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    COMMONWEALTH v. Anthony ROBERTSON.
    SJC-11933
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued February 9, 2018 Decided August 31, 2018
    Elizabeth A. Billowitz, Boston, for the defendant.
    Kathryn E. Leary, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   CYPHER, J.

The defendant, Anthony Robertson, appeals from his convictions of murder in the first degree, armed robbery, 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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (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, 418 N.E.2d 585 (1981), arguing that the jury instructions and the prosecutor's closing argument were erroneous and trial counsel was ineffective.

Because the defendant's right to a fair trial as provided by Batson, supra, and Soares, supra, was violated, we vacate the verdicts and remand for a new trial. We address other claims of error that are likely to recur upon retrial.

Background. 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 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." 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.

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 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, 35 N.E.3d 688 (2015) ( Augustine II ), citing Commonwealth v. Augustine, 467 Mass. 230, 254-255, 4 N.E.3d 846 (2014) ( Augustine I ), S.C., 470 Mass. 837, 26 N.E.3d 709 and 472 Mass. 448, 35 N.E.3d 688 (2015). See Carpenter v. United States, --- U.S. ----, 138 S.Ct. 2206, 2212, 2216-2217, 201 L.Ed.2d 507 (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, 953 N.E.2d 216 (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, 723 N.E.2d 25 (2000). We evaluate whether the affidavit underlying the warrant application satisfies the probable cause standard required by art. 14 de novo. Commonwealth v. Foster, 471 Mass. 236, 242, 28 N.E.3d 427 (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, 38 N.E.3d 231 (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, 802 N.E.2d 546 (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 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, 4 N.E.3d 846 (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, 43 N.E.3d 306 (2016), the search warrant affidavit stated that the defendant had been using his cell phone to argue with an 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, 43 N.E.3d 306.

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, 21 N.E.3d 528 (2014), which prohibits such identifications. Collins, however, by its own terms, applies prospectively only to trials beginning after the issuance of that opinion. Id. at 265, 21 N.E.3d 528. 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, 85 N.E.3d 22 (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 Mass. 770, 777, 824 N.E.2d 821 (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. Id. We have held that such a risk exists as a matter of law in trials involving interracial murder, interracial rape, and sexual offenses against children. Commonwealth v. Lopes, 440 Mass. 731, 737, 802 N.E.2d 97 (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, 555 N.E.2d 208 (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, 85 S.Ct. 824, 13 L.Ed.2d 759 (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 limitations on the use of peremptory challenges. See Batson, 476 U.S. at 85-86, 106 S.Ct. 1712 ("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, 387 N.E.2d 499 (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. First, the burden is on the objecting party 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, 708 N.E.2d 107 (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 for the challenge. Commonwealth v. Scott, 463 Mass. 561, 570, 977 N.E.2d 490 (2012). Finally, the judge then evaluates whether the proffered reason is "adequate" and "genuine." Commonwealth v. Maldonado, 439 Mass. 460, 464, 788 N.E.2d 968 (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, 977 N.E.2d 490. 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, 77 N.E.3d 278 (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, 992 N.E.2d 336 (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, 77 N.E.3d 278. See Commonwealth v. Lopes, 478 Mass. 593, 601, 91 N.E.3d 1126 (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, 788 N.E.2d 968 (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, 992 N.E.2d 336. 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, 992 N.E.2d 336.

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 against all such individuals" (quotation and citation omitted). Jones, 477 Mass. at 325, 77 N.E.3d 278.

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, 77 N.E.3d 278 ("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. 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 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, 992 N.E.2d 336. See Snyder v. Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (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 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, 725 N.E.2d 182 (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. 422, 428, 765 N.E.2d 725 (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, 58 N.E.3d 1014 (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, 629 N.E.2d 321, S.C., 418 Mass. 773, 641 N.E.2d 1057 (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, 32 N.E.3d 873 (2015), when considering when a judge should instruct the jury about cross-racial identifications. We said, "Because differences in race based on facial appearance 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. 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.[ ]
"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 reasons. 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."

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 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, 785 N.E.2d 368 (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, 77 N.E.3d 278. 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, 77 N.E.3d 278.

So ordered.

      "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, 418 N.E.2d 585 (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, 970 N.E.2d 306 (2012). We remind the Commonwealth that it is often difficult for defense counsel to coordinate filings with a client who is incarcerated.

      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.

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

      The defendant argues, in the alternative, that if we do not apply the holding of Commonwealth v. Collins, 470 Mass. 255, 261-262, 21 N.E.3d 528 (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.

      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.

      Our three-step process mirrors the procedure in Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Commonwealth v. Lopes, 478 Mass. 593, 598, 91 N.E.3d 1126 (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, 386 P.3d 798 (2017) ; Woods v. State, 2017 Ark. 273, at 1-2, 527 S.W.3d 706 ; People v. Parker, 2 Cal. 5th 1184, 1211, 218 Cal.Rptr.3d 315, 395 P.3d 208 (2017) ; People v. Beauvais, 2017 CO 34, ¶ 19, 393 P.3d 509 ; Sells v. State, 109 A.3d 568, 576 (Del. 2015) ; Johnson v. State, 302 Ga. 774, 779, 809 S.E.2d 769 (2018) ; State v. Daniels, 109 Haw. 1, 5-6, 122 P.3d 796 (2005) ; State v. Foster, 152 Idaho 88, 91, 266 P.3d 1193 (Ct. App. 2011) ; People v. Davis, 233 Ill. 2d 244, 261-262, 330 Ill.Dec. 744, 909 N.E.2d 766 (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, 403 P.3d 1220 (2017) ; Roe v. Commonwealth, 493 S.W.3d 814, 826-827 (Ky. 2015) ; State v. Crawford, 2014-2153, p. 27 (La. 11/16/16), 218 So.3d 13 ; Elliott v. State, 185 Md. App. 692, 712-713, 972 A.2d 354 (2009) ; Pellegrino v. AMPCO Sys. Parking, 486 Mich. 330, 339, 785 N.W.2d 45 (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, 357 Mont. 193, 237 P.3d 672 ; State v. Wofford, 298 Neb. 412, 423-424, 904 N.W.2d 649 (2017) ; McCarty v. State, 132 Nev. ----, 371 P.3d 1002, 1007 (2016) ; State v. Ouahman, 164 N.H. 413, 415, 58 A.3d 638 (2012) ; State v. Thompson, 224 N.J. 324, 339, 132 A.3d 1229 (2016) ; State v. Salas, 2010-NMSC-028, ¶ 31, 148 N.M. 313, 236 P.3d 32 ; People v. Bridgeforth, 28 N.Y.3d 567, 571, 46 N.Y.S.3d 824, 69 N.E.3d 611 (2016) ; State v. Waring, 364 N.C. 443, 474-475, 701 S.E.2d 615 (2010) ; State v. Garnder, 2016 ND 161, ¶ 11, 883 N.W.2d 471 ; State v. Pickens, 2014-Ohio-5445, ¶ 63, 141 Ohio St.3d 462, 25 N.E.3d 1023 ; Coddington v. State, 2006 OK CR 34, ¶ 11, 142 P.3d 437 ; State v. Longo, 341 Or. 580, 595-596, 148 P.3d 892 (2006) ; Commonwealth v. Johnson, 635 Pa. 665, 706-707, 139 A.3d 1257 (2016) ; State v. Porter, 179 A.3d 1218, 1224-1225 (R.I. 2018) ; State v. Scott, 2014 SD 36, ¶ 14, 849 N.W.2d 640 ; 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, 289 P.3d 591 ; State v. Yai Bol, 2011 VT 99, ¶ 6, 190 Vt. 313, 29 A.3d 1249 ; Lawlor v. Davis, 288 Va. 223, 230, 764 S.E.2d 265 (2014) ; Seattle v. Erickson, 188 Wash. 2d 721, 732, 398 P.3d 1124 (2017) ; State v. Boyd, 238 W. Va. 420, 434, 796 S.E.2d 207 (2017) ; State v. Lamon, 2003 WI 78, ¶¶ 27-32, 262 Wis.2d 747, 664 N.W.2d 607 ; Roberts v. State, 2018 WY 23, ¶ 13, 411 P.3d 431. 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]").

      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.

      "[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, 91 N.E.3d 1126.

      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 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, 992 N.E.2d 336 (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").

      This 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, 788 N.E.2d 968 (2003) ; Commonwealth v. Burnett, 418 Mass. 769, 770-771, 642 N.E.2d 294 (1994) ; Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (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, 641 N.E.2d 1057 (1994) ; Commonwealth v. Mathews, 31 Mass. App. Ct. 564, 569, 581 N.E.2d 1304 (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, 91 N.E.3d 1126, quoting Issa, 466 Mass. at 11 n.14, 992 N.E.2d 336.

      We 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.


source: Caselaw Access Project

author: AGNES, J.

license: Public Domain

text:
    COMMONWEALTH v. Dmytro TARANOVSKY.
    No. 17-P-400
    Appeals Court of Massachusetts, Suffolk..
    Argued December 7, 2017 Decided June 18, 2018
    Christopher DeMayo for the defendant.
    Dara Z. Kesselheim, Assistant District Attorney, for the Commonwealth.
    Present: Agnes, Blake, & McDonough, JJ.
   AGNES, J.

As pertinent here, the statute punishing "open and gross lewdness and lascivious behavior," G. L. c. 272, § 16, has remained unchanged for more than 230 years. See Commonwealth v. Quinn, 439 Mass. 492, 495 & n.7, 789 N.E.2d 138 (2003), citing St. 1784, c. 40, § 3. However, during that time, the definition of the crime has "evolved through our decisional law." Commonwealth v. Maguire, 476 Mass. 156, 158, 65 N.E.3d 1160 (2017). The Maguire decision represents the most recent "judicial construction" of the statute. Id. at 161, 65 N.E.3d 1160, quoting from Commonwealth v. Ora, 451 Mass. 125, 128, 883 N.E.2d 1217 (2008). In Maguire, the court announced that one of the five elements of the offense (element four) requires the Commonwealth to prove an "objective component," namely, that the defendant's conduct not only caused one or more persons to be shocked or alarmed, but in addition, "that 'shock' or 'alarm' was an objectively reasonable reaction in the circumstances of the conduct." Maguire, supra at 161, 65 N.E.3d 1160. This requirement does not appear in any previously reported Massachusetts appellate decision. Not surprisingly, the jury in this case were not instructed in accordance with Maguire, which was decided approximately three months after the conclusion of the defendant's trial. We conclude that the absence of such an instruction created a substantial risk of a miscarriage of justice, and accordingly reverse the defendant's conviction of open and gross lewdness.

Background. Taking the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the jury could have found the following facts.

On August 9, 2015, a twenty-seven year old female witness, N.M., was out for a boat ride on the Charles River with her father and some friends. The boat was tied up in front of the Hatch Shell on the Esplanade, which is owned by the Department of Conservation and Recreation, patrolled by the State police, and open to the public. N.M. noticed two children, between the ages of five and seven, who were riding scooters. They stopped suddenly and turned their heads toward something. When she followed their gaze to see what had caught their attention, she saw an individual, later identified as the defendant, walking in a "casual strut" down the walkway on the Esplanade. He walked the way models walk down the runway, to "let everybody see the outfit." The defendant was wearing a black sock-like object over his genitals, held in place by three strings in the shape of a "T." N.M. described it as a "banana hammock." The defendant's buttocks were exposed and he was otherwise completely naked.

When N.M. saw the defendant, she felt "shocked" and "just a little disgusted." She explained that she "wouldn't expose that to anybody," and further described what she had seen as "just a little unnerving." She testified that her reaction was based, in part, on the fact that there were children in the area who also saw the defendant. She took a photograph of the defendant, which was admitted in evidence. N.M. then decided to flag down a State police trooper passing by to report what she had seen. As the trooper, David Twomey, approached the defendant, he quickly turned away and put on his pants. The defendant appeared nervous, as "his eyebrows were twitching and he was stuttering." He told Twomey that he was sunbathing. Twomey subsequently placed the defendant under arrest.

Discussion. 1. Sufficiency of the evidence. The defendant argues on appeal that the Commonwealth's evidence was not sufficient to prove that his behavior was objectively and subjectively shocking or alarming as required by Maguire.

Initially, we must determine whether the interpretation of the open and gross lewdness statute announced in Maguire is applicable to the case before us. "Where a decision does not announce new common-law rules or rights but rather construes a statute, no analysis of retroactive or prospective effect is required because at issue is the meaning of the statute since its enactment." McIntire, petitioner, 458 Mass. 257, 261, 936 N.E.2d 424 (2010). See id. at 262 n.7, 936 N.E.2d 424. Maguire is applicable in the instant case because the court, through the process of judicial construction, explained that the open and gross lewdness statute contains an objective component.

The question for us thus becomes "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Latimore, 378 Mass. at 677, 393 N.E.2d 370. "The inferences drawn from [the] evidence need only be reasonable and possible, not necessary or inescapable." Commonwealth v. Morgan, 449 Mass. 343, 349, 868 N.E.2d 99 (2007) (quotation omitted). See Commonwealth v. Bush, 427 Mass. 26, 30, 691 N.E.2d 218 (1998).

a. Objective component of "shock" or "alarm." The fourth element of the crime of open and gross lewdness, as defined anew in Maguire, requires the Commonwealth to "demonstrate that 'shock' or 'alarm' was an objectively reasonable reaction in the circumstances of the conduct." Maguire, 476 Mass. at 161, 65 N.E.3d 1160. Whether a person's reaction is reasonable based on the circumstances is typically a question to be determined by the fact finder. See ibid. See also Trenz v. Norwell, 68 Mass. App. Ct. 271, 275, 861 N.E.2d 777 (2007) ("Reasonableness is a question of fact for the [fact finder] whose decision is based on consideration of all the relevant circumstances" [quotation omitted] ).

Although we regard this as a close question, reasonable minds could differ as to whether N.M.'s reaction to the defendant's deliberate exposure of his buttocks in a public area was objectively reasonable.

Thus, the Commonwealth should have the opportunity to present its case to a properly instructed jury, at a new trial.

b. Subjective component of "shock" or "alarm." The fifth element of proof requires the Commonwealth to demonstrate that at least one person was in fact shocked or alarmed by the defendant's exposure. See Quinn, 439 Mass. at 501, 789 N.E.2d 138 ; Commonwealth v. Botev, 79 Mass. App. Ct. 281, 287-288, 945 N.E.2d 956 (2011). "Where an 'observer suffered significant negative emotions as a result of the exposure,' the observer's reaction 'could justifiably be deemed alarm or shock,' ... [sufficient] to convict a defendant of open and gross lewdness." Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 347, 973 N.E.2d 679 (2012), quoting from Commonwealth v. Kessler, 442 Mass. 770, 775, 817 N.E.2d 711 (2004). "[T]he fact finder may consider not only the words used by the witness, but also other indicia of the witness's emotional state" in determining whether the observer suffered significant negative emotions as a result of the defendant's actions. Pereira, supra. One such indicium is "whether the witness immediately reported the incident." Commonwealth v. Militello, 66 Mass. App. Ct. 325, 334, 848 N.E.2d 406 (2006).

Here, N.M. testified that she was "shocked" and "just a little disgusted" by the defendant's exposure. She found it "[a] little nerve racking" both because she had never seen anything similar before and because there were children around. Indeed, she took a photograph of what she had seen and flagged down Twomey. While N.M. testified that her reaction was based in part on her concern over the impact of the defendant's behavior on the children who were on the Esplanade, she also testified that she experienced "a little shock[ ]" herself. For this reason, there was sufficient evidence to permit the jury to find that the Commonwealth had proved the fifth element of the offense.

2. Testimony and closing argument. The defendant contends that it was error to allow N.M. to testify as to her observations of the children on the Esplanade. Because the defendant did not object to this testimony, we review to determine if there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Renderos, 440 Mass. 422, 425, 799 N.E.2d 97 (2003). Although "[v]icarious concern for other people," without more, is not sufficient to demonstrate an individual's shock or alarm, see Maguire, 476 Mass. at 160, 65 N.E.3d 1160, the Commonwealth had the right to present N.M.'s account of the circumstances in which she made her observations. "[T]he prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story." Old Chief v. United States, 519 U.S. 172, 190, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). See Commonwealth v. Whitehead, 379 Mass. 640, 657, 400 N.E.2d 821 (1980). There was no error, let alone a substantial risk of a miscarriage of justice. 3. Jury instructions. The defendant maintains that the judge omitted an instruction on an essential element of the crime, namely the "objective component" of open and gross lewdness, described for the first time in Maguire, supra, as "the focus of the fourth element." 476 Mass. at 159, 65 N.E.3d 1160.

In this case, the judge instructed the jury that the crime of open and gross lewdness consisted of five elements, as follows:

"First, that the defendant exposed his genitals or buttocks to one or more persons; that the defendant did so intentionally; that-third, that the defendant did so openly, that is, either he intended public exposure or he recklessly disregarded a substantial risk of public exposure to others who might be offended by such conduct; fourth, that the defendant's act was done in such a way as to produce alarm or shock and, fifth that one or more persons were-were, in fact, alarmed or shocked."

Following the decision in Maguire, the District Court model jury instruction was revised. Element four of the five-element instruction now reads as follows: "Fourth: That the defendant's act was done in such a way as would alarm or shock a reasonable person."

Due to the defendant's failure to object to the jury instructions given at trial, our review is limited to determining whether any error in the instructions gave rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 685, 760 N.E.2d 1224 (2002). See also Commonwealth v. Johnston, 467 Mass. 674, 704, 7 N.E.3d 424 (2014) (applying substantial likelihood of miscarriage of justice standard where, although defendant failed to object to jury instructions, he was entitled to "benefit of changes in decisional law ... announced after trial and pending his direct review"). In applying the substantial risk of a miscarriage of justice standard, "[w]e consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision." Azar, supra at 687, 760 N.E.2d 1224.

An initial question, therefore, is whether the pre- Maguire model instruction effectively communicated to the jury that in order to find the defendant guilty, it was not sufficient for the Commonwealth to prove that his conduct produced shock or alarm in the mind of N.M., but that, as the post- Maguire model instruction states, the Commonwealth also must prove that "the defendant's act was done in such a way as would alarm or shock a reasonable person." Instruction 7.400 of the Model Jury Instructions for Use in the District Court (May, 2017), fourth element. Nowhere in the judge's instructions is there any reference to the distinction between the subjective and the objective components of the crime. The jury were not informed that although the victim's experience of shock or alarm may satisfy the fifth element of the offense, the fourth element requires the jury to answer the independent question whether the victim's reaction was objectively reasonable. Finally, it should be noted that after the jury began their deliberations, they asked the court for "a copy of the statute in question including the five conditions to be met." After consulting with counsel, the judge reinstructed the jury using the pre- Maguire model instruction followed by an explanation of the intent element and a reference to the fourth and fifth elements that did not convey the distinction between the subjective and the objective components. For these reasons, we conclude that the instructions in this case were deficient for failing to communicate to the jury that in order to convict the defendant of open and gross lewdness they must find that the defendant's conduct produced shock or alarm in two independent respects, namely that N.M. experienced that reaction and that a reasonable person in her position also would have experienced shock or alarm.

Furthermore, the Commonwealth's case was arguably weak as it related to the reasonableness of the victim's shock or alarm. The evidence indicates that N.M., from her vantage point near a boat on a dock on the Charles River located near the Hatch Shell, observed the defendant, from the side, as he walked along the Esplanade wearing only a banana thong. Because his genitals were covered, the judge correctly instructed the jury that the only basis for finding that N.M. suffered shock or alarm at the appearance of the defendant, from the side, was the exposure of his buttocks. Even granting that N.M. was shocked or alarmed as a result of this experience, the jury were not asked and thus did not determine whether a reasonable person in N.M.'s position would have experienced shock or alarm based on the observation of the defendant's buttocks from N.M.'s distant vantage point.

The defendant's failure to object to the jury instruction also cannot be characterized as a reasonable tactical decision. The judge recited the District Court model jury instruction to the jury, and no reported appellate decision prior to Maguire put the defendant on notice that proof that some particular person experienced shock or alarm as a result of witnessing the defendant's intentional act of exposing his buttocks in public is a fact separate and independent from whether a reasonable person in the victim's position would experience shock or alarm. See, e.g., Commonwealth v. Fitta, 391 Mass. 394, 396, 461 N.E.2d 820 (1984) (conviction for open and gross lewdness and lascivious behavior requires that "defendant's act [is] committed in such a way as to produce alarm or shock" [quotation omitted] ). This, coupled with the Commonwealth's arguably weak case as to the objective component of the open and gross lewdness statute, leads us to conclude that the defendant's failure to object to the jury instructions cannot be considered a reasonable tactical decision.

Under these circumstances, we conclude that there was a substantial risk of a miscarriage of justice. See Commonwealth v. Stoltz, 73 Mass. App. Ct. 642, 644, 900 N.E.2d 880 (2009), quoting from Commonwealth v. Hall, 48 Mass. App. Ct. 727, 730, 725 N.E.2d 247 (2000) ("[W]here 'error pertains to the definition given to the jury of the crime charged, the possibility of a substantial risk of a miscarriage of justice is inherent' "). For this reason, the defendant is entitled to a new trial.

Judgment reversed.

Verdict set aside.

      As relevant here, the current jury instruction, which was modified after the court's decision in Maguire, sets forth the five elements of the crime of open and gross lewdness that the Commonwealth must prove beyond a reasonable doubt, as follows:
      "[1]: That the defendant exposed his ... buttocks to one or more persons; [2]: That the defendant did so intentionally; [3]: That the defendant did so 'openly,' that is, either he ... intended public exposure, or he ... recklessly disregarded a substantial risk of public exposure, to others who might be offended by such conduct; [4]: That the defendant's act was done in such a way as would alarm or shock a reasonable person; and [5]: That a least one person was alarmed or shocked."
      Instruction 7.400 of the Model Jury Instructions for Use in the District Court (May, 2017). See Maguire, 476 Mass. at 161, 65 N.E.3d 1160. Prior to Maguire and in September, 2016, at the time of the trial in this case, the fourth element was defined as follows: "That the defendant's act was done in such a way as to produce alarm or shock." Commonwealth v. Kessler, 442 Mass. 770, 773 n.4, 817 N.E.2d 711 (2004). See note 5, infra.

      The defendant also argues that the judge erred in not instructing the jury that the crime of open and gross lewdness requires proof of a specific intent. In fact, in trying to explain the relationship between the fourth and fifth elements of the crime, the judge described the crime as a specific intent crime. This was error, though not prejudicial to the defendant because it added to the Commonwealth's burden of proof. Cf. Commonwealth v. Cummings, 273 Mass. 229, 173 N.E. 506 (1930) (rejecting defendant's argument that Commonwealth was required to prove that his conduct in a public restroom was intentionally open and public). The defendant does not challenge the sufficiency of the evidence as to the first three elements of the crime.

      What makes this case close is that unlike in Quinn, supra, where the Supreme Judicial Court held, for the first time, that "exposure of genitalia is not an essential element of the crime," 439 Mass. at 495, 789 N.E.2d 138, the examples given by the court in Quinn of facts that could satisfy the "shock or alarm" components of the offense involve acts where the victims are children who are in close proximity to the defendant. "The sudden exposure of buttocks by dropping one's pants in front of children in an area (school) where such conduct would be wholly unexpected may alarm or shock, as surely as revealing one's penis.... A woman approaching a group of school children suddenly opening her blouse to expose her breasts may alarm or shock just as a man masturbating in a passing automobile might." Id. at 497-498, 789 N.E.2d 138. Whether the offense of open and gross lewdness should be limited to the type of conduct described in Quinn is for the Supreme Judicial Court to decide.

      As the evidence was properly admitted, the defendant's contention that it was error for the prosecutor to reference the children in his opening statement and closing argument must also fail. The defendant offers conclusory statements on these issues, which do not rise to the level of appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, there was no error. The opening statement was based on what the prosecutor intended to prove by the evidence. See Morgan, 449 Mass. at 360, 868 N.E.2d 99. And in the closing argument, the prosecutor was "entitled to argue forcefully for the defendant's conviction" and use "the facts in evidence and the reasonable inferences that may be drawn therefrom." Commonwealth v. Diaz, 478 Mass. 481, 487, 86 N.E.3d 485 (2017) (quotation omitted).

      This instruction is consistent with Instruction 7.400 of the Model Jury Instructions for Use in the District Court (2009), which renumbered the fourth and fifth element, but did not change the text of Instruction 5.42 of the Model Jury Instructions for Use in the District Court (1988). See Kessler, 442 Mass. at 773 n.4, 817 N.E.2d 711.

      See note 1, supra.

      Most of the reported decisions prior to Maguire dealing with the offense of open and gross lewdness address the relationship between this offense and the offense of indecent exposure, whether the defendant's conduct constituted exposure, whether that exposure was intentional or done with reckless disregard, whether the defendant's conduct was done openly, whether the observer's reaction was sufficient to meet the requirement of shock or alarm, whether the victim had to be an unsuspecting or unwilling person, and whether a prosecution based on exposure to a single victim was sufficient. See, e.g., Commonwealth v. Cummings, 273 Mass. 229, 173 N.E. 506 (1930) (conduct between two men in public toilet qualified as "open"); Revere v. Aucella, 369 Mass. 138, 147, 338 N.E.2d 816 (1975) (statute as applied to consenting adults is unconstitutional); Commonwealth v. Adams, 389 Mass. 265, 271, 450 N.E.2d 149 (1983) ("Here the defendant was arrested after a private citizen complained that he saw the defendant drive by slowly in his automobile on a public way with his penis exposed and masturbating. We believe that this conduct, if proved, would be included under the commonly understood meaning of 'open and gross lewdness and lascivious behavior' so as to give the defendant fair warning that his conduct is proscribed"); Quinn, 439 Mass. at 498, 789 N.E.2d 138 ("A woman approaching a group of school children suddenly opening her blouse to expose her breasts may alarm or shock just as a man masturbating in a passing automobile might"); Kessler, 442 Mass. at 774, 817 N.E.2d 711 ("Being 'excited' or 'nervous' may sometimes be unpleasant, but it does not connote the serious negative emotional experience required by the statute"; "[m]ere nervousness and offense has never been held sufficient to warrant a finding that the viewer was 'in fact alarmed or shocked' "); Ora, 451 Mass. at 127-128, 883 N.E.2d 1217 (explaining relationship between open and gross lewdness and indecent exposure; noting that "the central purpose of G. L. c. 272, § 16, [is] ... preventing fright and intimidation, particularly regarding children"); Commonwealth v. Gray, 40 Mass. App. Ct. 901, 901, 660 N.E.2d 695 (1996) (janitor's "disgust" upon seeing two men engaging in oral sex in public toilet was sufficient to satisfy "alarm or shock" requirement); Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 302-303, 705 N.E.2d 626 (1999) (witnesses' failure to identify object defendant was pulling up and down did not render unreasonable an inference that he had exposed his genitalia); Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 479-480, 932 N.E.2d 301 (2010) (conviction of open and gross lewdness requires proof that defendant openly exposed "some body part," and thus observation of act of unexposed masturbation in public place is not sufficient).

      Because of the result we reach, we need not decide whether the judge's failure to instruct in accordance with Maguire was a constitutional error that should be reviewed under the prejudicial error standard on the ground that it was not an issue that the defendant should be expected to have raised at trial. See Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 16-17, 490 N.E.2d 1195 (1986) (discussing "clairvoyance" exception).


author: GREEN, C.J.

text:
    Gail F. SULLIVAN v. Robert M. LAWLIS & another.
    No. 17-P-995
    Appeals Court of Massachusetts, Suffolk..
    Argued February 9, 2018 Decided June 19, 2018
    Gail F. Sullivan, Lancaster, pro se.
    Mel L. Greenberg for the defendants.
    Present: Green, C.J., Henry, & Singh, JJ.

      Philip P. Palmieri.

   GREEN, C.J.

The parties to this action together own property located at 172-174 Shrewsbury Street in Worcester (property). The plaintiff, Gail F. Sullivan, holds her 2/9 interest as the result of a property division incident to her divorce from her former husband, who purchased the property with the defendant Philip P. Palmieri in 1986. As the parties' relations deteriorated, Sullivan filed a petition in the Land Court, seeking to partition the property. In response, the defendants challenged the jurisdiction of the Land Court, claiming that the property is ineligible for partition because the relationship among the parties is in substance and actuality as partners in a partnership, and jurisdiction over dissolution of a partnership is in the Superior Court rather than the Land Court. A judge of the Land Court agreed with the defendants, dismissing the plaintiff's petition for want of subject matter jurisdiction. We conclude that the petition should not have been dismissed and remand the matter for further proceedings.

Background. We summarize the evidence in the record before us. By deed dated February 5, 1986, Louis C. DiNatale and Palmieri acquired title to the property. DiNatale and Palmieri financed their purchase in part by a mortgage note made jointly and severally by them to Guaranty Bank and Trust Company, secured by a mortgage on the property. The deed did not specify whether the two men acquired their interests as joint tenants, tenants in common, or otherwise. However, the two obtained a policy of title insurance from Chicago Title Insurance Company insuring their interests as tenants in common. DiNatale and Palmieri subsequently conveyed a 5/9 interest in the property to the father of the defendant Robert M. Lawlis by deed dated June 9, 1995, and duly recorded. Lawlis's father acquired his interest in the property as part of a "like-kind exchange" under the Internal Revenue Code, 26 U.S.C. § 1031 (1994) (as in effect when Lawlis, DiNatale, and Palmieri signed the like-kind agreement). In the agreement for that conveyance, DiNatale and Palmieri represented that they were the owners of the property "in fee simple and in common." Sullivan acquired an undivided 2/9 interest in the property by deed dated January 13, 2006, and duly recorded, as the result of a property division incident to her divorce from DiNatale. The deed recites that it was supported by consideration of less than $100. Like the 1986 deed pursuant to which DiNatale and Palmieri first acquired their interests in the property, the 2006 deed to Sullivan includes no statement describing or defining the nature of the estate conveyed.

There is no written partnership agreement among the parties, nor is there a business name certificate filed in the name of a partnership. However, the record reflects that the property is a commercial building, leased to commercial tenants. Rents from the building are deposited into one of various bank accounts in various names; the record includes conflicting information about whether all of the accounts are joint or whether Palmieri is the sole authorized signatory on one or more of them. According to the judge's memorandum of decision, various leases of the property refer to the landlord in different ways, sometimes as "Palmieri, Dinatale & Lawliss" [sic ], sometimes as Louis DiNatale and Philip Palmieri, and other times as Palmieri and the Lawlis Trust. Palmieri manages the property, collecting rents, paying utilities and other expenses of the property, hiring contractors to maintain the property, and taking other actions as necessary to manage the property. As funds are available in the bank account, Palmieri makes periodic distributions to himself, Lawlis, and Sullivan, in proportion to their respective interests in the property.

The question whether the parties have formed a partnership has arisen in prior court proceedings, if somewhat obliquely. In a civil dispute brought in the Worcester Division of the District Court Department by Lawlis, DiNatale, and Palmieri against a tenant of the property, the tenant moved to vacate an agreement for judgment signed only by Palmieri on the ground that Palmieri was without authority to bind the other two plaintiffs. In that action, a District Court judge denied the tenant's motion; the defendants assert that the order of denial signifies agreement with Palmieri's argument that, as a partner, he was authorized to bind the others. For her part, Sullivan has referred to "the partnership" in certain correspondence with Palmieri and Lawlis, and referred to her former husband and Palmieri as "partners" in filings made in the Probate and Family Court incident to her divorce from DiNatale. In his memorandum of decision, the motion judge observed that "[n]o partnership tax returns or Schedule K-1's have ever been filed. The defendants contend that no such returns or schedules are required for a partnership with this few partners so long as the income and expenses are properly reflected on Schedule E's, but have not cited any authority supporting that contention."

Discussion. Partition is historically an equitable remedy rooted in common law that has since been reformed and modified by statute. See O'Brien v. Mahoney, 179 Mass. 200, 203, 60 N.E. 493 (1901). It is a division between two or more persons of property, effected by the setting apart of their interests so that they can enjoy and possess the property in severalty, or by a sale of the whole and the awarding to each their share of the proceeds. See G. L. c. 241, §§ 1, 4, 31 ; Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333, 337-338, 599 N.E.2d 250 (1992). Properties owned in trust are not subject to partition, see Rolland v. Hamilton, 314 Mass. 56, 60, 49 N.E.2d 436 (1943), nor are those held in partnership, see Webber v. Rosenberg, 318 Mass. 768, 769, 64 N.E.2d 98 (1945). For cotenants, however, partition is a matter of absolute right; it is not dependent on the consent of any of the cotenants or the discretion of the court. See Crocker v. Cotting, 170 Mass. 68, 70, 48 N.E. 1023 (1898) ; O'Brien v. Mahoney, supra at 203-204, 60 N.E. 493. In Massachusetts, partition is governed by G. L. c. 241, and "[a]ny person, except a tenant by the entirety, owning a present undivided legal estate in land" may petition for the partition of such interest. G. L. c. 241, § 1. A petition for partition may be filed either in the Probate and Family Court or the Land Court. G. L. c. 241, § 2.

In the present case, the deed under which the parties acquired their title to the property did not specify how they would hold their title. In the absence of language in a deed specifying otherwise, a conveyance of land to two or more persons creates "an estate in common and not in joint tenancy." See G. L. c. 184, § 7. However, the form of property ownership may be other than as provided under the deed itself, based on evidence of a contrary intent of the parties. In particular, title to property acquired with partnership funds for partnership purposes is presumed to be partnership property, even though the deed conveys title in the names of one or more individuals. See Diranian v. Diranian, 55 Mass. App. Ct. 605, 609, 773 N.E.2d 462 (2002), citing G. L. c. 108A, § 8(2). See also Fall River Whaling Co. v. Borden, 10 Cush. 458, 461, 64 Mass. 458 (1852) ("[L]and, whatever the aspect of the legal title, may nevertheless be proved in equity to be part of the joint stock of a copartnership, and as such, liable to all the equitable conditions of partnership property"). That partnership property may be held in the names of one or more of the partners, rather than in the name of the partnership, is expressly contemplated by G. L. c. 108A, § 10.

"To determine whether or not a partnership exists, the Legislature has enacted a set of rules that may be applied to the circumstances. G. L. c. 108A, § 7. In addition, other factors may be considered on the issue of the existence or nonexistence of a partnership. See Shain Inv. Co. v. Cohen, 15 Mass. App. Ct. 4, 9, 443 N.E.2d 126 (1982). Those factors include, among others, (1) an agreement by the parties manifesting their intention to associate in a partnership (2) a sharing by the parties of profits and losses, and (3) participation by the parties in the control or management of the enterprise." Fenton v. Bryan, 33 Mass. App. Ct. 688, 690-691, 604 N.E.2d 56 (1992). Notably, pursuant to G. L. c. 108A, § 7(2), "[j]oint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property." The existence of a partnership is a question of the intent of the parties; whether a partnership arises "depends upon their intent to associate as such," Shain Inv. Co. v. Cohen, supra at 7, 443 N.E.2d 126, and whether the parties acted in ways "as would be normally expected of partners," Boyer v. Bowles, 310 Mass. 134, 137, 37 N.E.2d 489 (1941).

Conflicting evidence concerning the existence of a partnership must be resolved by a finder of fact. See Fenton v. Bryan, supra at 691, 604 N.E.2d 56. Cases in which the intent, motive, or state of mind of the parties is at the heart of the case are typically inappropriate for summary judgment. See Noyes v. Quincy Mut. Fire Ins. Co., 7 Mass. App. Ct. 723, 726-727, 389 N.E.2d 1046 (1979). A person's intent is a question of fact "to be determined from his declarations, conduct and motive, and all the attending circumstances." Galotti v. United States Trust Co., 335 Mass. 496, 501, 140 N.E.2d 449 (1957), quoting from Casey v. Gallagher, 326 Mass. 746, 749, 96 N.E.2d 709 (1951). "Frequently, the pleadings, affidavits, and other submitted materials render necessary a further exploration of the significant facts and a decision on these 'state of mind' issues by a trier of fact who has heard and evaluated all relevant evidence." Quincy Mut. Fire Ins. Co. v. Abernathy, 393 Mass. 81, 86, 469 N.E.2d 797 (1984). However, even in a case where state of mind is an issue, it is incumbent on the party opposing summary judgment to file sufficient materials to raise a jury question in order to avoid entry of summary judgment. See Asian Am. Civic Assn. v. Chinese Consol. Benevolent Assn. of New England, Inc., 43 Mass. App. Ct. 145, 148, 681 N.E.2d 882 (1997) (language of deed and other documents, and statutory and common-law principles of conveyancing compelled conclusion that deed did not confer right to occupy space in building).

The evidence in the record of the present case leaves us with considerable doubt whether the parties are in a partnership. To be sure, there are numerous indicia consistent with the existence of a partnership, including the shared ownership and operation of the property and the sharing of profits therefrom. However, the presence of such factors does not by itself establish the existence of a partnership. See G. L. c. 108A, § 7(2), (3). And there are a variety of indicia calling into question whether a partnership existed, including the manner in which the parties held themselves out to others, including tenants and taxing authorities, and the policy of title insurance Palmieri and DiNatale obtained when they first acquired the property, insuring their interests as tenants in common. In particular, the like-kind exchange by which Lawlis's father acquired his interest in the property is incompatible with a conclusion that the property was owned by a partnership rather than by Palmieri and DiNatale as cotenants; under the Internal Revenue Code in effect at the time, partnership property was ineligible for a like-kind exchange. See 26 U.S.C. § 1031(a)(2)(D) (1994). Viewing the evidence, as we must, in the light most favorable to the plaintiff, and drawing all inferences in her favor, see Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680, 46 N.E.3d 24 (2016), we conclude that genuine issues of material fact preclude a conclusion that the property is held by the parties in partnership as a matter of law.

We also observe that there appear to be few advantages from the perspective of judicial economy in resolving the question on summary judgment. As described in the introduction, the question whether the property is held in partnership or in common arose in the context of the question of the Land Court's jurisdiction over the plaintiff's petition. But Massachusetts courts have long discouraged dismissal in circumstances where the question of jurisdiction arises from distinctions among the various departments of the Trial Court. "[W]hen a court of limited jurisdiction is confronted with a case over which its jurisdiction is doubtful or lacking, the court should not dismiss the case out of hand; rather, 'the proper procedure is for the judge to ask the [Chief Justice of the Trial Court] to transfer the case, or the judge, or both, to the appropriate department of the Trial Court.' " Arno v. Commonwealth, 457 Mass. 434, 446, 931 N.E.2d 1 (2010), quoting from Konstantopoulos v. Whately, 384 Mass. 123, 129, 424 N.E.2d 210 (1981). In the present case, further proceedings will be required to resolve the parties' respective rights and remedies (whether in dissolution of a partnership if one exists, or partition of the property if it is held in common). The parties also have asserted various claims over which the Land Court is without jurisdiction. It is likely that much of the evidence presented on the question of the existence or nonexistence of a partnership will overlap evidence presented on the parties' other claims. We note as well that if the parties are found to hold title to the property as tenants in common rather than as partners, the Superior Court is without jurisdiction over the partition to which the plaintiff would then be entitled. Accordingly, we vacate the judgment and, consistent with the guidance furnished in Konstantopoulos v. Whately, supra, we remand this case to the Land Court with instructions to the judge to ask the Chief Justice of the Trial Court "to transfer the case, or the judge, or both, to the appropriate department of the Trial Court," with authority in any event to adjudicate all claims of the parties, whether incident to partition of the property or dissolution of a partnership.

So ordered.

      Though the parties have filed separate record appendices, the materials in each include references to numerous exhibits that are not included, but which apparently were a part of the record before the Land Court judge. Though our ability to evaluate the presence or absence of genuine issues of material fact is consequently impaired, our review of the record we do have, along with the description of undisputed facts contained in the memorandum of decision entered by the motion judge, supports the factual summary that follows.

      DiNatale and Palmieri subsequently refinanced the property on several occasions.

      Lawlis's father subsequently conveyed his 5/9 interest to an unrecorded trust identified in the deed as "The Lawlis Trust."

      The accounts were in the name of "Philip Palmieri, Louis DiNatale or Robert Lawlis, John Dubsky [care of] James O'Malley CPA"; "Philip Palmieri, Palmieri Lawless & Sullivan"; "Phillip Palmieri [doing business as] Palmieri, Lawless and Sullivan"; "Philip Palmieri and Robert Lawlis"; "Phillip Palmieri and Louis DiNatale"; and "Phillip Palmieri, Louis DiNatale and Gail Sullivan."

      The leases themselves are not in the record appendix submitted by either the plaintiff or the defendants, and the judge's memorandum of decision does not relate whether the various leases were executed by each person named as landlord or only one of them on behalf of a partnership. The summary in the judge's memorandum of decision does not include a description of any lease identifying Palmieri, Lawlis, and Sullivan as the landlord, and it does not suggest that any of the leases refer to the landlord as a partnership.

      Alternatively, the District Court judge could have concluded that Palmieri was authorized to act on behalf of Lawlis and DiNatale, either as agent or otherwise. The record does not include the motion, Palmieri's opposition, or the order denying the tenant's motion (which the defendants describe as a marginal endorsement).

      No tax returns appear in the record before us, and the defendants have not repeated in their brief in this appeal their claim before the Land Court judge that no partnership tax return is required for a partnership comprised of only three partners. But see 26 U.S.C. § 6031(a) (2012) (requiring all partnerships to file annual partnership tax return). See generally 26 U.S.C. § 761(a) (2012) (defining "partnership"). We note that 26 U.S.C. § 6698(a) (2012) allows partnerships to avoid the penalty for failure to file a return upon a showing of "reasonable cause," but it does not create an exemption from the filing requirement and it is the taxpayer's burden to establish reasonable cause. See Internal Revenue Manual § 20.1.1.3.5(2) (Nov. 21, 2017), https://www.irs.gov/irm/part20/irm_20-001-001r ("The burden of proving entitlement to relief is generally upon the taxpayer"). See also 26 U.S.C. § 6651(a)(3) (2012) (Internal Revenue Service will not impose a failure-to-pay penalty if "it is shown that such failure is due to reasonable cause and not due to willful neglect"); Shafmaster v. United States, 707 F.3d 130, 137 (1st Cir. 2013) ("The taxpayer bears the burden of proving both reasonable cause and the absence of willful neglect").

      General Laws c. 108A, § 7, provides as follows:
      "In determining whether a partnership exists, these rules shall apply:
      "(1) Except as provided by section sixteen persons who are not partners as to each other are not partners as to third persons.
      "(2) Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.
      "(3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
      "(4) The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
      "(a ) Of a debt by instalments or otherwise,
      "(b ) As wages of an employee or rent to a landlord,
      "(c ) As an annuity to a widow or representative of a deceased partner,
      "(d ) As interest on a loan, though the amount of payment vary with the profits of the business,
      "(e ) As the consideration for the sale of the good will of a business or other property by instalments or otherwise."

      See G. L. c. 108A, § 7 ; Mitchell v. Gruener, 251 Mass. 113, 123, 146 N.E. 252 (1925) ("There must be a voluntary contract of association for the purpose of sharing the profits and losses, as such, which may arise from the use of capital, labor or skill in a common enterprise, and an intention on the part of the principals to form a partnership for that purpose"); Seemann v. Eneix, 272 Mass. 189, 194, 172 N.E. 243 (1930) ("The intention of the parties is an important factor in determining whether a partnership was created"); Cardullo v. Landau, 329 Mass. 5, 8, 105 N.E.2d 843 (1952) ("[I]n the case of a partnership, the relationship ... is a matter of intent and arises only when they intend to associate themselves as such").

      By St. 2011, c. 93, § 52, the Chief Justice of the Trial Court was substituted for the Chief Justice for Administration and Management, who previously was designated to effect such interdepartmental assignments and transfers.

      For example, the plaintiff's verified complaint includes, in addition to the request for partition and several counts for waste of the property, counts for conversion of funds held in bank accounts and fraud. (Although the plaintiff withdrew, without prejudice, all claims other than her request for partition during the initial case management conference, her brief indicates that she intends to reinstate them.) The defendants' separate complaint, filed in the Superior Court in Worcester County after commencement of this action, includes counts for dissolution of the alleged partnership and an accounting.

      We express no view on whether the case should be transferred to the Superior Court, with a cross-departmental assignment of the Superior Court judge to hear and decide any claims (such as partition) that lie outside the Superior Court's jurisdiction, or should instead remain in the Land Court, with a cross-departmental assignment of the Land Court judge to hear and decide any claims that lie outside the Land Court's jurisdiction. In either event, however, we note that it would appear to be in the interest of judicial economy to merge and consolidate the defendants' subsequently filed Superior Court complaint with the present action. See note 12, supra.