occurred
over two days. At the outset of empanelment, defense counsel
objected to the "numbering system" and to the "strike method"
and order in which the jurors were being selected. He objected,
in part, as follows:
"I would note that for the first twenty-five jurors only
five are males, so that means we're down to four to one
during the first twenty-five. The second set of twenty-
six, nineteen are females and seven are males. It's only
when we get to the last twenty-four that we see what looks
to be close to a 49 to 51 percent.
"In other words, Mr. Butler is being asked to pick a jury
where the first, over first fifty potential jurors are
predominantly, close to 70 percent female. And I would
suggest, and I object on his behalf, but I suggest that is
not a fair representation or cross section."
The defendant has not demonstrated that any alleged
underrepresentation in the venire was caused by systematic
6
exclusion of a distinctive group.6 See Commonwealth v. Leitzsey,
421 Mass. 694, 700 (1996), quoting from Duren v. Missouri, 439
U.S. 357, 364 (1979), and citing Taylor v. Louisiana, 419 U.S.
522, 531 (1975), and Commonwealth v. Pope, 392 Mass. 493, 500
(1984) ("[T]o prove that a petit jury selection process
infringes a defendant's constitutional right to be tried by a
jury representative of a fair cross section of the community,
the defendant must show 'that the group alleged to be excluded
is a "distinctive group" in the community; . . . that the
representation of this group in venires . . . is not fair and
reasonable in relation to the number of such persons in the
community; and . . . that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process'"). "[T]he procedure used in this Commonwealth to
choose jury panels from lists of qualified jurors is random
selection. . . . Inevitably, some panels drawn by this method
will fail to represent proportionately various groupings in the
population." Commonwealth v. Soares, 377 Mass. at 482.
The total number of prospective jurors in the venire was
130 persons, of whom forty-nine were men and eighty-one were
women. On the first day of empanelment, Wood and the defendant
6
Indeed, it is unclear from the argument on appeal and a
review of the trial transcript whether the defendant considered
all men or only African American men to be underrepresented.
7
challenged fourteen females, who were excused from the group
that the judge had found to be impartial. Wood and the
defendant also challenged two males who had been found to be
impartial, and the judge excused them.
The Commonwealth challenged and the judge excused four
females and four males on the first day. The Commonwealth
expressed a concern on one challenge about the juror's ability
to serve because she was on summer break from college. The
Commonwealth then challenged the juror and she was excused.
Next, the Commonwealth challenged a male juror who was on summer
break from college. The Commonwealth also challenged a young
black male and explained that he should not have been found
indifferent. The Commonwealth argued that because he had stated
to the judge that he was only "ninety percent" (rather than one
hundred percent) sure that he could be unbiased and that he felt
that blacks were punished disproportionally to whites, he should
not have been found to be indifferent. When the judge
disagreed, the Commonwealth challenged the juror and the judge
excused the juror. Compare Commonwealth v. Colon, 408 Mass.
419, 440-441 (1990). Upon the defendant's objection to the
Commonwealth's challenge, the judge declared that there was no
pattern of discrimination and therefore did not ask for an
explanation for the challenge. In any event, the Commonwealth
had just provided a detailed reason to the judge, prior to the
8
defendant's objection, regarding why it believed this particular
juror should have been excused for cause. Day one of the jury
selection concluded with three females being seated.
The defendant and Wood opened day two of the empanelment
process by filing a motion for a mistrial on the grounds that
they had made a prima facie case of discrimination. The judge
denied the motion. The Commonwealth challenged and excused a
female. Two females were then seated. The Commonwealth next
challenged and excused a male, juror number 100. An objection
was made based on gender discrimination and the judge declined
to find a pattern of discrimination. The defendant then
immediately challenged the next juror, a male. Two more males
were then seated and the defendant then challenged and excused
the next juror, a male. The Commonwealth then challenged a
female. The defendant objected, arguing that the pool had too
few minorities and that this was the third challenge of a
minority based on race or ethnicity.7 The judge declined to find
a pattern of discrimination. Two males were then seated.
7
As we noted in note 6, supra, it was unclear on the record
and on appeal whether the focus of the defendant's objection to
the venire was that it was comprised of too few men or only
specifically two few African American men. It is also unclear
whether the defendant's objections to the Commonwealth's
exercise of its peremptory challenges included both race and
gender.
9
The defendant and Wood objected, claiming that the venire
had more females than males. The judge overruled the objection.
At this point in the process, five females and four males had
been seated.
The Commonwealth challenged and excused another male and,
after objection, the judge again found no pattern of
discrimination.8 A female was then seated. Wood challenged and
excused two females. A male was seated. The Commonwealth then
challenged and excused a male. The defendant and Wood objected
and the judge declined to find a pattern of discrimination.9 The
Commonwealth next challenged and excused a female student on
summer break. Wood and the defendant objected, claiming that
the female student had some percentage of African descent and
although the judge agreed, he declined to find a pattern of
discrimination.10 A male and a female were then seated. Wood
challenged the next female. The Commonwealth objected, arguing
8
Significantly, prior to challenging this male juror, the
Commonwealth had passed on challenging six male jurors, four of
whom were seated and two of whom were challenged by Wood.
Compare LeClair, 429 Mass. at 321.
9
The judge was able to observe the entire proceeding when
determining whether there was a pattern of discrimination. The
Commonwealth had just passed on challenging a male juror, and he
was seated.
10
The judge would have been aware of the Commonwealth's
previously stated concerns about seating students on summer
break when determining if a pattern of discrimination existed.
Compare Colon, 408 Mass. at 440-441.
10
that nine of Wood's twelve challenges were to white females.
The judge declined to find a pattern of discrimination and
excused the juror. The Commonwealth challenged the next juror,
a male, and no objection was made.11 Wood and the defendant
challenged and excused two more females. A male and two females
were seated without challenge.
A total of sixteen jurors were empanelled -- nine females
and seven males. Of the females, five were white, three were
Hispanic, and one was black. Of the males, four were white and
three were black.12
"A trial judge is in the best position to decide if a
peremptory challenge appears improper and requires an
explanation by the party exercising it." Commonwealth v.
LeClair, 429 Mass. at 321. We do not substitute our judgment
for that of the judge as to whether the presumption of proper
peremptory challenge has been rebutted when there is support in
the record for the judge's determination. See Commonwealth v.
Colon, 408 Mass. at 440. Considering the totality of the
prosecutor's challenges, including the defendant's objection to
11
This prospective juror taught at a school attached to a
Department of Youth Services treatment facility.
12
The Commonwealth used fifteen peremptory challenges
consisting of four white, two black, and one Hispanic female and
six white and two black males. Wood and the defendant used
twenty-three peremptory challenges consisting of sixteen white,
two black, and one Hispanic female and four white males.
11
almost every peremptory challenge the Commonwealth made to
prospective male jurors coupled with the defendant's own
challenges to prospective male jurors, the reasons expressed by
the Commonwealth for challenging certain jurors, as well as the
composition of the members of the jury, there was ample support
for the judge to determine that the presumption of appropriate
use of peremptory challenges had not been rebutted by the
defendant. The defendant has not established that the judge
abused his discretion. The defendant also did not establish
that any particular group was underrepresented in the venire.
2. The defendant's other issues.13 A number of the
defendant's arguments before us were specifically addressed and
rejected in Wood. We think that, in general, the reasoning of
13
The defendant was given leave to appeal the single
justice's denial of his motion to file a Moffett brief, see
Commonwealth v. Moffett, 383 Mass. 201 (1981), and the appeal
was consolidated with the direct appeal. The single justice did
not abuse his discretion in denying the defendant's motion to
file a Moffett brief. There is no constitutional right to
hybrid representation. See Commonwealth v. Molino, 411 Mass.
149, 153 (1991) ("Hybrid representation is not prohibited;
appointment of counsel in any hybrid situation is left to the
discretion of the . . . judge"). "While a court may, in its
discretion, permit a party to proceed in a hybrid manner, it is
not obligated to do so." Commonwealth v. LeBaron, 464 Mass.
1020, 1020 (2013), citing Molino, supra at 152-154. Here,
defense counsel filed a fifty-page brief on behalf of the
defendant. The parameters of Moffett were not complied with by
the defendant, or his counsel, who submitted a detailed
memorandum in support of the defendant's arguments in the
Moffett brief.
12
the Supreme Judicial Court in rejecting Wood's identical
arguments applies here as well.14
a. Prosecutor's closing argument. The defendant's first
argument concerning the prosecutor's statement in closing
regarding the relationship of the victim and one of the
witnesses is substantially the same as the argument already made
in Wood. The Supreme Judicial Court, in Wood, noted that the
error was objected to, after which the judge instructed the jury
that they were to disregard the erroneous statement. The
Supreme Judicial Court concluded that the error would not have
made a difference in the jury's conclusion. The Supreme
Judicial Court also concluded that "[t]he prosecutor was
14
Our concurring colleague notes that in addition, the
Supreme Judicial Court conducted a mandatory statutory G. L.
c. 278, § 33E, review of Wood's conviction of murder in the
first degree on the same record. See Wood, 469 Mass. at 295.
The concurrence views this review as having a preclusive effect
regarding the Batson claim of constitutional error in this
appeal with respect to juror selection, see Batson v. Kentucky,
476 U.S. 79 (1986), because § 33E review is mandatory in all
appeals from convictions of murder in the first degree, and,
when conducting such § 33E statutory review, the Supreme
Judicial Court considers whether any unpreserved or unbriefed
error at trial has created a "substantial likelihood of a
miscarriage of justice." Considering the defendant's zealous
advocacy regarding the alleged error in jury selection, it is
not likely that the Supreme Judicial Court overlooked this
point. Concurrence, post at . Having no express
authority by the Supreme Judicial Court that we may, in some
circumstances, consider its § 33E review of a first degree
murder conviction as dispositive of a codefendant's appeal from
a conviction of murder in the second degree, we decline to
consider the question.
13
attempting to rebut defense counsel's argument that [the
witness] was not credible and was motivated to lie to protect
himself or the third-party killer. The prosecutor properly
responded by pointing out that [the witness] had no motive to
lie and that he was nearly killed in the same assault. . . .
[The witness] was exhaustively cross-examined, and defense
counsel ably challenged his credibility throughout the trial."
Wood, 469 Mass. at 286.
Next, the defendant complains that the prosecutor's closing
argument was improper because he commented on the credibility of
the defendant, and the judge erred in declining to give a
requested curative instruction.
Here, the prosecutor attacked the defendant's credibility
both by suggesting he was rehearsed, robotic, and acting during
his testimony, and by comparing his testimony with that of two
Commonwealth witnesses who the prosecutor suggested were more
genuine and unrehearsed. "The prosecution may properly attack
the credibility of . . . [a] defendant, . . . and may ask the
jury to compare the credibility of two opposing witnesses."
Commonwealth v. Donovan, 422 Mass. 349, 357 (1996). "Similarly,
a prosecutor may argue in support of the credibility of
witnesses based on their demeanor." Commonwealth v. Miles, 46
Mass. App. Ct. 216, 222 (1999). The prosecutor referred to the
cross-examination of the defendant to support his argument that
14
the defendant would be more believable if he had not been
rehearsed and actually tried to remember what happened. During
cross-examination the defendant admitted to reading over his
testimony from two years earlier to prepare for his current
testimony. See Commonwealth v. Freeman, 430 Mass. 111, 118–119
(1999) ("A prosecutor can address, in a closing argument, a
witness's demeanor, motive for testifying, and believability,
provided that such remarks are based on the evidence, or fair
inferences drawn from it"). See generally Commonwealth v.
Kozec, 399 Mass. 514, 521 (1987) ("not improper to make a
factually based argument that, due to the demeanor, disclosed
circumstances, and appearance of a witness, a particular witness
should be believed or disbelieved"). The defendant took the
stand and testified to his innocence, thus making his
credibility a central issue in the case. The defendant's
testimony and demeanor could be referred to in closing argument.
See Donovan, supra; Miles, supra. There was no error in the
prosecutor's arguing that the defendant was not credible.
Furthermore, where, as here, the prosecutor's questioning
of the defendant's credibility during his closing argument was
adequately grounded in the evidence at trial, the judge did not
err in declining to give a curative instruction. See
Commonwealth v. Carter, 475 Mass. 512, 521 (2016), quoting from
Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) ("While a
15
prosecutor may not vouch for the truthfulness of a witness's
testimony, . . . we consistently have held that, where the
credibility of a witness is an issue, counsel may 'argue from
the evidence why a witness should be believed'" [citations
omitted]). Moreover, the judge made it clear to the jury that
closing arguments must always be distinguished from evidence and
the jury themselves were the final arbiters of the facts and the
sole judges of the credibility of the witnesses and the weight
to be accorded to their testimony. See Carter, supra at 522
("Even if there had been an appearance of impropriety in the
statements, the judge carefully and clearly instructed the jury
that closing arguments are not evidence and that they alone were
tasked with determining credibility. These instructions offset
any prejudice").
b. Evidentiary rulings and limitations on cross-
examination. The defendant argues that the judge's evidentiary
rulings and limitations on cross-examination were error and
deprived him of his right to present a complete defense and
cross-examine all adverse witnesses. Both Wood and the
defendant objected to the judge's evidentiary rulings and the
limitations on cross-examination. Wood made this identical
argument in his appeal. The Supreme Judicial Court rejected the
argument. "In a pretrial motion joined by [the defendant],
[Wood] sought to introduce, through several witnesses and cross
16
examination, evidence intended to show that a third party . . .
killed [the victim], as well as evidence that the police failed
to investigate certain statements . . . . We discern no error
in the judge's rulings excluding much of the proffered
evidence." Wood, 469 Mass. at 274. The Supreme Judicial Court
concluded that certain excluded evidence would have been
cumulative of other admitted evidence. Id. at 277. The Supreme
Judicial Court also concluded that "where the issue of an
inadequate investigation was fairly before the jury, the
defendant suffered no prejudice from the exclusion of the
proffered evidence." Id. at 278.
c. Purported false testimony. The defendant argues that
the prosecutor knowingly used false evidence from two witnesses,
which denied the defendant his opportunity for a fair trial.
The Supreme Judicial Court, in Wood, however, specifically
reviewed the testimony of these two witnesses both before the
grand jury and at trial. The Supreme Judicial Court concluded
that there was no knowing use of false testimony. "Given that
both witnesses' versions of the core facts of the case remained
essentially the same at all proceedings, and given that their
testimony corroborated each other's stories, the prosecution did
not knowingly elicit perjury. . . . The defendant's due process
rights were not violated where the facts that went to the heart
of the case remained essentially unchanged throughout the
17
trials." 469 Mass. at 288-289. Neither Wood nor the defendant
had objected to the evidence on this basis.15
Judgments affirmed.
Order of the single justice
denying motion to file
Moffett brief affirmed.
15
Nor is there merit in the defendant's argument that these
witnesses were coached, and that, therefore, it was error for
the prosecutor to argue otherwise in his closing.
TRAINOR, J. (concurring). I concur with the majority
opinion in every respect but would add that the Supreme Judicial
Court conducted a mandatory § 33E review of codefendant William
Wood's conviction of murder in the first degree. See
Commonwealth v. Wood, 469 Mass. 266, 295 (2014). The
codefendants, at trial, conducted their defense in unison. They
joined in each other's objections and each other's arguments,
and as a result, I believe that the G. L. c. 278, § 33E, review
should have preclusive effect on the Batson1 claim of
constitutional error made by defendant Butler in this appeal.
Generally, when a party appeals from a ruling or a decision
of a trial court or other adjudicative body, our standard of
review is determined by whether an objection was preserved below
and other appropriate circumstances related to the alleged
error. Direct appeals from convictions of murder in the first
degree however are handled differently because the Supreme
Judicial Court has a statutory duty under G. L. c. 278, § 33E,
to review the entire case, whether or not errors were preserved
at trial or briefed on appeal, in order to guarantee that the
conviction was not the result of a miscarriage of justice.
"Under § 33E, [the Supreme Judicial Court] review[s] the entire
record of a conviction of murder in the first degree, examining
1
See Batson v. Kentucky, 476 U.S. 79 (1986).
2
both the law and the evidence, considering the issues raised on
appeal, the issues raised through objections at trial, and the
issues that reasonably should have been raised on appeal and
objected to at trial, to ensure that there has not been a
miscarriage of justice" (emphasis added). Commonwealth v.
Johnson, 461 Mass. 1, 6 (2011). The Supreme Judicial Court has
further elaborated on this duty by stating, "We are empowered
under G. L. c. 278, § 33E, to consider questions raised by the
defendant for the first time on appeal, or even to address
issues not raised by the parties, but discovered as a result of
our own independent review of the entire record. . . . This
uniquely thorough review of first degree murder convictions is
warranted by the infamy of the crime and the severity of its
consequences." Dickerson v. Attorney Gen., 396 Mass. 740, 744
(1986).
When conducting its § 33E statutory review, the Supreme
Judicial Court looks for whether any error unpreserved at trial
or unbriefed on appeal has created a "substantial likelihood of
a miscarriage of justice."2 See, e.g., Commonwealth v. Wright,
411 Mass. 678, 682 (1992); Commonwealth v. Ruddock, 428 Mass.
288, 292 n.3 (1998). While the court will use the "substantial
2
The substantial likelihood standard is "more forgiving to
a defendant" than is the substantial risk of a miscarriage of
justice standard. Commonwealth v. Smith, 460 Mass. 318, 321 n.2
(2011).
3
likelihood" standard on issues that were either not preserved at
trial or not included in an appellate brief, when issues were
properly preserved at trial and raised on appeal, the court will
apply the standard of review typically used for preserved claims
in criminal cases.
Here, both the defendant and Wood carefully laid a
foundation for appeal on the issue of racial and gender
discrimination in both the venire pool and the juror selection
process. The defendant and Wood objected to the prosecutor's
use of peremptory challenges and argued that the challenges were
based on either race or gender discrimination. The defendant
and Wood took exception to the judge's declining to sustain
their objections and his declining to find a pattern of improper
challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 97
(1986), and J.E.B. v. Alabama, 511 U.S. 127, 128-129 (1994).
Both the defendant and Wood moved for a mistrial on the second
day of jury selection. Inexplicably, Wood did not include this
issue, even though well preserved at trial, in his appellate
brief to the Supreme Judicial Court. Now, the defendant
contends that even if the Supreme Judicial Court reviewed the
Batson issue, it would have used the likelihood of a miscarriage
of justice standard of review because Wood did not include the
claim in his appellate brief. We on the other hand, according
to this argument, are required to use a different and stricter
4
standard of review because the defendant has argued the Batson
issue in his appellate brief. Under different circumstances
this could be a legitimate observation, and create an
unfortunate anomaly in our system of justice, but it does not
here.
The defendant relies on Commonwealth v. Morganti, 467 Mass.
96, cert. denied, 135 S. Ct. 356 (2014), for his argument that
Wood had waived any claim of constitutional error by not
including the claim in his direct appeal. The defendant argues
that the Supreme Judicial Court therefore could only have
reviewed this potential error under § 33E and the substantial
likelihood of a miscarriage of justice standard. Morganti held
that while "[i]t is well settled that the violation of a
defendant's Sixth Amendment right to a public trial is
structural error requiring reversal . . . even structural error
is subject to the doctrine of waiver." Id. at 101-102
(quotation omitted). The defense counsel in Morganti was aware
that the court room had been closed to the public in order to
facilitate jury empanelment and did not object. The Supreme
Judicial Court concluded that the defendant had waived his right
to a public trial for that portion of the proceedings because
defense counsel was aware of the closing and chose not to
object. Id. at 102. That is not the situation we face here.
Defense counsel for both the defendant and Wood made great
5
effort to preserve any potential error. Wood objected to the
venire panel, moved for a mistrial, objected on the basis of
racial discrimination, objected on the basis of gender
discrimination, and renewed each of the objections based on
discrimination. The defendant joined Wood in each of these
objections and objected alone only once to a juror challenge by
the Commonwealth.
The defendant would have us view the Wood decision as
considering the Batson claim under the "substantial likelihood
of a miscarriage of justice" standard of review, not because
defense counsel waived the claimed error at trial but because
appellate counsel failed to preserve the objection on appeal.3
In this unique circumstance, I believe this reasoning to be
incorrect. "When constitutional error calls into question the
objectivity of those charged with bringing a defendant to
judgment, a reviewing court can neither indulge a presumption of
regularity nor evaluate the resulting harm. . . . [W]hen a
petit jury has been selected upon improper criteria . . . we
have required reversal of the conviction because the effect of
the violation cannot be ascertained." Vasquez v. Hillery, 474
U.S. 254, 263 (1986). Our Supreme Judicial Court, long before
the holding in Batson, prohibited the use of peremptory
3
The claimed errors were objected to at trial on numerous
occasions.
6
challenges to exclude prospective jurors solely on the basis of
their membership in, or affiliation with, defined groupings in
the community. The court held that "there are some
constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error. The right to
be tried by an impartial jury of peers is one such right."
Commonwealth v. Soares, 377 Mass. 461, 492, cert. denied, 444
U.S. 881 (1979), quoting from Commonwealth v. Gilday, 367 Mass.
474, 499 n.3 (1975).
Whether this species of constitutional error can ever be
waived remains to be determined.4 Here, however, the alleged
error clearly was not waived and, if substantiated, could never
be treated as harmless, never mind only creating the possibility
of a likelihood of a miscarriage of justice. That standard of
review is simply inappropriate for reviewing this kind of
alleged constitutional error. If the alleged error existed,
after being so clearly highlighted in the record of the trial,
4
Federal Circuit Courts of Appeal have determined that
"intentional discrimination on the basis of race in jury
selection is structural error." Winston v. Boatwright, 649 F.3d
618, 628 (7th Cir. 2011). Compare Vasquez v. Hillery, 474 U.S.
at 263 (grand jury selection); Arizona v. Fulminante, 499 U.S.
279, 309-310 (1991) (Rehnquist, C.J., writing for a majority)
(other structural errors). While this question has not been
decided yet in Massachusetts, the requirement of an impartial
jury is fundamental to our concept of a fair trial. I do not
believe that a § 33E review could have considered the issue to
have been waived simply because it was not included in an
appellate argument after being so extensively argued at trial.
7
the court in Wood would have been required to reverse Wood's
conviction.
I conclude then that the Supreme Judicial Court's holding
in Wood included a determination that there was no error and no
basis to these constitutional claims made by both the defendant
and Wood at trial and by the defendant in this appeal. See
Wood, 469 Mass. at 295 ("We have reviewed the record in
accordance with G. L. c. 278, § 33E, to determine whether there
is any basis to set aside or reduce the verdict of murder in the
first degree, regardless of whether such grounds were raised on
appeal. We find no such reason, and we decline to exercise our
powers under the statute"). (Emphasis added.)
RUBIN, J. (dissenting). The court majority errs in
concluding that the defendant failed to make out a prima facie
claim of gender discrimination in the Commonwealth's use of its
peremptory challenges. Further, to the extent it intimates that
the Supreme Judicial Court's failure to address the Batson claim
in the case of Commonwealth v. Wood, 469 Mass. 266 (2014), the
appeal of Butler's codefendant, in which it was not raised or
addressed, might have preclusive effect here because of G. L. c.
278, § 33E -- a view fleshed out by my concurring colleague --
it is also in error, an error that, if raised to the level of a
holding, would have broad implications for the criminal law. I
therefore respectfully dissent.1
1. Batson claim. The defendant raises a claim that he
made out a prima facie case of a violation on the basis of
1
The defendant testified on cross-examination that he had
reviewed his own prior testimony at the direction of counsel.
In closing, the prosecutor said, "Did you find [the defendants']
testimony credible or did you find it rehearsed? Did you find
it prepared? Did you find it very informed, having read their
transcripts, knowing what questions I was going to ask them?
Keep that in mind, ladies and gentlemen, when you look at their
testimony." There was no objection.
Though the majority does not address it, in the
absence of any evidence of coaching, this aspect of the
prosecutor's closing was error. See Commonwealth v. Beauchamp,
424 Mass. 682, 691 (1997) ("the prosecutor may not elicit
evidence of . . . the discussions the defendant had with his
attorney to argue that these were evidence that the defendant
fabricated his story"). Nonetheless, because I conclude that
the error did not create a substantial risk of a miscarriage of
justice, I do not think it requires reversal.
2
gender under Batson v. Kentucky, 476 U.S. 79 (1986). See J.E.B.
v. Alabama, 511 U.S. 127 (1994) (extending Batson to cover
discrimination on the basis of gender). That is the only claim
about empanelment made here by the defendant. The defendant
does not argue that there was a fair cross-section problem, so
the majority's conclusion asserted at the outset of its opinion
that there was no such problem is irrelevant to the defendant's
appeal.
The Batson claim is not a complicated one. After thirty-
one jurors had been found indifferent during jury selection, the
defendant interposed a Batson objection for discrimination on
the basis of gender. At that point, the prosecutor had struck
five of the twenty-four women found indifferent, or 20.83
percent. During the same period he had struck five of the seven
men found indifferent, or 71.43 percent.
The burden of making out a prima facie case is not "a
terribly weighty one." Commonwealth v. Maldonado, 439 Mass.
460, 463 n.4 (2003). Indeed, the "challenge of a single
prospective juror within a protected class could, in some
circumstances, constitute a prima facie case of impropriety."
Commonwealth v. Fryar, 414 Mass. 732, 738 (1993), S.C., 425
Mass. 237, cert. denied, 522 U.S. 1033 (1997). The pattern of
strikes here suffices to raise an inference that the prosecutor
was using peremptory challenges to exclude individuals from the
3
jury because of their sex. The defendant is thus entitled at
least to a remand to the trial court to allow the Commonwealth
to explain its challenges. See Commonwealth v. Mathews, 31
Mass. App. Ct. 564, 571 n.6 (1991) (stating that, where the
judge had not adequately probed the prosecutor's
nondiscriminatory reasons for exercising peremptory strikes, "we
could remand the case to the trial judge for additional
findings").2
The court majority concludes that no prima facie case of
discrimination was made out. Its analysis, however, rests on
three different errors.
2
See Sanchez v. Roden, 753 F.3d 279, 308 (1st Cir. 2014)
(remanding case for evidentiary hearing after finding prima
facie case of Batson violation). See also United States v.
Battle, 836 F.2d 1084, 1086 (8th Cir. 1987) (same); United
States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989) (same);
Jones v. West, 555 F.3d 90, 102 (2d Cir. 2009) (same). The
alternative would be to order a new trial. See Commonwealth v.
Long, 419 Mass. 798, 807 (1995). See also Commonwealth v. Issa,
466 Mass. 1, 11 n.14 (2013) ("Where, as here, a judge fails to
find a prima facie case or otherwise require the prosecutor to
provide an explanation, the record on appeal includes no
explanation of the prosecutor's reasons for the challenge, the
defendant is not given an opportunity to reply to the
explanation, and the judge does not make the required findings
as to the adequacy and genuineness of the prosecutor's
explanation. Therefore, where a judge abuses his or her
discretion by failing to find a prima facie case, the error is
unlikely to be harmless. . . . Consequently, when a defendant
claims that a prosecutor's peremptory challenge of a prospective
juror is motivated by discriminatory intent, we urge judges to
think long and hard before they decide to require no explanation
from the prosecutor for the challenge and make no findings of
fact").
4
First, the majority examines both the actions of the
Commonwealth after the point of the objection, ante at ,
and the final composition of the jury, ante at . Neither
was known at the time of the objection, and thus neither could
have played any role in the decision under review, which is the
judge's determination that the defendant failed to make out a
prima facie case of gender discrimination.
The objection at issue, concerning juror number 100,
occurred on the second day of trial after the Commonwealth used
its first peremptory challenge of the day to excuse a male
juror. This is described in the majority opinion, ante
at . The actions of the parties during empanelment after
that point are, of course, irrelevant. The same is true of the
final composition of the jury. To the extent our cases have
examined the composition of the jury in determining whether a
prima facie case of discrimination has been made out, they have
looked only to the composition of the jury at the time of the
objection.3 See Commonwealth v. Sanchez, 79 Mass. App. Ct. 189,
190-192 (2011). Commonwealth v. LeClair, 429 Mass. 313, 321
(1999), cited by the majority, is actually an example of this;
3
We note that on Federal habeas review, the United States
Court of Appeals for the First Circuit recently deemed this
court's overreliance on the composition of the jury at the time
of the objection in that very case "objectively unreasonable in
light of clearly established federal law." Sanchez v. Roden,
753 F.3d at 300.
5
the court there cites the final composition of the jury not in
support of its affirmance of the judge's determination that
there was no prima facie case of discrimination, but only as
evidence that the defendant received a trial before "a fair and
impartial jury of his peers," i.e., that the fair cross-section
requirement was met, a different matter and, again, one not
raised here. Issa, which the majority also cites, does not
discuss the final composition of the jury at all. See
Commonwealth v. Issa, 466 Mass. 1, 10-11 (2013). Were we to
consider the composition of the jury at the time of the
objection, it would undermine the majority's argument. At that
time, the jury contained five women and no men.
Neither subsequent actions nor the final composition of the
jury can be relevant to whether a defendant made out a prima
facie case. Each individual juror has the right not to be
struck for a discriminatory reason. See Foster v. Chatman, 136
S. Ct. 1737, 1747 (2016) ("The Constitution forbids striking
even a single prospective juror for a discriminatory purpose"
[quotation omitted]). Thus, a constitutional violation can
occur even if the final jury contains members of the group that
was allegedly subjected to discriminatory strikes. See Alvarado
v. United States, 497 U.S. 543, 544 (1990) (Vacating and
remanding where United States conceded that "[t]he Court of
Appeals erred in holding that as long as the petit jury chosen
6
satisfied the Sixth Amendment's fair-cross-section concept, it
need not inquire into the claim that the prosecution had
stricken jurors on purely racial grounds").
To the extent the majority's discursive discussion of the
facts might create an appearance of evenhandedness between the
parties, that appearance is misleading. The Commonwealth had,
at the time of the objection to juror number 100, struck an
equal number of men and women, five of each. But that was over
70 percent of the men, and only about 20 percent of the women.
Likewise, the defendant's own use of peremptories described in
the majority opinion is irrelevant. Because two wrongs don't
make a right in this context, nothing one party can do in its
use of such challenges licenses the other party to use its own
challenges in a discriminatory manner.
Second, the majority speculates about valid reasons for
striking some jurors when, because of the trial judge's error,
the Commonwealth was never asked to and never did put forth any
nondiscriminatory reason for any of its peremptory challenges.
See ante at , note 10. We may not speculate about
possible nondiscriminatory reasons for peremptory strikes that
are not apparent from the record. See Johnson v. California,
545 U.S. 162, 172 (2005) ("The Batson framework is designed to
produce actual answers to suspicions and inferences that
discrimination may have infected the jury selection process");
7
Williams v. Lousiana, 136 S. Ct. 2156, 2156-2157 (2016)
(Ginsburg, J., concurring in the decision to grant, vacate, and
remand, with whom Breyer, Sotomayor, and Kagan, JJ. join),
quoting from Johnson v. California, supra at 173 (It is
"improper to 'rel[y] on judicial speculation to resolve
plausible claims of discrimination'"). In this case, the
prosecutor did argue during voir dire that one of the male
potential jurors should have been dismissed for cause because of
his views on race, a significant concern of the trial judge in
this case, and so that argument may play some role in this
court's analysis. See Batson v. Kentucky, supra at 97 ("[T]he
prosecutor's questions and statements during voir dire
examination and in exercising his challenges may support or
refute an inference of discriminatory purpose"). See also
Commonwealth v. Issa, 466 Mass. at 11 (relying on
nondiscriminatory reasons for a strike that were apparent in the
voir dire record). However, the majority is simply mistaken in
stating that the Commonwealth ever expressed a particular
concern about the jurors who were on summer break from college.
By the time of the relevant objection, the judge had asked four
jurors4 whether they were on summer break from college. The
prosecutor struck all four jurors, two women and two men,
4
Including the man whom the prosecutor argued should be
dismissed for cause.
8
without mentioning the fact that they were on summer break.
Even if this court is willing to conclude from the silent record
that this nongender factor explains these four strikes, the
prosecutor still struck three out of five (60 percent) of the
remaining men and three out of twenty-two (13.6 percent) of the
remaining women.
Third, the majority fails to engage in one of the most
important analyses in determining whether a strike was
discriminatory: comparison of similarly situated male and
female jurors. See Miller-El v. Dretke, 545 U.S. 231, 241
(2005) ("More powerful than the[] bare statistics, however, are
side-by-side comparisons of some black venire panelists who were
struck and white panelists allowed to serve"); Sanchez v. Roden,
753 F.3d 279, 302 (1st Cir. 2014), quoting from Aspen v.
Bissonnette, 480 F.3d 571, 577 (1st Cir. 2007) ("[W]e take into
account 'whether similarly situated jurors from outside the
allegedly targeted group were permitted to serve' on the jury in
ruling on a Batson challenge"). Here, for example, the very
first potential juror questioned, juror number 1, was a female
lawyer who had worked at a large firm, was married to another
lawyer who worked at a large firm, and was going to start
working for a Justice of the Supreme Judicial Court in four
months. The Commonwealth did not exercise a peremptory
challenge. The twenty-second and twenty-third potential jurors
9
questioned, juror number 79 and juror number 84, were both male
lawyers, one of whom specialized in medical malpractice and the
other of whom specialized in trademark law. Juror number 84,
like juror number 1, was married to a lawyer. The Commonwealth
used peremptory strikes on both male lawyers. At the time the
prosecutor chose not to strike the female lawyer, he had sixteen
peremptory strikes remaining and no jurors had been seated. At
the time the prosecutor chose to strike the two male lawyers
back-to-back, he had ten peremptory strikes remaining and only
three jurors had been seated.5
The statistical evidence alone establishes a prima facie
case of discrimination. Additional evidence apparent from the
record, including a side-by-side comparison of similarly
situated jurors, supports it. The majority thus errs in
concluding that the facts it raises, which have only limited
relevance, establish that the judge did not abuse his
discretion. I would not at this point in the proceedings
reverse the judgment here, but I would remand the case to allow
the Commonwealth to present a gender-neutral explanation for its
5
In addition, the record on appeal contains no relevant
information about juror number 100, the man whose strike
prompted the gender-based Batson objection. The prosecutor
failed to strike a number of female jurors about whom there is
also little information in the record (e.g., jurors number 15,
25, 53, 88, 96, and 97).
10
peremptory challenges to the male prospective jurors. See
Sanchez, 753 F.3d at 308.
2. The preclusive effect of § 33E review in the
codefendant's case. The codefendant, Wood, did not raise a
Batson claim in his direct appeal to the Supreme Judicial Court,
see Commonwealth v. Wood, 469 Mass. 266 (2014), despite
litigating the issue in the trial court. Although the
Commonwealth does not contend that we are precluded by Wood from
addressing the Batson claim here,6 the court majority, while
ultimately reserving the question, may be read to imply that if
we could be certain the Supreme Judicial Court had not
"overlooked" the Batson issue in its mandatory G. L. c. 278, §
33E, review of Wood's first-degree murder case for a substantial
likelihood of a miscarriage of justice, it might make sense that
the court's silence on the issue would have preclusive effect,
barring the defendant from raising the claim here, even though
it was never raised on appeal by his codefendant. See ante
at note 14. That Wood's silence on this issue has
preclusive effect is the thrust of the opinion of my concurring
colleague.
6
The issue was raised sua sponte by the panel at oral
argument. At his request, the defendant was permitted to submit
a postargument letter responding to the panel's questions. The
Commonwealth did not submit a postargument letter on this
subject.
11
Any such holding would affect the way in which we interpret
many, and maybe most, of the Supreme Judicial Court's myriad
decisions in first-degree murder cases, potentially affecting
all manner of questions of criminal law. Although I do not
fault the logic of my concurring colleague, I do not believe the
Supreme Judicial Court intends its silence on an issue in a case
like Wood to be given this weight. Indeed, I believe it would
violate the fundamental principles of our adversary legal system
to accord such precedential weight to the Supreme Judicial
Court's § 33E review of a claim neither raised by a defendant
nor explicitly addressed by that court.
The Anglo-American system of law is an adversary one.
"Ours is the accusatorial as opposed to the inquisitorial
system. Such has been the characteristic of Anglo-American
criminal justice since it freed itself from practices borrowed
by the Star Chamber from the Continent . . . ." Watts v.
Indiana, 338 U.S. 49, 54 (1949) (plurality opinion of
Frankfurter, J.). "[W]ithin the framework of our adversary
system, the adjudicatory process is most securely founded when
it is exercised under the impact of a lively conflict between
antagonistic demands, actively pressed, which make resolution of
the controverted issue a practical necessity." Poe v. Ullman,
367 U.S. 497, 503 (1961). Opposing parties joining issues and
providing argument to the court are aspects of adjudication
12
under our judicial system essential both to identifying issues
that require adjudication and to ensuring they are determined
appropriately. This is one of the reasons arguments not made
before our appellate courts are ordinarily deemed waived, even
if they have been raised below. See, e.g., Commonwealth v.
Stevenson, 46 Mass. App. Ct. 506, 507 n.3 (1999) ("Although [one
of two codefendants] also raised this issue at trial, he has not
raised it on appeal; therefore, he has waived his claims
regarding this issue"). Indeed, the absence of argument is one
of the reasons the Supreme Judicial Court's advisory opinions
issued under Part II, c. 3, art. 2 of the Massachusetts
Constitution, as amended by art. 85 of the Amendments, are not
given stare decisis effect. See, e.g., Commonwealth v. Welosky,
276 Mass. 398, 400 (1931) ("It has been uniformly and many times
held that such opinions, although necessarily the result of
judicial examination and deliberation, are advisory in nature,
given by the justices as individuals in their capacity as
constitutional advisers of the other departments of government
and without the aid of arguments, are not adjudications by the
court, and do not fall within the doctrine of stare decisis.
When the same questions are raised in litigation, the justices
then composing the court are bound sedulously to guard against
any influence flowing from the previous consideration, to
examine the subject anew in the light of arguments presented by
13
parties without reliance upon the views theretofore expressed,
and to give the case the most painstaking and impartial study
and determination that an adequate appreciation of judicial duty
can impel") (Emphasis added).
The Supreme Judicial Court's § 33E review, mandated by the
Legislature, is an exception to the ordinary rules of our
adversary adjudicative system. Section 33E, as appearing in St.
1979, c. 346, § 2, provides, "In a capital case . . . the entry
in the supreme judicial court shall transfer to that court the
whole case for its consideration of the law and the evidence.
Upon such consideration the court may, if satisfied that the
verdict was against the law or the weight of the evidence, or
because of newly discovered evidence, or for any other reason
that justice may require (a) order a new trial or (b) direct the
entry of a verdict of a lesser degree of guilt, and remand the
case to the superior court for the imposition of sentence."
Section 33E review does not follow the adversary model. It
calls upon the court –- not the zealous advocate for the
defendant –- to review the record with an eye toward identifying
potential errors, and, without adversarial briefing, to decide
any questions it finds. It does not involve full-blown
litigation. It is designed to serve as a backstop in the case
of first degree murder convictions in light of "the infamy of
the crime and the severity of its consequences." Commonwealth
14
v. Angiulo, 415 Mass. 502, 509 (1993), quoting from Dickerson v.
Attorney Gen., 396 Mass. 740, 744 (1986).
It is true that the Supreme Judicial Court utilizes a
standard of review (asking whether there has been a "substantial
likelihood of a miscarriage of justice") that is at least
formally slightly more favorable to the defendant than we do
when we review convictions for unpreserved claims of error
("substantial risk of a miscarriage of justice"). See
Commonwealth v. Smith, 460 Mass. 318, 321 n.2 (2011) ("The
substantial likelihood of a miscarriage of justice standard that
is associated with plenary review under G. L. c. 278, § 33E
. . . is more forgiving to a defendant than the substantial risk
standard applicable in other criminal cases") (emphasis
omitted). Nonetheless, to treat a decision of the Supreme
Judicial Court on § 33E review as binding precedent on all
questions that might have been presented in all § 33E cases
would ignore the reality that the determination was not the
result of an adversary proceeding. Where the issue is one that
was neither raised by any party, nor mentioned by the court, we
cannot tell whether the court's silence indicates that the issue
was seen, evaluated, and found meritless, or missed altogether.
Treating that silence as binding precedent on all issues not
raised in a case would introduce a fundamental unfairness into
our proceedings, particularly where what is at issue is an error
15
that can "never be treated as harmless," see ante at 6 (Trainor,
J., concurring), the very characteristic that the concurring
opinion concludes renders the defendant's claim unreviewable
here.
A judge engaged in review of the record is not a lawyer for
one of the parties charged with his or her zealous
representation. In a case like this, in the absence of briefing
by the codefendant's lawyer, it is not realistic to assume that
a judge reviewing the trial record will necessarily find every
colorable error of law, nor that he or she will necessarily be
completely familiar with each legal issue presented.
Thus, for example, less than three months prior to the
Supreme Judicial Court's decision in Wood, the United States
Court of Appeals for the First Circuit in Sanchez v. Roden,
supra, granted a State prisoner an evidentiary hearing on his
Batson claim and concluded that the courts of our Commonwealth
had been utilizing a threshold for determining whether an
inference of discrimination arises with respect to peremptory
challenges that was, as a matter of Federal law, too high. See
753 F.3d at 300, 308. The Sanchez opinion is persuasive, and
though our courts are not formally bound by it, it does appear
to reflect the appropriate standard.
Yet there is no reason to believe, even if they noticed the
Batson issue here, that the justices of the Supreme Judicial
16
Court were even aware of this then-recent decision at the time
they engaged in their review under § 33E. Although it had been
published, no lawyer put it before the court for its
consideration.
What Justice Jackson said of the members of the high Court
on which he sat could also be said of the justices of our
Supreme Judicial Court with respect to the law of our
Commonwealth: The justices are "not final because [they] are
infallible, but [they] are infallible only because [they] are
final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J.,
concurring in result).
Yet not even the talented justices of our Supreme Judicial
Court are omniscient. And, in a circumstance such as this, to
hold that their failure sua sponte to find a legal error and to
reverse a judgment should be binding on another criminal
defendant whose counsel has identified that error and has
presented to a reviewing court his client's claim along with
supporting authority would be fundamentally unfair.
Further, I think that it would be inconsistent with the
role of the Appeals Court, which was in fact created to assist
the Supreme Judicial Court in light of that court's heavy
caseload. Although further guidance from the Supreme Judicial
Court is necessary on this question, I find it difficult to
believe that it intends its determinations under § 33E of an
17
issue not presented to it, and which it has left unaddressed, to
foreclose our consideration of that issue in the first instance
when it is properly raised. To the extent, if any, the majority
intimates that it does, I respectfully dissent.