Commonwealth v. Benoit

Cowin, J.

(dissenting, with whom Greaney and Spina, JJ., join). I respectfully dissent because I believe the trial judge’s finding that the Commonwealth’s peremptory challenge of a black juror was race neutral is supported by the record. “Sorting out whether a permissible or impermissible reason underlies a peremptory challenge is the function of the trial judge, and we *231do not substitute our judgment for his if there is support for it on the record.” Commonwealth v. Curtiss, 424 Mass. 78, 82 (1997), quoting Commonwealth v. Fruchtman, 418 Mass. 8, 15, cert. denied, 513 U.S. 951 (1994).

The court relies in large part on Commonwealth v. Maldonado, 439 Mass. 460, 463-466 (2003) (Maldonado), to conclude that the findings of the judge in the present case were insufficiently specific to warrant deference. The judge here, in approving of the prosecutor’s challenge, found that the challenge was “not race based,” and that “there [were] race neutral reasons” for it. The court believes that these findings do not contain, “implicitly or otherwise, the kind of independent evaluation and determination of the adequacy and genuineness of the prosecutor’s reasons that Maldonado and our earlier cases call for,” ante at 222. I disagree, as I believe that the judge’s findings were sufficient to satisfy the requirements established in Maldonado and our earlier cases.

We have routinely upheld trial court determinations on challenges pursuant to Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979) (Soares), notwithstanding the absence of explicit findings on the subject. See Commonwealth v. Rodriguez, 431 Mass. 804, 810 (2000); Commonwealth v. Curtiss, supra at 80, 82 & n.4; Commonwealth v. Fruchtman, supra at 8, 10-17 nn. 2-6. The court itself cites these cases. See ante at 222. Here, the judge implicitly decided the issues of adequacy and genuineness by stating that the challenge was race neutral. The question of adequacy, that is, whether the stated reasons are, if bona fide, sufficient to justify the challenge, calls for a ruling of law that an appellate court reviews without deference to the judge’s decision. Adequacy does not implicate the genuineness of the challenge. “Adequacy” only invites inquiry whether the proffered reason is sufficient to sustain the challenge. The proffered reason is either adequate as a matter of law or it is not, and an appellate court can make that decision based on the challenger’s statement of reasons as set forth in the record.

The question of genuineness, that is, whether the prosecutor’s stated reasons are the real reasons or are instead a pretext, is a question of fact, and more specifically, a question of credibility. By approving of the peremptory challenge, the judge here found *232the prosecutor’s stated reasons to be credible. To this conclusion we defer to the trial judge unless his determination is clearly erroneous. As Maldonado states, “while appellate courts may be equipped to some extent to assess the adequacy of an explanation, they are particularly ill-equipped to assess its genuineness.” Id. at 466.

I have never understood the Maldonado case to require the specificity of explanation that the court now demands. We took pains to point out that a decision regarding the validity of a peremptory challenge had two aspects: (1) a determination that the challenging party had articulated a legally adequate reason for the challenge; and (2) a finding that the articulated reason was genuine, i.e., that the reason stated was in fact that party’s real reason for exercising the challenge, and not merely a pretext designed to conceal an underlying, unlawful motivation.

The point of our analysis in Maldonado was to remind trial judges that a Soares analysis requires more than merely passive acquiescence to a party’s statement of valid reasons for a challenge; it obligates the judge to decide whether that statement honestly sets forth the party’s purpose. In this regard, Maldonado demands “separate findings as to both adequacy and genuineness.” Id. at 466. That means, in my view, that a judge must consider each factor and must decide, either expressly or implicitly, that each factor is, or is not, satisfied. I am confident that, until today, few if any trial judges believed that they were required to provide specific subsidiary findings on these subjects such as they might furnish on a motion to suppress or in a non-jury trial. Indeed, Maldonado says as much where it calls for “findings as to both adequacy and genuineness and, if necessary, an explanation of these findings” (emphasis supplied). Id.

The court attempts to respond to my proposition by denying that it seeks to impose a requirement that there be explicit subsidiary findings with respect to Soares justifications. Elsewhere, however, the court refers to “the statements (whether or not in the form of findings), if any, the judge made in accepting or rejecting the peremptory challenge.” Ante at 221. The court also comments that in some cases the appellate court will be unable to assess the judge’s determination “unless the judge also includes ‘an explanation of those findings.’ ” Ante at 221, quoting *233Maldonado, supra. If these are meaningful distinctions here regarding what is expected of the judge in support of his action, they elude me, and I daresay will confuse judges and trial lawyers as well.

Subsequently, the court remarks, ante at 222, that “the judge never clarified to which of the prosecutor’s several proffered reasons he was referring.” If this is an effort to mitigate the opacity of the court’s previous analysis, it fails. The prosecutor’s reasons are spread verbatim on the record, and I remain unpersuaded that anything meaningful is gained by requiring that the trial judge repeat them. If the court in reviewing the record genuinely believes that the judge’s credibility determination is clearly erroneous, so be it. But I would hope that such a decision would be based on more than simply the absence of some “magic words” that are not even clearly identified by the court’s opinion.

With that in mind, I move to my view of the record. Here, the record provides sufficient evidence to support both a conclusion of adequacy as a matter of law and a finding of genuineness. The judge could reasonably determine that the prosecutor’s challenge of the black woman juror was not race based, but instead resulted from the juror’s statements of sympathy for one of the parties in a prior trial as well as her occupation. In response to questions at voir dire, the juror stated that she “hope[d] nobody really got killed badly” and that “[ijt’s easy to get stressed out over stuff like that.” The judge inquired whether the juror could decide the case based on what she heard in the court room rather than what she read in the newspaper; she responded, “Maybe, but I really wish I wouldn’t have to do it. I don’t know. You know. I just wish I didn’t have to do it. You know.” When asked why she “wish[edj that,” she answered, “You hear so much on TV with murders and read so much in the paper, after a while it kind of stresses you out a little bit. You know, what I’m trying to say?” Further questioning indicated that she believed she could handle the stress of being a juror and be fair and impartial. The juror also volunteered that she had served as a juror before. The judge asked if that had been a stressful experience; she replied, “Well, I got myself together. But I felt sorry for the girl.” The judge admonished the juror *234not to talk about the previous case, but to tell him only whether it was “too stressful for you.” She stated, “No ... I just felt sorry for the girl. We solved the case. He was guilty. He raped the child. He was bothering with the girl and the grandmother wasn’t aware. He was living in the home. It was sick.” The juror also stated she worked with emotionally challenged and disadvantaged children and in her type of work, “you have to love kids, and I do.”

Given the juror’s responses at voir dire, the judge could reasonably find that the prosecutor’s concern that the juror might sympathize with the defendant was not pretext. The record permits a finding that the Commonwealth’s case against the defendant was strong, and the prosecutor apparently sought jurors who would respond to the evidence on an intellectual rather than an emotional level. The juror here, however, repeatedly focused on her emotions and sympathetic responses to a variety of situations, from a prior court experience to her everyday work. See Commonwealth v. Garrey, 436 Mass. 422, 429 (2002) (juror’s occupation may be sufficient to rebut prima facie showing that peremptory challenge improperly exercised). See also Commonwealth v. Green, 420 Mass. 771, 774, 778 (1995) (defense counsel’s explanation that juror’s father and brother were police officers adequate to justify peremptory challenge); United States v. Maxwell, 160 F.3d 1071, 1075 (6th Cir. 1998) (permissible for prosecutor to challenge juror because she was guidance counsellor, and, in his experience, guidance counsel-lors tend to be overly sympathetic with defendants).

Although the juror’s expression of sympathy was for the victim in the prior case, the point is that the defendant at the present trial was likely to portray himself as a victim. The defendant presented evidence of the victim’s racial slurs and in general attempted to raise a self-defense claim. The prosecutor genuinely could be concerned that the defendant might appear to this juror as a victim, and the judge could so find. While such a finding was not compelled, the judge could permissibly conclude that the prosecutor’s challenge was based at least in part on his concern that the juror might become emotionally involved to an extent that might distract her from the evidence against the defendant and interfere with impartial consideration. These reasons suffice to support the decision of the judge that *235the exercise of the peremptory challenge was made for reasons personal to the juror, and not because of the racial group to which she belongs.

The court insists that I speculate as to the reasoning of the prosecutor and the judge. See ante at 223 n.8. I have not speculated, but have merely engaged in the process we typically use to review questions regarding the sufficiency of the evidence. I see nothing in the record that shows the trial judge’s implicit belief in the genuineness of the prosecutor’s stated reasons to be clearly erroneous. The record also supports, as a matter of law, that the stated reasons are reasonable ones, and sufficient to justify the removal of this particular juror.

I do not denigrate the principles that we seek to vindicate by a continuing insistence that the Soares protocol be observed. What I do reject is the conclusion that the defense of these principles requires that we ignore the decision of a highly experienced trial judge who plainly and correctly, albeit implicitly, ruled that the proffered explanation was legally adequate, and who permissibly found that the explanation was credible. We choose instead to insinuate ourselves unnecessarily into the process, making credibility determinations on a written record years and miles removed from the trial. Neither Soares nor Maldonado requires this.1

Three Justices question the continued use of peremptory challenges notwithstanding the fact that neither party in this case has sought any relief in this respect. Ante at 226 n.10. No other State or Federal court has abandoned the use of peremptory challenges. See, e.g., Note, Rethinking Limitations on Peremptory Challenge, 85 Colum. L. Rev. 1357, 1359-1360 (1985). In this Commonwealth, peremptory challenges are a product of statute. See G. L. c. 234, § 29. Therefore, the only way this court could lawfully eliminate such challenges is by concluding that the statute is unconstitutional. The three Justices who advocate the abandonment of peremptory challenges have not explained why the statute is unconstitutional. (Justices Greaney and Spina do not join in this footnote.)