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14-P-1675                                             Appeals Court

                 COMMONWEALTH   vs.   JOHN V. CARVALHO.


                             No. 14-P-1675.

        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.



     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, G. L. c. 268, § 13B, and one count of violation of a

harassment prevention order, G. L. c. 258E, § 9.      In this
                                                                       2


appeal, the defendant contends that the trial judge erred (1) in

denying the defendant's peremptory challenge of one prospective

juror who was the only minority seated on the petit jury; and

(2) in refusing to pose a specific question to prospective

jurors as to their experience with restraining and harassment

prevention orders.       The defendant also argues that the evidence

at trial was insufficient to support the guilty verdicts on the

two counts of witness intimidation against him.      We affirm.

      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

      1
       The original encounter occurred after the defendant's son
broke into the victim's locked storage unit in the basement of
the apartment building. The defendant's son was arrested in
front of the apartment building and, at that point, the
defendant made various comments to the victim.
      2
       The defendant was found not guilty of additional counts of
violating a harassment prevention order and intimidating a
witness.
                                                                     3


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, 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 "under the case law you have to make a

better showing than that."   Defense counsel then added, "Just

looking at her [the juror's] experience, I don't feel that she

would be a person that would be fair and equitable to my client,

Your Honor," but "I really don't need any reason."    The judge

responded, "Well, you absolutely have to make a showing other

than I don't think the juror would be fair."    Finding that

defense counsel had failed to make any such showing, the judge




     3
       The record is silent concerning the specific race or
ethnicity of the "minority juror."
                                                                    4


struck the peremptory challenge, and instructed that juror no. 1

be reseated.

     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
                                                                   5


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 minority juror."   Thus, in these

circumstances, the judge could have found "a pattern of one."

Issa, supra at 8.

     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
                                                                     6


'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
                                                                    7


[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.

     As to the contention that defense counsel's explanation for

exercising the peremptory challenge was sufficient, we are

unpersuaded.   In response to the judge's inquiry, defense

counsel explained that "[j]ust looking at her experience, I

don't feel that she would be a person that would be fair and

equitable to my client, Your Honor."   Such a generic description

falls below the type of "bona fide" explanation that "must be

both adequate (i.e., clear and reasonably specific, personal to

the juror and not based on the juror's group affiliation) and

genuine (i.e., in fact the reason for the exercise of the

challenge)."   Prunty, supra at 309 (quotations omitted).    See,

e.g., Commonwealth v. Rodriguez, 431 Mass. 804, 808-809 (2000)

(after pattern of excluding female jurors was established,

defendant's subsequent attempt to challenge another female juror

was invalid because "not lik[ing] her looks" was insufficient

gender-neutral reason for peremptory challenge).
                                                                      8


     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 G. L. c. 234A, § 22.   The trial transcript also

makes clear that the judge and counsel were aware of the jury

questionnaires and the answers contained therein, as they served

as the basis for individualized questioning of prospective

jurors.   "The defendant has not indicated, nor does the record

suggest, that any of the jurors selected were not fair and

impartial."    Commonwealth v. Reavis, 465 Mass. 875, 890 (2013).

     Beyond the statutorily required questions, see G. L.

c. 234, § 28, and limited special circumstances identified in

such cases as Commonwealth v. Sanders, 383 Mass. 637, 640-641

     4
       Part 3 of the confidential juror questionnaire (2007)
asks, "Have you or anyone in your household or family ever had
any of the following experiences with the law . . . Been served
with a court order . . . [or] Sought a court order (restraining
order, stay-away order, injunction, etc.)?"
                                                                     9


(1981) (interracial rape); Commonwealth v. Flebotte, 417 Mass.

348, 355 (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.
                                                                  10


     In order to prove the defendant guilty of intimidation of a

witness in violation of G. L. c. 268, § 13B, the Commonwealth

was required to show that the defendant, either directly or

indirectly, made a wilful effort to intimidate or harass another

person who was a witness or potential witness at any stage of a

criminal investigation or proceeding.   See Hrycenko v.

Commonwealth, 459 Mass. 503, 507 (2011).

     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 technical analysis of the precise

words uttered[;] . . . the jury may consider the context in

which the allegedly threatening statement was made and all of

the surrounding circumstances."   Commonwealth v. Pagels, 69

Mass. App. Ct. 607, 613 (2007), quoting from Commonwealth v.
                                                                     11


Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980

(2001).

     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
                                                                   12


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.
