Commonwealth v. Alves ( 2019 )

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16-P-1470 Appeals Court
COMMONWEALTH vs. DOMINICK R. ALVES.
No. 16-P-1470.
Plymouth. January 4, 2019. - November 20, 2019.
Present: Green, C.J., Vuono, Meade, Rubin, & Wolohojian, JJ.1
Constitutional Law, Jury. Jury and Jurors. Practice, Criminal,
Jury and jurors, Voir dire. Evidence, Identification of
inanimate object. Due Process of Law, Identification of
inanimate object.
Indictments found and returned in the Superior Court
Department on September 27, 2013.
The cases were tried before Brian A. Davis, J.
Patrick A. Michaud for the defendant.
Laurie Yeshulas, Assistant District Attorney, for the
Commonwealth.
1 This case was initially heard by a panel comprising
Justices Vuono, Meade, and Rubin. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Chief Justice
Green and Justice Wolohojian. See Sciaba Constr. Corp. v.
Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993) (explaining
procedure if majority of justices agree with dissent).
2
RUBIN, J. Following a jury trial in the Superior Court,
the defendant, Dominick R. Alves, who is African-American, was
convicted in this racially charged criminal case of aggravated
assault and battery by means of a dangerous weapon (knife),
G. L. c. 265, § 15A (c) (i); two counts of assault and battery
by means of a dangerous weapon, G. L. c. 265, § 15A (b); and
possession of a class B controlled substance (cocaine), G. L.
c. 94C, § 34.2 He now appeals.
The defendant's principal argument is that he was denied a
fair trial before a jury of his peers because the trial judge
improperly struck certain prospective jurors for cause. We
agree; the judge's voir dire questions improperly excluded
jurors holding a specific belief with respect to racial
discrimination "born of the prospective juror's life
experiences," and who, as a consequence, might have been
particularly attentive to the racial dynamics of the case.
Commonwealth v. Williams, 481 Mass. 443, 449 (2019). The
consequence was that the defendant was tried by an all-white
jury that did not contain a representative cross-section of the
community, and whose selection denied his right to an impartial
jury, in violation of art. 12 of the Massachusetts Declaration
2 The defendant was found not guilty of assault with intent
to murder, G. L. c. 265, § 15. The Commonwealth entered a nolle
prosequi on one count of assault and battery.
3
of Rights. We therefore conclude that his convictions must be
reversed and the case remanded so that he may have a new trial
before a properly constituted jury.
Background. The events that led to the defendant's arrest
were as follows. Based on the testimony at trial, the jury
could have found that the violence on the night in question
began at about 1 A.M., when someone from among a group of white
people who had been attending a graduation party, and who were
escorting Timothy Rounds, a friend of the defendant, away from
their party, punched Rounds in the mouth. The defendant, who is
African-American, approached Rounds, who told the defendant he
was afraid of the group of white men. The defendant took a few
steps toward the group and told them to leave Rounds alone.
Three or four of the group, whom Rounds did not know,
responded by shouting racial epithets at the defendant, calling
him "nigger" and "nigger boy." The defendant told Rounds to
run, which he did.
Sometime later, someone who was identified as the defendant
punched one of the white men in the back of the head, and ran
into a crowd of over thirty people, many African-American. The
adult son of the man who had been punched testified that he, the
son, ran into the crowd yelling, "Which one of you fucking
niggers hit my father?"
4
The son grabbed an individual identified as the defendant
and they began fighting. The son was stabbed. A friend of the
son, the stabbing victim, testified that, after he watched the
stabbing, he yelled, "Which one of you niggers just stabbed my
friend." The friend also admitted that he might have posted on
the website Facebook the day after the incident, "Bet that
nigger is regretting it, too." And, at the very end of his
testimony, he volunteered, completely unsolicited, the
following: "Want to hear an old saying? . . . They say,
'Niggers come in . . . all colors.'"
After the stabbing, the stabbing victim's brother called
911 to report the altercation. The brother testified that he
described the black individuals in the area, including both the
defendant and some who were helping his brother, the stabbing
victim, as "fucking niggers."
A fourth witness, the initial punching victim, the father
of the stabbing victim, testified that he "could [have]" used
the word "nigger" during the altercation but did not think he
did. Furthermore, another friend of the stabbing victim who was
a percipient witness testified that he "might [have]" used the
word "nigger" on the night in question, and had used it on other
occasions, "but not like in a racist way."
Only two out of seven percipient witnesses (apart from
Rounds) did not make statements either suggesting that they had,
5
or explicitly admitting to having, used the word "nigger" to
refer to members of the defendant's race.
Voir dire. Prior to jury empanelment the judge informed
counsel that he intended to ask, inter alia, the following three
questions of each juror in individual voir dire, in the
following order: (1) "One or more of the persons who are
allegedly assaulted in this case are white, and the defendant is
black. Do these facts in any way affect or impair your ability
to render a fair and just verdict with respect to some, or all
of the charges against the defendant?"; (2) "Would you be
influenced in any way by the defendant's race in reaching a
verdict in this case?"; and (3) "Would you be able to fairly and
impartially weigh the credibility of a witness who has shown to
have used a derogator[y] racial term?" The judge, however,
ultimately did not ask most of the prospective jurors the third
question as he had framed. He began questioning the prospective
jurors by asking them the questions as he had proposed, and
three jurors were seated. When he asked the third question of
prospective juror no. 17, she responded, "What was the last
part?" When the judge repeated the question, the juror paused,
and the judge sua sponte rephrased the question. The following
colloquy ensued:
The court: "I will rephrase it. Would the fact that a
witness used a derogatory racial term -- is shown to
have used a derogatory racial term, would that fact
6
affect in any way how you would view the credibility or
the testimony of that witness?"
Juror 17: "Yes."
The court: "You think it would?"
Juror 17: "Yes."
The court: "You think it would impair? How would it
affect how you would view that witness?"
Juror 17: "It would just prove to me that they thought,
like, if it's a white person saying something against a
black person, that they are somewhat racist."
The court: "I see, and do you think that would affect
how you would view whether the person was telling the
truth?"
Juror 17: "Yeah."
The court: "You think it would?"
Juror 17: "Yeah."
The court: "All right, ma'am. I am going to excuse
you. Thank you very much for coming."
As should be clear, the "rephrased" third question was a
different question entirely from the one initially proposed
by the judge. It did not ask whether the fact that a witness
had used a racial slur would render the juror unable to be
fair or impartial. Rather, as prospective juror no. 17
understood, it asked whether a witness's use of a racial slur
in the past would affect the juror's assessment of the
7
witness's credibility when he was testifying against a member
of the racial group against whom he had spoken the slur.3
After the colloquy with prospective juror no. 17, the
prosecutor requested that the judge continue to use this version
of the third question, and the judge responded, "I'll try to do
it that way going forward." The judge used this new question or
some equivalent formulation for the rest of empanelment, never
returning to the question that asked prospective jurors whether
they could fairly and impartially evaluate the credibility of a
witness who used derogatory racial terms.
The next juror excused for cause on the basis of this
question was prospective juror no. 21. The judge asked this
prospective juror, "If you heard that one or more of the
witnesses in this case had used a derogatory racial comment or
term, how would that affect your view or your ability to weigh
the credibility, the truthfulness of the witness?" After
clarifying the meaning of the question, the prospective juror
responded only, "Yes," and the judge excused her.
Defense counsel objected, and pointed out that, of the
entire venire on the first day of empanelment, the excused
3 Given our disposition, we need not determine whether the
question as initially phrased by the judge would have been
permissible.
8
prospective juror was one of only two people of color.4 The
other prospective juror of color, prospective juror no. 37, was
also excused because of his response to the question. In
response to the judge's question, prospective juror no. 37 said,
"Yes, it would. . . . Because I'd feel they're being biased,
you know." Defense counsel at this point objected to the
exclusion for cause and also moved to discharge the entire
venire.
Over the course of the two-day empanelment process, a total
of eleven prospective jurors were excused for cause because they
gave some form of an affirmative response to this new version of
the third question, including the only identifiable people of
color who underwent voir dire.5 This included prospective juror
no. 24, whose response was, "Maybe, yeah," and prospective juror
no. 19, who stated only, "I might wonder if prejudice has played
into it."
4 Defense counsel described for the record prospective
juror no. 21 as having "darker skin color," and prospective
juror no. 37 as "appear[ing] to be of Cape Verdean background."
The record contains no further information about the race of
each of those prospective jurors, and we accordingly refer to
them as being "of color."
5 From the first day of empanelment, prospective juror nos.
17, 21, 23, 24, 28, 37, and 63; from the second day of
empanelment, prospective juror nos. 11, 19, 25, and 26.
9
Depending on all the facts and circumstances, in a case
like this it may be reasonable to conclude that a witness who
has used what "is widely regarded as the most hateful and
offensive" racial slur against African-Americans, see Thomas
O'Connor Constructors, Inc. v. Massachusetts Comm'n Against
Discrimination, 72 Mass. App. Ct. 549, 567 (2008) (Rubin, J.,
concurring in judgment and dissenting in part), is less credible
in his testimony against a black criminal defendant. Indeed,
those prospective jurors who were given the chance to explain
their answers, such as prospective juror nos. 17 and 37, quite
reasonably explained the reasons why a witness's prior use of a
racial slur might affect their judgments of the witness's
credibility in testifying against a black defendant. They were
not asked, and did not say, that they could not be fair or
impartial in assessing the witness's testimony. They merely
described accurately why the prior use of a racist term might
have bearing on a witness's credibility in certain
circumstances. Yet they were excused for cause.
Other prospective jurors, such as prospective juror nos. 24
and 19, were given no opportunity to explain or elaborate on
their statements regarding their views of the credibility of
witnesses who had used derogatory racial terms. They were
excused for cause simply for saying that a witness's prior use
of a racial slur might play a role in their assessment of the
10
credibility of the witness when he or she was testifying against
a defendant about whose racial group he or she had used a
derogatory slur.
Unsurprisingly, as a result of excusing prospective jurors
for cause if they responded affirmatively to the rephrased
question in this racially charged case, the only two jurors of
color identified during voir dire were excused, and this
defendant was tried before an all-white jury, none of whose
members who were asked thought that a person who had expressed
racist views might be less credible if he or she testified
against a black person.
The recent case of Williams, 481 Mass. 443, makes clear
that considerations such as these are not appropriate bases on
which to exclude prospective jurors. That case held that "a
prospective juror may not be excused for cause merely because he
or she believes that African-American males receive disparate
treatment in the criminal justice system." Id. at 451. A judge
who excludes a prospective juror on this basis "mistakenly
equates an inability to disregard one's life experiences and
resulting beliefs with an inability to be impartial. A judge
should not assume that a prospective juror is unable to be
impartial merely because he or she expressed uncertainty about
being able to put aside his or her firmly held beliefs.
Instead, an otherwise qualified prospective juror should be
11
excused for cause only if, given his or her experiences and
resulting beliefs, the judge concludes that the prospective
juror is unable to fairly evaluate the evidence presented and
properly apply the law." Id. at 452.
This reasoning applies with full force to prospective
jurors whose life experiences lead them to believe that people
who have expressed racist views against members of the
defendant's race are less likely to be credible when testifying
against that defendant. These prospective jurors are not
necessarily "unable to fairly evaluate the evidence presented
and properly apply the law." Williams, 481 Mass. at 452.
Indeed, we recently explained in the context of police
officer witnesses that it does not amount to bias when a
prospective juror has a rational reason to find one category of
witness more or less credible. In Commonwealth v. Nelson, 91
Mass. App. Ct. 645 (2017), we held that a judge did not err by
seating a juror who admitted that he was "more inclined to
believe the testimony of a police officer over someone who is
not a police officer solely because that individual is a police
officer." Id. at 646. In Nelson, after the juror gave this
response, the trial judge subsequently asked him "whether he
would 'be able to listen to all of the facts and evidence in the
case before [he would] be able to render a fair verdict.'" Id.
The juror responded affirmatively. We held that the juror did
12
not demonstrate bias and that he was qualified to serve. See
id. at 650. The same of course goes for prospective jurors who
are predisposed reasonably to negatively view the credibility of
certain classes of witnesses, such as those with criminal
records. See Commonwealth v. Nickerson, 388 Mass. 246, 249
(1983) ("At trial, a juror may consider the record of conviction
of crime of a witness on the issue of that witness's
credibility"). That rule likewise applies to prospective jurors
who believe that witnesses who have used words of racial hatred
toward a defendant's racial group may be less likely to be
credible when testifying against that defendant. "Individuals
are not expected to ignore as jurors what they know as men —- or
women." Williams, 481 Mass. at 451, quoting J.E.B. v. Alabama
ex rel. T.B., 511 U.S. 127, 149 (1994) (O'Connor, J.,
concurring).
Article 12 of the Massachusetts Declaration of Rights
"mandate[s] that a jury be drawn from a fair and representative
cross section of the community." Commonwealth v. Soares, 377
Mass. 461, 478 (1979). "A defendant's right to a fair and
impartial jury includes the right to a jury drawn from a venire
representing a fair cross section of the community." Williams,
481 Mass. at 455. As such, the fair cross section requirement
is an aspect of the right to a fair and impartial jury. See
Taylor v. Louisiana, 419 U.S. 522, 530-531 (1975). Of course
13
there is no requirement "that each jury include constituents of
every group in the population." Soares, supra at 481. And, one
"reason why absolute proportionality cannot be guaranteed is the
proper provision for removal of any prospective juror, whether
of a discrete group or not," who is unable to be fair and
impartial. Id. at 482.
In this case, however, although we do not suggest the judge
asked the question in bad faith, the two people of color on the
jury venire who were brought up for individual voir dire were
removed not for an inability to be fair or impartial, but for
giving a reasonable answer to an improper question that could
only be reasonably understood to be asking whether a witness who
had engaged in racist speech might be less credible when
testifying against a member of the racial minority group he has
indicated he despises. Because only people of color were
improperly excluded from the jury, the defendant was deprived of
the right to be tried by a jury representing a fair cross
section of the community in violation of the Massachusetts
Constitution and Declaration of Rights.6 So fundamental is the
right to trial by a jury composed of a fair cross section of the
6 Actions by the court system can of course violate a
defendant's fair cross section right even if they are done
without discriminatory intent. See, e.g., Commonwealth v.
Tolentino, 422 Mass. 515, 524 (1996) (selection of jury
venires).
14
community that, if there is no "fair cross section on the petit
jury," Soares, 377 Mass. at 483, the defendant is entitled to a
new trial without any need to show further prejudice. See id.
at 492. Thus, the defendant's conviction must be reversed, and
the case remanded for a new trial before a properly constituted
jury.
The defendant's art. 12 right to an impartial jury was also
violated for another independent reason: The jury were scrubbed
improperly of a group of jurors, representative of a substantial
segment of society, who might have been particularly sensitive
to the racial dynamics at play in the case, and whose absence
may have affected the jury's assessment of the credibility of
witnesses who expressed racist views toward people of the
defendant's race.7 Indeed, eleven of the twenty-nine prospective
jurors who were asked the "rephrased" question -– over one-third
of prospective jurors drawn from the venire who were asked -–
were struck by the judge solely for their answer.8 Treating the
beliefs of prospective jurors as "in themselves disqualifying"
7 This of course is not to say that none of the seated
jurors could have had any sensitivity to the racial dynamics
involved in the case.
8 The concurrence asserts that "[i]n most instances . . .
the determination of impartiality was made on the basis of
follow-up questions after a prospective juror responded
affirmatively to the question." Post at . Without
belaboring the point, that is not the case with respect to these
eleven jurors.
15
is impermissible when the disqualification of the prospective
jurors holding those beliefs would distort the composition of
the jury in a way that, because of the race of the defendant,
might affect the jury's judgment on an issue entrusted to them
–- in this case the credibility of certain witnesses. Williams,
481 Mass. at 457, quoting Mason v. United States, 170 A.3d 182,
187 (D.C. 2017) (in case with African-American defendant,
improper exclusion of juror because of her belief that criminal
justice system is biased against African-American men did not
require reversal because judge did not treat such beliefs of
prospective jurors as "in themselves disqualifying"). See
Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (under Sixth
Amendment to United States Constitution, systematic exclusion of
"veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or
religious scruples against its infliction," where their views
would not prevent or substantially impair performance of their
duties as jurors in accordance with judge's instructions and
their oath, deprives defendant right to impartial jury); United
States v. Salamone, 800 F.2d 1216, 1226-1227 (3d Cir. 1986)
(conviction of defendant on firearms charges by jury from which
individuals were excluded solely on basis of membership in
16
National Rifle Association violated principles of fundamental
fairness).9 This, too, requires reversal.10
Identification of the defendant's shirt. In light of our
conclusion we need not reach the defendant's other arguments
save for one that relates to an issue that may recur on retrial.
One of the defenses at trial was misidentification. The
defendant filed a motion in limine to preclude the introduction
9 As these cases make clear, and contrary to the suggestion
in the concurrence, post at n. 6, this aspect of the
right to an impartial jury does not fall within the rubric of
the "representative cross section of the community" requirement.
To the extent the concurrence reads our opinion to rest on the
possibility that this exclusion created a less racially
sensitive jury, it misperceives our argument. The problem with
the exclusion of this group of prospective jurors is that,
because of the question that led to the exclusion, it eliminated
prospective jurors, not shown to be partial, in a way that
skewed the composition of the jury with respect to how they
would judge an issue entrusted to them, the credibility of
certain witnesses.
10The defendant did not object at trial, but, because this
case involves the systematic exclusion of an entire class of
jurors, not just a single juror, this is a structural error.
See Williams, 481 Mass. at 456-457 (distinguishing cases such as
this, in which error is structural). On direct appeal reversal
is therefore required without inquiry into prejudice, that is,
whether there was a substantial risk of a miscarriage of
justice. See Commonwealth v. Villanueva, 47 Mass. App. Ct. 905,
906 (1999). Cf. Commonwealth v. LaChance, 469 Mass. 854, 856-
860 (2014) (limiting this rule in context of collateral attack
on conviction claiming ineffective assistance of counsel for
failure to object to court room closure). If an examination of
the question were warranted, the defendant has certainly shown
prejudice. This is not a case like Williams where the
Commonwealth had sufficient additional peremptory challenges
left at the end of jury selection that could have been used on
the excluded jurors. Here, eleven jurors were excluded. The
Commonwealth had but two remaining peremptory challenges.
17
of a witness's identification of a shirt, made on the basis of a
single photograph of the shirt that witness Detective Sergeant
Jacinto sent to witness Anthony Mallozzi's cell phone by text
message, as the shirt worn by the defendant during the melee.
The defendant alleged that the identification procedure was
impermissibly suggestive. At a pretrial hearing, the defendant
also challenged the identification of the same shirt by a second
witness, Alex Tarr, to whom the shirt had been Tarr had been
shown at the police station. Relying on Commonwealth v.
Simmons, 383 Mass. 46, 49-53 (1981), S.C., 392 Mass. 45, cert.
denied, 469 U.S. 861 (1984), the judge concluded that testimony
regarding the identification of the shirt was admissible, and
denied the motion in limine. The defendant preserved his
objection.
Appellate courts have recognized that, "in an extreme case,
the degree of suggestiveness of an identification procedure
concerning an inanimate object might rise to the level of a
denial of due process." Simmons, 383 Mass. at 51. See
Commonwealth v. Thomas, 476 Mass. 451, 466 (2017). "Due process
may be denied by admitting in evidence an identification of an
inanimate object where, first, the police knew or reasonably
should have known that identification of the object effectively
would identify the defendant as the perpetrator of the crime and
where, second, the police needlessly and strongly suggested to
18
the witness that the object was the object at issue." Id. at
466-467. See Commonwealth v. Spann, 383 Mass. 142, 148 (1981)
(extreme case of suggestiveness might involve improper
statements by police during identification procedure). But,
although "the police should take reasonable steps to avoid
unnecessary suggestiveness in what will generally be a showup
procedure, that is, the showing of the object alone or a single
photograph of the object," Thomas, supra at 467, "it has never
been the case that identification of an object must be subject
to the same precautions given the identification of a person."
Simmons, supra at 51, quoting Commonwealth v. Carter, 271 Pa.
Super. 508, 516 (1979).
The defendant contends on appeal that the actions of the
police in showing the shirt to Tarr and texting the single
photograph to Mallozzi, without giving any precautionary
warnings, were so unduly suggestive that they violated the
defendant's due process rights under art. 12. "Where an
identification arises from a police procedure, we apply the
standard appropriate for review of a decision implicating
constitutional rights: we review a judge's findings of fact to
determine whether they are clearly erroneous but review without
deference the judge's application of the law to the facts as
found." Commonwealth v. Johnson, 473 Mass. 594, 602 (2016).
See Commonwealth v. Watson, 455 Mass. 246, 250 (2009).
19
We conclude the judge here did not err.11 To begin with, it
does not appear that identification of the shirt by Tarr was
even used to "identify the defendant as the perpetrator of the
crime." Thomas, 476 Mass. at 467. Tarr had already identified
the perpetrator of the crime as the defendant through a
photograph array before the defendant's shirt was shown to him.
In any event, in the arguments below, the defendant alleged only
that there had been with respect to each witness a one-shirt
"showup." There was no evidence that Jacinto made any improper
statements to either witness, nor of anything else beyond the
mere fact of each witness being shown a single shirt, that might
have "strongly suggested" the shirt was the defendant's. See
id. On this record, we do not think the defendant has borne his
burden of demonstrating that this was an "extreme" case that
rose to the level of a violation of due process.
Conclusion. The judgments are reversed, the verdicts are
set aside, and the case is remanded to the trial court, where,
The judge resolved the identification issue on
11
constitutional grounds, and that is the focus of the defendant's
arguments on appeal. Accordingly, we do not consider whether
the witnesses' identifications of the shirt should have been
deemed inadmissible based on our common law of evidence. See
Thomas, 476 Mass. at 465-466.
2
should the Commonwealth choose to retry the defendant, he shall
have a new trial before a properly constituted jury.12,13
So ordered.
12The defendant argues that there should be no retrial on
the charge of aggravated assault and battery by means of a
dangerous weapon because the evidence was insufficient to
support the verdict. He claims that the Commonwealth failed to
present any evidence to show that he stabbed the stabbing victim
in the back with a knife and, therefore, the jury's guilty
verdict on this charge was based on speculation. We disagree.
Although none of the witnesses saw a knife in the defendant's
hands, a jury can reasonably infer the use of a dangerous weapon
from testimony about an altercation and the nature of a victim's
wounds. See Commonwealth v. Liakos, 12 Mass. App. Ct. 57, 60-61
(1981). See also Commonwealth v. Roman, 43 Mass. App. Ct. 733,
736 (1997), S.C., 427 Mass. 1006 (1998). One witness who knew
the defendant testified that he saw him fighting with the
stabbing victim, that the victim landed on the ground and was
bleeding profusely, and that the defendant ran away. Another
witness testified that he saw the defendant punching the victim,
that the victim's back was to the defendant, that he saw the
victim fall, and that he heard the victim screaming that he had
been stabbed. Finally, the victim sustained serious stab wounds
to the base of his neck and his upper back, and he spent four
days in the hospital. This evidence, if believed by the jury,
was sufficient to support a verdict of guilt.
13To the extent the defendant requests a change of venue,
we express no opinion on the matter, which should be decided in
the first instance in the trial court, should the Commonwealth
choose to retry the defendant and should he continue to seek
such a change.
VUONO, J. (concurring, with whom Meade, J., joins). The
defendant contends that he was denied a fair trial because the
individual voir dire question about the use of racist language
resulted in the removal of two prospective jurors of color.1
Both individuals, prospective juror no. 21 and prospective juror
no. 37, responded to the question by indicating that a witness's
use of a derogatory racial term could negatively affect their
view of the witness's credibility or truthfulness. Thereafter,
they were excused for cause without further inquiry over the
defendant's objection.2 The defendant asserts that the judge
1 As the majority observes, the record contains no
information about the race of these two prospective jurors other
than trial counsel's assessment of them. See Commonwealth v.
Prunty, 462 Mass. 295, 298 n.5 (2012).
2 It bears noting that the defendant's objection was based
solely on the composition of the jury venire. He argued that
his rights under the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights were violated because the venire did not adequately
represent a fair cross section of the community in Plymouth
County. He did not claim, as he does on appeal, that the
dismissal of either prospective juror violated his right to be
tried by an impartial jury. After prospective juror no. 21 was
excused, the defendant orally moved to dismiss the venire and
strike the seated jurors. He renewed his motion after
prospective juror no. 37 was dismissed. The motions were denied
and the process of selecting a jury continued. The following
day, the defendant filed a written motion to strike the venire.
The motion was supported by an affidavit from counsel who
averred that, in his opinion, there were no African-Americans in
the jury pool. He also stated that the two potential "minority"
jurors had to be struck for cause. Following the hearing, the
judge concluded that the defendant had not met his burden of
establishing a prima facie case of jury underrepresentation and
2
failed to question these two potential jurors thoroughly and, as
a result, could not assess whether either individual properly
could be seated on the jury. I agree that the judge's voir dire
of these two individuals was incomplete and, therefore, the
dismissal of these two prospective jurors was an abuse of
discretion. See Commonwealth v. Ruell, 459 Mass. 126, 136,
cert. denied, 565 U.S. 841 (2011). In the circumstances
presented, this error entitles the defendant to a new trial. I
write separately, however, for two reasons. First, I do not
believe, as the majority maintains, that the question -- to
which there was no objection before or after it was modified --
was inherently flawed. The problem here was not so much with
the question itself, but with the absence of sufficient follow-
up questions to determine whether a juror who responded
affirmatively to the question could nevertheless fairly evaluate
the evidence and apply the law as provided by the judge.
Second, I do not agree with the majority's conclusion that nine
additional prospective jurors were improperly removed for cause
on the basis of their responses to the question.
1. The voir dire questions. Before trial commenced,
defense counsel and the prosecutor informed the judge that the
denied the motion. In light of my conclusion that the defendant
is entitled to a new trial, there is no need to address the
validity of the defendant's challenge to the venire.
3
facts in this case were "racially charged."3 Both sides filed a
motion for the examination of jurors, setting forth proposed
questions to be asked during the individual voir dire portion of
the jury selection process for the purpose of exposing potential
racial bias. Given the inflammatory and offensive comments made
by several witnesses, the judge appropriately was concerned
about such bias. See Commonwealth v. Cruzado, 480 Mass. 275,
279 (2018). After discussion, the judge informed the parties
that he intended to ask the following question: "Would you be
able to fairly and impartially weigh the credibility of a
witness who has [been] shown to have used a derogator[y] racial
term?" There were no objections to the language of this
question, which was carefully crafted to identify whether any
prospective jurors harbored a bias against persons who used
derogatory language toward African-Americans and, therefore,
could not be impartial. See Commonwealth v. Prunty, 462 Mass.
295, 311 (2012) (potential jurors may be asked about race-
3 The defendant waived his Miranda rights and was
interviewed by the police. He denied committing the stabbing,
but admitted that he had hit three people after "he was jumped
by [fifteen] white guys." The defendant's theory of the case
was that a melee erupted when he told a group of racist and
intoxicated partygoers to leave his friend alone, that he acted
in self-defense when he threw punches at several people, and
that the credibility of the victim and partygoers who testified
against him was undermined by their racial bias, as exhibited by
their use of hateful and offensive racial slurs.
4
related bias). This question was asked of the first fourteen
prospective jurors, three of whom were seated on the jury.
Thereafter, as the majority explains, the question was
rephrased after one prospective juror asked for clarification.
Going forward, the judge asked the following question, with
slight variations: "If you heard that one or more of the
witnesses in this case had used a derogatory racial comment or
term, how would that affect your view or your ability to weigh
the credibility, the truthfulness of that witness?" As the
majority correctly observes, the modified question did not ask
whether the fact that a witness had used a racial slur would
render the juror unable to be fair and impartial. As such, the
question was not an improvement, as the judge and the parties
clearly had intended.4 Instead, the question was inartful and,
in the absence of further inquiry, improper. In most instances,
however, the determination of impartiality was made on the basis
4 There is no doubt, in my view, that the judge's decision
to modify the question was made in good faith. As Chief Justice
Gants acknowledged in his concurring opinion in Commonwealth v.
Williams, 481 Mass. 443, 458 (2019), "there are times, with the
benefit of additional thought and the wisdom of hindsight, in
which a judge will recognize that a discussion with a juror
could have been handled more artfully. We have no template for
such questioning; nor would it make sense to attempt to create
one because there are so many different ways that prospective
jurors may share their concerns about the risk of possible bias.
Addressing such concerns is necessarily improvisational, and
therefore often imperfect." I further note that the judge did
not have the benefit of the court's analysis in Williams, which
was decided after the trial in this case concluded.
5
of follow-up questions after a prospective juror responded
affirmatively to the question.
By way of example, in response to the modified question,
prospective juror no. 18 initially indicated that a witness's
use of a derogatory racial term "might affect" his view of the
witness's credibility. The judge then asked a series of follow-
up questions, the answers to which satisfied the judge that the
prospective juror could be impartial. There was no objection
and prospective juror no. 18 was seated on the jury. Another
example of the efficacy of the question when the judge continued
the inquiry was the voir dire of prospective juror no. 19. In
response to the question, prospective juror no. 19 told the
judge that she would view a witness who used a derogatory racial
term "as kind of a jerk," but not necessarily as less truthful.
During the course of the voir dire, she agreed with the judge
that she "would look at the entire package . . . of how the
person acted on the stand." After being assured of her
impartiality, the judge seated prospective juror no. 19 on the
jury with no objection. Yet another example is the voir dire of
prospective juror no. 14, who was seated on the jury during the
second day of empanelment. She responded to the question as
follows: "Well, the way I was brought up, I mean, I know that
language of how they say racism and whatever they call it and
everything, and I've never done that, never. I just don't."
6
The judge then probed further, asking the prospective juror to
explain how the use of a derogatory racial term would affect her
view of the witness's credibility. The prospective juror
replied, "It's very hard to say. I mean like I said, when I was
brought up that word was never used in my home." The
prospective juror continued: "And my father told me to respect
white, chinese, red, yellow, black and white." Additional
questions were posed by the judge, including the following
question: "We are looking for jurors who will come and sit on
this jury, listen carefully to the evidence and then decide the
case based solely on the evidence presented here at trial with
no preconceived notion, bias, prejudice, one way or the other,
decide it right down the middle based solely on the evidence and
the law that I will give to the jury in my instructions, and you
would have to follow the law regardless of whether you agree
with it or not. Would you be able to do that?" Prospective
juror no. 14 responded affirmatively, "Yes, I would," and
subsequently was seated on the jury.
Clearly, with respect to prospective juror nos. 18 and 19
on the first day of empanelment and prospective juror no. 14 on
the second day of empanelment, the judge was in a position to
determine whether, despite the prospective jurors' natural and
understandable opinion about people who use racist language,
they could nevertheless be impartial jurors in this case. My
7
point is that the question itself did not exclude prospective
jurors who held a specific belief with respect to racial
discrimination. Rather, it was the absence of further inquiry
in the case of some of the prospective jurors, most notably (and
unfortunately) with respect to the two prospective jurors of
color, that resulted in the risk that such jurors might be
excluded.
2. The nine additional prospective jurors excused for
cause. The defendant argues, and the majority agrees, that
apart from prospective juror no. 21 and prospective juror no.
37, nine additional prospective jurors (nos. 17, 23, 24, 28, and
63 from the first day of empanelment, and nos. 11, 19, 25, and
26 from the second day of empanelment) were improperly excused
on the basis of their responses to either the original or the
modified question. The defendant did not object when the judge
dismissed these potential jurors. The absence of an objection
is not surprising; as I previously noted, in the majority of
instances the responses of these prospective jurors during
individual voir dire made clear that they could not be
impartial. I also note that the defendant did not argue at
trial, nor does he claim on appeal, that these nine prospective
jurors should have been seated on the jury. Nor does he claim
that these prospective jurors were replaced by others who were
not impartial. Finally, I disagree with the majority's
8
contention that, as a result of removing these potential jurors
for cause, the jury were "scrubbed" of prospective jurors "who
might have been particularly sensitive to the racial dynamics at
play in this case." In fact, as noted above, several potential
jurors who expressed concerns and sensitivity about the use of
racially derogatory language were seated on the jury.5
Certainly, there can be no doubt that a juror's reasonable
beliefs about people who use racial epithets should not be
automatically disqualifying. See Williams, 481 Mass. at 448-449
("Where . . . a prospective juror has expressed an opinion or
world view based upon his or her life experience or belief
system, rather than asking him or her to set it aside [which is
difficult if not impossible to do], a judge must determine
5 I also disagree with the majority's position that these
nine prospective jurors comprised a "group of jurors" whose
exclusion "distort[ed] the composition of the jury" resulting in
a violation of the defendant's right to an impartial jury under
art. 12. As I understand the majority's view, they posit that
by excluding this "group" of prospective jurors who are racially
sensitive, the likelihood that the defendant's jury would be
drawn from a representative "substantial segment of society,"
i.e., a representative cross section of the community, was
reduced. The court addressed a similar argument in Williams,
481 Mass. at 457, and rejected it: "It is the exclusion of
prospective jurors 'solely by virtue of their membership in, or
affiliation with, particular, defined groupings in the
community' that violates a defendant's constitutional right to a
fair and impartial jury, not excusing prospective jurors for
cause because the judge believes, after voir dire, that they
cannot be impartial" (citations omitted). In Williams, as here,
the prospective juror who was removed for cause did not belong
to a "particular, defined, group[] in the community." Id.,
quoting Soares, 377 Mass. at 486.
9
whether, given that particular opinion, the juror nevertheless
is able to be impartial in the case to be tried"). Here,
however, none of these nine prospective jurors were dismissed
because they could not put aside their life experiences and
resulting world view. They were excused, properly, after the
judge determined that they could not listen to the evidence and
apply the law. The judge was much better positioned than we are
to evaluate a prospective juror's credibility and impartiality.
See Commonwealth v. Hunt, 462 Mass. 807, 821 (2012) ("We give
great deference to a judge's decision to excuse a prospective
juror for cause during empanelment, because a judge who has
spoken directly with the juror is better positioned than we are
to evaluate the juror's credibility and impartiality"). See
also Commonwealth v. McCoy, 456 Mass. 838, 843 (2010) (judge
entitled to rely on juror's demeanor and responses when
ascertaining bias). Because I discern no abuse of discretion
regarding the dismissal of these nine additional prospective
jurors, I disagree with the majority that excusing them for
cause provides a basis to order a new trial.