COMMONWEALTH vs. JOHN V. CARVALHO
No. 14-P-1675
Appeals Court of Massachusetts
January 13, 2016
88 Mass. App. Ct. 840 (2016)
Bristol. October 6, 2015. - January 13, 2016. Present: BERRY, GREEN, & BLAKE, JJ.
Intimidation of Witness. Harassment Prevention. Jury and Jurors. Practice, Criminal, Challenge to jurors, Voir dire.
At a criminal trial, the District Court judge properly denied the defendant‘s peremptory challenge to the only “minority juror” seated, where, in the circumstances, the judge was within his discretion to find that a prima facie showing of impropriety had been made, and where defense counsel‘s generic description of the reason for his objection fell below the type of bona fide explanation that is both adequate and genuine. [841-844]
At a criminal trial, the judge did not err or abuse his discretion in declining to ask the defendant‘s requested question of potential jurors, where the information that the defendant sought to obtain through his proposed question was largely captured by the confidential juror questionnaire utilized in the case; where the judge and counsel were aware of the questionnaires and the answers contained therein; and where the defendant had not indicated, nor did the record suggest, that any of the jurors selected were not fair and impartial. [844-845]
At the trial of criminal complaints alleging intimidation of a witness, a reasonable jury could interpret the defendant‘s comments in one instance as threatening the victim in her personal or professional life; similarly, a reasonable jury could find that the defendant‘s statements to the victim on another occasion, combined with his staring at her during a court proceeding, had the effect of intimidating her. [845-846]
COMPLAINTS received and sworn to in the Fall River Division of the District Court Department on July 1, 2010, and March 30, 2011.
After transfer to the New Bedford Division of the District Court Department, the cases were tried before Robert A. Welsh, III, J.
Dana Alan Curhan for the defendant.
Corey T. Mastin, Assistant District Attorney, for the Commonwealth.
BERRY, J. Following a District Court jury trial, the defendant was convicted on two counts of intimidation of a witness,
1. Background. The jury could have found that the defendant and the victim, who rented an apartment from the defendant, had a series of hostile encounters that culminated in the victim obtaining a harassment prevention order against the defendant.1 Following the issuance of that order, the defendant confronted the victim and made comments to her about dropping it. The defendant was charged with intimidating a witness and violating the harassment prevention order, and, as mentioned, he was found guilty by a jury in the District Court.2
2. Jury issues. We address two jury-related challenges posed by the defendant: the peremptory challenge and the denial of a special question regarding experience with restraining and harassment prevention orders.
a. Peremptory challenge. During jury empanelment, defense counsel exercised a peremptory challenge against juror no. 1, who was the only minority juror seated.3 The prosecutor noted for the record (but did not lodge a formal objection) that juror no. 1 was “the only minority juror.” The prosecutor‘s comment prompted the trial judge to inquire of defense counsel concerning the reason for exercising the peremptory challenge. The judge stated he was considering the matter as one involving Commonwealth v. Soares, 377 Mass. 461, 488 (1979), cert. denied, 444 U.S. 881 (1979). In response to the judge‘s comment, defense counsel said only that “[m]y client decided to challenge her.” The judge responded that
While a reviewing court “presume[s] that peremptory challenges are properly made, . . . this presumption can be rebutted by a prima facie showing.” Commonwealth v. Prunty, 462 Mass. 295, 306 (2012). That prima facie showing has two parts: “first, a pattern, which in some circumstances may be a pattern of one; and second, a likelihood of group exclusion, which in some circumstances can be discerned solely from the strength of the pattern” (emphasis added). Commonwealth v. Issa, 466 Mass. 1, 8 (2013). “If the judge finds that a prima facie case of impropriety has been made, the burden shifts to the challenging party, who ‘must provide, if possible, a neutral explanation establishing that the challenge is unrelated to the prospective juror‘s group affiliation.‘” Prunty, supra, quoting from Commonwealth v. Harris, 409 Mass. 461, 464 (1991). “In assessing proffered rationales for a juror‘s exclusion, ‘we rely on the good judgment of the trial courts to distinguish bona fide reasons for such [challenges] from sham excuses belatedly contrived to avoid admitting facts of group discrimination.‘” Prunty, supra, quoting from Soares, supra at 491.
In large measure, this case follows very closely the protocol and precedent set out in Prunty and Issa, both of which control. “[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.‘” Issa, supra at 9, quoting from Prunty, supra at 306 n.15. “[U]nless the judge is permitted to treat the early use of challenges in such circumstances as establishing a pattern, the venire may be substantially depleted of members of a group before a pattern can be identified by palpable evidence of improper exclusion. . . . [A] judge has broad discretion to require an explanation without having to make the determination that a pattern of improper exclusion exists.” Commonwealth v. Garrey, 436 Mass. 422, 429 (2002). In this case, the defendant was challenging the “only
The defendant also contends that because the defendant and victim were of the same race, race was not “at issue” in the case, and thus the peremptory challenge was not subject to question. While cross-racial issues at trial may be an indicator of a likely intent or motive to exclude members of a particular group, see, e.g., Commonwealth v. Roche, 44 Mass. App. Ct. 372, 377-378 (1998), a cross-racial trial setting is by no means required in order to rebut the presumption of propriety. See Commonwealth v. Benoit, 452 Mass. 212, 225 (2008). “Among the factors that may be considered are the ‘numbers and percentage of group members excluded,’ and whether the challenged jurors are members of the same constitutionally protected group as the defendant or the victim.” Issa, supra at 9, quoting from Garrey, supra at 428. See Garrey, supra at 429 n.2 (“The fact that the defendant, the victim, and the witnesses were Caucasian was not dispositive of the issue, because the defendant is entitled to a jury selected by nondiscriminatory criteria, and prospective jurors are entitled to a discrimination-free jury selection process“).
The burden of establishing a prima facie showing that a peremptory challenge is improper “ought not be a terribly weighty one.” Commonwealth v. Maldonado, 439 Mass. 460, 463 n.4 (2003). “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. Therefore, we do not substitute our judgment [on whether the presumption has been rebutted] for [the trial judge‘s] if there is support for it on the record.” Commonwealth v. Aspen, 53 Mass. App. Ct. 259, 262 (2001) (quotations omitted). To hold otherwise would be to unduly restrict the trial judge‘s discretion to “[e]nsur[e] [the] nondiscriminatory use of peremptory challenges [and the] ‘intended . . . benefit[s to] both sides in a criminal trial, and to protect the right of each person to have the opportunity to serve on a jury without fear of exclusion due to invidious [race]-based discrimination.‘” Prunty, supra at 308, quoting from Commonwealth v. Fruchtman, 418 Mass. 8, 17, cert. denied, 513 U.S. 951 (1994). Here, due to defense counsel‘s exercise of his first peremptory challenge on the only minority juror seated and the prosecutor‘s raising of the issue, the judge was within his discretion to find that a prima facie showing of impropriety was made and thus require an explanation from defense counsel.
b. Special question in voir dire of the jury venire. Defense counsel requested that the judge ask the following question of potential jurors: “Have you or any family member or a friend requested a No Harassment Order or a [G. L. c.] 209A restraining order against another person or had a No Harassment Order or a [G. L. c.] 209A restraining order taken out against you, a family member or a friend?” The judge declined and noted defense counsel‘s objection.
First, we note that the information that the defendant sought to obtain through his proposed question was largely captured by the confidential juror questionnaire utilized in this case.4 See
Beyond the statutorily required questions, see
(1994) (sexual offenses against minors); Commonwealth v. Seguin, 421 Mass. 243, 245-249 (1995) (insanity defense), a trial judge retains broad discretion in determining how a jury will be selected and which questions will be posed to members of the venire. Reavis, supra at 887-888. “[A] determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous.” Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). In this case, the judge‘s decision to forgo asking the jury venire a question specific to their experiences with harassment prevention or restraining orders was neither error nor an abuse of discretion.
3. Sufficiency of evidence. The defendant argues that the evidence at trial was insufficient to support his convictions on two counts of witness intimidation because the statements underlying each count could not be construed as either express or implied threats. This claim is unavailing.
This court applies the Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), standard and considers the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the essential elements of the crime of witness intimidation beyond a reasonable doubt.
In order to prove the defendant guilty of intimidation of a witness in violation of
As to the first count of witness intimidation, the victim testified as follows:
“After the cruiser took [the defendant‘s son], [the defendant] had told me, do you feel good about letting him spend time with his kids over the weekend? Do you feel good about yourself? I better clear up this mess. He‘s going to make my life miserable. He‘s gonna make me lose my job.”
The defendant‘s position that these statements were not expressions of an implied threat ignores that “[w]ords do not need to be expressly intimidating, threatening, or harassing” in order to fall within the meaning of intimidation. Hrycenko, supra at 511. “The assessment whether the defendant made a threat is not confined to
A reasonable jury could interpret the defendant‘s comments as threatening the victim in her personal or professional life. The defendant argues that the most reasonable interpretation of the victim‘s testimony was that the defendant‘s son would make the defendant‘s life miserable and cause the defendant to lose his job. But, when “the evidence lends itself to several conflicting interpretations, it is the province of the jury to resolve the discrepancy and determine where the truth lies.” Commonwealth v. Platt, 440 Mass. 396, 401 (2003) (quotation omitted). Significantly, the victim testified that she understood the defendant‘s statements to be a threat, and she responded to those threats by applying for and obtaining a harassment prevention order against the defendant. We find no reason to disturb the jury‘s evaluation of the evidence.
Similarly, sufficient evidence was presented at trial to support the jury‘s verdict on the second count of witness intimidation, which occurred at the Fall River District Courthouse. The victim testified that “[i]n the hallway [of the courthouse, the defendant] had told me that I had to drop the no contact order sometime,” and that the defendant “[was] just staring me down . . . he was there just staring at me, it‘s uncomfortable. It‘s intimidating.” The defendant‘s statements to the victim, combined with his “staring [her] down” during the court proceeding, had the effect of intimidating the victim. Furthermore, the defendant‘s actions all occurred while the victim was attending a court proceeding arising from criminal charges against the defendant‘s son for a property crime of which she was the victim. When considering “[t]he place, time, and circumstances” of the defendant‘s actions, see Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800-801 (1998), we conclude that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Latimore, supra at 677 (quotation omitted).
Judgments affirmed.
NOTE.
The next page is purposely numbered 901. The intervening page numbers were intentionally omitted in order to make it possible to publish this material with permanent page numbers, thus making official citations available upon publication of the preliminary version of these Reports.
RESCRIPT OPINIONS.
COMMONWEALTH vs. RUARK BOND
No. 14-P-1991
Appeals Court of Massachusetts
October 26, 2015
88 Mass. App. Ct. 901 (2015)
October 26, 2015. Imprisonment, Credit for time served. Practice, Criminal, Sentence, Conduct of government agents.
On May 28, 2013, the defendant pleaded guilty in Superior Court to unlawful possession of a firearm (
Approximately one month before the defendant pleaded guilty to these charges, he had filed in the Boston Municipal Court a motion for new trial seeking to withdraw a previous guilty plea (entered September 14, 2010) to possession with intent to distribute cocaine.2 The basis of that motion was that his 2010 plea was not voluntary because the Commonwealth in that case had been relying on a certificate of drug analysis signed by State chemist Annie Dookhan. See Commonwealth v. Scott, 467 Mass. 336, 348, 352-353 (2014). The Commonwealth eventually assented to that motion and - with the defendant having completed his sentence on the cocaine charge - agreed to file a nolle prosequi for that charge, which entered on April 22, 2014.
The defendant then filed a motion in Superior Court seeking jail time credit for the 341 days he had served on the (now vacated) 2010 conviction, to be applied against his sentences on the new convictions.3 Before us now is the defendant‘s appeal from the denial of that motion.
This case is governed by Commonwealth v. Holmes, 469 Mass. 1010 (2014). In that case, the Supreme Judicial Court clarified that the reversal of a conviction