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Large Capacity Magazines; Exceptions: On November 8th of this year, California’s voters passed Proposition 63 which, among some other ludicrous provisions, includes making the simple possession of large capacity magazines (i.e., holding over 10 rounds) illegal (misdemeanor/infraction), effective as of July 1, 2017. (See P.C. § 32310(c).) There are a number of exceptions, however. Two of the exceptions that may be of interest to you are that this prohibition does not apply to you if you are a current, or an honorably retired, state or federal peace officer. (See P.C. §§ 32405 (amended) and 32406 (new), respectively.) Another exception is if you’ve already fled California and now live in the Great State of South Dakota (or elsewhere) where the 2nd Amendment, as interpreted by the United States Supreme Court, continues to be respected, and the “right to bear arms” actually means something and is not just a “well regulated” exception. . . . Just saying.
Rule: The impoundment of a vehicle is limited by the dictates of the Community Caretaking Doctrine and a police department’s policies implementing the Doctrine. Searching of an impounded vehicle as a part of an inventory search must be in accordance with a police department’s policies, and for purposes of inventorying its contents as opposed to a general rummaging around for evidence of criminal activity.
Facts: Las Vegas Metropolitan Police Department (LVMPD) Officers, responding to a possible domestic violence incident occurring in a particularly described vehicle, found the vehicle in the parking structure for a private apartment complex in the City of Las Vegas. The vehicle—a Saturn Vue—was found near a red zone; i.e. a designated no-parking-or-stopping area, backed up toward the curb with other vehicles parked in stalls perpendicular to it on both sides. Defendant was the driver while a woman, identified as Cara Young, was in the passenger seat. Officer Jason Evans assisted by Officer Joseph Donaldson approached the driver’s side of the car and immediately smelled the odor of alcohol on defendant’s breath. Officer Evans had defendant get out of his vehicle and submit to a short field sobriety test on which defendant did poorly. Defendant was arrested for DUI. A records check resulted in the discovery that defendant was a convicted felon. Cara Young claimed that the Vue was her car although its registration, which was out of California, had expired. LVMPD’s computers didn’t show any ownership information. Young didn’t have a valid driver’s license. So it was decided that the car would be impounded. During a detailed and methodical inventory search, following the check-off requirements of a departmental “Vehicle Impound Report,” Officers Evans and Donaldson looked into, among other areas, the engine compartment. Unlatching the lid of the engine’s air filter compartment, Officer Donaldson discovered a Sig Sauer P229 semi-automatic pistol and a holster. It was discovered later that the gun was stolen in a burglary that had occurred earlier that day. Charged in federal court with being a felon in possession of a firearm (per 18 U.S.C. § 922(g)(1)), defendant filed a motion to suppress. At this motion, both Officers Evans and Donaldson testified that they always include the air filter compartment in an inventory search because they know from their training and experience that people often hide weapons and contraband in the engine compartment. Defendant’s motion was denied. He therefore plead guilty and was sentenced to seven years and eight months in prison. Defendant appealed.
Note: It is important that law enforcement officers be familiar with their own department’s policies on the impounding of vehicles and inventorying of its contents, and then follow them. Their actions in this regard must be in compliance with such policies to be lawful. Officers must also be ready to testify to their department’s policies and show how they attempted to comply with them. Reading the summary of Officers Evans and Donaldson’s testimony in this case, it appears that a more astute defense attorney might have been able to get them to admit that they were doing a general rummaging around for evidence of criminal activity, as opposed to being concerned with complying with their department written policies relative to safeguarding the contents of the vehicle. Had a court found that the officers were so motivated, the result might have been different.
Rule: An evidentiary hearing in a motion to suppress, when the challenged evidence is the product of a search warrant, will not be granted absent something more than mere bare allegations that material information was left out of a warrant affidavit.
Facts: On April 29, 2000, defendant and 15 other members of the Barrio Pobre criminal street gang were drinking outside an abandoned house in Compton when someone in a car that had just pulled up yelled at them, suggesting profanely that the “BP” gangsters should have sexual relations with themselves. The person in the car then started shooting. No one was hit. Figuring that the shooting was instigated by the rival East Side Paramount gang, defendant and several others decided to retaliate. Arming himself with an AR-15 assault rifle, defendant led several others, including Miguel Camacho, to Lime Street in Long Beach where they knew that Vincent Ramirez, aka “Toro,” a leader in the East Side Paramount gang, was throwing himself a birthday party. They intended to knock on Toro’s front door and kill him when he answered. Upon stopping down the street from Toro’s house, defendant got out of the car with his AR-15. He saw Camacho, who had come in a different car, walking on the sidewalk across the street in the direction of Toro’s house. Defendant was about to join Camacho when he saw a police unmarked car, made distinctive by the spotlights mounted on the sides, coming down Lime Avenue towards them. Defendant could see two police officers in the car, and noted that they were looking at Camacho. Defendant knew Camacho was on parole and was violating the terms of his parole because he was armed with a .45-caliber handgun. To “save” Camacho from “going to jail,” defendant opened fire on the unsuspecting officers in the police car. Twenty-eight rounds later, seventeen of which hit the car, Long Beach Police Detective Daryle Black was mortally wounded with a gunshot to the head. Detective Rick Delfin was hit in the head and knee, but survived. A resident on Line Street, Maria Cervantes. was also wounded by stray bullets while lying on her bed in her home, hitting her in the leg and abdomen. Although she was about eight months pregnant, miraculously, her unborn child was not injured. Defendant fled the area. Camacho also ran, but was found within 20 minutes hiding in the courtyard of a nearby house. Camacho first claimed he had been chased by a group of Black males, telling the officers they could “[c]heck with Detective Delfin” who would vouch for his credibility. When told that Detective Delfin was one of the officers who had been shot, Camacho “broke down in tears” and told the officers that “a fellow member of the Compton Barrio Pobre gang, named Ramon Sandoval,” was the shooter. Camacho identified defendant from a photo lineup and led officers to his house. After confirming that defendant lived at that residence, a search warrant was obtained. Upon execution of the warrant, defendant was arrested and the AR-15 was recovered. Defendant, when interviewed, confessed. He was subsequently charged in state court with murder, with special circumstances, and attempted murder. Among other allegations, it was alleged that the offenses were committed for the benefit of a street gang. Defendant’s motion to suppress, alleging an invalid search warrant, was denied. Convicted and sentenced to death, defendant’s appeal to the California Supreme Court was automatic.
Held: The California Supreme Court unanimously affirmed (except to strike a “lying in wait” special circumstance; not relevant to the issues discussed here). On appeal, defendant argued that the trial court had erroneously denied his challenge to the search warrant for his house. More specifically, he complained that the trial court had denied him a “Franks” hearing, pursuant to Franks v. Delaware (1978) 438 U.S. 154. Defendant’s argument was based upon the theory that there were material omissions in the search warrant affidavit which if the magistrate who signed off on the warrant had known about, he would not have found probable cause. Pursuant to Franks, defendant argued, he should have been allowed an evidentiary hearing on this issue. The first alleged omission was that the affidavit did not reveal that Camacho (whose statements to police were used as a large part of the probable cause in support of the warrant) was a notorious gang member who was suspected of committing two other homicides. Secondly, the affidavit did not reveal that the day before this warrant was obtained, another Long Beach police officer had obtained a warrant for a different address and a different suspect on a whole different theory; i.e., that Crip gang members in Long Beach had killed Detective Black in retaliation for the April 28, 2000 killing by a cop of Crip gang member. The rule is that because search warrants, once issued, are presumed to be valid, the defense has the burden of proof in challenging the probable cause in a warrant. To meet this burden, defendant here alleged that the above information should have been told to the issuing magistrate, asking for the right to cross-examine the affiant in an evidentiary hearing in order to prove this theory. To mandate an evidentiary hearing, however, it takes more than mere bare allegations that there were falsehoods in the affidavit, or, as in this case, that material information was left out. Per the Franks decision, “(T)he challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. . . . [A]nd if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.” The same procedural rule applies to when it is alleged that material information was left out of the affidavit. However, while every falsehood included in a warrant makes an affidavit inaccurate, not all omissions do so. An affidavit need not disclose every imaginable fact however irrelevant. It need only furnish the magistrate with information, favorable and adverse, sufficient to permit a reasonable, common sense determination whether circumstances justifying a search are probably present. An affiant’s duty of disclosure extends only to “material” or “relevant” adverse facts. Facts are “material,” and hence must be disclosed, if their omission would make the affidavit substantially misleading. The trial court in this case held that defendant was not entitled to an evidentiary hearing because he made only conclusory allegations that admittedly were based upon assumptions. The Supreme Court agreed, ruling that defendant demonstrated no “more than a mere desire to cross-examine.” Also, no evidentiary hearing would have been required even if defendant had supported his claims with affidavits or sworn statements because the information that he asserts was deliberately omitted from the affidavit was not material. I.e., its absence did not “make the affidavit substantially misleading.” Camacho, for instance, was suspected at the time of being no more than a witness as opposed to a suspect. It wasn’t until after defendant’s arrest and confession, implicating Camacho, that it was known that he was actually a co-principal in the planned homicide of another person (i.e., “Toro”). Also, the affidavit already contained information as to Camacho’s criminal history, and that he was not an innocent citizen informant. The fact that he was on CYA parole, that he had been arrested for a parole violation, that there was a warrant out for his arrest, that he had a conviction for assault with a deadly weapon, and that he was a gang-banger, was all in the affidavit. So the magistrate already knew that he had a criminal history. Whether or not any other information would have affected the magistrate’s decision was held to be “highly questionable.” The Court similarly ruled as irrelevant the fact that another officer had earlier obtained a warrant from a different judge under a different theory of the crime. The police are expected to follow up on all leads, many of which go nowhere. Whether or not there was probable cause to support a different theory is irrelevant to the issue of whether there was probable cause implicating defendant as well. Based upon this, the Court held that the trial court was correct in ruling that defendant was not entitled to a Franks hearing, and in denying his motion to suppress.
Note: Such a motion is commonly called a “motion to traverse.” It is one where the defense goes behind the face of the warrant as it is written and tries to prove that there were material misstatements or omissions. A “motion to quash” (not “squash;” don’t embarrass yourself), on the other hand, is one where the defendant challenges the sufficiency of the probable cause as the warrant is written; i.e., “on the face of the warrant.” Given the presumed validity of searches conducted pursuant to warrants, motions to traverse are a real uphill battle for any defense attorney. They can’t just allege errors in the warrant to be granted an evidentiary hearing. They must offer some actual proof, typically via sworn affidavits. This is why the safe rule for cops is; when in doubt, and there’s time, get a warrant. The likelihood of the prosecution coming out ahead in a motion to suppress is increased ten-fold when you have a warrant.
Rule: (1) A person in lawful possession of a vehicle, even if only borrowed, has an expectation of privacy in that vehicle and standing to challenge its warrantless search. The vehicle being in close proximity to an apartment that is being searched with a search warrant, but not on the property, is not subject to search unless specifically listed in the warrant. (2) An individual parked at the side of, and in a dimly lighted area, next to a business at night, even with knowledge that thieves commonly do the same, is not sufficiently suspicious to justify a detention of that individual.
Facts: On March 30, 1989, Alvaro Lopez and Guadalupe Sanchez were at defendant’s home in Visalia where defendant asked Lopez to obtain three ounces of cocaine for him, for resale. Sanchez procured the cocaine before the three of them, plus another friend of the defendant, Ruben Contreras, drove to the prospective buyer’s home. Sanchez was driving. Lopez was in the front passenger seat. Defendant sat behind Sanchez and Contreras sat behind Lopez. Defendant went into the buyer’s home, only to return minutes later telling the group that the buyer had visitors and that he would meet them up the road to conclude the transaction. So Sanchez drove them all a short distance away, pulled over, and parked at the side of the road. Defendant suddenly put a gun to Sanchez’s head as Contreras put a knife to Lopez’s neck. Defendant ordered Sanchez to give him the cocaine. Defendant then shot Sanchez in the back of the head, killing him instantly. Lopez was shot in the left arm as he bailed out of the car. Defendant shot at him again as he ran across the road. Somewhere in there, Contreras got a few stabs in. Defendant and Contreras fled in the victims’ car leaving Lopez with 17 knife and gunshot wounds, several of them life threatening. A motorist picked Lopez up and took him to the hospital where he remained for several weeks, but survived. Identifying defendant as the shooter, defendant was later arrested and charged in state court with first degree murder (P.C. § 187) with a “lying-in-wait” special circumstance (P.C. § 190.1(a)(15)), and attempted murder (P.C. §§ 664/187). Defendant was convicted and the special circumstance was found to be true. At the penalty phase of the trial, the People offered into evidence some P.C. § 190.3, “factor (b)” aggravating circumstance evidence. “Factor (b)” allows the trier of fact during the penalty phase of a capital murder case to consider evidence of “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” In this case, the People had a pile of aggravating circumstances related to prior events that they introduced into evidence. Defendant filed pre-penalty phase motions to exclude two of these factor (b) aggravating circumstances, both related to the illegal possession of firearms. The trial court denied both motions, allowing the jury to hear the evidence. The jury found that death was the appropriate punishment. An appeal to the California Supreme Court was automatic.
Held: The California Supreme Court unanimously affirmed defendant’s conviction and sentence. But in so doing, the Court held that the trial court erred in not suppressing evidence of the two factor (b) incidents contested by defendant. (1) The Strawberry Street Incident: The first involved the execution of a search warrant at an apartment on Strawberry Street in Visalia on February 19, 1987. Defendant happened to be present although he was not mentioned in the warrant, nor was his black 1974 Monte Carlo which was parked on the street in front of the apartment building. But being present, defendant was detained and searched. The searching officer recovered car keys from his pocket. Discovering that the keys fit the Monte Carlo, the officer searched it and recovered a small .45-caliber derringer from under the driver’s seat. Although the officer had previously seen defendant in the Monte Carlo, he had never seen him driving it. Asked whether he owned “any vehicles,” defendant replied that he did not. He also specifically denied that the Monte Carlo belonged to him. The trial court ruled that defendant lacked standing to contest the search of the Monte Carlo due to his claim that he didn’t own it. The defendant argued that this evidence should have been excluded as factor (b) evidence in this capital case. The Supreme Court agreed with defendant, ruling that the trial court had erred, and that defendant did indeed have standing to challenge the search of the car. “[C]apacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” “A legitimate expectation of privacy in a vehicle requires a showing of a property or possessory interest therein.” At defendant’s trial, the prosecution argued that because defendant disclaimed ownership in the car, he lacked the necessary standing to challenge the search. The Supreme Court held here that that was wrong. Defendant was never asked, and never claimed, that he might not have simply “borrowed” the car, and was using it with the owner’s permission. He only denied ownership of it. Per case law, a person in lawful possession of a car, even if only borrowed, has an expectation of privacy in that vehicle. As to whether the search of the Monte Carlo was lawful as within the scope of the warrant, the Attorney General conceded that the Monte Carlo was not on the property of the apartment that was subject to being searched under authority of the warrant. The Court rejected the A.G.’s alternate argument that given its close proximity to the apartment that was searched, and defendant’s statement that the vehicle was not his, showing a “lack of candor,” it was reasonable for the officers to enter the vehicle to determine if it was associated with the residence. The Court ruled that defendant’s truthful statement that the Monte Carlo did not belong to him cannot reasonably be equated to a lack of candor justifying a warrantless search. And the A.G. cited no authority for the proposition that a vehicle’s mere proximity to a place designated in a search warrant justifies a search of a vehicle not otherwise listed in the warrant. The Court therefore concluded that the trial court erred in denying defendant’s motion to exclude the evidence of the gun found in the Monte Carlo. It should not have been available to the prosecution to use as factor (b) evidence in the current capital case. (2) The Circle K Convenience Store Incident: The second incident that the prosecution introduced as factor (b) evidence involved a contact he had with a Visalia police officer at a Circle K convenience store on March 16, 1989. In this case, the officer observed defendant parked in a van late in the evening at the side of the store, in a poorly lit area that lacked any demarcated parking spots. The officer was aware of thefts from the store where subjects would exit to the side of the store and leave in vehicles. So he stopped to investigate the vehicle and its occupants, believing a robbery might be in progress. Defendant was found to be the sole occupant in the van. He had no identification, but gave the officer documentation for the van which he claimed belonged to a friend’s uncle. After the officer was unable to confirm defendant’s identity using the name he had given, he asked for, and received, defendant’s consent to search the van. About that same time, however, before the van could be searched, defendant’s companion returned from the Circle K carrying a bag. That person was questioned and checked through a database. A second officer who had arrived on the scene asked store personnel whether defendant’s companion had stolen anything, and apparently was told nothing had been taken. Because defendant had no identification and the van was registered to someone else, the officer felt that a patdown for weapons was called for. This resulted in the recovery of a $1,464 wad of bills. A search of the van, based upon defendant’s earlier consent, resulted in the recovery of a gun, found on the floorboard to the right side of the driver’s seat. The trial court ruled (1) that defendant had been detained, but that the detention was supported by a reasonable suspicion of criminal activity, (2) that taking the money out of defendant’s pocket during the patdown without cause to believe it was a weapon was illegal, thus suppressing the money, and (3) that the recovery of the gun from the van, based upon defendant’s consent to search, was lawful. The Supreme Court, here, however, ruled that defendant had been illegally detained. Noting that the Fourth Amendment protects against unreasonable searches and seizures, and that a detention is reasonable only if based upon a reasonable, articulable suspicion that the person detained may be involved in criminal activity, the Court held here that the mere fact that the officer was aware of prior thefts from the Circle K with a potential getaway vehicle parked in the shadows at the side of the building, was not sufficient to justify defendant’s detention. “Defendant’s mere presence in a car legally parked on the less illuminated side of the convenience store, in an area without demarcated parking spaces at a time when other parking is available, did not justify his detention.” Everything else, including the recovery of the gun, was the product of that illegal detention and should have been suppressed. Therefore, it was improper to have used this case as factor (b) evidence. However, with all the other evidence of defendant’s guilt, including an “abundan(ce)” of other factor (b) aggravating evidence, the Court found the admission of these two incidents was harmless error. Defendant’s sentence of death, therefore, was upheld.
Note: What’s interesting about this case is the fact that previously adjudicated search and seizure issues, from old “factor (b)” incidents, can be relitigated in a new case. I’m not sure I’ve seen that done before. Also, the Attorney General in this appeal made the interesting argument that the exclusionary rule should not apply to the penalty phase of a capital trial when the prosecution is attempting to introduce section 190.3, factor (b) evidence. Specifically, the A.G. argued that the exclusionary rule has little deterrent value at the penalty phase of a capital case, the purpose of which is “to enable the jury to make an individualized determination of the appropriate penalty based on the character of the defendant and the circumstances of the crime.” Because law enforcement is not likely to be deterred from conducting unreasonable searches and seizures where it is a remote possibility that the resulting evidence may not be admissible during the penalty phase in an unrelated prosecution potentially occurring years later, any limited deterrent value is outweighed by the societal costs of exclusion of the evidence and the resultant incomplete picture of the defendant’s prior criminal activities. However, because this theory was not first raised by the prosecution in front of the trial judge, and finding admission of the questioned evidence to be harmless error anyway, the Supreme Court declined to resolve this question in this case. Too bad. I would liked to have known the answer.
Rule: A police officer asking for identification does not, by itself, convert a contact into a detention. Handcuffing the suspect does not necessarily convert a detention into an arrest. A limited warrantless search of a vehicle for identification and vehicle documentation is lawful.
Facts: On the morning of July 4, 2014, Officer Jeff Moe of the Woodland Police Department, working patrol, responded to a call of a particularly described car “driving erratically” at a certain intersection. Not finding the car, Officer Moe went to the address listed for the license plate that was provided; only a block away. The car was not found there either. Later that day, the officer received another dispatch regarding the same car, but at a different, although nearby, intersection. The informant this time indicated that “Marlena” was the driver, and that she had been “drinking all day.” Again, not finding the car, Officer Moe drove to the registered address and sat on it until a few minutes later the car pulled up and parked on the street in front of that address. Without having noticed anything erratic about her driving, or any other driving violations, Officer Moe walked up to the driver, soon identified as Maria Elena Lopez, as she got out of her car. When she saw the officer approaching her, she seemed “somewhat . . . panicked,” and started to walk away. Concerned that defendant “did not want to be present,” and not wanting to “give her a chance to go anywhere,” the officer asked her whether she had a driver’s license. Defendant said she did not have a license, prompting the officer to ask whether she had any identification at all, to which defendant responded that “there might be identification in the vehicle.” Defendant neither smelled of alcohol nor appeared to be intoxicated during this conversation. Officer Moe attempted to put defendant in a “control hold,” causing her to pull away from him. So he secured her in handcuffs as another officer looked into her car and found a purse on the front passenger seat. The latter officer retrieved the purse and handed it to Officer Moe, who opened it in search of defendant’s identification. In so doing, a small amount of methamphetamine was found in a side pocket. Charged in state court with possession of meth, defendant filed a motion to suppress. The motion was granted and the case dismissed. The People appealed.
Held: The Third District Court of Appeal reversed, upholding the search. First, it was noted that defendant was not detained when Officer Moe approached her in broad daylight as she got out of her car. Requesting identification, without more, is not generally considered a detention absent something that would have caused a reasonable person to believe that he or she was not free to leave (such as by the officer “demanding” identification, or by spot-lighting a person while aggressively approaching her; see People v. Garry (2007) 156 Cal.App.4th 1100.). In this case, Officer Moe’s request concerning whether defendant had any identification did not constitute a “show of authority so intimidating as to communicate to a reasonable person (that) he or she was ‘not free to decline [his] requests or otherwise terminate the encounter.’” Officer Moe’s subjective thinking that he did not want her to walk away was irrelevant in that the test is what a reasonable person in defendant’s shoes, under the circumstances, would have believed. In other words, at this point at least, defendant was no more than being “consensually encountered.” But then by telling the officer that she did not have a driver’s license with her, she was admitting to being in violation of V.C. §§ 12951(a) and/or 12500(a); driving without a license, giving Officer Moe the necessary reasonable suspicion (if not probable cause) to cite (or arrest) her. Physically restraining her at this point, therefore, was lawful. Defendant, however, argued that searching her car and then her purse were illegal under these circumstances, as the trial court had held. The Appellate Court disagreed. Over a decade ago, the California Supreme Court held that in “the context of a valid traffic stop during which a driver fails to produce [an] automobile registration, driver’s license, or identification documentation upon an officer’s proper demand” the officer may do a ‘limited warrantless search . . . of areas within [the] vehicle where such documentation reasonably may be expected to be found.’” (In re Arturo D. (2002) 27 Cal.4th 60; see also People v. Webster (1991) 54 Cal.3rd 411.) This theory justifying a limited search for identification and vehicle documentation is based upon the “pervasive regulation” of motor vehicles, the statutory requirements that require a driver have her driver’s license and vehicle documentation with her (V.C. §§ 4462, 12951), and the need for an officer who intends to issue a citation to ascertain the true identity of a driver and owner of a vehicle so that he may include that information on the citation and the written promise to appear. Such a search is limited to those areas of the vehicle where it is expected that the required documentation might be found. Under the circumstances of this case, this would include her purse. Such a limited search for the vehicle’s registration and other related identifying documentation does not violate the Fourth Amendment. Defendant, however, argued that Arturo D. is no longer good law in light of the United States Supreme Court’s subsequent decision in Arizona v. Gant (2009) 556 U.S. 332. In Gant it was held that a warrantless search of a suspect’s vehicle and its contents incident to arrest, after that suspect has been secured and can no longer access the interior of her vehicle, is no longer lawful. Gant, however, is not without its exceptions. For instance, the Gant Court itself held that a warrantless search of the vehicle is still lawful after the arrest of its occupant when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The Gant court also acknowledged the existence of “[o]ther established exceptions” to the warrant requirement, citing its own decision in New York v. Class (1986) 475 U.S. 106, as authority. In Class, the U.S. Supreme Court upheld a limited warrantless vehicle search for the vehicle’s identification number (VIN). Based upon this reasoning, the Court here held that a limited search of defendant’s vehicle, and her purse that was in the vehicle, for valid identifying information was lawful. Recovery of defendant’s meth, therefore, was also lawful.
Note: The Court held, without analysis, that handcuffing defendant did not convert the contact into an arrest, but rather merely a detention. But it did not discuss whether, under the circumstances, physically restraining her was constitutionally reasonable. That may be because discovery of the meth was not the product of the act of handcuffing her, making it irrelevant to the lawfulness of the subsequent search. The real importance of this case is the renewing of the validity of Arturo D., upholding limited searches of a vehicle for personal identification and vehicle information. This is an issue not yet discussed in any detail by the U.S. Supreme Court. In New York v. Class, cited in this case, the “search” was really no more than moving papers off the dash so as to make visible the VIN commonly found in that location, resulting in observation of a gun on the floor. Arturo D., on the other hand, involved a more thorough search, allowing the warrantless search of those areas of the vehicle where you might expect to find such documentation; such as on the dash, over the visor, in glovebox, and under the front seat. How the U.S. Supreme Court might really view such a more thorough, yet still limited search remains an open question.


Anderson v. Timber Products Inspection, Inc.
Aaron W. Baker, Attorney at Law, James Edward McCandlish, Mark E. Griffin, Griffin McCandlish, Portland, OR, for Plaintiff.
Clay D. Creps, John M. Kreutzer, Seth H. Row, Bullivant Houser Bailey PC, Portland, OR, for Defendant.
Plaintiff Jerry Anderson is the named plaintiff for this Fair Labor Standards Act ("FLSA") representative action brought on behalf of himself and his coworkers (collectively, "plaintiffs") and against defendant Timber Products Inspection, Inc. Plaintiffs seek recovery for wages allegedly due under FLSA's overtime provisions as well as Oregon's similar provisions. Defendant moved for summary judgment, arguing that plaintiffs were exempt from overtimewage requirements pursuant to the "Motor Carrier Act exemption." The court agrees with defendant and thus grants its motion for summary judgment. (Doc. #51).
Defendant Timber Products Inspection, Inc. is a lumber and wood products inspection company. Defendant employed plaintiffs as field representatives to perform lumber-inspection services to determine the appropriate grading for defendant's lumber. Plaintiffs agree their employment involved services implicating interstate commerce. For instance, during the course of their employment, plaintiffs would travel interstate by car or air carrier. In traveling interstate, plaintiffs at times would carry tools provided by defendant and used in inspecting lumber (although not all the tools were necessary for every inspection). The tools included drills, increment bits, tape measures, hammers, moisture meters, plugs, trays, and testing chemicals.
Plaintiffs allege they regularly worked more than forty hours per week, but were not paid any overtime wages. Plaintiffs, therefore, filed this lawsuit seeking recovery under FLSA, 29 U.S.C. § 216(b), and Oregon's overtime-wage provisions, see ORS 653.055 and 653.261.
On May 12, 2004, defendant moved for summary judgment arguing that, as a matter of law, plaintiffs are not entitled to overtime wages. Specifically, defendant argues both FLSA and Oregon law establish a motor-carrier exemption which bars plaintiffs' claim for overtime wages.
FLSA requires employers to compensate covered workers a minimum of one and onehalf times the workers' hourly wages for hours exceeding forty hours worked in a single week. 29 U.S.C. § 207(a)(1). Congress, however, exempted from this overtime requirement "any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49 [ i.e., the Motor Carrier Act]." 29 U.S.C. § 213(b). This statutory provision is generally called the "motor carrier exemption." One of the exemption's underlying purposes is to "preserve the safety program promoted by the" Motor Carrier Act by avoiding "dual regulatory jurisdiction" of the Department of Transportation and the Department of Labor. Turk v. Buffets, Inc., 940 F. Supp. 1255, 1259 (N.D. Ill. 1996) (citing Levinson v. Spector Motor Serv., 330 U.S. 649, 661 (1947)). Thus employees subject to the Department of Transportation's jurisdiction cannot recover overtime wages under FLSA. The fact the Department of Transportation may not have affirmatively chosen to regulate particular employees does not make the motor-carrier exemption inapplicable. See Levinson, 330 U.S. at 661; Turk, 940 F. Supp. at 1259.
49 U.S.C. § 31502(b) (emphasis added).
49 U.S.C. § 13102(13) (emphasis added).
The employer carries the burden of proving "plainly and unmistakably" that its employees come within the motor-carrier exemption. Friedrich v. United States Computer Serv., 974 F.2d 409, 412 (3d Cir. 1992) (citing Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 900 (3d Cir. 1991)). Courts have identified two requirements for the exemption to apply: (1) the employees' employer is subject to the Motor Carrier Act ( e.g., is a motor private carrier), and (2) the employees engaged in activities directly affecting the safety of operation of motor vehicles in interstate commerce. See, e.g.,Peraro v. Chemlawn Servs. Corp., 692 F. Supp. 109, 112 (D. Conn. 1988) (citing 29 C.F.R. § 782.2(a)).
As mentioned, a motor private carrier includes an employer who owns property which is transported interstate to further a commercial enterprise. 49 U.S.C. § 13101(13). The Motor Carrier Act does not define what "property" means, thus causing some debate among the courts about the scope of that term. SeeFriedrich, 974 F.2d at 417. Several cases reason that the term "property," at the very least, includes those items "without which [the employees] could not have performed their duties."Id.; see Gonzales v. New England Tractor Trailer Training Sch., 932 F. Supp. 697, 700-01 (D. Md. 1996) (citing cases). Some judges have treated the term "property" more narrowly. See, e.g., Friedrich, 974 F.2d at 420 (Sloviter, C.J., dissenting) (arguing "property" does not include transportation of property which was "wholly ancillary to [the employees'] need to transport themselves to customer sites," and criticizing majority's "overly literal approach to the issue"). On the whole, however, "the caselaw supports a rather broad construction of the word `property' as used in" the definition of motor private carrier.Gonzales, 932 F. Supp. at 700.
For instance, the Third Circuit in Friedrich concluded that tools, parts, and equipment transported by the employees constituted "property" — although the employees' special skills constituted the core of their services — because the employees needed the items to perform the services. Friedrich, 974 F.2d at 417. Other cases take a similar view of property. See, e.g., Turk, 940 F. Supp. at 1261 (finding that repair equipment and spare parts used to service restaurants and transported interstate qualified as property); Gonzales, 932 F. Supp. at 698, 700 (finding that safety and other devices attached to vehicles used for truck-driving instruction qualified as property, because the devices were needed for the operation of the vehicles and testtaking purposes); Sinclair v. Beacon Gasoline Co., 447 F. Supp. 5, 8 (W.D. La. 1976) (holding tools, equipment, and supplies transported interstate and used to repair and maintain pipeline systems constituted property), aff'd, 571 F.2d 978 (5th Cir. 1978). While some may quarrel with courts' giving a plain and thus broad meaning to the term property, thereby removing many employees from the scope of FLSA overtime protections, "the legislature and not the judicial branch of government has the responsibility to expand the [Department of Labor's] regulatory power." Friedrich, 974 F.2d at 419.
Giving the term property its ordinary meaning, as the court feels compelled to do, defendant Timber Products qualifies as a motor private carrier. Plaintiffs do not dispute their jobs required them to travel interstate while carrying tools owned by defendant. And, while plaintiffs argue the tools were not "an independent and essential reason for the interstate trip," they do not dispute that at least some of the tools were required to perform their jobs. The court, therefore, cannot meaningfully distinguish the case law discussed above. The court also rejects plaintiffs' unsupported assertion that "property" includes only replacement parts or specially equipped trucks. There is no legislative or regulatory authority suggesting such a specific and narrow definition; thus, the court is not at liberty to adopt it. Cf. Friedrich v. U.S. Computer Servs., 787 F. Supp. 449, 457 n. 10 (E.D. Penn. 1991) (explaining that, even though FLSA exemptions are to be narrowly construed, "this general maxim is alone insignificant if the broad and specific language of an exemption admits no clear principled means for narrowing"),aff'd, 974 F.2d 409 (3d Cir. 1992). In sum, plaintiffs were employed by a motor private carrier, thus meeting the first element of the motor-carrier exemption.
The case law plaintiffs cite is easily distinguished from the case at bar. In Carpenter v. R.M. Shoemaker Co., No. 00-5644, 2002 WL 987990, at *7 (E.D. Pa. May 6, 2002), the defendant failed to establish that it owned the tools which the plaintiff employee had transported interstate. Here, in contrast, there is no dispute defendant Timber Products owned the property at issue. Bowe v. SMC Electrical Products, Inc., 935 F. Supp. 1126 (D. Colo. 1996), also is inapposite. In that case, the defendant failed to provide sufficient evidence of the employee's "transportation of company property in interstate commerce."Id. at 1131-32. In the case at bar, plaintiffs admit they regularly transport to other states tools owned by defendant and needed to perform their duties.
The next issue is whether plaintiffs engaged in activities affecting the safety of operation of motor vehicles in interstate commerce. In answering this issue, the key factor is the "character" of the employees' activities, not the proportion of time spent engaged in activities directly affecting interstate safety. See Levinson, 330 U.S. at 674-75. The guiding inquiry "is whether a particular employee's duties have a substantial effect on the safety of operation of motor vehicles transporting property in interstate commerce." Sinclair, 447 F. Supp. at 9 (citing Levinson, 330 U.S. at 656).
Although courts have recognized a de minimis exception, that exception has force, at least as applied to drivers, only when the interstate-travel portion of the employees' work can be characterized as "infinitesimal." Peraro, 692 F. Supp. at 114. As observed by one court, in those cases in which the de minimis exception has been applied, the employees had "spent less than one percent of their time in interstate travel."Turk, 940 F. Supp. at 1261. Thus, in Friedrich, it was not determinative that employees spent more time in field service than in the transportation of property; "their interstate operations affected safety on the highways . . . even though they were not employed primarily as carriers." Friedrich, 974 F.2d at 418. And, in Peraro, the district court found that a carpet-cleaning company's employees affected safety in interstate commerce although the percentage of time they spent driving interstate ranged among the employees from six percent to forty-six percent. Peraro, 692 F. Supp. at 114. In sum, the "activities of one who drives in interstate commerce, however frequently or infrequently, are not trivial. Such activities directly affect the safety of motor vehicle operations." Crooker v. Sexton Motors, Inc., 469 F.2d 206, 210 (1st Cir. 1972).
Because the plaintiffs here undisputably drove interstate as part of their duties, it does not take much to find they directly affected the safety of interstate operation of motor vehicles. See Turk, 940 F. Supp. at 1261 ("Courts have . . . generally held that the de minimis rule does not exempt drivers from [Department of Transportation] jurisdiction." (emphasis in original)). At their depositions, plaintiffs indicated they were required to travel interstate on a regular basis, usually at least once a month and commonly much more often, such as when customers were experiencing problems. See, e.g., Anderson Depo. at 124; Clark Depo. at 74-75; Chapman at 68; Quinn Depo. at 61-62. Just as it was not determinative that the employees inFriedrich spent more time in field service than transporting property, it is not determinative that plaintiffs here spent more time inspecting lumber than transporting property from state to state. In any case, even if some of the plaintiffs had only visited two out-of-state customers once a month — to take a conservative estimate — the percentage of their work time spent in interstate travel would have surpassed the one-percent rule of thumb suggested in Turk and thus be too great to meet the narrow de minimis exception. See Turk, 940 F. Supp. at 1262. Indeed plaintiffs do not dispute that their interstate travel was more than just de minimis. In sum, defendant has shown that the plaintiffs directly affected safety in interstate commerce.
For the reasons briefly discussed above, defendant has conclusively established that the motor-carrier exemption bars plaintiffs' FLSA claim for overtime compensation. Plaintiffs' statelaw claim is barred for the same reason. See OAR 839-020-0125(3) (adopting federal motorcarrier exemption). While this case involves the type of line-drawing which inevitably frustrates litigants, it is not for the court to alter the line drawn by Congress.
Because the motor-carrier exemption applies, the court need not consider defendant's statute-of-limitations defense. In short, defendant's motion for summary judgment (doc. #51) is GRANTED, and this case is dismissed with prejudice. Pending motions, if any, are dismissed as moot.


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KUMAVISION AG takes the protection of your personal data very seriously. Your privacy is important to us. We process your personal data in accordance with the applicable statutory data protection requirements for the following purposes. Personal data in the sense of this data protection information is all information, which has a relation to your person.
Here's how we handle this data. For a better overview, we have divided our data protection information into chapters.
If you have any questions or comments about privacy (such as information and updates of your personal information), you may also contact our Privacy Officer.
As far as this is necessary for the provision of our services, we process from other companies or other third parties (eg credit bureaus, adress publishers) permissible received personal data. In addition, we process personal data that we have legitimately taken, obtained or acquired from publicly available sources (such as telephone directories, trade and association registers, registration registers, debtor directories, land registers, press, Internet and other media) and may process.
We process personal data in accordance with the provisions of the General Data Protection Regulation (DSGVO), the Federal Data Protection Act (BDSG) and other applicable data protection regulations (details below). Which data is processed in detail and how it is used depends largely on the services requested or agreed upon. Further details or additions to the purposes of data processing can be found in the respective contract documents, forms, a declaration of consent and / or other information provided to you (eg as part of the use of our website or our terms and conditions).
The processing of personal data takes place to carry out our contracts with you and the execution of your orders as well as to carry out measures and activities in the context of pre-contractual relationships, eg with interested parties. This essentially includes: contractual communication with you, the corresponding billing and related payment transactions, the verifiability of orders and other agreements as well as quality control through appropriate documentation, goodwill procedures, measures to control and optimize business processes and to fulfill the general due diligence requirements Control and control by affiliates; statistical evaluations of corporate management, costing and controlling, reporting, internal and external communications, emergency management, billing and tax assessment of operating services, risk management, legal claims and defense of legal disputes; Ensuring IT security (including system and plausibility tests) and general security, ensuring and exercising home ownership (eg through access controls); Ensuring the integrity, authenticity and availability of data, preventing and resolving criminal offenses, and oversight by oversight bodies or control bodies (eg auditing).
ensuring and exercising the rights of the home through appropriate measures (such as video surveillance), as well as to secure evidence of crime and its prevention.
Processing of your personal data for specific purposes (eg use of your e-mail address for marketing purposes) may also be based on your consent. As a rule, you can revoke these at any time. This also applies to the revocation of declarations of consent prior to the application of the GDPR, ie before the 25. May 2018, have been granted to us. You will be informed separately about the purposes and consequences of a withdrawal or non-grant of consent in the relevant text of the consent. In principle, the revocation of consent only works for the future. Processing that occurred before the revocation is unaffected and remains legal.
Like everyone involved in business, we too are subject to a variety of legal obligations. These are primarily legal requirements (eg commercial and tax laws), but also, if applicable, regulatory or other regulatory requirements. The purposes of processing may include the fulfillment of tax control and reporting obligations, as well as the archiving of data for privacy and data security purposes, as well as audits by tax and other authorities. In addition, the disclosure of personal data in the context of administrative / judicial action may be required for the purposes of collecting, prosecuting or enforcing civil claims.
You only need to provide the information necessary to enter into a business relationship or enter into a pre-contractual relationship with us or we are required to collect it by law. Without this data we will generally not be able to conclude or execute the contract. This may also apply to data required later in the business relationship. If we also request data from you, you will be made aware of the voluntary nature of the information separately.
We do not use purely automated decision-making procedures in accordance with Article 22 DSGVO. Insofar as we should use such a procedure in individual cases in the future, we will inform you separately if this is required by law. We may process your information partially with the aim of evaluating certain personal aspects (profiling).
In order to provide you with targeted information and advice on products, we may use evaluation tools. These enable needs-based product design, communication and advertising, including market and opinion research. Data on nationality as well as special categories of personal data according to Art. 9 DSGVO are not processed.
In the context of the relationship, you must provide the personal information necessary to establish, conduct and terminate the transaction and to perform the related contractual obligations or we are required to collect it by law. Without this data, we will not be able to conduct the transaction with you.
Within our company, those internal bodies or organizational units receive their data which they need to fulfill our contractual and legal obligations or in the processing and implementation of our legitimate interests.
In addition, we will not share your data with third parties. Insofar as we commission service providers within the scope of order processing, your data will be subject to the same security standards as ours. In other cases, the recipients may only use the data for the purposes for which they were transmitted to them.
A transfer of data to offices in countries outside the European Union (EU) or the European Economic Area (EEA) (so-called third countries), if it is necessary for the execution of an order / contract by or with you, it is required by law ( For example, tax reporting obligations), it is within the scope of a legitimate interest of us or a third party or you have given us consent.
The processing of your data in a third country can also take place in connection with the involvement of service providers in order processing. Unless there is a decision by the EU Commission regarding an appropriate level of data protection for the country in question, we ensure that the rights and freedoms are adequately protected and guaranteed under corresponding EU treaties. Corresponding detailed information is available on request. Information on the appropriate or reasonable guarantees and the possibility of obtaining a copy thereof may be obtained from the Data Protection Officer on request.
In addition, we are subject to various storage and documentation obligations, which result inter alia from the Commercial Code (HGB) and the Tax Code (AO). The deadlines for storage and / or documentation specified therein are up to ten years beyond the end of the business relationship or the pre-contractual legal relationship at the end of the calendar year.
Furthermore, specific legal regulations may require a longer retention period, such as the preservation of evidence under the statutory limitation provisions. According to §§ 195 ff. Of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the regular limitation period is three years; however, limitation periods of up to 30 years may also be applicable.
If the data is no longer required for the fulfillment of contractual or legal obligations and rights, these are regularly deleted, unless their - limited - further processing is required to fulfill the purposes of a predominantly legitimate interest. Such an overriding legitimate interest exists, for example, even if a deletion because of the special nature of the storage is not or only with disproportionate effort possible and processing for other purposes by appropriate technical and organizational measures is excluded.
Under certain conditions, you can assert your privacy rights with us.
So you have the right to receive information from us about your stored data according to the rules of Art. 15 DSGVO (possibly with restrictions according to § 34 BDSG).
Upon your request, we will correct the data stored about you according to Art. 16 DSGVO, if these are incorrect or incorrect.
If you wish, we will erase your data according to the principles of Art. 17 DSGVO, provided that other legal regulations (eg statutory retention requirements or the restrictions under § 35 BDSG) or a predominant interest on our part (eg to defend our rights and obligations) Claims) do not oppose.
Taking into account the requirements of Art. 18 DSGVO, you may require us to restrict the processing of your data.
Furthermore, you may object to the processing of your data in accordance with Art. 21 DSGVO, which requires us to stop processing your data. However, this right to objection only applies in the case of very special circumstances of your personal situation, whereby rights of our company may conflict with your right of objection.
You also have the right to receive your data under the conditions of Art. 20 DSGVO in a structured, common and machine-readable format or to transmit it to a third party.
In addition, you have the right to withdraw your consent to the processing of personal data at any time with regard to us with future effect (see point 2.3).
Furthermore, you have a right of appeal to a data protection supervisory authority (Art. 77 DSGVO). However, we recommend that you first make a complaint to our data protection officer.
Your requests for the exercise of your rights should, if possible, be addressed in writing or by e-mail to the address indicated above or directly in writing or by e-mail to our data protection officer.
You have the right to object at any time to the processing of your data, which takes place on the basis of Art. 6 para. 1 f DSGVO (data processing based on a balance of interests) or Art. 6 para. 1 e DSGVO (Data Processing in the Public Interest) if there are reasons for this arising from your particular situation.
This also applies to profiling based on this provision within the meaning of Art. 4 No. 4 DSGVO. If you object, we will no longer process your personal information unless we can demonstrate compelling legitimate grounds for processing that outweigh your interests, rights and freedoms, or the processing is for the purposes of asserting, exercising or defending legal claims.
If necessary, we also process your personal data in order to operate direct mail. If you do not want to receive advertising, you have the right to object to it at any time; this also applies to profiling insofar as it is associated with such direct mail. We will consider this contradiction for the future. We will no longer process your data for direct marketing purposes if you object to the processing for these purposes.
You also have the option to lodge a complaint with the above-mentioned data protection officer or with a data protection supervisory authority.
We are pleased that you are interested in us and have applied or applied for a position in our company. We would like to provide you below with information on the processing of your personal data in connection with the application.
The legal basis for the processing of your personal data in this application process is primarily § 26 BDSG in the version valid as of 25.05.2018. Thereafter, the processing of the data required in connection with the decision to establish an employment relationship is permitted.
If the data may be required for the prosecution after completing the application process, data processing based on the requirements of Art. 6 DSGVO, in particular for the exercise of legitimate interests under Art. 6 para. 1 lit. f) GDPR. Our interest then lies in the assertion or defense against claims.
Applicants' data will be deleted in case of cancellation after 6 months.
We use a specialized software provider for the application process. This person acts as a service provider for us and may also be aware of your personal data in connection with the maintenance and care of the systems. We have concluded a so-called order processing contract with this provider, which ensures that the data processing takes place in a permissible manner.
In the case of a request for information that is not made in writing, we ask for your understanding that we may then ask for proof from you proving that you are the person for whom you are claiming to be.
You also have the right to correct or delete or limit processing to the extent that you are legally entitled to do so.
The revocation must be sent by post to the Human Resources Department or by e-mail to: HR-Services@kumavision.com.
You have the right to complain to us about the processing of personal data by us with the competent supervisory authority for data protection.

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Art. 6


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Kumar, V. and Denish Shah, “Finding the Value in Customer Equity,” forthcoming in Handbook of Research on Customer Equity, Edward Elgar Publishing Ltd.
Kumar, V. and Anita Pansari, “Aggregate- and Individual-level Customer Lifetime Value,” forthcoming in Handbook of Research on Customer Equity, Edward Elgar Publishing Ltd.
Kumar, V., Nandini Krishnamoorthy, and Gayatri Shukla, “Stop Grouping and Start Regulating – A New Approach to Social Media Marketing,” forthcoming in Handbook of Research on Customer Equity, Edward Elgar Publishing Ltd.
Kumar, V. and Gayatri Shukla, “The Future of Customer Equity,” forthcoming in Handbook of Research on Customer Equity, Edward Elgar Publishing Ltd.
Kumar, V. and Bharath Rajan, “A Strategic Approach to Drive Profits: Defining, Measuring and Managing Customer Value,” forthcoming in Next Practices in Marketing, eds., Greg M. Thomas and Raj Srivastava.
Kumar, V., Nita Umashankar, and Jee Won (Brianna) Choi (2014), “CRM Metrics and Strategies to Enhance Performance in Service Industries,” Handbook of Services Marketing Research, eds. Roland Rust and Ming-Hui, Edward Elgar Publishing Ltd.: Cheltenham, UK.
Kumar, V. and Nita Umashankar (2012), “Enhancing Financial Performance: The Power of Customer Metrics,” Handbook of Marketing and Finance, eds., Shankar Ganesan, Edward Elgar Publishing Ltd.: Cheltenham, UK, pp. 9-42.
Kumar, V. and Bharath Rajan (2012), “Customer Lifetime Value Management: Strategies to Measure and Maximize Customer Profitability,” Handbook of Marketing Strategy, eds., Venkatesh Shankar and Gregory Carpenter, Edward Elgar Publishing Ltd.: Cheltenham, UK, pp. 107-134.
Venkatesan, Rajkumar, V. Kumar, and Werner Reinartz (2012), “Customer Relationship Management in Business Markets,” Handbook of Business-to-Business Marketing, eds., Gary L. Lilien and Rajeep Grewal, Edward Elgar Publishing Ltd.: Cheltenham, UK, pp. 311-331.
Kumar, V. (2010), “Customer Relationship Management” in Wiley International Encyclopedia of Marketing, John Wiley & Sons.
Kumar V. (2009), “Methodological and Conceptual Foundations in International Marketing,” in The Handbook of International Marketing, Sage Publications: California, pp. 114-162..
Kumar V. (2006), “Relationship Marketing,” in Foundations of Marketing, (2E), edited by Pride & Ferrell, Houghton-Mifflin.
Kumar V. (2006), “Customer Lifetime Value,” in The Handbook of Marketing Research, Editors: Rajiv Grover and Marco Vriens, Sage Publications: California, pp. 602-627.
Kumar V. (2006), “International Marketing Research,” in The Handbook of Marketing Research, Editors: Rajiv Grover and Marco Vriens, Sage Publications: California, pp. 628-645.
Kumar V. and Girish Ramani (2006), “Interaction Orientation: A New Marketing Competency,” in Does Marketing Need Reform?, Editors: Jag Sheth and Raj Sisodia, M.E. Sharpe Inc.: New York, pp. 109-118.
Kumar, V. (2003), “Global Diffusion Models: Back to the Future,” in Handbook of Research in International Marketing, Publishers: Edward Elgar, pp. 379-401.
Brodie, Roderick J., Peter J. Danaher, V. Kumar and Peter S. H. Leeflang (2001), “Econometric Models for Forecasting Market Share,” in Principles of Forecasting: A Handbook for Researchers and Practitioners, Kluwer Publishers, pp. 597-561.

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Joseph joined Starnes Davis Florie upon graduating law school in 1997 and became a partner in 2004. His practice is devoted to civil litigation, with an emphasis on professional liability matters in which he represents physicians, hospitals, long-term care facilities, and other healthcare providers. Joseph has tried over 40 complex civil cases to a jury verdict, has arbitrated several cases to a final binding decision, and has represented facilities in administrative proceedings. He is licensed in both Alabama and Tennessee.
•Obtained a defense verdict following a 3 day arbitration in a case alleging the defendant nursing home’s unsanitary environment and its failure to properly clean, treat, and monitor a surgical incision site caused the resident to develop an infection that necessitated amputation of the resident’s leg.
•Obtained a defense judgment following a nursing home malpractice case involving the death of a resident alleged to have resulted from a medication error and the failure to appropriately treat the resident’s condition and monitor the resident’s hydration status.
•Obtained a defense judgment following an arbitration of a nursing home malpractice case involving claims of personal injury and wrongful death arising out of a fall and the subsequent development of a bedsore.
•Obtained a defense judgment following a four day arbitration of a nursing home malpractice case involving claims of personal injury and wrongful death.
•Obtained defense verdict on behalf of a surgeon in a wrongful death case in which the patient died at home of a perforated colon only hours after being evaluated by the surgeon in his office.
•Obtained judgment as a matter of law during jury trial for general surgeon accused of negligently failing to prescribe anticoagulants following an intra-operative surgical complication.
•Obtained a defense verdict on behalf of a nursing home following a five day jury trial in a case involving a rehabilitation resident who was assessed on admission as a high fall risk and who later fell, sustaining a depressed skull fracture with resulting brain injury.
•Obtained a defense verdict on behalf of a gastroenterologist following a seven day jury trial in a case involving a patient who suffered a cardio-pulmonary arrest during an endoscopic procedure performed under conscious sedation.
Joseph serves on the Board of Directors of the Morris L. Mayer Award, which was established in 1994 honoring Dr. Morris Mayer and given annually to one University of Alabama senior student and faculty member. Joseph is also involved in coaching youth sports. Joseph, his wife Amy, and his two sons are members of the Church at Brook Hills.
Reported Cases; Ex parte Noland Hospital Montgomery, LLC, No. 1110240, Alabama Supreme Court, released August 10, 2012. Thompson v. Patton -- 6 So. 3d 1129 (Ala. 2008). Holcomb v. Carraway -- 945 So. 2d 1009 (Ala. 2006). Patton v. Thompson -- 958 So. 2d 303 (Ala. 2006). Bradley v. Mariner Health, Inc., 315 F. Supp. 2d 1190 (S.D. Ala. 2004). Bassie v. Obstetrics & Gynecology Assocs. of Northwest Alabama, P.C., 828 So. 2d 280 (Ala. 2002). Hauseman v. University of Alabama Health Services Foundation, 793 So. 2d 730 (Ala. 2000). Brookwood Medical Center v. Lindstrom, 763 So. 2d 951 (Ala. 2000).
Contact Joseph L. Reese, Jr.

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USA, ex rel. Drummond, et al. v. Bestcare Laboratory Services Inc., et al.
Salinas v. Wood Group PSN Commissioning Services, Inc.
Jones v. Educational Affiliates Inc.
USW Local 13-227 v. Houston Refining, L.P.
Holiday v. United States of America Do not docket in this case. File only in 4:12-638-3.
McPherson v. Davis DO NOT DOCKET. Case electronically transferred to Northern District of Texas, Fort Worth Division.
Imo v. United States of America Do not docket in 4:15cv1827. File only in 4:09cr426-1.
Gross v. Dannatt DO NOT DOCKET. Case electronically transferred to Northern District of Texas, San Angelo Division.
Saenz v. BP America, Inc.
Adams v. Wells Fargo Bank, N.A.
Kelly v. The Home Depot, USC, Inc.
Allen v. Davis Do not docket. Case transferred to Western District of Texas, San Antonio Division.
Momper v. Momper et alDO NOT DOCKET. CASE HAS BEEN REMANDED TO THE 306TH JUDICIAL DISTRICT COURT OF GALVESTON COUNTY, TEXAS.
Cordova-Cruz v. United States Of America Do not docket in this case. File only in 2:15cr881.
Copeland v. CenterPoint Energy, Inc. DO NOT DOCKET. CASE HAS BEEN TRANSFERRED TO 4:17CV2898.
Copeland v. CenterPoint Energy, Inc.
DeLaGarza v. Trafigura Trading LLC et al Case remanded to the 117th Judicial District Court of Nueces County, Texas.
Lopez v. United States of America Do not docket in this case. File only in 4:08-CR-187-2.
Mbadugha v. UNITED STATES OF AMERICA Do not docket in this case. File only in [4:14cr120-04].
Loudd v. United States of America Do not docket in this case. File only in [4:06cr341-1].
Ramos v. United States of America Do not docket in 4:16cv1852. File only in 4:95cr142-57.
Poole-Ward v. Affiliates for Women's Health, P.A.
Aguirre v. Tastee Kreme #2, Inc., et al.
Uraga v. United States of America Do not docket in this case. File only in 2:13cr685-1.
Gordon v. Livingston et al - DOCKET IN THIS CASE REGARDING DEFENDANTS LIVINGSTON, LINTHICUM AND MURRAY ONLY. CLAIMS AGAINST OTHER DEFENDANTS HAVE BEEN TRANSFERRED TO NORTHERN DISTRICT OF TEXAS, ABILENE AND LUBBOCK DIVISIONS.
Britton-Harr v. United States of America Do Not Docket in 2:15cv360 . Documents should be filed in 2:10cr1164 .
Giovinale v. JP Morgan Chase Bank, N.A.
Fisher v. De Los Santos DO NOT DOCKET. Case electronically transferred to western District of Texas, San Antonio Division.
Admiral Insurance Company v. Gulshan Enterprises, Inc.
Taylor v. Taser International, Inc.
Carmona v. City of Houston, et. al.
Contis et al v. Digco Utility Construction, L.P.
Derrick Petroleum Services v. PLS, Inc.
Manzano v. Davis Do Not Docket. Case electronically transferred to Northern District of Texas, Dallas Division.
Dahir v. ROYAL CARIBBEAN CRUISES LTD.
Eyob v. Mitsubishi Caterpillar Forklift America, Inc.
Bibby Offshore Limited v. Emas Chiyoda Subsea, Inc.
Nguyen et al v. Bank of America, N.A.
Corrales-Lobo v. United States Of America DO NOT DOCKET. DOCUMENTS SHOULD BE FILED IN CRIMINAL CASE #2:15cr763-1.
Freeman v. Wells Fargo Bank, N.A.
Fuller v. Davis Case electronically transferred to Western District of Texas, San Antonio Division.
Tempur-Pedic North America, LLC et al v. Mattress Firm, Inc.
Whitaker d/b/a The Whitaker Companies, Inc. v. Vista Staffing Solutions, Inc. et al Case remanded to The 127th District Court of Harris County, Texas.
King v. United States Of America Do not docket in this case. Docket entries should be made in 2:15cr574.
Hudec v. United States Of America Do not docket in this case. Docket entries should be made in 4:91-cr-1.
Latham v. Wal-Mart Stores Texas, L.L.C.
Dixon v. Local Express, Inc.
Michels Corporation v. EMS USA, Inc.
John Jr., et al. v. JPMorgan Chase Bank, N.A.
Waugh v. International SOS Assistance, Inc.
Cristain v. Hunter Buildings & Manufacturing, L.P.
Kiewit Offshore Services, LTD. v. Dresser-Rand Global Services, Inc.
Uvina v. NY Enterprises Inc. d/b/a Children's & Bridal Etc.
Devdara, L.L.C. v. Wells Fargo Bank, N.A.
Estrada v. The United States of America Do not docket in this case. File only in [2:14cr724].
Gonzalez v. United States Of America Do not docket in this case. File only in 2:15-cr-217-7.
Reyna-Medina v. The United States of America Do not docket in this case. File only in (2:15cr1110).
Law v. Lynch et al Case electronically transferred to United States District Court for the District of Columbia.
Rodriguez et al v. Tyson Foods, Inc.
Rodriguez et al v. Tyson Foods, Inc. Case electronically transferred to Houston Division.
Momper v. Momper Case remanded to 306th Judicial District Court of Galveston County, TX).
Hines v. Energy XXI Services, LLC et al Case electronically transferred to Houston Division.
darren... v. City of New York, et al.
Kibodeaux v. Wood Group Production and Consulting Services, Inc.
Martinez-Duque v. UNITED STATES OF AMERICA Do not docket in this case. File only in [4:14cr629-1].
Green v. Orion Real Estate Services, Inc.
Paul et al v. Bank of America, N.A.

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Present: GRAHAM, DREBEN, & SIKORA, JJ.
Motor Vehicle, Homicide, Operating under the influence. Practice, Criminal, Challenge to jurors, Instructions to jury. Jury and Jurors. Evidence, Intoxication, Blood alcohol test, Expert opinion.
Complaint received and sworn to in the New Bedford Division of the District Court Department on June 3, 2004.
The case was tried before Bernadette L. Sabra, J.
Paul C. Brennan for the defendant.
David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth.
SIKORA, J. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G. L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G. L. c. 90, § 24[a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth's peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant's blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant's blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence.
in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges.
Background. The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant's jeep and the victim's vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of them testified at trial. According to the witnesses, the defendant's jeep went through a stop sign at a high rate of speed and struck the victim's vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment.
Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was "angry [and] agitated" and his breath smelled of alcoholic beverages. He told the officers that he had consumed "a forty of OE," a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant's demeanor changed when one of the officers notified him of the victim's death.
While at the hospital, the defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16.
Discussion. 1. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror nineteen to side bar for further questions. The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties' challenges.
The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror nineteen. The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the juror's speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor's discomfort caused by the juror's fixed stare at him during empanelment. [Note 5] The judge then determined that the prosecutor's explanation was not race-based.
Defense counsel asked for the judge's impression of juror nineteen. The judge stated that the juror had "somewhat of a halting speech pattern" and was "not incredibly articulate but . . . not inarticulate either." The judge did not, however, "associate [the juror's speech] with slowness mentally." The prosecutor explained that he believed that juror nineteen's mental acuity was similar to that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth's peremptory challenge without further reasoning at that time. [Note 6] Defense counsel objected.
history of juror nineteen's son when he had offered his explanation for the challenge, the judge referred to it in her findings. [Note 8] The judge concluded her findings with the statement that "I find . . . the Commonwealth's explanation both adequate and genuine, which is why I allowed the challenges to stand."
Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461 , 464 (1991). "[W]e begin with the presumption that a peremptory challenge is proper." Commonwealth v. Smith, 450 Mass. 395 , 406, cert. denied, 129 S.Ct. 202 (2008). However, one may rebut that presumption through proof "that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership." Commonwealth v. Soares, 377 Mass. 461 , 490, cert. denied, 444 U.S. 881 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass. 460 , 463 (2003). When "the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made." Id. at 463 n.5.
explanation seems superficial, the judge should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21 , 26 (2000). The judge must then "make an independent evaluation of the [proponent's] reasons and . . . determine specifically whether the explanation was bona fide or a pretext." Ibid. "In other words, the judge must decide whether the explanation is both 'adequate' and 'genuine.' " Commonwealth v. Maldonado, supra at 464, quoting from Commonwealth v. Garrey, 436 Mass. 422 , 428 (2002). "[I]t is imperative that the record explicitly contain the judge's separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings." Commonwealth v. Maldonado, supra at 466. See Commonwealth v. Benoit, 452 Mass. 212 , 221 (2008).
In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491; Commonwealth v. Calderon, supra at 26. The prosecutor explained that he was challenging the juror because he believed her to be "slow" and because she had stared at him in a discomforting manner. The judge received defense counsel's opposing response. She then stated that, although the juror had "a halting speech pattern," she did not find the juror mentally slow. However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor's explanation to be adequate and genuine.
requested explanation and then allowed challenge but "did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge"); Commonwealth v. Benoit, supra at 222-226 (defendant's right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).
In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney's office. [Note 9] The judge did not address the ground of staring. [Note 10] She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge. [Note 11] In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution's grounds adequate, i.e., "personal to the juror and not based on the juror's group affiliation" and "related to the particular case being tried," however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465. The governing standard is demanding. The precedents require reversal of the convictions.
began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant's blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: "The law says that if the percentage of alcohol by weight in the defendant's blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time." For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor's reference to it in his summation, or the judge's erroneous instruction.
In 2003, the Legislature amended both G. L. c. 90, § 24G, the motor vehicle homicide statute, and G. L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St. 2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had "a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater." G. L. c. 90, § 24G(a). Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass. 809 , 811-812 (2007). The 2003 amendments eliminated the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass. App. Ct. 661 , 662 n.2, S.C., 453 Mass. 1009 (2008).
"If . . . the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning."
Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: "[I]f the per se and impaired ability theories of criminal liability are charged in the alternative . . . and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor."
Commonwealth v. Colturi, supra at 811-812; Commonwealth v. Hubert, supra, at 662 n.2. [Note 12] The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Alphas, 430 Mass. 8 , 13 (1999). See Commonwealth v. Azar, 435 Mass. 675 , 687 (2002); Commonwealth v. Randolph, 438 Mass. 290 , 297 (2002).
Even without the blood test, the Commonwealth's evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim's vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant's jeep had been traveling at sixty-four miles per hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening.
However, the laboratory supervisor's testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. Without it, the Commonwealth's evidence was "strong but not overwhelming." Commonwealth v. Hubert, 71 Mass. App. Ct. at 663. Here, as in Hubert, police testimony about the defendant's signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967) [Note 13]; Commonwealth v. Alphas, 430 Mass. at 13.
Conclusion. [Note 14], [Note 15] For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion.
[Note 1] In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G. L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G. L. c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint.
[Note 2] Under G. L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation "with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or  while under the influence of intoxicating liquor." G. L. c. 90, § 24G(a), as amended through St. 2003, c. 28, § 21. See Commonwealth v. Colturi, 448 Mass. 809 , 810 (2007); Commonwealth v. Hubert, 71 Mass. App. Ct. 661 , 661-662 (2008), S.C., 453 Mass. 1009 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory.
[Note 3] In April of 2007, after a hearing, the trial judge allowed the Commonwealth's motion to file a late notice of appeal from the grant of the defendant's motion for relief from an unlawful sentence. The Commonwealth's appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the grant of the motion. Therefore, we do not address it.
[Note 4] She opined also that the defendant's jeep had struck a vehicle parked on the side of the road prior to the collision with the victim's vehicle.
[Note 5] In its entirety, the prosecutor's explanation was: "Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that she's slow at side-bar speaking with her, in her speech; and I'm concerned that this is a three or four day trial, a lot of witnesses; and I'm concerned about her ability to try the evidence."
[Note 6] The judge observed that the defendant had adequately preserved the issue for appeal.
During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge.
[Note 7] The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460 (2003). However, the transcript reflects that the judge stated that she "look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group. . . ." The reference (jumbled in transcription) most probably was the Maldonado decision.
[Note 8] The judge's reference to the criminal history of juror nineteen's son was as follows: "I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney's office and apparently came up. . . . [A]nd I don't remember the case per se but she spoke about it. It apparently just happened last fall."
The judge went on to say that she understood the Commonwealth's concern "whether she could perform in a truly objective manner" because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor.
[Note 9] As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen's son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror's son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor's peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732 , 739 (1993), S.C., 425 Mass. 237 , cert. denied, 522 U.S. 1033 (1997).
[Note 10] That explanation had little chance of success. "Challenges based on subjective data such as a juror's looks or gestures, or a party's 'gut' feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination." Commonwealth v. Maldonado, 439 Mass. at 465.
[Note 11] This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant.
[Note 12] The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April, 2007; and this court the Hubert decision in May, 2008. Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments.
[Note 13] In Commonwealth v. Hubert, supra at 664, defense counsel made timely objections and preserved the issue so that the standard of review was the presence of prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal.
[Note 14] As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim's mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury's view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had "killed" the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge's decision on a motion in limine. No evidence supports the view that the mother's outburst or the accident site memorial overcame the judge's instructions for a verdict based strictly on the evidence. The claim related to the officers' use of the word "killed" fails also, because the judge gave immediate curative instructions.
[Note 15] The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), has played no part in the appeal.