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SJC-11933

COMMONWEALTH vs. ANTHONY ROBERTSON.

Suffolk. February 9, 2018. - August 31, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.

Homicide. Robbery. Firearms. Cellular Telephone.

Identification. Jury and Jurors. Fair Trial.

Constitutional Law, Search and seizure, Jury, Fair trial, 

Fair trial. Search and Seizure, Warrant, Affidavit.

Practice, Criminal, Capital case, Motion to suppress, 

Warrant, Affidavit, Jury and jurors, Empanelment of jury, 

Challenge to jurors, Voir dire, Fair trial.

Indictments found and returned in the Superior Court 

Department on September 27, 2011.

A pretrial motion to suppress evidence was heard by Patrick 

F. Brady, J., and the cases were tried before him.

Elizabeth A. Billowitz for the defendant.

Kathryn E. Leary, Assistant District Attorney (David J. 

Fredette, Assistant District Attorney, also present) for the 

Commonwealth.

CYPHER, J. The defendant, Anthony Robertson, appeals from 

his convictions of murder in the first degree, armed robbery, 
2

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 (1986), and Commonwealth v. Soares, 377 

Mass. 461, cert. denied, 444 U.S. 881 (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 (1981), 

arguing that the jury instructions and the prosecutor's closing 

argument were erroneous and trial counsel was ineffective.1

Because the defendant's right to a fair trial as provided 

by Batson, supra, and Soares, supra, was violated, we vacate the 

 

1 "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 (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 (2012). We remind the Commonwealth that it is often 

difficult for defense counsel to coordinate filings with a 

client who is incarcerated.
3

verdicts and remand for a new trial. We address other claims of 

error that are likely to recur upon retrial.

Background.2 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 

 

2 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.
4

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."3 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.

 

3 The Commonwealth introduced testimony that the defendant's 

nicknames are "Ant," "Little Ant," and "Animal."
5

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 
6

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 (2015) (Augustine II), citing

Commonwealth v. Augustine, 467 Mass. 230, 254-255 (2014) 

(Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015). 

See Carpenter v. United States, 138 S. Ct. 2206, 2212, 2216-2217

(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 (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 (2000). 

We evaluate whether the affidavit underlying the warrant 

application satisfies the probable cause standard required by 
7

art. 14 de novo. Commonwealth v. Foster, 471 Mass. 236, 242 

(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 (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 (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 
8

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 (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 (2016), the search warrant affidavit stated that the 

defendant had been using his cell phone to argue with an 
9

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.

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

(2014), which prohibits such identifications.4 Collins, however, 

 

4 The defendant argues, in the alternative, that if we do 

not apply the holding of Commonwealth v. Collins, 470 Mass. 255, 

261-262 (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.
10

by its own terms, applies prospectively only to trials beginning 

after the issuance of that opinion. Id. at 265. 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 (2017). All current 

case law, including our holding in Collins, may apply to that 

consideration.

3. Voir dire questioning. The defendant, an AfricanAmerican 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 
11

Mass. 770, 777 (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, § 67.5 Id. We have held that such a risk exists 

as a matter of law in trials involving interracial murder, 

 

5 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.
12

interracial rape, and sexual offenses against children.

Commonwealth v. Lopes, 440 Mass. 731, 737 (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 (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 (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 
13

limitations on the use of peremptory challenges. See Batson, 

476 U.S. at 85-86 ("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 (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.6 First, the burden is on the objecting party 

 

6 Our three-step process mirrors the procedure in Batson v. 

Kentucky, 476 U.S. 79, 96 (1986). See Commonwealth v. Lopes, 

478 Mass. 593, 598 (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 (2017); 

Woods v. State, 2017 Ark. 273, at 1-2; People v. Parker, 2 Cal. 

5th 1184, 1211 (2017); People v. Beauvais, 2017 CO 34, ¶ 19; 
14

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 (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 

 

Sells v. State, 109 A.3d 568, 576 (Del. 2015); Johnson v. State,

302 Ga. 774, 779 (2018); State v. Daniels, 109 Haw. 1, 5-6 

(2005); State v. Foster, 152 Idaho 88, 91 (Ct. App. 2011); 

People v. Davis, 233 Ill. 2d 244, 261-262 (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 (2017); Roe v. Commonwealth, 493 S.W.3d 814, 826-827 (Ky. 

2015); State v. Crawford, 2014-2153, p. 27 (La. 11/16/16); 

Elliott v. State, 185 Md. App. 692, 712-713 (2009); Pellegrino

v. AMPCO Sys. Parking, 486 Mich. 330, 339 (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; State v. Wofford, 298 Neb. 412, 423-424 (2017); McCarty v. 

State, 371 P.3d 1002, 1007 (Nev. 2016); State v. Ouahman, 164 

N.H. 413, 415 (2012); State v. Thompson, 224 N.J. 324, 339 

(2016); State v. Salas, 2010-NMSC-028, ¶ 31; People v. 

Bridgeforth, 28 N.Y.3d 567, 571 (2016); State v. Waring, 364 

N.C. 443, 474-475 (2010); State v. Garnder, 2016 ND 161, ¶ 11; 

State v. Pickens, 2014-Ohio-5445, ¶ 63; Coddington v. State,

2006 OK CR 34, ¶ 11; State v. Longo, 341 Or. 580, 595-596 

(2006); Commonwealth v. Johnson, 635 Pa. 665, 706-707 (2016); 

State v. Porter, 179 A.3d 1218, 1224-1225 (R.I. 2018); State v. 

Scott, 2014 SD 36, ¶ 14; 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; State v. Yai Bol, 2011 

VT 99, ¶ 6; Lawlor v. Davis, 288 Va. 223, 230 (2014); Seattle v. 

Erickson, 188 Wash. 2d 721, 732 (2017); State v. Boyd, 238 W. 

Va. 420, 434 (2017); State v. Lamon, 2003 WI 78, ¶¶ 27-32; 

Roberts v. State, 2018 WY 23, ¶ 13. 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]").
15

for the challenge. Commonwealth v. Scott, 463 Mass. 561, 570 

(2012). Finally, the judge then evaluates whether the proffered 

reason is "adequate" and "genuine." Commonwealth v. Maldonado, 

439 Mass. 460, 464 (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. 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 (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 (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. See Commonwealth v. Lopes, 478 Mass. 593, 601 
16

(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 (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. 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.

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 
17

against all such individuals" (quotation and citation omitted).

Jones, 477 Mass. at 325.

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 ("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.7 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 

 

7 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.
18

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. See Snyder v. Louisiana, 552 U.S. 472, 

478 (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 
19

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 (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. 
20

422, 428 (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 (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, S.C., 418 Mass. 773 (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 (2015), when considering when a judge 

should instruct the jury about cross-racial identifications. We 

said, "Because differences in race based on facial appearance 
21

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.8 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.[9]

 

8 "[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.

9 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 
22

"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 AfricanAmerican. 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 

 

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 (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").
23

reasons.10 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."11

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 

 

10 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 (2003); Commonwealth v. Burnett, 418 Mass. 

769, 770-771 (1994); Commonwealth v. Soares, 377 Mass. 461, 490, 

cert. denied, 444 U.S. 881 (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 (1994); Commonwealth v. Matthews, 

31 Mass. App. Ct. 564, 569 (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, quoting Issa, 466 Mass. at 11

n.14.

11 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.
24

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 (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. 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.

So ordered.