Commonwealth v. John A. Fontes.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-829

COMMONWEALTH

vs.

JOHN A. FONTES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, John Fontes, was convicted of operating under the

influence of liquor. On appeal he claims that (1) the judge

abused his discretion in allowing the Commonwealth's peremptory

challenge of a person of color, and (2) the evidence at trial

was insufficient to prove impairment. We affirm.

Background. We summarize the facts the jury could have

found, in the light most favorable to the Commonwealth,

reserving certain details for our analysis of the issues raised

on appeal. On November 4, 2021, Sergeant William Patterson of

the East Bridgewater Police Department was "on patrol" on

Central Street in East Bridgewater. At approximately 9:21 P.M.,

while stopped at the intersection of Central and Washington

Streets, he saw a "white Ram pickup truck coming south that was
taking a right." The truck "turned right onto Central Street

and it crossed into the opposite lane of travel, and then it

corrected and crossed back in" to the correct lane of travel.

Having seen the truck cross over double yellow lines and drive

in the wrong lane, Sergeant Patterson activated his blue lights

and "pull[ed] the vehicle over." Sergeant Patterson spoke with

the operator of the truck, the defendant. Sergeant Patterson

smelled a moderate odor of alcohol emanating from the defendant,

and noticed that the defendant's eyes were red and glassy. The

defendant first denied drinking any alcohol, then said that "he

had a beer, and then he stated he had two beers."

At Sergeant Patterson's request, the defendant exited the

truck to perform field sobriety tests. As the defendant moved

to the rear of the truck, he "staggered," was "unsteady on his

feet," and walked "in a serpentine manner." Sergeant Patterson

asked the defendant to produce his driver's license, and, in

response, the defendant handed him a debit card. Sergeant

Patterson then "swapped back" the debit card and took the

defendant's license. After watching the defendant perform the

nine-step walk and turn test and the one-legged stand test,

Sergeant Patterson formed the opinion that the defendant was

intoxicated, placed him under arrest, and transported him to the

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police station.1 The ride from the place of arrest to the police

station was three to four minutes. As the police cruiser

arrived at the police station, the defendant "was nodding off."

The defendant testified at trial. He stated that he was

"emotional" on the date of the incident because his grandmother

had passed away, and he and his girlfriend were on "bad terms."

He also testified that he is "not a drinker" and consumed one

beer that day around 6:30 P.M. He acknowledged that he may have

"swerved" while driving and "did go partially into the other

lane" of travel, but denied driving on the wrong side of the

road.2 He disputed Sergeant Patterson's version of his

performance on the field sobriety tests, denied falling asleep

on the ride to the police station, denied feeling the effects of

the one beer he had consumed earlier, and stated that the

alcohol did not affect his ability to drive.3

1 A video depicting the defendant throughout the postarrest
booking process was played for the jury.

2 The defendant testified that he swerved because he "was
trying to hook [his] phone to the phone holder."

3 On November 10, 2023, the judge allowed the defendant's
assented-to motion under Mass. R. A. P. 8 (e), as appearing in
481 Mass. 1611 (2019), approving a stipulation as to the
contents of various sidebar discussions from trial that were
inaudible or partially audible on the trial recordings.
Additional facts gleaned from the stipulation are incorporated
into the discussion and analysis herein. We acknowledge the
efforts of counsel in this regard.

3
Discussion. 1. Peremptory challenge. Article 12 of the

Massachusetts Declaration of Rights prohibits the exercise of

peremptory challenges "to exclude members of discrete groups

solely on the basis of bias presumed to derive from that

individual's membership in the group." Commonwealth v. Oberle,

476 Mass. 539, 544 (2017), quoting Commonwealth v. Rodriguez,

431 Mass. 804, 807 (2000). "Peremptory challenges are presumed

to be proper, but that presumption may be rebutted on a showing

that (1) there is a pattern of excluding members of a discrete

grouping and (2) it is likely that individuals are being

excluded solely on the basis of their membership in that group."

Oberle, supra at 545. "Once . . . a pattern is found, the

burden shifts to the party exercising the challenge to provide a

'group-neutral' explanation for it." Id., quoting Commonwealth

v. Maldonado, 439 Mass. 460, 463 (2003). "The judge must then

determine whether the explanation is both 'adequate' and

'genuine.'" Oberle, supra, quoting Maldonado, supra at 464-465.

"[T]he critical point of focus for the trial judge as well as

the appellate court turns to the adequacy and genuineness of the

explanation proffered by the party seeking to exercise the

peremptory challenge." Oberle, supra at 546. See generally

Mass. G. Evid. § 1116 (2024).

In the present case, during jury empanelment the

Commonwealth exercised two peremptory challenges to which the

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defendant did not object.4 The empanelment process continued,

during which additional jurors were excused for cause and two

other jurors were excused on peremptory challenges by the

defendant. After the judge noted on the record that the defense

had exhausted its peremptory challenges, jury empanelment

continued, and the judge conducted voir dire of other

prospective jurors.

After the final juror had been seated, as empanelment

concluded, the defendant objected to the Commonwealth's earlier

peremptory challenge of juror 22, claiming that the juror was a

person of color and the only person of color in the jury venire.

The judge noted that the defense should have raised this

objection earlier. The judge also noted that he thought that

juror 22 was "Haitian." The judge then asked the Commonwealth

to explain the reason for challenging the juror. The

Commonwealth responded that "she was concerned about the juror's

response to the judge's question about whether or not he could

understand English and that, although his response was

affirmative, the Commonwealth was concerned about the juror's

demeanor or tone of voice, i.e., that it appeared ambivalent."

4 The defendant acknowledges in his brief that there was no
initial objection to the Commonwealth's peremptory challenge.

5
The judge found that the Commonwealth's explanation was both

adequate and genuine.

The following day of trial, the judge noted for the record

that the defendant's challenge of juror 22 was not timely

because defense counsel "waited till we replaced that juror and

three others. You need to make those challenges before they

exercise it so the Judge can put the brakes on it. So you

didn't do that till the end . . . . Once we've replaced the

juror and in fact, three others, it's too late." The judge

noted the defendant's objection and reiterated that he had

credited the Commonwealth's race-neutral explanation for the

challenge.

The defendant contends that the challenge to juror 22 was

timely because (1) it was "made before the jurors [were] sworn,"

see Mass. R. Crim. P. 20 (c) (2), 378 Mass. 891 (1979), and (2)

it comported with the judge's instructions on jury empanelment

wherein he stated, "[i]f you should object to any of the jurors,

you will do so after their names are called and before they are

sworn." We disagree.

As noted in the defendant's brief, "[t]o preserve the issue

of an improper peremptory challenge for appellate review, the

objection to the peremptory challenge must be made as soon as

the basis for the objection is apparent." Mass. G. Evid. § 1116

note. Here, there is no material dispute that the basis for the

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objection -- juror 22's status as a person of color -- was

apparent to the defendant at the time that the Commonwealth

exercised the peremptory challenge. That notwithstanding, the

defendant did not object. Indeed, no objection was made until

the judge had informed the defendant that he had exhausted his

peremptory challenges and jury selection had, in essence,

concluded. In these circumstances, the objection was not

timely. Accordingly, our review is limited to whether there was

error, and if so, whether the error created a substantial risk

of a miscarriage of justice.5 See Commonwealth v. Lacoy, 90

Mass. App. Ct. 427, 435 (2016).

The defendant contends that even assuming the objection was

untimely, the challenge of juror 22 constituted error that

created a substantial risk of a miscarriage of justice because

the race-neutral reasons proffered by the Commonwealth were not

adequate.6 Again, we disagree.7

5 We note that the defendant did not ask the judge for
additional peremptory challenges. See Commonwealth v. Berardi,
88 Mass. App. Ct. 466, 473 (2015).

6 The defendant does not challenge the judge's finding that
the peremptory challenge was "genuine."

7 Even assuming, arguendo, that the defendant's objection to
the peremptory challenge of juror 22 was timely, the outcome
would not change, as we discern no abuse of discretion in the
judge's determination that the basis for the challenge was
adequate.

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"An explanation is adequate if it is clear and reasonably

specific, personal to the juror and not based on the juror's

group affiliation (in this case race) . . . and related to the

particular case being tried" (citations and quotations omitted).

Maldonado, 439 Mass. at 464-465. Here, we cannot say that the

judge erred in determining that the prosecutor's race-neutral

reason for the challenge was adequate. Contrary to the

defendant's claim, this was not a case where the record shows

that the peremptory challenge was based solely on the juror's

demeanor. Rather, the record reflects concerns regarding juror

22's ability to understand English and related communication

issues, as reflected by the judge's questions to that juror

during empanelment. We are mindful that "the judge was in a

position to evaluate both the prosecutor and the juror's

demeanor" (citation omitted), Commonwealth v. Rosa-Roman, 485

Mass. 617, 638 (2020), and "[r]estraint, in the review of fact

finding, is fundamental to an appellate judge's role."

Commonwealth v. Kalila, 103 Mass. App. Ct. 582, 590 (2023). "We

grant deference to a judge's ruling on whether a permissible

ground for the peremptory challenge has been shown and will not

disturb it so long as it is supported by the record" (citation

and quotation omitted). Commonwealth v. Prunty, 462 Mass. 295,

304 (2012).

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2. Sufficiency of the evidence of impairment. The

defendant's argument regarding the lack of evidence of

impairment is likewise unavailing. In view of the evidence

adduced at trial, viewed in the light most favorable to the

Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), the judge properly denied the motions for a required

finding of not guilty and the defendant’s postconviction motion

pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass.

1502 (1995). This evidence included, but was not limited to,

the odor of alcohol from the defendant, his admission to

consuming alcoholic beverages, his red and glassy eyes, his

unsteadiness, and his performance on field sobriety tests. See

generally Commonwealth v. Jewett, 471 Mass. 624, 636 (2015);

9
Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393

(2017).

Judgment affirmed.

Order dated January 20, 2023,
denying postconviction
motion affirmed.

By the Court (Blake, Neyman &
Sacks, JJ.8),

Clerk

Entered: August 29, 2024.

8 The panelists are listed in order of seniority.

10