Commonwealth v. Serrano
Commonwealth v. Serrano
Opinion of the Court
Three Hispanic men were jointly tried and convicted by a jury of the Superior Court of various drug
1. Jury impanelment.
We start with the proposition that “a peremptory challenge may not be exercised either by the Commonwealth or by the defense to exclude a juror solely on grounds of that juror’s race.” Commonwealth v. Curtiss, 424 Mass. 78, 83 (1997) (Fried, J., dissenting). However, the analysis of whether a trial judge’s acceptance or rejection of peremptory challenges deprives defendants of their constitutional right to be tried by an impartial jury, as guaranteed by arts. 12 and 15 of the Declaration of Rights of the Massachusetts Constitution, begins with the presumption that the challenge is proper. Commonwealth v. Soares, 377 Mass. 461, 489, cert. denied, 444 U.S. 881 (1979). That presumption may be rebutted by showing that there exists a pattern of conduct whereby individuals from a discrete group have been challenged and by showing that exclusion of the individuals is based on their membership in that class of persons. See id. at 489-490. A pattern of racially
In the present case, trial counsel asked for a race-neutral reason for the prosecutor’s challenge because juror X was the only African-American on the venire at the. time. While “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), the judge made no explicit finding that the defendants had satisfied their burden of proving purposeful discrimination. See Purkett v. Elem, 514 U.S. 765, 768-769 (1995); Commonwealth v. Burnett, 418 Mass. 769, 771-772 (1994). An express finding is preferable; however, we assume from the judge’s ruling that he made an implicit finding that the defendant had not established a prima facie case of impropriety. See Commonwealth v. Mathews, 31 Mass. App. Ct. 564, 569 (1991), cert. denied sub nom. Matthews v. Rakiey, 504 U.S. 922 (1992). In his side bar remarks to both counsel, he noted that a limited number of Hispanic jurors remained on the venire and expressed concern that any further challenges of minority persons on the venire might be impermissible.
After hearing the explanation from the prosecutor concerning the removal of juror X, the judge could reasonably have felt that no set pattern of impropriety then existed, and that he had given fair warning to the prosecutor. If the peremptory challenge of juror X had left the jury with no minority jurors, a prima facie case of discrimination would have been established. Commonwealth v. Harris, 409 Mass. at 465. That never happened because at the time of the challenge the venire still
In this case it is of some import that the offenses charged were not of a type that might be expected naturally to excite racial biases. The issue of jury composition requires the greatest scrutiny where defendant and victim belong to different racial groups — particularly where the crimes in question are violent or sexual in nature. Cf. Commonwealth v. Sanders, 383 Mass. 637, 638-640 (1981). Such is not the case here.
Finally, it is significant, although certainly not dispositive, that the defendants, all Hispanics, were members of a different group than the challenged juror, who was African-American. See Commonwealth v. Harris, 409 Mass. at 465-466 (emphasizing extent to which strength of inference of impropriety in challenge is bolstered where juror and defendant are same race). While it is seldom addressed directly, the issue lurking behind contested peremptory challenges usually is some notion — whether anchored in reality or not — that group solidarity among members of traditionally disempowered minorities will encourage a juror of the same racial, ethnic, or even gender group as the defendant to be more inclined to render a verdict in the defendant’s favor. These considerations are less relevant where a contested juror and defendant are not members of the same minority group. For this reason, the prosecutor’s conduct in this case was not inherently suspect.
As we have stated in this opinion, a trial judge has broad discretion to determine whether or not peremptory challenges have been used to defeat the important institutional goal of providing juries that represent fair cross-sections of the community in which a case is tried. A judge’s decision in this regard may not be set aside on appeal “if there is support for it on the record.” Commonwealth v. DiMatteo, 12 Mass. App. Ct. at 552. See Commonwealth v. Mathews, 31 Mass. App. Ct. at 569. After considering all of the relevant factors, we conclude that there was adequate record support for the judge’s decision.
2. Serrano’s motion to strike venire. Before impanelment of
When a defendant seeks relief on the basis of a nonrepresentative venire, he must establish not only that the composition of the particular venire available for his trial did not reflect the face of the community, but also that the jury service selection procedures in general are discriminatory. See Commonwealth v. Tolentino, 422 Mass. 515, 519 (1996). Such proof typically takes the form of statistical evidence. Id. at 518, 520-521.
Here, as to the first prong, the defendant has offered no convincing evidence that the venire available to him did not, in fact, contain a representative number of minority members. Of the subset of the venire that was brought into the courtroom, there were at least six or seven potential minority jurors. Further questioning might have revealed that the number was even larger. Moreover, there is no information in the record concerning the composition of the entire venire. In these circumstances, Serrano has not adequately established underrepresentation of minorities in the venire called for his trial.
Likewise, the defendant also has failed to build a sufficient case from which reliably to infer that jury selection procedures in Essex County systematically result in underrepresentation of minorities. The only “statistical” evidence offered are affidavits from a group of defense lawyers that recite their recollections as to venire compositions of trials in which they have participated. Such anecdotal evidence is inadequate. There is no indication of what methods these lawyers used to determine the race or ethnicity of jurors, or whether their observations relate to entire venires or to actual, sitting jurors. See Commonwealth v. Gaskins, 419 Mass. 809, 814 (1995) (claim of ineffective assistance of counsel because defense counsel did not raise inadequate representation of minorities in jury pool not considered where premised on speculation). Again, Serrano has failed to meet his evidentiary burden. On the facts presented to us, we cannot say that the trial judge abused his authority by denying the motion to dismiss the venire.
3. Martinez’s school zone indictments. As originally drafted, the indictment charging Martinez with distribution of cocaine within a school zone, G. L. c. 94C, § 32J, read as follows:
“Rafael Martinez . . . did knowingly, intentionally and*168 unlawfully distribute . . . cocaine, a controlled substance defined in clause (1) of paragraph (a) of Class B of Chapter 94C, section 31.”
In fact, clause (1) refers to opium; the indictment should have cited clause (4), which refers to cocaine. Before the case went to the jury, the Commonwealth noticed the error and moved to amend the indictment. Over Martinez’s objection, the judge allowed the Commonwealth’s motion.
Amendments to an indictment are permitted “if such amendment would not prejudice the defendant or the Commonwealth. ” Mass.R.Crim.P. 4(d), 378 Mass. 849 (1979). Here, Martinez has offered no indication of any prejudice, as that term is intended here, that he suffered as a result of the amendment. The indictment plainly states that “cocaine” was the drug distributed, and there is no indication that the defendant was in fact confused by what amounts to a scrivener’s error. See Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 459-460 (1999) (even serious omission in indictment does not render document ineffective where defendant plainly put on notice as to offense charged). The judge, therefore, did not abuse his discretion in permitting the amendment.
The pretrial order denying the motion to dismiss the venire is affirmed. The judgments are affirmed.
So ordered.
In view of our disposition of the issue, it is unnecessary to determine whether or not defendants Nunez and Martinez preserved their right to review with respect to this claim. We shall assume, without deciding, that they did.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.