Announcer: SJC-11341 Commonwealth v. Garrett Jackson.
-: Thank you, Ms. O'Brien.
-: Thank you, your honor, may it please the court.
Mr. Jackson's first two arguments in his brief
concern the trial prosecutor's peremptory challenges
to two different jurors.
Defense counsel objected
based on Commonwealth versus Soares.
He objected on the basis that the challenges
were improperly directed to jurors of color.
I'll begin with the objection,
the peremptory challenge, rather, to juror 115.
The judge in the case described juror 115 as Hispanic.
He also described her as being neutral in color.
And at another point described her as being of color.
The judge questioned whether being of color
was a sufficient category for an objection
under Commonwealth versus Soares.
In any case, the judge found that no pattern had been shown
and he allowed the challenge.
I approached this in my opening brief
by looking at it as improper challenges to Hispanic jurors.
And I'd suggest that that's a strong argument
in and of itself.
This is a case where the judge recognized
that there were few jurors of color in the panel
to which juror 115 belonged.
There were three Hispanic jurors who had been challenged.
So certainly at that point,
there was reason for the judge to inquire
under the light burden that a defense counsel had to meet
in such a situation.
And you also had an additional strength to that argument
was the fact that the judge mistakenly believed
that Hispanic jurors were not a protected group
under Batson and Soares, which of course they are.
Then in response to it, the prosecutor's argument
that the of color objection wasn't sufficient
or didn't sufficiently describe or preserve
the objection, defense counsel's objection.
I went back and looked more closely,
trying to discern exactly what the judge understood
that objection to mean.
And the judge, actually,
even during the conversations regarding juror 115
the judge made it pretty clear that he understood
that what defense counsel was referring to
was not only black people but also Hispanic people
who could be black.
And as to the three jurors who were at issue
at that point in time, the judge expressed doubts.
He said he didn't know whether or not
any of the three were black.
He said, "We just can't know."
So he was expressing doubts.
And then when we get to juror 151, about 90 pages later,
the judge makes it even clear
that he understood what was meant
by the term of color.
He stated-
And of course, I wanna be sure to mention
that the judge is actually looking at the jurors
who are being challenged.
He's there looking at the jurors when there are objections.
So the two terms the judge uses to describe the people
he believes defense counsel to be referring to
are 'black or Hispanic, which could be black'.
And then further down on that same page,
page 151 of volume two,
he refers to people who are 'African American
or perhaps have African blood'.
So the judge understood-
-: Council, can I interrupt you for a minute here?
I understand with-
Whatever I think the judge was approaching this
was trying to fit, make sure he was staying
within the protected class categories
and trying to make sure he was dealing
with protected classes.
And there was some references to nonwhite jurors
and some people couldn't be properly categorized.
But putting all that aside
when the judge ultimately did come
to make a decision on this,
what factors was he permitted to look at?
-: Well, he was permitted to-
There are a number of factors.
Of course, the court has held
that there are quite a number of factors
that the court can look at.
But what he did look at and what he certainly knew
at the time that he disallowed this challenge,
I'm going to suggest that he knew at least three things.
First, he knew that by that point in time
the prosecutor had made challenges to one person
who was clearly black and three who in the judge's eyes,
he wasn't certain, but they could be black.
So the judge knew that first.
Second, he knew another consideration at the court
that trial judges had to take into consideration
on whether the challenges are that directed to persons
of the same race as the defendant.
And of course, the judge knew that the defendant,
in this case, Mr. Jackson is a black man.
And third, as the judge stated at,
I believe it's at page 150,
that he had noticed that there were
'a lesser amount than I normally see of people of color'
in that particular panel that juror 115 was a part of.
So there are at least those three factors
that the court has said should be considered.
If the judge knew of here-
I'm sorry, your honor.
-: I mean, there's a dispute between you and the prosecutor
about what the percentage of Hispanic-
I mean, we're focused on Hispanic, right?
You keep sort of merging color and Hispanic.
At this point, to be clear,
we're dealing with the challenge that she was improperly
this charge is an Hispanic juror, right?
That's where we're focused now on this juror.
-: Actually I'm asking the court
to focus on both, your honor.
The total of four and I addressed this in my reply brief.
So I'm certainly asking the court to consider the-
Because if defense counsel actually made the argument
that this was four out of six persons of color,
who had been challenged,
that was trial counsel's argument.
I did argue that it was three,
that it was three out of five
counting only the Hispanic jurors in my opening brief,
but then pointed out that the judge understood the objection
using the term of color to include the black juror
and the three Hispanic jurors who could be black.
-: Knowing you're sort of by coming things together,
aren't you making the same error
that we've counseled against?
Particularly this is, she's not a black Hispanic, right?
Or is she?
I'm confused in what we're analyzing?
Because my understanding,
having read your brief pretty carefully,
you're focused on the fact that she's Hispanic
and she shouldn't have been knocked off as a Hispanic.
-: I did focus on that,
and I'm certainly not asking the court
to disregard that argument,
which I'd suggest is a strong argument.
I'm after seeing-
-: On the Hispanic point,
there's a debate between you and Mr. Armstrong
about whether it's a comparison of 60% versus 50%
or 60% versus a smaller number.
-: Yes.
-: How do you get to the smaller number?
Why is Mr. Armstrong wrong on that point?
-: I believe what happened with Mr. Armstrong's calculation
is that he did not take into consideration
that the prosecutor had the opportunity,
had the first opportunity, in each case, to challenge.
So for each of the jurors who were not excused by the judge
the prosecutor had the first opportunity to challenge.
So that was what made the difference in the-
So the proportion that I came up with,
which was approximately 60%,
or more than 60% being challenged.
And the prosecutor came up with a calculation
that was approximately half of that by omitting the fact
that the trial prosecutor had the first,
in each instance, the trial prosecutor
had the first opportunity to challenge.
So what I was looking at
was the actual opportunity to challenge
versus actual challenges.
-: Okay, so putting the statistic aside.
So another factor we look at,
is the defendant or the victim Hispanic?
In this case neither the defendant or the victim
is Hispanic, right?
-: Neither was Hispanic, both were black.
-: Okay, and then there are,
the other factors, also,
two other Hispanic women have been seated, correct?
So it doesn't seem like any of the Lopez factors
or the other cases we talk about have-
We're not into the area of concern.
So isn't the judge right to find there's no pattern here?
-: No, the judge was wrong to find-
If the burden is light
and the court has repeatedly said that it is light.
The fact that there are three Hispanic jurors challenged.
The fact that the the judge has said
there were a few jurors of color
and he's clearly counting the Hispanic jurors
in that category as being of color.
The fact that there were a few there
that was enough for the judge to require inquiry.
And again, I do hope even though I did this
in response to the prosecutor's argument,
that the objection under the of color phrase
was not sufficient or was not clear enough.
I am asking the court not to disregard that
because the more I looked at it,
the more clear it became to me
that the judge knew exactly what defense counsel was saying.
And when you look at that, you have a black person
and three people who could be black
according to the judge's own statements,
a black person and three people who could be black
being challenged in a case where you have a black defendant.
And surely that was enough to make it necessary
that the judge inquire further.
Given the standard, again, which the court,
even as recently as Sanchez reiterated.
So I'll proceed to the second argument
unless there are more questions about that.
The second juror who was challenged,
according to the judge, was black.
She was Hispanic, but the judge stated that she was black.
At that point, the judge said
that there had been five challenges to jurors
who were black or could be black
under the phrasing that I quoted
just a couple of minutes ago.
14 jurors had been seated at that point,
so there were few additional opportunities
to seek persons of color, which obviously was a priority
to defense counsel in this case.
So the judge at that point,
and this is only with one more challenge in this category
of people of color.
The judge did say that he saw a pattern.
He actually saw this as a close call,
which I would suggest is remarkable.
But he did say that he thought it was a close call
but he did ask for an explanation.
And the prosecutor's explanation was to say
that the juror had both of her sons
arrested and prosecuted, he said.
The judge went on to allow the challenge
found that to be a sufficient reason to challenge the juror.
And the difficulty with that is that it's exaggerated.
The prosecutor found that-
I mean the judge found that reason
to be adequate and genuine, but it was neither,
it was de the adequate more genuine.
It was not adequate because it was exaggerated.
The judge specifically-
-: How is it exaggerated?
I don't understand the exaggeration.
-: The judge specifically asked this juror
if her sons had been prosecuted and she said,
"No, they had not, the charges had been thrown out."
Neither of these sons had been prosecuted
as the prosecutor claimed.
They had been arrested, the younger son
for being in a stolen car,
the older son for having some marijuana.
-: And this is the juror who also was related
through her mother to one of the detectives.
-: She was related to Detective Thornton
who she stated she did not know.
And the judge actually disregarded that reasoning.
And I'd ask you to actually look at the test-
-: I don't understand
when you say he disregarded that reading,
what do you mean?
-: The judge made extensive findings,
If you look at this,
the judge did not immediately make his findings
regarding the validity of the challenge.
The judge waited until he had examined another juror,
the judge waited until after the lunch had finished.
Then he came back on and said,
"Well, I better elaborate on my reasons for allowing that."
And he never mentioned the-
He only mentioned this exaggerated reason
that the juror's sons
had supposedly been arrested and prosecuted
which was absolutely not true, not adequate or genuine.
He didn't say anything about the knowledge of judge
or rather of detective Thornton.
And I'd suggest there's good reason for that.
First, the juror said, she barely knew Thornton.
The prosecutor was saying, at that time,
that he didn't even know
whether he was going to call Thornton.
And Thornton, if you look at his testimony,
you can see why the prosecutor would be uncertain
because there was nothing critical
about Detective Thornton's testimony.
The case did not depend, in any way,
on Detective Thornton's testimony.
He testified that he was at the scene,
he described the scene.
There were any number of other detectives
who could have provided that information.
He said that he was there for the interview of Judy Brown,
but no information about what she said.
I think that it would even be reasonable
to question why he was even called.
Was it possibly to justify this
or to back up this peremptory challenge
of the black juror, juror number 13.
So I'd ask if there are further questions regarding that.
Hon Cypher: No.
-: I'll proceed then to the third argument
this is regarding the gruesome photograph
that was introduced into evidence.
And I certainly think I have to acknowledge
that there was a question here
whether this was adequately preserved by an objection.
It was a bit of a wishy washy objection there.
And there was no objection
when the evidence actually came in.
However, even if this is looked at
under the substantial likelihood standard,
under the substantial likelihood
of a miscarriage of justice standard.
Nevertheless, there should be a new trial
based on this error.
The court has very clearly stated in the Bastorash case
that photographs of a victim's body
taken after it has been altered at autopsy
should not be offered unless they are relevant,
should not be admitted unless they are relevant.
There was no relevance
to this extraordinarily gruesome photograph,
which frankly, I could hardly look at myself.
I considered whether to include the colored version,
which I actually couldn't bring myself to do,
it was horrific enough.
-: It's clearly relevant, right?
Because it shows the trajectory of the bullet
which was an issue raised by the defense, right?
Maybe unduly prejudicial, but it's clearly relevant, right?
-: It's not relevant,
there was no contested issue about the trajectory.
Both sides agreed that the victim was shot
in the back of the head
and the bullet came out the front of his head
through the eye.
There was no contest about that issue whatsoever,
your honor.
And as you're considering that,
it was absolutely uncontested.
And as you're considering that-
-: Defense counsel didn't focus at all on the trajectory
and what did it signified?
Nothing?
-: He had a question about the trajectory
but, your honor, it was not relevant to anything.
-: So the defense counsel was asking irrelevant questions?
I'm confused.
-: He asked an irrelevant question.
He actually asked a very few questions
of the medical examiner.
But he did throw in a question.
Maybe if someone suggested some relevance to me
maybe the prosecutor can suggest what the relevance was.
I saw no relevance at all.
So under the substantial likelihood,
I'd ask the court to consider the strength of this case,
where there was no evidence, no physical evidence
to connect the defendant to the scene.
There was heavy reliance on the four civilian witnesses
who were all, not only addicts,
not only crack cocaine addicts,
but were deep in the throws
of their crack cocaine addiction.
At the time that they either heard the statements,
they said they heard
or saw the defendant at or near the scene.
And in addition to that, three of them said,
or two of them spoke to each other
shortly after the shooting.
Ms. Ross said, she spoke to Ms. Brown
very shortly after the shooting about what Ms. Brown saw.
Ms. Brown said, she spoke to Ms. Raspice about what she saw,
and yet neither one of them came forward
and pointed the finger at Mr. Jackson in any way for months.
So I'd ask the court to consider that
in determining whether there's a substantial likelihood
of a miscarriage of justice here.
-: Thank you Ms. O'Brien.
-: Thank you, your honors.
-: Mr. Armstrong.
-: Good morning, your honors, may it please the court.
Houston Armstrong, on behalf of the Commonwealth.
I would like to acknowledge members of the victim's family
who were watching this argument remotely
as well as the trial prosecutors,
Edmund Zyban and Elizabeth Martino.
I would also like this court to take note
of the extraordinarily long time
it has taken this appeal to be heard.
The defendant's appeal was entered in this court
on November 3rd, 2012.
Now nine years, nine months and 16 days later,
and five appellate attorneys have passed
that the defendant's case is now just being argued.
This is unfair for the family
and is forcing them to relive some of their darkest days,
now 10 years later.
This court should affirm the defendant's conviction
for first degree murder and decline to grant relief
under 33e for the execution style killing
of Tommy Speed on February 11th, 2009,
because there was nothing in the record,
which cast any doubt
on the validity of the defendant's convictions.
The facts of this case showed that the defendant
acted with a plan to eliminate his competition
in his neighborhood.
He acted with malice in his heart and a gun in his hand.
He carried out the assassination on Tommy Speed-
-: Mr. Armstrong, can we focus on the jury issues?
-: Certainly.
So turning to the first juror issue, juror 115,
the trial judge did not abuse his discretion
in declining to find a pattern
because he, as was discussed earlier in my sister's argument
explicitly discussed a number of the Lopez factors.
And in addition, there were a number of factors
that were readily apparent to him.
So specifically, he spoke about the challenges
that the Commonwealth had exercised.
He spoke about the composition of the seated jury.
The race of the victim and the defendant
were readily apparent to him.
And there was also an objective group neutral explanation
that was readily apparent to him as well.
And he didn't overly focus on one of those factors
and by doing that, he did not abuse his discretion
in declining to find a pattern.
And as an initial matter, I would also point out
that the defendant's objection, at the time,
being a person of color is an issue
that's previously been raised and found by this court
to not be a proper objection.
And that specifically, in the Lopez case,
which was from 2018,
and even though that is seven years after this present trial
the Lopez case is citing back to Soares.
And the language of Soares is specifically talking
about particularly defined groups in the community.
So never has this court held that persons of color
is a sufficient objection.
It always has to be targeted towards a specific group.
So that's to my first point in my brief that-
-: Mr. Armstrong could you address
this statistical disparity issue?
Because you've got a 50% number
and your sister has a different number
and I had trouble following that difference.
-: Sure.
So, my calculations first
are the challenge of Hispanic jurors
and that the Commonwealth challenged three Hispanic jurors
which includes this juror, juror 115.
And then the two other jurors who were not challenged
were seated.
So three out of five is 60%.
So there's the Commonwealth challenged Hispanic jurors
at a 60% rate.
My comparison number is based on non-Hispanic jurors.
And the reason I use non-Hispanic jurors
I was going off of this court's decision in Jones
where it acknowledges comparing
African-American potential jurors
to non-African-American jurors.
So my calculation comes from
when you subtract the five Hispanic jurors
from the number of Commonwealth challenges
to the number of seated jurors, there's 22 jurors remaining.
Of those 22 jurors, the Commonwealth struck 11 of them,
which is a 50% strike rate for non-Hispanic jurors.
Hon. Kafker: Thank you.
And while the numbers in some case can demonstrate a pattern
or establish the defendant's burden of a prima facie showing
that's not the case here.
These numbers are very, very close
and show that the Commonwealth wasn't challenging Hispanics
at an overly high rate.
-: Out of the second juror,
I don't know if Justice Cypher
has questions of the first juror.
On the second juror,
the prosecutor focuses in on three different things
or at least three different things
and the judge then says those are adequate and genuine.
But then he decides to make further, more specific findings
that don't reference the detective being his cousin.
Is that fair game for us as a reason or not,
given the judge doesn't bring it up the second time?
-: You're referencing the prosecutor's third reason.
-: Being the cousin,
that the detective is the cousin of-
-: The potential juror? -: Yeah.
-: So, my first response is yes,
you consider all three of the prosecutor's proffered reasons
because at the judge's initial response, he says,
"I find all of these reasons to be adequate and genuine."
And just because he comes back after the lunch recess
and expands on one of those potential reasons
doesn't detract from the other ones.
And even considering when the further explanation,
he doesn't address the age of the potential juror's sons
being close in age to the defendant
or the family relationship.
Those do not detract from the adequacy and genuineness
of the prosecutor's reasons,
or even more, it doesn't detract
from the judge's earlier statement saying,
"I find all of those reasons to be adequate and genuine."
-: The issue of the children's prior encounters with the law
is there a consistency of treatment of others
by the prosecution on that point?
-: Yes, your honor.
And that goes to my initial point for juror 115
about being an objective group, neutral reason
for the strike of juror 115.
Prior to juror 115, there were five peremptory challenges
for potential jurors who had involvement
with the criminal justice system
specifically that's juror number 26, juror number 38
juror number 42, juror number 51 and juror number 55.
And then by the time we get to juror number 13,
that would be six potential jurors
because juror number 115 had pled guilty
to disturbing the peace out of the Dorchester division
of the Boston Municipal Court
and received a one year probationary sentence.
So that-
-: Were there any people with prior experience
that weren't objected to?
-: Who were sat on the jury? -: Yeah.
-: Not to my recollection, your honor.
And I double checked that, but I did not find,
not to my recollection, no.
-: And although not raised in this brief,
we've got to do 33 year review.
There's this whole issue with juror number 35,
was that person who was a former drug enforcement officer,
was he seated?
-: He was, your honor.
He was the final seat, seat number 16.
-: So, and I guess the defense is out of peremptories
at that point, is that right?
I can't remember, is that's why-
-: That's correct, your honor.
-: All right, thank you.
That's all I had on that.
-: And I'm not remembering specifically, your honor
But I actually believe juror number 35
did not take part in the deliberations.
-: Oh he did not?
Okay.
-: That's my recollection, your honor
but I can't point you to a specific spot where that is.
Hon. Kafker: Okay.
-: So if there's no further questions
in regards to juror number 13,
I'll move on briefly to the the autopsy photograph.
And this photograph was properly admitted
and the trial judge did not abuse his discretion
in allowing it in.
First off, this photograph was not objected to
by the defense attorney.
The defense attorney,
he did have a reaction when he saw the picture
but he did not object to it at the sidebar,
nor did he object to it coming in.
So this court should review for whether that photograph
created a substantial likelihood
of a miscarriage of justice.
Any potential prejudice from this photograph
was diminished by the judge's limiting instructions
before the photograph was admitted
before the medical examiner testified
and during his final charge for the jury not to be swayed.
-: Could we talk about what the relevance of it was though?
-: Yes, your honor.
So the relevance was the trajectory of the bullet.
-: Was that in dispute?
-: It was in dispute when the defense attorney
was questioning Sergeant Detective Daley
who testified before the medical examiner
and the defense attorney was questioning him
about a ricochet mark on the wall
and what could have happened to the bullet.
And in questioning Sergeant Detective Daley,
the defense attorney specifically asked
"Do you know what the trajectory of the bullet was?"
To which Sergeant Detective Daley said
"No, I'm not.
"I know generally, but I don't know specifically."
So this picture with the probe in it
went directly to that point to show the trajectory.
And even more than that-
-: I'm confused, who was the defense counsel?
They were worried about that the bullet was deformed.
I read the question, I'm just not sure what the-
What were they getting at with that?
-: I don't know, your honor.
Whether the bullet was deformed going through the skull
or the ricochet, I'm not sure.
But it was still a question
brought up before the medical examiner
and then was able to be clarified
through the medical examiner
and the prosecutor even said it sidebar.
And he explained
why he was using the photograph with the probe
versus the photograph of the entrance and the exit wounds.
So that the probe was less gruesome
than the alternative photos, which the trial judge agreed
and was not objected to.
And turning to the next issue
about whether or not Officer Diaz
was properly allowed to testify.
This was pure impeachment testimony
that only came in for that limited purpose.
This Officer Diaz overheard the conversations
by Patricia Ross and what she was saying
about changing her testimony.
And this was particularly relevant
to determine Patricia Ross' testimony
because she was trying to ingratiate herself
with the defendant throughout her entire testimony.
So by being able to explain what he heard
in that conversation,
it was important for the jury to hear that
to judge their credibility.
And it was not error to admit his testimony.
And lastly, the trial judge's decision
not to voir dire Patricia Ross
was not an abusive discretion.
The defense attorney made no proffer
as to what relevance a voir dire would bring.
This witness had already testified
and really did not have much more to add.
So his denial of that request
was not an abuse of discretion.
And finally, this court should decline
to exercise its powers under 33e
because of the facts presented to the jury
do not raise any issues or any substantial likelihood
of a miscarriage of justice.
If there's no further questions-
-: I have one, do you wanna,
given the sort of tense relationship
between defense counsel and the judge.
Do you have anything to say
about why that didn't impact the conduct of the trial
or this request to meeting all the transcripts on that?
-: Well, I would largely rely on the transcripts
because not withstanding the defense attorney's reaction
to this seating of juror number 35 on the second day
in his speech to the judge, if you will.
Nowhere else in the transcript
does the defense attorney reference that incident
or reference that he's unable to concentrate on the trial,
or he's unable to perform his duties.
And at the point where we're at now,
if you're to look at that
without any affidavits from trial counsel
or any evidentiary hearing in the lower court
there's really not much to be made of that,
so I would rely on the transcripts.
And he was not held in contempt
until after the trial, right?
He was held in contempt during the trial,
sentencing was held over until after.
And there was no indication what the sentence would be
prior to that?
-: No, your honor, that's correct.
There was no discussion about that until after the trial.
Hon. Kafker: Okay, thank you.
-: And if there's no further questions
Commonwealth will rest on its brief.
-: Thank you Mr. Armstrong, thank you council.
-: Thank you. -: Thank you your honors.