Commonwealth v. Hinds

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SJC-12953
COMMONWEALTH vs. ADRIAN HINDS.
Hampden. January 6, 2021. - April 20, 2021.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Assault and Battery by Means of a Dangerous Weapon. Evidence,
Expert opinion, Motive, Hearsay. Witness, Expert. Jury
and Jurors. Practice, Criminal, Jury and jurors,
Examination of jurors, Challenge to jurors, Hearsay.
Indictments found and returned in the Superior Court
Department on April 27, 2016.
The cases were tried before David Ricciardone, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Elaine Fronhofer for the defendant.
Joseph G.A. Coliflores, Assistant District Attorney, for
the Commonwealth.
Rebecca Kiley, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.
Michael Tumposky, for Massachusetts Association of Criminal
Defense Lawyers, amicus curiae, submitted a brief.
2
LOWY, J. In March 2016, the defendant, Adrian B. Hinds,
fought with Miranda Arthur-Smith and Nathaniel Cherniak. As a
result, the defendant was indicted on two counts of assault and
battery by means of a dangerous weapon resulting in serious
injury, G. L. c. 265, § 15A (c) (i).1 The defendant, who is
black, claimed that Cherniak, who is white, had initiated the
attack out of racial animus and that the defendant acted in
self-defense.
To support this argument, the defendant proposed having two
experts testify at trial about the cultural significance of a
symbol that Cherniak had tattooed on his arm. The defendant
alleged that the symbol -- which he claimed was the number 211 -
- was affiliated with groups that espoused white supremacist
ideology.2 After holding voir dire for each expert, the judge
excluded both experts on reliability grounds under the Daubert-
Lanigan standard. See Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 585-595 (1993). See also Commonwealth v. Lanigan, 419
1 The defendant also was indicted on two counts of armed
assault with intent to murder, G. L. c. 265, § 18 (b), one count
of assault and battery by means of a dangerous weapon, G. L.
c. 265, § 15A (b), and one count of cruelty to an animal, G. L.
c. 272, § 77. At trial, the judge dismissed for insufficient
evidence so much of the G. L. c. 265, § 15A (b), charge as
alleged that the assault and battery occurred by means of a
dangerous weapon, and the jury found the defendant not guilty of
the remaining charges.
2 Whether the symbol was the number 211 was disputed at voir
dire by the Commonwealth.
3
Mass. 15, 25-26 (1994). At trial, the Commonwealth alleged that
the defendant attacked Arthur-Smith and Cherniak without
justification. The defendant subsequently was convicted on both
counts of assault and battery by means of a dangerous weapon
resulting in serious injury.
On appeal, we consider, among other issues, whether the
judge erred in excluding the defendant's experts. We conclude
that the judge abused his discretion in excluding one of the
experts. Because this error was prejudicial, we reverse and
remand for a new trial.3
Background. We summarize the evidence at trial, reserving
certain facts for our discussion of the issues. We start by
noting what was undisputed. The defendant and the victims knew
each other before the fight. At the time of the incident, the
defendant lived with his mother in the same Westfield apartment
building as Arthur-Smith and Cherniak, who lived together.
Indeed, the defendant and Cherniak were even friendly with one
another, but the friendship ended approximately six months
before the fight that gave rise to this case. As will become
apparent, the parties agreed on few other details.
3 We acknowledge the amicus briefs from the Committee for
Public Counsel Services and Massachusetts Association of
Criminal Defense Lawyers.
4
1. The Commonwealth's case. Cherniak testified that his
relationship with the defendant soured when the defendant
accused him of being with the Russian mafia, a Mexican cartel,
and the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
and of being an undercover agent of the Drug Enforcement
Administration. Cherniak further testified that several days
before the altercation, the defendant confronted him in the
apartment building with a hammer and said that Cherniak was
going to be sent to a concentration camp.
Arthur-Smith testified that the altercation began when she
was pushed to the ground after leaving the apartment building to
head to her car. She felt something strike the back of her head
and, after turning over, recognized the defendant as the
attacker. She testified that the defendant struck her from four
to five times with a hammer. Arthur-Smith claimed that the
defendant smelled as if he had not bathed in some time and that
during the attack the defendant said to her: "That's for
messing with my mother." As the attack ensued, Arthur-Smith
yelled out Cherniak's name.
Cherniak testified that upon hearing Arthur-Smith yelling
his name, he left their apartment with a knife. When Cherniak
opened the front door of the building, he saw the defendant
standing over Arthur-Smith, who was bleeding. At that point,
Arthur-Smith's pet dog ran out of the building, causing Arthur-
5
Smith to stand up to chase the dog. The defendant went inside
the building. Cherniak, too, went inside, heading back to his
apartment to retrieve pepper spray; he then returned outside.
Thereafter, the defendant went back outside, hammer again in
hand. Cherniak sprayed the defendant with the pepper spray, and
the defendant struck Cherniak with the hammer several times.
After this, the defendant entered his car and drove away.
2. The defendant's case. The defendant offered a
different version of events. To begin, the defendant testified
that while living in the Westfield apartment building, both he
and his mother experienced several racially charged incidents
and that their cars' tires had been slashed while parked near
the apartment complex.4 The defendant did not testify that
Cherniak was behind these incidents. He did, however, testify
that his friendship with Cherniak ended when Cherniak repeatedly
asked the defendant to sell drugs for him, assuming that the
defendant was a drug dealer because, as the defendant testified
that Cherniak said, "You're black, you drive a Porsche, and
you're only twenty-something years old." Further, the defendant
4 The defendant testified that he contacted the police about
the vandalism done to his car. An officer testified at trial
that he had responded to a report of vandalism to the car but
believed that the alleged slash marks on the tires were
consistent with damage to the rim from driving over potholes.
6
testified that Cherniak told the defendant that he had been a
member of a "biker club" or "gang" in New York City.5
In contrast to Cherniak and Arthur-Smith's testimony, the
defendant testified that the altercation began when he heard a
loud bang outside his apartment, which the defendant believed
was the door to the building slamming shut. The defendant was
in the shower when he heard the noise.6 Because his car
previously had been vandalized, he looked out the window to
check on it. From his apartment window, the defendant saw
Arthur-Smith and Cherniak standing near his car and Cherniak
using a knife to slash his rear tire.7 Seeing that Cherniak had
a knife, the defendant grabbed a hammer before leaving his
apartment.
The defendant testified that he verbally confronted Arthur-
Smith and Cherniak when they returned inside the apartment
building. Standing in the building's hallway, Cherniak
5 Nathaniel Cherniak denied telling the defendant that he
was in a gang.
6 When an officer investigated the defendant's apartment
after the altercation, he found the shower was still running.
7 The size of the knife was disputed. After the fight, the
police did not ask to see, collect, or photograph the knife.
Instead, Miranda Arthur-Smith brought the knife into the police
station two weeks before trial. The defendant alleged that the
knife Arthur-Smith brought to the police station was not the one
Cherniak had used. Instead, the defendant claimed it was
smaller than the one used by Cherniak in the fight, which had
approximately a sixteen-inch blade.
7
responded to the defendant by saying something to the effect of
"What are you going to do about it?" Arthur-Smith then sprayed
the defendant with pepper spray, making it difficult for the
defendant to keep his eyes open. The defendant saw Cherniak
pull out a knife. The defendant then went toward the door
leading outside, swinging his hammer as he went. Arthur-Smith
sprayed the defendant as she backed out through the exterior
door. As the defendant reached the steps that led down from the
building's exterior door, he heard what sounded like someone
falling. Cherniak then followed the defendant out of the
building and started to slash his knife at the defendant. In
return, the defendant swung his hammer at Cherniak, making
contact with him several times. When the defendant realized
that he could get by Cherniak and reenter the building, he did
so, returning to his apartment.8
Once inside, the defendant testified that he decided to try
to find his mother, who was not home at the time, and to warn
her about what had happened.9 The defendant brought his hammer
with him as he went back outside. When the defendant left the
8 Arthur-Smith denied spraying the defendant with pepper
spray and claimed not to have seen any damage to the tires of
the defendant's car. Cherniak likewise denied slashing the
defendant's tires.
9 The defendant claims that he did not try to telephone his
mother because she had not been answering her telephone that
day.
8
building, Cherniak was standing near the defendant's car.
Cherniak sprayed the defendant with the pepper spray, and the
defendant responded by swinging the hammer towards Cherniak.
The defendant made contact with Cherniak, causing him to stop
spraying the pepper spray. The defendant then got into his car
and drove away, eventually pulling over due to the damage to one
of his tires.10
3. Percipient witnesses. Although there were three other
percipient witnesses who saw parts of the fight and testified at
trial, none of these witnesses saw who the initial aggressor
was. The first witness, who was located near the parking lot at
the time, testified that he saw the defendant standing over
Arthur-Smith outside the building and then Cherniak running
outside. That witness did not hear Arthur-Smith yell Cherniak's
name. The second witness, who was inside her apartment at the
time, testified to hearing a commotion outside and seeing a
black man and a white man fighting when she looked out her
window.
Finally, the third witness testified that from inside her
apartment she heard scuffling, grunting, and loud talking,
though not yelling. After looking out a window, which looked
directly out over the parking lot, she saw a black man and a
The officer who found the car confirmed that one of its
10
rear tires had "sustained some significant damage."
9
white man fighting and a woman running after a dog. She further
saw the black man go back into the apartment building, then
return outside with a hammer. At this point, the white man
sprayed the black man with something, and the black man hit the
white man in the head with the hammer. After fighting, the
black man got in his car and drove away.
4. Procedural history. The jury found the defendant
guilty on two indictments charging assault and battery by means
of a dangerous weapon resulting in serious bodily injury, G. L.
c. 265, § 15A (c) (i). The defendant appealed, and we
transferred the case to this court sua sponte.
Discussion. 1. Expert testimony. At trial, the defendant
argued that he acted in self-defense. The defendant's theory of
the case was that Cherniak and Arthur-Smith were motivated to
attack him by racial animus. Corroborating this theory was a
tattoo Cherniak had on his arm. The defendant argued that the
tattoo was of the number 211 and that this symbol was used by
both the 211 Crew -- a white supremacist prison gang -- and the
211 Bootboys -- a white supremacist group operating out of New
York City. According to the defendant, Cherniak's tattoo
signaled his affinity to beliefs espoused by these groups. To
support this theory, the defendant sought to introduce the
testimony of two experts: Dr. Sophie Bjork-James, who has a
doctorate in cultural anthropology and studies the white
10
nationalist movement, and Dr. Jesse De La Cruz, who has a
doctorate in educational leadership and is an expert on gangs.
Each would testify that Cherniak's tattoo was affiliated with a
group that espoused white supremacist beliefs.
The judge excluded both experts on reliability grounds. On
appeal, the defendant argues that the judge's decisions to
exclude De La Cruz and Bjork-James's expert testimony were
abuses of discretion. We agree as to Bjork-James's testimony
but not as to De La Cruz's testimony.
"The role of expert testimony is to assist jurors in
interpreting evidence that lies outside their common
experience." Commonwealth v. Shanley, 455 Mass. 752, 761
(2010). Admission of such testimony is "governed by what has
come to be known as the Daubert-Lanigan standard."11
Commonwealth v. Camblin, 478 Mass. 469, 475 (2017). See Mass.
G. Evid. § 702 & comments (2021). To satisfy this standard,
expert testimony must both "rest[] on a reliable foundation" and
11Expert testimony also may be admitted under the standard
set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
See Commonwealth v. Patterson, 445 Mass. 626, 640 (2005),
overruled on other grounds by Commonwealth v. Britt, 465 Mass.
87 (2013) (Frye standard requires "theory and methodology in
question to be generally accepted by a relevant scientific
community"). See also Commonwealth v. Powell, 450 Mass. 229,
238 (2007) ("Where general acceptance is not established by the
party offering the expert testimony, a full Daubert analysis
provides an alternate method of establishing reliability"
[citation omitted]). At oral argument, however, the defendant
conceded that the Daubert-Lanigan standard applies in this case.
11
be "relevant to the task at hand." Daubert, 509 U.S. at 597.
See Commonwealth v. Polk, 462 Mass. 23, 32 (2012).
Within this framework, "[t]he judge is the gatekeeper of
the evidence" and must make a threshold determination that the
testimony is both relevant and "sufficiently reliable to go
before the jury." Commonwealth v. Hoose, 467 Mass. 395, 417
(2014). Whether the methodology applied by the expert satisfies
gatekeeper reliability is a preliminary question of fact upon
which admissibility depends on the judge to determine. Mass. G.
Evid. § 104(a) (2021). The judge does not, however, determine
whether to credit the expert's ultimate opinion; this is a
matter of weight for the jury to decide. See Commonwealth v.
Roberio, 428 Mass. 278, 281 (1998), S.C., 440 Mass. 245 (2003)
("Once the expert's qualifications were established and assuming
the expert's testimony met the standard of . . . Lanigan, . . .
the issue of credibility was for a jury, not the judge").
"We review a judge's determination to admit or exclude
expert testimony under Daubert-Lanigan for an abuse of
discretion." Commonwealth v. DiCicco, 470 Mass. 720, 729
(2015). See Canavan's Case, 432 Mass. 304, 312 (2000).
Although "our review under this standard is deferential and
limited, it is not perfunctory. A judge's findings must apply
the correct legal standard to the facts of the case and must be
supported by an examination of the record." Commonwealth v.
12
Patterson, 445 Mass. 626, 639 (2005), overruled on other grounds
by Commonwealth v. Britt, 465 Mass. 87 (2013). See Commonwealth
v. Crawford, 429 Mass. 60, 66 n.13 (1999). Our analysis begins
with the issue of relevance.
a. Relevance. We begin by recognizing that the judge did
not base his ruling as it relates to either defense expert on
relevance grounds. Nor did either the Commonwealth or the
defendant raise the issue of relevance at trial or on appeal.12
Nevertheless, a proper understanding of the relevance of the
expert testimony at issue here is crucial. See Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 153-154 (1999) (judges must
determine whether expert's testimony reliably speaks to issue
for which it is offered to prove). Relevance is the first rule
of evidence; it is where our analysis must begin. See State v.
Goodson, 281 Kan. 913, 922 (2006) ("A determination of relevance
is the first step in analyzing if evidence is admissible").
Failure to grapple fully with the relevance of the defendant's
expert testimony may have led the parties and the judge astray.
Consequently, we start our inquiry here.
The judge appears to have assumed that at least Bjork-
James's opinion was relevant in part to show that Cherniak
belonged to a gang. This was not and is not the defendant's
12The defendant, however, was asked about the issue at oral
argument.
13
theory. Instead, the defendant argued that Arthur-Smith and
Cherniak attacked him first, and that the incident was a "race-
based attack and that he acted in self-defense." To this end,
De La Cruz and Bjork-James's testimony was relevant not to show
that Cherniak belonged to a gang, but rather that he may have
had some affinity for white supremacist ideology, regardless of
whether he was actually a member of any gang or white
supremacist group. In short, De La Cruz and Bjork-James's
testimony went to whether Cherniak was motivated to attack the
defendant based on his alleged white supremacist beliefs.13
"The relevance threshold for the admission of evidence is
low." Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). To be
relevant, the proposed evidence need only have a tendency to
make a material fact more or less probable that it would be
without the evidence. See Commonwealth v. Moore, 480 Mass. 799,
808 (2018); Mass. G. Evid. § 401 (2021).
In light of these considerations, "evidence of motive need
not be conclusive"; instead, "it need only provide a link in the
chain of proof." Commonwealth v. Watt, 484 Mass. 742, 748
(2020). Courts routinely have admitted evidence concerning
13At one point, the judge appeared to acknowledge this,
noting that "the Defendant has a theory that the Complainant's a
white supremacist and that this led to him being attacked."
14
tattoos to show motive.14 See, e.g., People v. Valdez, 55 Cal.
4th 82, 131 (2012), cert. denied, 569 U.S. 948 (2013) (evidence
of tattoo relevant to show motive); Wolfe v. State, 273 Ga. 670,
673-674 (2001) (same); State v. Tankovich, 155 Idaho 221, 225-
226 (2013) (tattoos relevant to racial motive of both defendant
bearing them and codefendant in malicious harassment case);
People v. James, 348 Ill. App. 3d 498, 509-510 (2004), cert.
denied, 544 U.S. 910 (2005) (evidence of tattoo relevant to show
motive). See also People v. Slavin, 1 N.Y.3d 392, 395, cert.
denied, 543 U.S. 818 (2004) ("tattoos may have reflected
defendant's inner thoughts"). Cf. Commonwealth v. Sylvia, 456
Mass. 182, 188-189 (2010) (that prosecutor reasonably expected
to elicit evidence supporting comment made during opening
statement about how tattoo of victim's name on defendant's neck
might provide possible motive for murder was supported by
record).
If credited, Bjork-James's or De La Cruz's testimony would
have provided evidence that Cherniak's tattoo was associated
with a group that espouses white supremacist beliefs. Combined
with the defendant's testimony about the racially charged
14Analogous reasoning also has supported entering in
evidence gang-affiliated clothes and symbols in order to
demonstrate motive. See, e.g., Commonwealth v. Lopes, 478 Mass.
593, 604 (2018) ("testimony that the defendant had been seen
wearing clothing that bore an 'H' [signifying Homes Ave. gang
membership] was relevant in proving the defendant's motive").
15
statements that Cherniak made to him and which allegedly ended
their friendship, and presuming the jury found that the
Cherniak's tattoo was a "211," the expert testimony would have
provided the jury with a link between the tattoo and a motive
for Cherniak to attack the defendant.15 Thus, the proffered
testimony was relevant.
b. Reliability. Under the Daubert-Lanigan standard, "the
touchstone of admissibility is reliability." DiCicco, 470 Mass.
at 729, quoting Commonwealth v. Vao Sok, 425 Mass. 787, 796
(1997). See Lanigan, 419 Mass. at 26. To this end, the
proponent of the expert testimony must establish, among other
factors, that the testimony is "based on facts or data of a type
reasonably relied on by experts to form opinions in the relevant
field," that the testimony is based on a reliable methodology,
and that methodology "is applied to the particular facts of the
case in a reliable manner."16 Commonwealth v. Barbosa, 457 Mass.
15We previously have held "that evidence of a victim's
prior violent conduct may be probative of whether the victim was
the first aggressor where a claim of self-defense has been
asserted and the identity of the first aggressor is in dispute."
Commonwealth v. Adjutant, 443 Mass. 649, 650 (2005). Because
the defendant offers the evidence for the nonpropensity purpose
of motive, and because the Commonwealth did not object on the
ground of impermissible character evidence, we need not examine
any further implications that arise from Adjutant.
16The proponent of the expert testimony also must
demonstrate that the witness is qualified as an expert and that
the witness's testimony will assist the jury. Commonwealth v.
16
773, 783 (2010), cert. denied, 563 U.S. 990 (2011). See Mass.
G. Evid. § 702 (requirements for admission of expert testimony).
i. Soft sciences. Both of the defendant's proffered
experts are social scientists. Commentators often refer to
disciplines like these as "soft sciences." See, e.g., Goodman,
A Hedgehog on the Witness Stand -- What's the Big Idea?: The
Challenges of Using Daubert to Assess Social Sciences and
Nonscientific Testimony, 59 Am. U. L. Rev. 635, 641 (2010).
Before assessing either Bjork-James's or De La Cruz's testimony,
we take this opportunity to comment on the application of
Daubert-Lanigan to the soft sciences.
Whereas experts in the "hard sciences" primarily base their
findings on repeatable experiments conducted under controlled
conditions, experts in the "soft sciences" base their findings
largely on nonrepeatable observations. See generally Brodin,
Behavioral Science Evidence in the Age of Daubert: Reflections
of a Skeptic, 73 U. Cin. L. Rev. 867, 869 (2005). At times, we
have suggested that the Daubert-Lanigan standard differs when
applied to "soft" sciences as when compared to how it is applied
to "hard" sciences. See, e.g., Canavan's Case, 432 Mass. at
Barbosa, 457 Mass. 773, 783 (2010), cert. denied, 563 U.S. 990(2011). Because the Commonwealth concedes that the testimony of
De La Cruz and Bjork-James would have aided the jury, we do not
discuss this factor further. Insofar as the qualifications of
Bjork-James are at issue, we discuss that at note 23, infra.
17
311-312. See also Mass. G. Evid. § 702 & comments ("The
application of the Daubert-Lanigan factors in cases involving
the 'hard' sciences may not apply in the same way in cases
involving the 'soft' sciences"). This suggestion recognizes an
important truth. The soft sciences are not entitled to less
consideration than their hard science counterparts, but the
methodologies of each do differ. Our law of evidence reflects
this point.
The Daubert-Lanigan standard initially was developed to
assure the reliability of expert testimony based on hard
sciences like pharmacology and deoxyribonucleic acid (DNA)
testing. See Daubert, 509 U.S. at 583. See also Lanigan, 419
Mass. at 16. These origins guided the United States Supreme
Court in Daubert to identify what factors courts should consider
when determining whether an expert's methodology is reliable.
See generally Brodin, 73 U. Cin. L. Rev. at 871-873.
Specifically, courts should consider (1) whether the method "can
be (and has been) tested," (2) whether it "has been subjected to
peer review and publication," (3) its "known or potential rate
of error," (4) "the existence and maintenance of standards
controlling the technique's operation," and (5) whether the
method has achieved "general acceptance" within the relevant
community. Daubert, supra at 593-594.
18
These nonexclusive factors, however, are not easily imposed
on the methodologies used by the soft sciences. Because
different subject matters allow for varying degrees of
certainty, the metrics used to assess reliability understandably
vary across areas of expertise. See Reinhard, "Sociological
Gobbledygook": Gill v. Whitford, Wal-Mart v. Dukes, and the
Court's Selective Distrust of "Soft Science," 67 U.C.L.A. L.
Rev. 700, 747 (2020) ("Soft sciences[, unlike hard sciences,]
are stuck in an unending state of 'maybe,' or 'yes, but only in
the event that --' or 'it depends'"). See also Commonwealth v.
Pytou Heang, 458 Mass. 827, 847-849 (2011) (different levels of
certainty where expert's discipline "is clearly as much an art
as a science"). For this reason, different "types of
methodology may require judges to apply differing evaluative
criteria to determine whether scientific methodology is
reliable."17 Canavan's Case, 432 Mass. at 314 n.5. See Kumho
Tire Co., 526 U.S. at 150 ("[W]e can neither rule out, nor rule
in, for all cases and for all time the applicability of the
factors mentioned in Daubert, nor can we now do so for subsets
17Conversely, once an expert's testimony based on soft
science is admitted, it also is important for jurors to
understand that it is not hard science. See Commonwealth v.
Torres, 469 Mass. 398, 407 (2014) ("Of particular concern is the
danger that the jury is misled into an understanding that the
'science' at hand is 'hard' science, when in fact it is 'soft'
science").
19
of cases categorized by category of expert or by kind of
evidence. Too much depends upon the particular circumstances of
the particular case at issue"); Ernest E. v. Commonwealth, 486
Mass. 183, 190-191 (2020) (application of Daubert-Lanigan to
soft sciences).
In other words, "[n]ot all of the factors identified in
Daubert[-Lanigan] will be applicable in every case." Palandijan
v. Foster, 446 Mass. 100, 111 (2006). Consequently, while
Daubert-Lanigan establishes "various guideposts for determining
admissibility including general acceptance, peer review, and
testing," we have also stressed that "[e]stablishing the
reliability of personal observations may in some circumstances
require examining other criteria." Canavan's Case, 432 Mass. at
314 n.5. Therefore, in order to respect the methodological
distinctions that divide soft from hard sciences, application of
the Daubert-Lanigan standard to soft sciences requires
flexibility with special attention being paid to the criteria of
reliability that different disciplines develop.18 Id. See
Goodman, 59 Am. U. L. Rev. at 680 ("Ultimately, courts should
develop a suitable set of factors to test a particular social
18Assessing the reliability of the methodology employed by
an expert's testimony in light of the standards developed within
the relevant field also helps to avoid what some commentators
have labeled as "selective distrust" of the soft sciences. See
Reinhard, 67 U.C.L.A. L. Rev. at 708.
20
science methodology"). With these considerations in mind, we
turn to the case at hand.
ii. Defendant's experts. In excluding Bjork-James, the
judge found that the methodology employed by Bjork-James to
connect the number 211 to white supremacist gangs was
unreliable. In excluding De La Cruz's testimony connecting
Cherniak's tattoo to white supremacist gangs, the judge found
that the testimony was based on insufficient facts, that it was
not based on reliable methods, and that De La Cruz did not
reliably apply these methods to the facts of the case. We agree
with the defendant that the decision to exclude Bjork-James was
an abuse of discretion, but we disagree with the same argument
concerning De La Cruz.19
A. Bjork-James. During voir dire, Bjork-James testified
that her method of analysis was based on ethnography, which is
premised on observing people in their everyday locations in
order to understand society from their point of view, and media
studies, which focuses on the cultural significance people
19The Commonwealth does not challenge, and the judge did
not rule on, the underlying basis of either De La Cruz or Bjork-
James's testimony. See Mass. G. Evid. § 703 (2021).
Consequently, we do not inquire further into whether the sources
used by these experts pass muster under our law of evidence.
Cf. Commonwealth v. Watt, 484 Mass. 742, 746 (2020) ("Expert
testimony must be based on facts within the witness's direct
personal knowledge, facts already introduced in evidence, or
unadmitted but independently admissible evidence" [quotations
and citation omitted]).
21
afford media.20 Bjork-James drew from these approaches in her
research into the white supremacist movement's development on
the Internet.21 To this end, she studied online postings on
known white supremacist websites. When she found a post that
users of the website commented on, or one that shared themes22
with other posts, she would keep track of the information
contained therein. When neither of these factors was present,
Bjork-James would disregard the post. In this way, Bjork-James
identified themes that emerged among various posts she studied.
One pattern that Bjork-James noticed as part of her
academic research was the use of numbers among white nationalist
groups to identify themselves. Among these numbers was the
number 211, which Bjork-James tracked as recurring among online
posts about a record label whose bands were affiliated with the
white supremacist movement and that had ties to the 211
20Although not dispositive of either term's meaning within
the discipline of cultural anthropology, "ethnography" is also
defined as "[t]he scientific description of the customs of
individual peoples and cultures," Lexico, https://www.lexico.com
/en/definition/ethnography [https://perma.cc/H28R-4FYH], whereas
"media studies" is defined as "[t]he study of the mass media as
an academic subject," Lexico, https://www.lexico.com/en
/definition/media_studies [https://perma.cc/V5SP-L8ND].
21Bjork-James had been studying the white supremacist
movement since 2004. During that time, she had published her
findings in several academic journals as well as in a peer-
reviewed manuscript.
22"Themes" is an academic term in this context and
signifies a focus on recurring information and patterns.
22
Bootboys, a group harboring white supremacist beliefs. Bjork-
James used reports authored by the Southern Poverty Law Center
and the Anti-Defamation League to confirm the connection between
bands and the white supremacist movement. When asked by defense
counsel during voir dire whether she knew of any other cultural
significance of the number "211" outside of the white
supremacist movement, Bjork-James responded that she did not.
The judge credited Bjork-James's testimony concerning how
tattoos and symbols are used by individuals to signal affinities
with white supremacist groups.23 The judge even found that "as a
matter of cultural anthropology," Bjork-James knew of "no other
use of the number '211,' except in reference to 211 Crew or 211
Bootboys." Despite that, the judge concluded that the defendant
presented "no reliable methodology to support alleged expert
testimony that the Complainant's tattoo is connected to a white
supremacist group or ideology."
23Despite basing his ruling on methodology rather than
qualifications, the judge also found that Bjork-James was not an
expert in tattoos, noting that "[s]he does claim some expertise
in symbols, but only in a broad sense as they pertain to white
supremacist and similar groups." However, Bjork-James was being
offered as an expert on symbols, an area in which the judge
found she was qualified. Insofar as the judge factored Bjork-
James's lack of expertise in tattoos into his analysis, this was
error. See Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990)
("There is no requirement that testimony on a question of
discrete knowledge come from an expert qualified in that
subspecialty rather than from an expert more generally
qualified").
23
Although "conclusions and methodology are not entirely
distinct from one another," General Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997), a judge acting as gatekeeper must limit
his or her analysis to the reliability of an expert's
methodology, not the persuasiveness of the conclusion. See
Daubert, 509 U.S. at 595 ("The focus, of course, must be solely
on principles and methodology, not on the conclusions that they
generate"). "Of course, if the judge rules the opinion evidence
admissible, that ruling is not final on the reliability of the
opinion evidence." Lanigan, 419 Mass. at 26. "Vigorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence."
Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 n.40 (2010),
quoting Daubert, supra at 596. See Commonwealth v. Torres, 469
Mass. 398, 407 (2014) ("How the expert proceeds with the
application of [a method] is usually fertile ground for cross-
examination"). In other words, an expert may have a reliable
method and still fail to persuade a jury of his or her
conclusions. But acting as gatekeeper, the judge must leave the
determination of the credibility of the expert and the weight to
be attributed to the expert's testimony to the trier of fact.
Here, the judge incorrectly focused on the persuasiveness
of Bjork-James's conclusions, not the reliability of her
24
methodology. Furthermore, the judge appears to have focused on
the wrong conclusions. When evaluating Bjork-James's analysis
of the number 211 and its use by white supremacist groups, the
judge found that the examples used by Bjork-James to draw this
link "do not match the distinctive font of the Complainant's
tattoo." For this reason, the judge found that "the alleged
connection between the Complainant's tattoo and him espousing
any racist ideology is too specious to pass muster under" the
Daubert-Lanigan standard.24 Yet the defendant offered Bjork-
James not to tie Cherniak or his tattoo specifically to the
white supremacist movement, but rather to provide testimony on
the significance of the number 211 to the principles of white
supremacy more generally.25 Assuming the jury found that
Cherniak's tattoo was of the number 211, Bjork-James's testimony
would have been relevant as to whether the tattoo indicated any
affinity of his with the white supremacist movement. Jurors
24During its closing at Bjork-James's voir dire, the
Commonwealth also emphasized that the link between the cultural
anthropologist's testimony and Cherniak's tattoo was absent. To
this end, the Commonwealth argued that Bjork-James could not
"definitively" say that Cherniak's tattoo was a 211 symbol.
25Defense counsel stressed this point during Bjork-James's
voir dire, arguing that although the jury could believe that
Cherniak's tattoo was something other than a 211, if the jury
thought it was that number then the cultural anthropologist's
testimony was "relevant because [Cherniak] has a symbol on his
body that [Bjork-James] says is one of the symbols that
circulates among [white supremacist] groups."
25
reasonably could have inferred either that Cherniak did or did
not share the movement's insidious beliefs.
Put differently, Bjork-James's testimony was conditionally
relevant on the jury finding that Cherniak's tattoo was of the
number 211. See Mass. G. Evid. § 104(b). The judge's role in
this regard was to determine whether a jury could reasonably
find by a preponderance of the evidence that Cherniak's tattoo
was the number 211. See Commonwealth v. Ware, 482 Mass. 717,
729 n.16 (2019), quoting Commonwealth v. Meola, 95 Mass. App.
Ct. 303, 308 n.13 (2019) ("A judge, when addressing an issue of
conditional relevance, does not decide whether he or she
believes that the item being offered in evidence is what it is
purported to be. Rather, the judge decides whether a trier of
fact 'could reasonably find the conditional fact . . . by a
preponderance of the evidence'"). In determining that
Cherniak's tattoo did not match the font of the samples on which
Bjork-James's testimony relied and was thus not related to the
beliefs espoused by white supremacists, the judge intruded on
the role of the jury.26
26An analogous situation would be where an expert is
analyzing whether DNA on a victim's shirt was that of a
defendant. The judge's role there would be to assess the
reliability of the science, not to determine whether the shirt
was worn by the victim. Rather, the judge would determine
whether a jury could reasonably decide by a preponderance of the
evidence that the shirt was worn by the victim. See Mass. G.
Evid. § 104(b).
26
"Numerous decisions in federal and other state cases also
have upheld the admission of expert testimony to explain the
culture and beliefs of White supremacy groups and gangs and to
interpret tattoos, symbols, and graffiti associated with these
groups when such evidence was relevant to the issues at trial."
People v. Lindberg, 45 Cal. 4th 1, 46-47 (2008), cert. denied,
557 U.S. 908 (2009). In testifying about this culture, Bjork-
James applied the sort of comparative methodology commonly used
by social scientists beyond the court room setting. See, e.g.,
United States v. Young, 916 F.3d 368, 380-381 (4th Cir.), cert.
denied, 140 S. Ct. 113 (2019) ("'collect[ing] as much
information as possible,' then balancing 'each new incoming
piece of information against the body of information you've
built to that point'" is method "generally employed in the
social sciences" [citation omitted]); United States vs. Paracha,
U.S. Dist. Ct., No. 03 CR. 1197(SHS), slip op. at 35 (S.D.N.Y.
Jan. 3. 2006) (determining as reliable methodology "gathering
multiple sources of information, including original and
secondary sources, cross-checking and juxtaposing new
information against existing information and evaluating new
information to determine whether his conclusions remain
consonant with the most reliable sources"). See also Goodman,
59 Am. U. L. Rev. at 681 ("Because so much of social science
. . . is based on document selection and interpretation, courts
27
should focus on this factor in assessing a social science
expert's methodology" [footnote omitted]).
Therefore, it was an abuse of discretion to exclude Bjork-
James's testimony concerning the cultural significance of the
number 211. The defendant offered the anthropologist's
testimony to provide the jury with the basis to infer that
Cherniak shared the white supremacist beliefs that Bjork-James's
research linked to the number 211, and that these beliefs in
turn motivated Cherniak to initiate the fight at issue.
Although the defendant certainly could have articulated this
theory more precisely to the judge, the judge imposed too high a
burden on the testimony's admissibility, asking that it persuade
him of factual conclusions rather than merely demonstrate a
reliable methodology. Cf. Salvas v. Wal-Mart Stores, Inc., 452
Mass. 337, 358 (2008) ("In excluding even the portion of
Shapiro's report and testimony that consisted of counting data
found in Wal–Mart's own business records, the motion judge acted
not on the basis of any challenge to Shapiro's methodology, but
essentially on his view that the records themselves were
insufficiently reliable"). This was error.
B. De La Cruz. The same is not true for De La Cruz.
Whereas Bjork-James outlined a reliable method for assessing
symbolism, De La Cruz did not. Although De La Cruz did discuss
the methods used by sociologists to understand how gangs
28
identify themselves at one point, he did so in general terms,
discussing the difference between quantitative and qualitative
analysis in a manner untied to a specific methodology. Even if
invoking these terms in the abstract would be sufficient to
identify a method at work here, De La Cruz did not discuss
specifically how these different approaches guided his own
research, instead giving the impression that these were
approaches in which he was trained. Such academic training
"might have taught him a methodology, [but] it is not itself a
methodology." Commonwealth v. Franceschi, 94 Mass. App. Ct.
602, 610 (2018).
Furthermore, when asked how he had researched the meaning
of the number 211, De La Cruz recalled having come across the
figure during his doctoral research.27 To refresh his memory, De
La Cruz read twenty to twenty-five articles on the Internet
about groups that used the number 211 to identify themselves.
De La Cruz did note that the number was associated with white
supremacist beliefs. At no point during his voir dire, however,
did De La Cruz indicate what guided his selection of the
particular articles he read or his research in general. Nor did
De La Cruz provide a reliable method for determining whether a
27De La Cruz's dissertation examined gang membership; it
did not appear to examine how to determine whether a symbol is
associated with a gang. The dissertation also did not appear to
cover any gangs that used the number 211 to identify themselves.
29
symbol was affiliated with white supremacist groups.28 Although
Daubert-Lanigan must be flexibly applied to the soft sciences,
there is a breaking point. When an opinion "is connected to
existing data only by the ipse dixit of the expert," that point
has long since been passed. General Elec. Co. 522 U.S. at 146.
In sum, De La Cruz was qualified to testify about the
significance of the number 211 to white supremacist gangs. He
also may have had a methodology that he could have reliably
applied to uncover this significance. But he did not articulate
the foundation for such a method here. See Kumho Tire Co., 526
U.S. at 153 (although expert was qualified, he lacked reliable
methodology). "Because the admissibility of expert testimony is
a preliminary question of fact, the proponent's burden of proof
to demonstrate the reliability of the expert opinion is by a
preponderance of the evidence." Camblin, 478 Mass. at 476. See
28De La Cruz did reference a test that the United States
Department of Justice uses to determine gang membership, which
assign points to a subject based on how many of a set of
criteria for gang membership the subject matches. Once the
subject acquires ten points, then the test considers the subject
a gang member. Based on these criteria, De La Cruz concluded
that Cherniak was "definitely associated with" white supremacist
groups. However, the criteria were not developed to determine
whether a symbol was associated with the white supremacist
movement and instead based some of the points allotted to
whether a subject had a "[k]nown gang tattoo or marking."
Whether the 211 tattoo was associated with white supremacists,
however, was the reason why the defendant called De La Cruz to
testify. Consequently, it appears De La Cruz used the criteria
to confirm rather than investigate the issue.
30
Mass. G. Evid. § 104(a). Voir dire is the time to educate the
judge -- as well as create a record -- about the methods and
criteria of reliability used by the proponent's expert. The
defendant failed to do so for De La Cruz. Therefore, we discern
no abuse of discretion in the judge's decision to exclude De La
Cruz from testifying.
c. Prejudicial error. Regardless of the infirmities of De
La Cruz's testimony, the decision to exclude Bjork-James was
prejudicial error. See Crawford, 429 Mass. at 68. This is not
a case in which, despite the exclusion of the evidence, the
defendant was able to elicit "significant other testimony"
concerning a key pillar of the defense. Compare Commonwealth v.
German, 483 Mass. 553, 570 (2019) (exclusion of expert testimony
did not prevent defendant from eliciting other evidence on
witness identification); Commonwealth v. Snyder, 475 Mass. 445,
454-455 (2016) (same). Cherniak and Arthur-Smith both testified
that the defendant initiated the fight. Yet without Bjork-
James's testimony, the defendant's only evidence that Cherniak
initiated the attack due to racial animus was his own testimony.
When the credibility of the victim's testimony is so
central to the Commonwealth's case, the significance of expert
testimony concerning the victim's motives for starting the fight
is equally apparent. See Polk, 462 Mass. at 33. We cannot say
that the exclusion of Bjork-James's testimony "did not influence
31
the jury, or had but a slight effect." Commonwealth v.
Pfeiffer, 482 Mass. 110, 129, cert. denied, 140 S. Ct. 498(2019), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994). A new trial is necessary.
2. Other issues. We turn now to other issues raised on
appeal that may recur on retrial.29
a. Jury selection. The defendant argues that he was
denied a fair trial because the judge failed to make the
requisite inquiry of prospective jurors and because the judge
improperly declined to allow him to exercise his final
peremptory challenge. We consider each argument in turn,
reviewing the judge's decisions for abuse of discretion. See
Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001).
i. Indifference inquiry. "A criminal defendant is
entitled to a trial by an impartial jury pursuant to the Sixth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights." Commonwealth v. Williams,
29The defendant also appeals the judge's decision to
exclude another expert witness for the defense due to late
notice. Because this issue is unlikely to recur, we note only
that a finding of prejudice requires more than speculation about
whether, if the Commonwealth wished to hire an expert in
response to the defendant's expert, it would have time to do so.
See generally Commonwealth v. Durning, 406 Mass. 485, 496
(1990). See also Commonwealth v. Dranka, 46 Mass. App. Ct. 38,
42 (1998), quoting Chappee v. Vose, 843 F.2d 25, 31 (1st Cir.
1988) ("the preclusive sanction should be reserved for 'hard
core transgressions'").
32
481 Mass. 443, 447 (2019). To ensure this impartiality, a judge
must hold individual voir dire if "it appears that a
[prospective] juror might not stand indifferent" in the case.
Id. See G. L. c. 234A, § 67A (detailing individual voir dire
requirement).
Although the judge enjoys broad discretion in determining
both the scope of this inquiry and whether a prospective juror
stands indifferent, see Commonwealth v. Perez, 460 Mass. 683,
688 (2011), citing Commonwealth v. Vann Long, 419 Mass. 798, 803
(1995), "this discretion is not unfettered." Williams, 481
Mass. at 447. Specifically, a "judge's conclusion must be
supported by a voir dire that sufficiently uncovers whether the
prospective juror can fairly evaluate the evidence and follow
the law." Id. Cf. Seabrooks, 433 Mass. at 443 (when "a judge
has explored the grounds for any possible claim that a juror
cannot be impartial, and has determined that a juror stands
indifferent, we will not conclude that the judge abused his
discretion by empanelling the juror unless juror prejudice is
manifest"). Such support for the judge's conclusions was
lacking here in regard to several jurors.
During attorney-conducted voir dire, defense counsel asked
the prospective jurors: "Does anyone here currently presume
[the defendant is] innocent?" Seven prospective jurors
indicated that they did not presume the defendant to be
33
innocent. On this basis, the defense counsel challenged those
seven jurors for cause. The judge inquired whether three of
these prospective jurors would be able to presume the defendant
to be innocent.30 The judge did not, however, conduct individual
voir dire with the other four because, he stated, defense
counsel had failed to raise any specific concerns about them.31
Regarding one of the four, the judge noted that this juror had
been a prosecutor and believed that for this reason, the juror
understood the presumption of innocence.
Once it had become apparent that some jurors might have
difficulty presuming the defendant to be innocent based on the
jurors' answer to a question directly focusing on this issue,
the judge had a duty to inquire further.32 See Williams, 481
Mass. at 447. "Although the judge may reasonably determine,
after a meaningful inquiry, that a juror's doubts about his or
her own impartiality are unfounded, that determination should be
30After conducting individual voir dire, the judge
dismissed two of the jurors for cause while finding that there
was no basis to challenge the third for cause.
31At this point, defense counsel reemphasized the basis of
her challenge, noting: "What I would say for specifics are that
they didn't have their hands up for 'Who thinks he's innocent
right now?'"
32Because the jurors in question affirmatively indicated
that they might have difficulties presuming the defendant to be
innocent, the Commonwealth's invocation that jurors are presumed
to follow a judge's instructions is unavailing. See
Commonwealth v. Montez, 450 Mass. 736, 746 (2008).
34
made after the judge conducts an inquiry that could be
reasonably expected to determine impartiality." Commonwealth v.
Auguste, 414 Mass. 51, 57-58 (1992). The attorney voir dire
question was a reasonable one, and one that clearly required
further inquiry. Whatever else a meaningful inquiry may
include, it must include an actual inquiry. See id. at 57. The
judge's failure to conduct individual voir dire of four jurors
who indicated that they did not assume the defendant was
innocent was error.
Although we reverse on other grounds, we note why this
error did not prejudice the defendant in order to provide
further clarity to this area of law. When a defendant is forced
to use peremptory challenges because a judge fails to conduct an
adequate individual voir dire, this does not necessarily
constitute reversible error. See, e.g., Commonwealth v. Bryant,
447 Mass. 494, 499-500 (2006) (defendant could have challenged
peremptorily juror that judge declined to strike for cause);
Commonwealth v. Nelson, 91 Mass. App. Ct. 645, 647-648 (2017)
(same). Instead, "prejudice generally is shown by the use of a
peremptory challenge to remove the juror who allegedly should
have been excused for cause together with evidence that the
defendant later was forced to accept a juror he would have
challenged peremptorily but was unable to because his peremptory
35
challenges had been exhausted" (emphasis in original).
Commonwealth v. McCoy, 456 Mass. 838, 842 (2010).
In sum, if a defendant both still has remaining peremptory
challenges sufficient to cover the number of jurors that a judge
should have inquired into for cause, and is unable to show that
there were other deliberating jurors whom the defendant would
have challenged peremptorily but for the error, then there is no
prejudice. Compare Commonwealth v. Susi, 394 Mass. 784, 789
(1985) (reversal required where judge's erroneous refusal to
dismiss juror for cause led to defendant exhausting peremptory
challenges and being forced to accept juror he otherwise would
have challenged), with Commonwealth v. Amazeen, 375 Mass. 73,
83-84 (1978) (reversal not required where defendant had not
exhausted peremptory challenges).
Ultimately, defense counsel here exercised five of her six
peremptory challenges, using three against prospective jurors
with whom the judge had declined to conduct individual voir
dire. This left counsel with one final peremptory challenge.
Yet despite having the right to use it, counsel did not use the
peremptory for the fourth juror with whom the judge had declined
to conduct individual voir dire. Consequently, there is no
prejudicial error.
ii. Final peremptory challenge. After defense counsel
exercised her peremptory challenges against the jurors that the
36
judge failed to strike for cause, the Commonwealth
unsuccessfully raised a challenge based on Commonwealth v.
Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979). At
this point, the judge informed the parties that they had reached
the number needed to seat a jury. The clerk dismissed the
challenged jurors and subsequently began to announce the juror
numbers that would comprise the jury. Defense counsel then
informed the judge that she had miscounted the number of seated
jurors and had thought there would be more juror selection.
Because another panel was unnecessary, defense counsel wanted to
exercise the defendant's final peremptory against one of the
seated jurors. The judge declined.
At issue on appeal is whether the judge abused his
discretion by ruling that the time to exercise peremptory
challenges had passed. Neither peremptory challenges nor, more
importantly, the timing of when they should be used are mandated
by either the United States Constitution or the Massachusetts
Declaration of Rights. See Commonwealth v. Seng, 456 Mass. 490,
496 (2010), citing Commonwealth v. Freiberg, 405 Mass. 282, 292,
cert. denied, 493 U.S. 940 (1989). Instead, Mass. R. Crim. P.
20 (c) (2), 378 Mass. 889 (1979), establishes parameters for
when peremptory challenges may be used: parties may exercise
their peremptory challenges after a juror is found indifferent,
but must exercise them before the jurors are sworn. Within this
37
window, judges have discretion to further designate when parties
may exercise their peremptory challenges. See Rule 6(4)(i)(i)
of the Rules of the Superior Court.33
The defendant contends that the judge here failed to
articulate any additional timing requirements. The judge's
instructions -- which we set out in the margin -- say
otherwise.34 The judge first explained how jury empanelment
would work at the outset of the process. Then, after attorney-
33Rule 6(4)(i)(i) of the Rules of the Superior Court
provides:
"After the trial judge finds that each juror stands
indifferent, the parties shall exercise their peremptory
challenges. The trial judge may require exercise of
peremptory challenges after completion of side bar inquiry
of an individual juror, after filling the jury box with
jurors found to stand indifferent, or at some other time
after the trial judge's finding of indifference."
34"[W]e'll seat the twenty-four or so people, the three
rows of eight that we have. You'll both have, of course,
because of the -- this case being what it is, six
preemptory [sic] challenges. You'll both have [fifteen]
minutes for the panel questions. Usually, we start with
the Commonwealth and then go to the [d]efendant. After we
go through the phases, then, -- that is, the group
questioning, the individual questioning, and the attorney-
conducted voir dire -- then I'll ask you if there are any
cause requests. And then I'll ask you to use your
preemptory [sic] challenges. And hopefully we'll get a
jury impaneled with one panel.
"If we have to go to a second panel, however, I'll discuss
with you the size of that second panel, depending on our
needs, how many jurors we actually need, to fill out the
jury. And then we'll adjust accordingly, depending on the
number of preemptories [sic] left and things like that."
38
conducted voir dire had finished, the judge reminded the parties
of where they were in the process, stating that "starting with
the Commonwealth, I'll hear you on your challenges, either for
cause, first, if any, and then preemptory [sic]; and then turn
to the [d]efendant."
Perhaps the judge could have expressed more emphatically
his intent throughout.35 Nevertheless, the instructions are
reasonably clear when taken together: the parties had to
exercise their peremptory challenges then or never. Moreover,
the defendant sought to exercise the peremptory challenge after
the judge informed counsel that they had reached the number
needed to seat a jury, and after the remaining prospective
jurors were excused. Having set the parameters, it was within
the judge's discretion to deny defense counsel's request to
exercise her final peremptory challenge once the time do so had
passed.36 Thus, there was no error.
35For example, a better way to express the point would have
been to say after informing the parties of when they would be
able use their peremptory challenges the following sentence:
"This will be the only time to use your peremptory challenges
during the first panel."
36The defendant also argues that the judge's reference to a
second panel made it appear that there would be two
opportunities to use peremptory challenges. That it did -- but
only if a second panel was necessary. As it turned out, one
panel was sufficient.
39
b. Hearsay. At trial, the defendant testified that upon
seeing Cherniak slash his tires, the defendant confronted
Cherniak and Arthur-Smith. According to the defendant, Arthur-
Smith responded by disputing the account and then said, "Even if
you did, how the fuck can you prove that?" The judge excluded
the testimony on the ground of hearsay. Because the defendant
objected, we review for prejudicial error.37 See Commonwealth v.
Santos, 460 Mass. 128, 137 (2011).
"The rule against hearsay bars admission of out-of-court
statements offered for their truth." Commonwealth v. Mendes,
463 Mass. 353, 367-368 (2012). See Mass. G. Evid. § 801(c)
(2021). Statements offered to show the effect on the listener,
however, are not offered for their truth and therefore are not
hearsay. See, e.g., Commonwealth v. Spinucci, 472 Mass. 872,
37Additionally, the defendant claims that the judge erred
in preventing him from testifying that Cherniak had tried to get
the defendant to use cocaine. Specifically, the defendant
appears to claim that the judge improperly excluded the
testimony as hearsay, despite Cherniak's offers of cocaine
allegedly striking fear in the defendant. The judge did not
exclude the testimony because it was hearsay but on other
grounds. (The judge did eventually allow the defendant to
testify that Cherniak had asked him to sell drugs on numerous
occasions.) Because the defendant does not address the grounds
on which the judge excluded the testimony, we do not address the
issue. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass.
1628 (2019) ("The appellate court need not pass upon questions
or issues not argued in the brief"). The evidence may well be
admissible at retrial if it is relevant to demonstrate the
defendant's fear of the victim or some other relevant nonhearsay
purpose that is not substantially outweighed by the danger of
undue prejudice.
40
883 (2015); Commonwealth v. Daley, 439 Mass. 558, 569 n.8
(2003). See also Mass. G. Evid. § 801(c) note.
Here, the defendant offered Arthur-Smith's statement to
show the effect it had on him: namely, how the statement
confirmed the defendant's belief that Cherniak had slashed his
tires. In particular, the statement went to the defendant's
fear of Cherniak and whether the defendant's resulting actions
were reasonable. Therefore, the statement was not hearsay, and
it was relevant for a nonhearsay purpose. The judge erred in
barring its admission.
Conclusion. The judgments against the defendant are
reversed, the verdicts are set aside, and the case is remanded
to the Superior Court for a new trial and further proceedings
consistent with this opinion.
So ordered.