Commonwealth v. Robertson

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SJC-11933

COMMONWEALTH vs. ANTHONY ROBERTSON.

Suffolk. February 9, 2018. - August 31, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.

Homicide. Robbery. Firearms. Cellular Telephone.
Identification. Jury and Jurors. Fair Trial.
Constitutional Law, Search and seizure, Jury, Fair trial,
Fair trial. Search and Seizure, Warrant, Affidavit.
Practice, Criminal, Capital case, Motion to suppress,
Warrant, Affidavit, Jury and jurors, Empanelment of jury,
Challenge to jurors, Voir dire, Fair trial.

Indictments found and returned in the Superior Court
Department on September 27, 2011.

A pretrial motion to suppress evidence was heard by Patrick
F. Brady, J., and the cases were tried before him.

Elizabeth A. Billowitz for the defendant.
Kathryn E. Leary, Assistant District Attorney (David J.
Fredette, Assistant District Attorney, also present) for the
Commonwealth.

CYPHER, J. The defendant, Anthony Robertson, appeals from

his convictions of murder in the first degree, armed robbery,
 2

and carrying a firearm without a license. He argues that he did

not receive a fair trial because eyewitnesses improperly

identified him in court; the prosecutor misstated evidence in

closing argument; the judge erred in declining to question

jurors about potential racial bias; the Commonwealth improperly

excluded black men from the jury in violation of Batson v.

Kentucky, 476 U.S. 79 (1986), and Commonwealth v. Soares, 377

Mass. 461, cert. denied, 444 U.S. 881 (1979); cellular telephone

(cell phone) records that should have been suppressed were

introduced; hearsay testimony was improperly admitted; a police

officer offered extensive irrelevant testimony about the

condition of the apartment where the defendant was arrested; and

voluntary manslaughter is the degree of guilt most consonant

with justice. The defendant also submitted a separate brief,

pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981),

arguing that the jury instructions and the prosecutor's closing

argument were erroneous and trial counsel was ineffective.1

Because the defendant's right to a fair trial as provided

by Batson, supra, and Soares, supra, was violated, we vacate the

1 "Because we find no error, we need not address the
Commonwealth's contention that our decision in Commonwealth v.
Moffett, 383 Mass. 201, 208, 216–217 (1981), was not intended to
permit 'hybrid representation,' and that we should not consider
these claims of error." Commonwealth v. Brown, 462 Mass. 620,
634 n.14 (2012). We remind the Commonwealth that it is often
difficult for defense counsel to coordinate filings with a
client who is incarcerated.
 3

verdicts and remand for a new trial. We address other claims of

error that are likely to recur upon retrial.

Background.2 On June 26, 2011, the victim, Aaron Wornum,

was with two friends, Erik Hicks and Jason Heard. The victim,

who was wearing a necklace with a gold cross, was driving his

friends to Hicks's home, through the Dorchester neighborhood in

Boston. On the way, the victim said he had to meet a friend to

pick up some money that the friend owed to him. The victim

stopped the vehicle in a parking lot and spoke to the defendant

on a cell phone about where to meet. The victim drove to a

nearby street and spoke again to the defendant on the cell phone

about where to find him. The defendant and his longtime friend,

Emmitt Perry, walked around the corner from a nearby street.

The victim then told the defendant on the cell phone that the

victim saw him. The victim told Hicks and Heard that he saw the

person he was meeting and got out of the vehicle.

The victim, the defendant, and Perry spoke briefly and then

started arguing, and the defendant or Perry grabbed the victim's

shirt. The victim backed away from the defendant and Perry.

Hicks got out of the vehicle to help the victim. The defendant

drew a gun. The victim then ran to other side of the vehicle,

leaving Hicks closest to gun. While the defendant pointed the

2 We recite the facts as the jury could have found them,
viewed in the light most favorable to the Commonwealth, and
reserve certain details for later discussion.
 4

gun at Hicks, Perry searched Hicks's pockets, taking a pack of

cigarettes and two cell phones. The victim asked the defendant

what he was doing and to not do this, repeatedly calling the

defendant "Ant."3 The defendant fired the gun in the direction

of the victim. The defendant and Perry ran around the vehicle,

toward the victim, and the defendant fired the gun again. The

victim was on the ground when the gun was fired for a third

time. At some point during this altercation, Heard ran from the

vehicle. Emergency personnel quickly responded to the scene.

The victim was pronounced dead at the hospital that evening.

The defendant and Perry fled and went to the house of Tinea

Jones. Jones was the mother of one of Perry's children and a

friend of the defendant since childhood. According to Jones,

the defendant looked scared and paranoid. He took a shower and

asked for a ride to a nearby public transit station. A friend

of Jones picked up the defendant and drove him to the station.

Discussion. 1. Cell site location information evidence.

The defendant argues that the judge erroneously denied his

motion to suppress historical cell site location information

(CSLI). He alleges that the warrant used to acquire this data

lacked probable cause because the underlying affidavit was

defective.

3 The Commonwealth introduced testimony that the defendant's
nicknames are "Ant," "Little Ant," and "Animal."
 5

The affidavit included the following information. Boston

police officers were called to the corner of Sumner Street and

East Cottage Street at 9:20 P.M. on June 26, 2011. The victim

was lying on the ground, bleeding from the neck and head,

suffering from several gunshot wounds. He was pronounced dead

twenty-five minutes later at a local hospital. Two witnesses --

identified as witnesses nos. 1 and 2 -- told officers that on

the victim's way to drive them home, the victim made and

received several cell phone calls making plans to meet someone.

Both witnesses stated that as the victim drove down Sumner

Street, two males came into view, and the victim said, "I see

you now," stopped the vehicle, and got out. The witnesses

provided descriptions of both men. After a very brief time, the

men began pushing the victim back toward the vehicle, and both

witnesses saw a gun in the hand of one of the men. Witness no.

1 got out of the vehicle to offer aid and saw the man with the

gun shoot the victim. The defendant matched the initial

descriptions provided by the two witnesses, and later, in a

photographic array, witness no. 1 identified the defendant as

the man with the gun. The victim's cell phone records revealed

that a telephone number ending in 4076 (number 4076) appeared in

incoming and outgoing calls seven times in the hours leading up

to the shooting, and was the number from which the last call was

made that was received by the victim moments before the
 6

shooting. During the investigation, a source identified number

4076 as the defendant's telephone number.

We have "applied the requirement of probable cause to the

defendant's historical CSLI because . . . where the information

at issue covered a two-week period, analysis of this information

was akin to tracking the defendant's movements for an extensive

time period, and constituted a search under art. 14" of the

Massachusetts Declaration of Rights. Commonwealth v. Augustine,

472 Mass. 448, 453-454 (2015) (Augustine II), citing

Commonwealth v. Augustine, 467 Mass. 230, 254-255 (2014)

(Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015).

See Carpenter v. United States, 138 S. Ct. 2206, 2212, 2216-2217

(2018) (seven days of CSLI constituted search under Fourth

Amendment to United States Constitution). When considering the

sufficiency of a search warrant application, our review "begins

and ends with the 'four corners of the affidavit'" (citation

omitted). Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011).

"In determining whether an affidavit justifies a finding of

probable cause, the affidavit is considered as a whole and in a

commonsense and realistic fashion. . . ." Id. The affidavit

should not be "parsed, severed, and subjected to hypercritical

analysis." Commonwealth v. Donahue, 430 Mass. 710, 712 (2000).

We evaluate whether the affidavit underlying the warrant

application satisfies the probable cause standard required by
 7

art. 14 de novo. Commonwealth v. Foster, 471 Mass. 236, 242

(2015).

When reviewing the sufficiency of a search warrant

application for historical CSLI, we determine whether, based on

the affidavit in support of the search warrant, (1) the

magistrate had a substantial basis to conclude that a

particularly described offense has been, is being, or is about

to be committed; and (2) the CSLI being sought will produce

evidence of such offense or will aid in the apprehension of a

person who the applicant has probable cause to believe has

committed, is committing, or is about to commit such offense.

Commonwealth v. Estabrook, 472 Mass. 852, 870 (2015).

Inferences drawn from the affidavit must be reasonable and

possible, but no showing that the inferences are correct or more

likely true than not true is required. See Commonwealth v.

Matias, 440 Mass. 787, 794-795 (2004) (contraband found in trash

of multiunit apartment building examined in whole supplied

probable cause to conclude that contraband came from defendant's

apartment).

The defendant argues that the affidavit was insufficient

because it relied primarily on unsourced police information and

misrepresented the quality of one of the eyewitnesses as having

unequivocally identified the defendant from the photographic

array. However, if the portions of the affidavit to which the
 8

defendant objects were redacted, the remaining facts

nevertheless would satisfy the requirements of probable cause.

The affidavit provided two percipient witness accounts of

the shooting and stated that police had found the victim

suffering from gunshot wounds, thus satisfying the first

requirement for the search warrant. See Augustine I, 467 Mass.

at 256 (first requirement for search warrant is satisfied when

affidavit demonstrates probable cause that "offense has been, is

being, or is about to be committed").

The search warrant also fulfils the second requirement.

The defendant does not contest the two witnesses' accounts of

the victim meeting with the shooter through a cell phone call,

nor that the victim's cell phone records identify number 4076 as

the telephone number that the victim called just before his

death. Had the affidavit only indicated that the victim was on

his cell phone immediately before the murder, speaking with one

of the individuals with whom he likely met, and that the last

seven calls in his cell phone records were between his cell

phone and number 4076, that evidence would be sufficient to

establish probable cause to believe the CSLI of the cell phone

associated with number 4076 number would provide evidence of the

murder. For example, in Commonwealth v. Dorelas, 473 Mass. 496,

503 (2016), the search warrant affidavit stated that the

defendant had been using his cell phone to argue with an
 9

individual in the hours leading up to and immediately prior to

the shooting. We held that this information provided a nexus

between the shooting and information on the defendant's cell

phone, establishing probable cause that it likely contained

"evidence of communications both received as well as initiated

. . . by the defendant that would link [the defendant] . . . to

that shooting." Id. Therefore, the motion to suppress was

correctly denied. Id. at 505.

2. In-court identifications. The victim's friends who

were present at the scene of the shooting, Hicks and Heard, each

independently identified a photograph of the defendant as the

man who shot the victim. Each witness signed his name to the

back of the defendant's photograph and wrote "possibly." The

defendant argues that the judge, over objection, erred in

admitting Hicks's and Heard's in-court identifications because

each witness did not make an unequivocal out-of-court

identification of the defendant. The defendant relies on our

decision in Commonwealth v. Collins, 470 Mass. 255, 261-262

(2014), which prohibits such identifications.4 Collins, however,

4 The defendant argues, in the alternative, that if we do
not apply the holding of Commonwealth v. Collins, 470 Mass. 255,
261-262 (2014), the identifications nonetheless created
prejudicial error. Any analysis of this argument implicates the
particular evidence presented to the jury at this trial.
Because we are remanding for a new trial, any consideration of
potential prejudicial error would not be meaningful. We decline
to conduct such an analysis in the abstract.
 10

by its own terms, applies prospectively only to trials beginning

after the issuance of that opinion. Id. at 265. Collins was

decided after the defendant's trial concluded; therefore, the

defendant does not receive the benefit of that new rule in our

assessment of his convictions.

However, upon any retrial, it will be the judge's task to

determine the admissibility of the in-court identifications.

See Commonwealth v. Dew, 478 Mass. 304, 315 (2017). All current

case law, including our holding in Collins, may apply to that

consideration.

3. Voir dire questioning. The defendant, an African-

American man, requested that the judge ask potential jurors if

the defendant's race would affect the juror's ability to be fair

and impartial. The judge declined, stating that race was not an

issue in the case because both the defendant and the victim are

African-American. The defendant argues this was an abuse of

discretion because, had the judge asked this question during

voir dire, the defendant could have determined "whether a

potential juror would be receptive to defense arguments that

police prejudice against young African-American men involved in

the drug trade negatively affected the quality of the

investigation and the ultimate strength of the case."

The judge has "broad discretion" to determine what

questions to ask during voir dire. Commonwealth v. Lao, 443
 11

Mass. 770, 777 (2005). Unless "there exists a substantial risk

of extraneous issues that might influence the jury," the judge

is not required to ask any questions beyond those required by

G. L. c. 234A, § 67.5 Id. We have held that such a risk exists

as a matter of law in trials involving interracial murder,

5 General Laws c. 234A, § 67, requires, among other things,
that the judge to ask the following question:

"Upon motion of either party, the court shall, or the
parties or their attorneys may under the direction of the
court, examine on oath a person who is called as a juror,
to learn whether he is related to either party or has any
interest in the case, or has expressed or formed an
opinion, or is sensible of any bias or prejudice. . . . In
a criminal case such examination shall include questions
designed to learn whether such juror understands that a
defendant is presumed innocent until proven guilty, that
the commonwealth has the burden of proving guilt beyond a
reasonable doubt, and that the defendant need not present
evidence on the defendant's behalf. . . .

"To determine whether a juror stands indifferent in
the case, if it appears that, as a result of the impact of
considerations which may cause a decision or decisions to
be made in whole or in part upon issues extraneous to the
case, including, but not limited to, community attitudes,
possible exposure to potentially prejudicial material or
possible preconceived opinions toward the credibility of
certain classes of persons, the juror may not stand
indifferent, the court shall, or the parties or their
attorneys may, with the permission and under the direction
of the court, examine the juror specifically with respect
to such considerations, attitudes, exposure, opinions or
any other matters which may cause a decision to be made in
whole or in part upon issues extraneous to the issues in
the case."

In 2016, G. L. c. 234A, § 67, replaced G. L. c. 234, § 28, the
statute in effect at the time of the defendant's trial; § 67
contains substantially the same language as that statute did.
St. 2016, 36, §§ 1, 4.
 12

interracial rape, and sexual offenses against children.

Commonwealth v. Lopes, 440 Mass. 731, 737 (2004). The defendant

does not request that we expand that rule, nor do we elect to do

so at this juncture. The facts of this case do not fall within

those enunciated categories, and the defendant presents nothing

to suggest that "extraneous issues" might have influenced the

jury. Therefore, the judge did not abuse his discretion when he

declined to ask a question about racial bias as requested by the

defendant. However, we reiterate that "a motion to have jurors

asked about racial prejudice should usually be granted."

Commonwealth v. Ramirez, 407 Mass. 553, 555 (1990). Racial bias

can, of course, have an impact on juror impartiality, even where

the victim and the defendant are of the same race.

4. Batson-Soares challenge. Rule 20 (c) of the

Massachusetts Rules of Criminal Procedure, 378 Mass. 889 (1979),

permits the Commonwealth and the defendant to exercise

peremptory challenges to prevent venire members, declared

indifferent by the judge, from being seated on the jury. "The

essential nature of the peremptory challenge is that it is one

exercised without a reason stated, without inquiry and without

being subject to the court's control." Swain v. Alabama, 380

U.S. 202, 220 (1965). However, the equal protection clause of

the Fourteenth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights place
 13

limitations on the use of peremptory challenges. See Batson,

476 U.S. at 85-86 ("Exclusion of black citizens from service as

jurors constitutes a primary example of the evil the Fourteenth

Amendment was designed to cure"); Soares, 377 Mass. at 486 (art.

12 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" in order to guarantee "the right to a jury drawn from

a representative cross section of the community").

The defendant argues that the prosecutor impermissibly used

peremptory challenges to exclude black men from the jury, in

violation of the Fourteenth Amendment and art. 12. The judge

did not find a discriminatory pattern in the prosecutor's

peremptory challenges and, as a result, did not inquire about

the prosecutor's reasoning. We review the judge's finding that

there was no prima facie showing of a discriminatory pattern for

an abuse of discretion.

A judge's evaluation of a Batson-Soares objection follows a

three-step process.6 First, the burden is on the objecting party

6 Our three-step process mirrors the procedure in Batson v.
Kentucky, 476 U.S. 79, 96 (1986). See Commonwealth v. Lopes,
478 Mass. 593, 598 (2018). The majority of other States follow
the same process. See Ex parte Floyd, 191 So. 3d 147, 156 (Ala.
2015); Gottschalk v. State, 36 P.3d 49, 51 (Alaska Ct. App.
2001); State v. Escalante-Orozco, 241 Ariz. 254, 271 (2017);
Woods v. State, 2017 Ark. 273, at 1-2; People v. Parker, 2 Cal.
5th 1184, 1211 (2017); People v. Beauvais, 2017 CO 34, ¶ 19;
 14

to make "a prima facie showing of impropriety" that overcomes

the presumption of regularity afforded to peremptory challenges.

Commonwealth v. LeClair, 429 Mass. 313, 319 (1999). Next, if

the judge finds that the objecting party has established a prima

facie case, the party attempting to exercise a peremptory

challenge bears the burden of providing a "group-neutral" reason

Sells v. State, 109 A.3d 568, 576 (Del. 2015); Johnson v. State,
302 Ga. 774, 779 (2018); State v. Daniels, 109 Haw. 1, 5-6
(2005); State v. Foster, 152 Idaho 88, 91 (Ct. App. 2011);
People v. Davis, 233 Ill. 2d 244, 261-262 (2009); Cartwright v.
State, 962 N.E.2d 1217, 1220 (Ind. 2012); State v. Mootz, 808
N.W.2d 207, 215 (Iowa 2012); State v. Gray, 306 Kan. 1287, 1300-
1301 (2017); Roe v. Commonwealth, 493 S.W.3d 814, 826-827 (Ky.
2015); State v. Crawford, 2014-2153, p. 27 (La. 11/16/16);
Elliott v. State, 185 Md. App. 692, 712-713 (2009); Pellegrino
v. AMPCO Sys. Parking, 486 Mich. 330, 339 (2010); State v.
Wilson, 900 N.W.2d 373, 378 (Minn. 2017); Flowers v. State, 240
So. 3d 1082, 1120 (Miss. 2017); State v. James, 2010 MT 175,
¶ 23; State v. Wofford, 298 Neb. 412, 423-424 (2017); McCarty v.
State, 371 P.3d 1002, 1007 (Nev. 2016); State v. Ouahman, 164
N.H. 413, 415 (2012); State v. Thompson, 224 N.J. 324, 339
(2016); State v. Salas, 2010-NMSC-028, ¶ 31; People v.
Bridgeforth, 28 N.Y.3d 567, 571 (2016); State v. Waring, 364
N.C. 443, 474-475 (2010); State v. Garnder, 2016 ND 161, ¶ 11;
State v. Pickens, 2014-Ohio-5445, ¶ 63; Coddington v. State,
2006 OK CR 34, ¶ 11; State v. Longo, 341 Or. 580, 595-596
(2006); Commonwealth v. Johnson, 635 Pa. 665, 706-707 (2016);
State v. Porter, 179 A.3d 1218, 1224-1225 (R.I. 2018); State v.
Scott, 2014 SD 36, ¶ 14; State v. Echols, 382 S.W.3d 266, 281-
282 (Tenn. 2012); Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex.
1997); State v. Harris, 2012 UT 77, ¶ 15; State v. Yai Bol, 2011
VT 99, ¶ 6; Lawlor v. Davis, 288 Va. 223, 230 (2014); Seattle v.
Erickson, 188 Wash. 2d 721, 732 (2017); State v. Boyd, 238 W.
Va. 420, 434 (2017); State v. Lamon, 2003 WI 78, ¶¶ 27-32;
Roberts v. State, 2018 WY 23, ¶ 13. See generally Provost,
Excavating From the Inside: Race, Gender, and Peremptory
Challenges, 45 Val. U. L. Rev. 307, 355 (2010) ("Connecticut,
Florida, Missouri, South Carolina, and the Military Court of
Appeals have eliminated the prima facie step [of the Batson
test]").
 15

for the challenge. Commonwealth v. Scott, 463 Mass. 561, 570

(2012). Finally, the judge then evaluates whether the proffered

reason is "adequate" and "genuine." Commonwealth v. Maldonado,

439 Mass. 460, 464 (2003). Only if it is both may the

peremptory challenge be allowed.

A prima facie showing of impropriety is present when "(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" (quotation and

citation omitted). Scott, 463 Mass. at 570. The trial judge

evaluates "all of the relevant facts and circumstances" to

determine if the objecting party has met that "relatively low

bar." Commonwealth v. Jones, 477 Mass. 307, 322 (2017).

We have never established an exhaustive list of relevant

factors, but have long considered concerns such as "the number

and percentage of group members who have been excluded," id.,

and "whether the challenged jurors are members of the same

constitutionally protected group as the defendant or the

victim," Commonwealth v. Issa, 466 Mass. 1, 9 (2013). Recently,

we noted that "the possibility of an objective group-neutral

explanation for the strike or strikes," despite containing

elements of the second and third steps of this analysis, "may

play a role in the first-step analysis as well." Jones, supra

at 322 & n.25. See Commonwealth v. Lopes, 478 Mass. 593, 601
 16

(2018) (judge did not err in finding no pattern of racial

discrimination where prospective juror's "two significant

experiences with the law provided a sufficient and obvious basis

for the prosecutor's peremptory challenge").

The challenging party need not show much to satisfy this

low burden. Maldonado, 439 Mass. at 463 n.4 (objecting party's

burden "ought not be a terribly weighty one"). Indeed, "a

single peremptory challenge may be sufficient to rebut the

presumption, especially where the challenged juror is the only

member of his or her protected class in the entire venire"

(quotation and citation omitted). Issa, 466 Mass. at 9. The

makeup of the venire can be difficult to assess from the bench

given that a judge might not necessarily be able to discern the

diversity of the jury pool by looking at the court room. Such

difficulty, in part, informs why "we urge judges to think long

and hard" before they decide not to require an explanation from

the prosecutor for the challenge. Id. at 11 n.14.

The judge may consider whether some members of the group in

question have already been seated on the jury, but that is not

dispositive. "[T]o place undue weight on this factor not only

would run counter to the mandate to consider all relevant

circumstances, but also would send the unmistakable message that

a[n] [attorney] can get away with discriminating against some

[group members] so long as [that attorney] does not discriminate
 17

against all such individuals" (quotation and citation omitted).

Jones, 477 Mass. at 325.

At trial, the defendant objected to two of the

Commonwealth's peremptory challenges. Each time, the judge

found that the defendant did not satisfy his burden in the first

step of a Batson-Soares challenge and therefore did not inquire

about the Commonwealth's reasons for the exercise of the

challenge. When reviewing a judge's decision not to inquire

about a party's reason for exercising a peremptory challenge, we

may consider the absence of a neutral reason apparent in the

record. See Jones, 477 Mass. at 324 ("the possibility that [the

juror] was struck because of her race is heightened by the fact

that the record reveals no race-neutral reason that might have

justified the strike").

The Commonwealth used its second peremptory challenge on

the first black man who was a potential juror.7 The defendant

objected and defense counsel stated, "My client is a black male

and this is the first black male to come before the court to be

a potential juror." The judge found no prima facie evidence of

7 Although "the numbers considered in isolation are
inconclusive," United States v. Mensah, 737 F.3d 789, 802 (1st
Cir. 2013), it is worth noting that the Commonwealth had only
used one other peremptory challenge at this point (to challenge
a man who had immigrated from India); the defendant, in
contrast, had used six.
 18

impropriety, noting that several "people of color" had already

been seated on the jury.

We have often noted that a single peremptory strike can be

sufficient to support a prima facie case, especially where the

juror is the only member of the venire of the particular group.

Issa, 466 Mass. at 9. See Snyder v. Louisiana, 552 U.S. 472,

478 (2008), quoting United States v. Vasquez-Lopez, 22 F.3d 900,

902 (9th Cir. 1994) ("[T]he Constitution forbids striking even a

single prospective juror for a discriminatory purpose"). The

judge's reasoning that there was not yet a pattern fails to

consider this well-established principle that one peremptory

strike can sustain the objecting party's prima facie case. We

have also turned a keen eye toward the use of peremptory

challenges on jurors who are members of the same protected class

as the defendant. Issa, supra.

Here, the Commonwealth used the peremptory challenge on a

juror who, after twenty-one other potential jurors came before

the court, was the first of the same race and gender as the

defendant. The record offers little insight into what potential

neutral reason the Commonwealth might have offered. The juror

did not answer any questions on his questionnaire that

necessitated further discussion, and he affirmed that he could

be fair and impartial. See Sanchez v. Roden, 753 F.3d 279, 303

(1st Cir. 2014) ("we do find it significant that the record
 19

fails to disclose any obvious infirmity in [the juror's]

background or voir dire answers that would translate to an

apparent reason for the Commonwealth's peremptory challenge").

The only additional information about the juror that can be

gleaned from this record is that he had two children, ages five

and eight. He did not indicate that child care problems would

arise if he were seated. The judge's failure to inquire about

the Commonwealth's reason for excluding this juror was, alone,

insufficient to warrant a new trial.

The defendant raised a second objection to the

Commonwealth's use of a peremptory challenge to exclude a man

from the Dominican Republic. The defendant objected, and the

parties disagreed about the potential juror's race. The

Commonwealth argued that the potential juror was "Hispanic" and

the defendant argued that he was black. This highlights the

challenges of justly administering the mandates of Batson and

Soares. "The usual tools we rely on to measure one's ethnicity,

primarily name and appearance, are often deceptive."

Commonwealth v. Calderon, 431 Mass. 21, 25 n.2 (2000)

(dismissing Commonwealth's argument that peremptory challenge of

African-American juror was proper because juror was likely not

the only racial minority who could have been seated, simply

because "other jurors on the panel 'had surnames which could

have been Hispanic'"). See Commonwealth v. Garrey, 436 Mass.
 20

422, 428 (2002) (when ruling on defendant's Soares challenge,

judge "expressed doubt that the prospective juror was African–

American," but nonetheless asked prosecutor to provide reason

for her challenge, aiding in our assessment on appeal).

Discerning whether a juror is a member of a particular

protected class is a decision that often must be made by the

judge immediately during the jury selection. The judge does not

have much information with which to make this determination, and

there is often little information in the record for the

reviewing court to consider. See Commonwealth v. Obi, 475 Mass.

541, 551 (2016) (when analyzing claim defendant used peremptory

challenge to improperly exclude Muslim juror, "the judge

observed that the juror's headscarf was of a type traditionally

worn by Muslim women" and was similar to headscarf worn by

Muslim victim, thus providing sufficient evidence of prima facie

showing that defense counsel improperly exercised challenge on

basis of religion); Commonwealth v. Carleton, 36 Mass. App. Ct.

137, 141-145, S.C., 418 Mass. 773 (1994) (juror surnames may be

used as reliable indicia of national origin or ethnicity, but

are insufficient to indicate juror's religion).

We confronted an analogous challenge in Commonwealth v.

Bastaldo, 472 Mass. 16, 27 (2015), when considering when a judge

should instruct the jury about cross-racial identifications. We

said, "Because differences in race based on facial appearance
 21

lie in the eye of the beholder, we shall not ask judges to

determine whether a reasonable juror would perceive the

identification to be cross-racial." Id. Rather, we held "that

a cross-racial instruction be given unless all parties agree

that there was no cross-racial identification." Id. We now

apply a similar approach to peremptory challenges. Consistent

with our cautious jurisprudence when analyzing Batson and Soares

challenges, where a juror's membership in a protected class is

reasonably in dispute, trial judges, in performing the first

step of the Batson-Soares analysis, ought to presume that the

juror is a member of the protected class at issue.

The judge observed that the potential juror was "lighter

skinned than [the defendant]," and without deciding how to

consider the juror's race, the judge asked the Commonwealth to

respond to the defendant's allegation of a pattern, but did not

ask for a neutral explanation for the use of the peremptory

challenge.8 The Commonwealth offered the following response:

"The court found there was no pattern up until now.
This individual came in. He said there were incidents on
his record that he didn't tell the court.[9]

8 "[I]t would have been well within the judge's discretion
to require an explanation, even without finding a pattern. Such
questioning could have facilitated our task on appeal . . . ."
Lopes, 478 Mass. at 600 n.6.

9 This prospective juror had been arrested eleven years
prior to the trial for an incident of domestic violence. It
appears from the colloquy with the judge that the juror provided
that information on his juror questionnaire. It is unclear from
 22

"To be perfectly blunt and I'm going to keep my voice
down, he didn't seem like the most intelligent guy. He's
like a nice enough guy but he didn't seem all that
intelligent.

"And, most importantly, I don't consider him African-
American. Whether he has African blood in him or not, I
have no idea. He was born in the Dominican, I consider him
Hispanic.

". . .

"His client is African-American and the victim in this
case is African-American. Okay. That's what the law is.
Not, I mean, is every person who was not born in Cambridge,
Massachusetts subject to a Soares challenge?

"I mean, that's ridiculous. So, if the court's
finding a pattern, I think I've given it a neutral reason
for the pattern.

"I'd ask the [c]ourt not to find a pattern at this
point."

After the Commonwealth concluded its argument, the judge

reiterated that he was "careful not even to inquire" about the

Commonwealth's reasons, stating that if he did not find a

pattern, he did not have any right to ask for the Commonwealth's

the trial record to what "incidents" the Commonwealth was
alluding. The juror failed to note on his form that he had a
teenage son, but mentioned his child to the judge and did not
indicate that jury service could cause any child care problems.
Compare Commonwealth v. Issa, 466 Mass. 1, 11 n.13 (2013) ("We
do not consider in our analysis the prospective juror's arrest
thirteen years earlier in Kansas for criminal trespass, which
resulted in his spending forty-eight hours in jail. Where there
is nothing in the record to suggest that this experience would
have affected the prospective juror in his evaluation of the
case, we would not find it reasonable for a prosecutor to rely
on this arrest as a basis for challenging a prospective juror,
especially where, as here, the prosecutor did not challenge
other jurors with similar criminal experiences").
 23

reasons.10 The judge ruled that he did not find a pattern so he

did not "reach the issue of the truthfulness or the genuineness

and the nonracial basis for the challenge."11

The judge explained that he did not see a pattern because,

in part, there were two black women on the jury. This reasoning

fails for two reasons. First, the defendant was not challenging

10This was inaccurate as a matter of current law.
Previously, we had required a trial judge to make a
determination whether the objecting party had made a prima facie
showing of impropriety. See Commonwealth v. Maldonado, 439
Mass. 460, 463-464 (2003); Commonwealth v. Burnett, 418 Mass.
769, 770-771 (1994); Commonwealth v. Soares, 377 Mass. 461, 490,
cert. denied, 444 U.S. 881 (1979). However, we later recognized
that such a finding is implicit where a judge inquires about the
neutral reasons for a peremptory challenge. See Commonwealth v.
Carleton, 418 Mass. 773, 774 (1994); Commonwealth v. Matthews,
31 Mass. App. Ct. 564, 569 (1991). We have since evolved to the
current state of the law: judges have "broad discretion" to
seek explanations for peremptory challenges "without having to
make the determination that a pattern of improper exclusion
exists." Lopes, 478 Mass. at 598, quoting Issa, 466 Mass. at 11
n.14.

11We therefore confine our evaluation to whether the judge
abused his discretion when he did not find a pattern, despite
the Commonwealth's unsolicited explanation of its ostensibly
neutral reasons. At the time of trial, we had not yet said that
the possible existence of a reason that was free from
impermissible bias for a peremptory challenge could be a factor
in analyzing a pattern, so it is unlikely that the judge
considered those reasons when finding no pattern.

Even if we consider the Commonwealth's proffered reasons,
our analysis is not altered. The claim that the juror withheld
information about his criminal background on his form does not
appear to be borne out by the record, and the Commonwealth has
not directed us to any such record references. That factual
error appears to be the underpinning of the Commonwealth's other
argument, that the juror did not seem intelligent. These
reasons are insufficient in these circumstances to overcome the
other considerations in the first step of the analysis.
 24

the exclusion of all black people from the jury, but

specifically black men. "[A]rticle 12 proscribes the use of

peremptory challenges to exclude prospective jurors solely by

virtue of their membership in a group delineated by race and

gender." Commonwealth v. Jordan, 439 Mass. 47, 62 (2003) (no

abuse of discretion or error of law where judge found prima

facie evidence of pattern of discrimination in defendant's use

of peremptory challenges to strike white males). Second, the

mere presence on the jury of members of the group at issue is

not dispositive whether there is a pattern; the totality of the

circumstances must be taken into account. See Sanchez, 753 F.3d

at 303 (seating of five African-Americans on jury when juror at

issue was challenged did not preclude Batson-Soares challenge).

"Consideration of all relevant circumstances compels the

conclusion that the defendant made the limited showing necessary

to make out a prima facie showing of discrimination." Jones,

477 Mass. at 326. We conclude therefore that the judge abused

his discretion in finding no pattern after the defendant's

second objection to the Commonwealth's use of peremptory

challenges on black men. Because such an error is structural,

carrying the presumption of prejudice, we vacate the convictions

and remand the case for a new trial. Id. at 325-326.

So ordered.