Commonwealth v. Kennedy

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SJC-12345
COMMONWEALTH vs. CHRISTOPHER J. KENNEDY.
Hampshire. October 3, 2017. - February 9, 2018.
Present (Sitting at Greenfield): Gants, C.J., Gaziano, Lowy,
Budd, & Kafker, JJ.
Indecent Assault and Battery. Indecent Exposure. Assault and
Battery. Mistake. Practice, Criminal, Instructions to
jury, Jury and jurors, Voir dire, Challenge to jurors.
Jury and Jurors. Evidence, First complaint.
Indictments found and returned in the Superior Court
Department on October 15, 2014.
The cases were tried before Daniel A. Ford, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Merritt Schnipper for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
The following submitted briefs for amici curiae:
David Rangaviz, Committee for Public Counsel Services, for
Committee for Public Counsel Services.
Thomas J. Carey for Kari Hong & others.
Wendy J. Murphy for Women's and Children's Advocacy Project
at New England Law|Boston.
2
GAZIANO, J. A Superior Court jury convicted the defendant
of indecent assault and battery on a person over fourteen, G. L.
c. 265, § 13 H, assault and battery, G. L. c. 265, § 13 A (a),
and indecent exposure, G. L. c. 272, § 53. The charges stemmed
from an encounter between the victim, M.M., and the defendant, a
State trooper, who met on a dating Web site and exchanged
flirtatious messages. They arranged to meet in person for
coffee, and M.M. agreed to the defendant's suggestion that they
finish their conversation at her apartment. Once inside, the
defendant exposed himself to M.M. She immediately informed the
defendant that he had the wrong idea, and repeatedly told him,
"No." Despite M.M.'s requests to stop, the defendant advanced
toward her, grabbed her wrist, and forced her to touch his
penis. She told him, "No means no," and that he had to leave.
He then apologized and left the apartment.
At trial, the defendant requested a jury instruction on
mistake of fact, asserting that he honestly and reasonably had
believed that M.M. had consented to the contact leading to the
charges, and would not have been offended by his act of exposing
himself. The request was denied. The defendant appeals from
the denial and from the admission of what he asserted was
unnecessary first complaint evidence. We conclude that the
trial judge did not err in declining to give an instruction on
mistake of fact for either the charge of indecent assault and
3
battery or the charge of indecent exposure. The judge also did
not err in allowing the admission of the challenged testimony.
This case also presents the issue of the extent to which a
judge has discretion to question prospective jurors following
attorney-conducted voir dire, and to rule on challenges for
cause. The defendant contends that the answers provided by the
prospective jurors when questioned by the judge were not
sufficient to address issues of bias raised during attorney-
conducted voir dire on the same topics, and that the judge erred
by refusing to excuse the jurors for cause. We conclude that
the judge did not abuse his discretion either in asking follow-
up questions or in his rulings that the jurors were impartial.
Accordingly, we affirm the defendant's convictions.1
1. Facts. The jury could have found the following. The
defendant first contacted M.M. on a dating Web site in June,
2014. Over the following week, the defendant and M.M. exchanged
messages through the Web site and via text messages on their
cellular telephones, with both of them sending multiple
flirtatious and explicit messages. They also spoke on the
telephone at least once. Early on in these exchanges, the
defendant told M.M. that he was a State trooper who was
1
We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services; Kari Hong, Brooke
Kootman, and Nicholas Dodson; and the Women's and Children's
Advocacy Project at New England Law|Boston.
4
separated from his wife, but was still living in the same house
with her for financial reasons. M.M., who was separated from
her husband, said that his "situation," as he had portrayed it,
was not a "deal breaker" for her.
As the relationship progressed, M.M. became suspicious that
the defendant was trying to cheat on his wife, a suspicion that
he denied. They continued to send each other explicit messages
and to try to find a time at which they could meet in person.
Both said that they were working long hours and looking for
someone "to spend time with on a casual basis."
In July, 2014, the defendant offered to meet M.M. at a
coffee shop next to a gasoline station in Williamsburg on her
way home from work. M.M. told the defendant she could meet him
for a short period of time while getting gasoline, but that she
had promised to help her landlord with some work. M.M.
testified at trial that she did need to get gasoline, but she
had no plans with her landlord, and that she simply "wanted an
excuse to just cut it off" if she decided to leave. She wanted
an opportunity to meet the defendant face to face in order "to
see what the situation really was" with his wife.
While at the gasoline pumps, M.M. saw the defendant arrive
in uniform in a police cruiser and enter the coffee shop. She
moved her vehicle next to his and began a conversation with him
in the parking lot. M.M. and the defendant discussed their
5
relationships with their spouses and otherwise had "a friendly
conversation" in which they "were shooting the breeze." M.M.
testified at trial that she felt comfortable with the defendant
and was not intimidated. They spoke for approximately ten
minutes and then M.M. said she had to leave. The defendant told
M.M. that he was enjoying their conversation and asked if he
could go back to her house with her to finish the coffee and the
conversation. M.M. agreed, and he followed her vehicle as she
drove home.
When M.M. and the defendant arrived at M.M.'s apartment,
three of her landlords' children were in the swimming pool.
M.M. asked the defendant to wait outside for a minute so that
she could put away laundry that was hanging up inside. M.M.
then told the defendant he could come in.
As the defendant walked into M.M.'s apartment, he started
walking toward her and unzipped his pants. He pulled out his
penis and said, "I want you to see what you're doing to me."
M.M. responded, "No. This isn't what I thought was going to
happen here," but the defendant continued to walk towards her
with his penis exposed. M.M. continued to say "no" and "no
means no" as the defendant reached for her wrist and forced her
to touch his penis. She tried to pull away, but her back was
against the kitchen counter. The defendant kissed M.M. until
she turned her head away. He then backed off, and M.M. said,
6
"You need to fucking leave." The defendant zipped his pants,
apologized, and said that he would leave. On his way out, the
defendant asked M.M. if she was going to report him. The
defendant had been inside M.M.'s apartment for approximately
five minutes.
A few minutes after the defendant left, M.M. sent a text
message to a friend, J.D.,2 to tell her what had happened. She
then spoke to J.D. on the telephone and sent text messages to
several other friends. That night, M.M. telephoned both the
Worthington and Williamsburg police departments, and left voice
mail messages. The next morning, not having heard from either
police department, M.M. called 911.
The defendant sent M.M. a text message that afternoon,
asking how her day was going, but M.M. did not respond. At some
point that day, the defendant removed his profile from the
dating Web site. The defendant was arrested and charged with
indecent assault and battery, indecent exposure, and assault and
battery.
All of the messages between M.M. and the defendant were
introduced at trial through M.M.'s testimony.3 In addition, the
jury heard testimony from J.D. as a first complaint witness, and
2
A pseudonym.
3
The prosecutor presented M.M. with copies of the messages
while she was on the stand and she testified from those copies.
7
testimony from State trooper Robin Whitney and Northampton
police Detective Michael Briggs concerning the investigation.
At the close of all the evidence, defense counsel requested
a jury instruction on mistake of fact for the charges of
indecent assault and battery and indecent exposure.4 The judge
declined to give the instructions. On the charge of indecent
assault and battery, he decided that the current state of the
law does not require that a defendant intend that the touching
4
The defendant proposed the following mistake of fact
instruction for indecent assault and battery:
"You must also consider whether a reasonable person in
[the defendant's] situation, considering all of the
circumstances, could have been reasonably mistaken about
whether [M.M.] consented to any touching that the
Commonwealth has proven beyond a reasonable doubt. Again,
because the Commonwealth always bears the burden of proof
of all elements of the offenses by proof beyond a
reasonable doubt, if after considering all of the evidence
you have a reasonable doubt as to whether a person in [the
defendant's] situation reasonably could have been mistaken
about whether [M.M.] consented to the touching at issue,
the defendant is entitled to the benefit of that reasonable
doubt and must be acquitted."
The defendant proposed the following instruction for the
charge of indecent exposure:
"If you find beyond a reasonable doubt the defendant
exposed his genitals, you should then consider whether a
reasonable person in [the defendant's] position,
considering all the circumstances, might have been mistaken
as to whether exposing his genitals would be offensive to
[M.M.]. Keep in mind that the burden of proof is always on
the Commonwealth, so the Commonwealth has to prove beyond a
reasonable doubt that a reasonable person in [the
defendant's] position, considering all of the
circumstances, could not have been mistaken as to whether
[M.M.] would find the exposure of his genitals offensive."
8
be without consent and, therefore, a mistake of fact as to
consent was both irrelevant and not supported by the facts in
this case. The judge similarly ruled that giving the
instruction for the charge of indecent exposure would add an
element not otherwise required by current jurisprudence,
although he acknowledged that this court has not addressed the
issue of mistake of fact for indecent exposure. He observed
that the facts in this case may support a mistake of fact
defense for the charge of indecent exposure.
The defendant was convicted of all three offenses. He
appealed from his convictions, and we allowed his application
for direct appellate review.
2. Discussion. The defendant challenges his convictions
on three bases: (1) the jury should have been instructed on
mistake of fact for both indecent assault and battery and
indecent exposure where he reasonably believed that M.M. had
consented to the touching and would not be offended by his
exposure; (2) the judge should not have allowed first complaint
testimony from J.D. and "a related category of evidence" from
the investigating officers; and (3) the judge incorrectly
refused to dismiss for cause two members of the venire who had
indicated bias during attorney-conducted voir dire.
a. Mistake of fact instruction. Because the defendant
requested mistake of fact instructions for the indictments
9
alleging indecent assault and battery and indecent exposure, and
objected to the judge's ruling, we review for prejudicial error.
Commonwealth v. Kelly, 470 Mass. 682, 687 (2015).
A mistake of fact instruction "is available where the
mistake negates the existence of a mental state essential to a
material element of the offense." Commonwealth v. Lopez, 433
Mass. 722, 725 (2001). See Commonwealth v. Liebenow, 470 Mass.
151, 161-162 (2014) (allowing mistake of fact instruction for
charge of larceny where defendant thought property was
abandoned); Commonwealth v. Kenney, 449 Mass. 840, 857 (2007)
(defendant may present evidence of honest mistake about age of
child depicted in pornographic material); Commonwealth v. Vives,
447 Mass. 537, 540-541 (2006) (defendant entitled to jury
instruction on defense of honest and reasonable belief that he
was collecting debt to refute element of intent to steal). See
also Lopez, supra at 725-726, quoting Model Penal Code
§ 2.04(1)(a) (1985) (ignorance or mistake of fact is defense "if
. . . the ignorance or mistake negatives the purpose, knowledge,
belief, recklessness or negligence required to establish a
material element of the offense").
In Lopez, 433 Mass. at 727-728, we held that a defendant
charged with rape is not entitled to raise a defense of an
honest and reasonable mistake as to the victim's consent, noting
that our rape statute, G. L. c. 265, § 22, does "not require
10
proof of a defendant's knowledge of the victim's lack of consent
or intent to engage in nonconsensual intercourse." A defendant
need only intend to perform the act by force or threat of force.
Id. at 728-729. Because the Commonwealth is not required to
prove that a defendant intended the intercourse be without
consent, "a mistake of fact as to that consent cannot . . .
negate a mental state required for the commission of the
prohibited conduct." Id. at 728.
We further determined that requiring the Commonwealth to
prove that a defendant "compelled the victim's submission by use
of force; nonphysical, constructive force; or threat of force"
negates "any possible mistake as to consent." Id. at 729. In
so holding, we observed that a mistake of fact defense has the
potential to "eviscerate the long-standing rule in this
Commonwealth that victims need not use any force to resist an
attack." Id. A rape victim need not fend off attackers with
physical force "in order to communicate an unqualified lack of
consent to defeat any honest and reasonable belief as to
consent." Id.
Nonetheless, we concluded our analysis by acknowledging
that a mistake of fact defense as to consent might, in some
circumstances, be appropriate. Accordingly, we left open the
possibility of its use in "a future case where a defendant's
11
claim of reasonable mistake of fact is at least arguably
supported by the evidence." Id. at 732.
Seven years later, in Commonwealth v. Blache, 450 Mass.
583, 594 (2008), we considered whether a defendant charged with
raping someone incapable of consenting to intercourse (due to
intoxication) was entitled to an instruction on mistake of fact.
Because the Commonwealth is not required to prove the use of
force beyond that necessary for penetration, "the possibility of
a defendant's reasonable mistake about the complainant's consent
could increase, creating the potential for injustice." Id. We
held that "in such a case the Commonwealth must prove that the
defendant knew or reasonably should have known that the
complainant's condition rendered her incapable of consenting to
the sexual act." Id.
i. Indecent assault and battery on a person over fourteen.
To prove indecent assault and battery on a person over fourteen,
the Commonwealth is required to establish that the defendant
committed "an intentional, unprivileged, and indecent touching
of the victim." Commonwealth v. Marzilli, 457 Mass. 64, 67
(2010), overruled on another grounds by Commonwealth v. Brie,
473 Mass. 754 (2016), quoting Commonwealth v. Mosby, 30 Mass.
App. Ct. 181, 184 (1991). The intent element is satisfied upon
proof that "the defendant intended -- had a conscious purpose
. . . -- to commit an indecent or offensive touching without
12
[the victim's] consent" (citation omitted). Marzilli, supra.
See Commonwealth v. Burke, 390 Mass. 480, 482-484 (1983) (lack
of consent is element of indecent assault and battery where
victim is over age fourteen).
The defendant contends that sexual assaults involving an
adult victim, like indecent assault and battery on a person over
the age of fourteen, which do not require proof of the use of
force, and whose criminality depends on the victim's lack of
consent, are subject to a mistake of fact defense. In an
attempt to equate this case to the circumstances in Blache, he
argues, "The principles underlying this rule are as applicable
to cases like the defendant's which involve allegations of
brief, offensive touching and non-contact exposure, as they are
to cases involving an alleged victim's incapacity, since in both
situations the key question is what a defendant understood about
another's wishes in the absence of clear, objective indicia of
consent or non-consent."
The problem with this claim is not the defendant's legal
argument. Rather, it is that, here, M.M. did provide clear,
objective indicia of nonconsent. She said, "No." The
defendant, undeterred by M.M.'s statement of nonconsent,
persisted by moving closer to her as she continued to say "no."
At one point, M.M. even said, "No means no," and held her hands
up in the air in front of her. The defendant continued to
13
advance toward her and backed her up against a kitchen counter
where she could no longer move away. He reached out and grabbed
her hand and pulled it toward his penis as she tried to pull her
hand away. M.M.'s indications of non-consent were abundantly
clear. A defendant who ignores a victim's clear and unambiguous
pleas to stop does not raise a legitimate claim of mistake of
fact as to consent.
The prior communications from M.M., regardless of their
flirtatious or sexually explicit content, were not sufficient to
support a mistake of fact instruction. "The law of rape is not
a part of the law of contracts. If on Friday you manifest
consent to have sex on Saturday, and on Saturday you change your
mind but the man forces you to have sex with him anyway, he
cannot use your Friday expression to interpose, to a charge of
rape, a defense of consent or of reasonable mistake as to
consent." Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir. 1995),
cert. denied, 516 U.S. 1041 (1996).
We continue to adhere to our decision in Lopez, and hold
open the possibility that a mistake of fact instruction may be
an appropriate and fair defense to charges of indecent assault
and battery on a person over fourteen. See Lopez, 433 Mass. at
732. On these facts, however, we agree with the judge that the
defendant was not entitled to an instruction on mistake of fact.
14
ii. Indecent exposure. The crime of "[i]ndecent exposure
requires proof of an intentional act of lewd exposure, offensive
to one or more persons" (quotations and citation omitted).5
Commonwealth v. St. Louis, 473 Mass. 350, 364 (2015). "The
exposure of one's genitalia is a necessary element to indecent
exposure." Id. Offensive acts are those that cause
"displeasure, anger or resentment, and are repugnant to the
prevailing sense of what is decent or moral" (quotations and
citation omitted). Id. See Commonwealth v. Bishop, 296 Mass.
459, 460, 462 (1937) (evidence sufficient to support conviction
of indecent exposure where defendant was in his bedroom but
intentionally exposed himself to his neighbor by flashing mirror
to get her attention).6
5
The crime of indecent exposure is a misdemeanor punishable
by imprisonment in a house of correction for up to six months, a
fine, or both imprisonment and a fine. See G. L. c. 272, § 53.
The crime of open and gross lewdness and lascivious behavior, by
contrast, requires proof that a defendant intentionally exposed
him or herself in a manner designed to "shock" or "alarm" one or
more persons, and is a felony punishable by incarceration in a
State prison. See G. L. c. 272, § 16; Commonwealth v. Maguire,
476 Mass. 156, 158 (2017), citing Commonwealth v. Fitta, 391
Mass. 394, 396 (1984).
6
The judge instructed the jury in accordance with
Instruction 7.340 of the Criminal Model Jury Instructions for
Use in the District Court (2009). He stated, "To prove guilt on
this offense, the Commonwealth must prove three . . . essential
elements beyond a reasonable doubt. Number one, that the
defendant exposed his genitals to one or more persons, and in
this case [M.M.]; number two, that the defendant did so
intentionally; and number three, that the person to whom he
15
To raise a defense of mistake of fact, the defendant would
have been required to demonstrate that his mistaken belief
negated the culpability required for conviction of the crime of
indecent exposure. See Lopez, 433 Mass. at 728. Here, the
Commonwealth bore the burden of proving that the defendant
intentionally exposed his genitalia to M.M. Commonwealth v.
Broadland, 315 Mass. 20, 21-22 (1943). See, e.g., Commonwealth
v. Swan, 73 Mass. App. Ct. 258, 261-262 (2008) (sufficient
evidence of defendant's intent to expose himself in public
school bathroom). The Commonwealth did not have to prove that
the defendant intended to offend M.M. Cf. St. Louis, 473 Mass.
at 364 (mens rea for crime of indecent exposure consists of
intentional exposure of genitalia). Thus, the defendant's
belief (whether reasonable or not) that M.M. would not be
offended by the display of his penis did not negate a mental
state required for commission of the crime of indecent exposure.
Moreover, in these circumstances, we discern no reason that
a mistake of fact instruction was necessary to prevent an
injustice. See Lopez, 433 Mass. at 728 (discussing necessity of
mistake of fact instruction in interests of justice). As
stated, M.M. reacted to the defendant's act of exposure by
informing him, "No, this isn't what I thought was going to
exposed himself was offended by the defendant's thus exposing
himself."
16
happen here." She also told the defendant, "No means no." The
defendant ignored her statements and advanced toward her with
his penis exposed. Therefore, regardless of any possible
misunderstanding by the defendant of the circumstances when he
entered the apartment, M.M.'s subsequent negative reaction
vitiated any belief, whether reasonable or otherwise, that M.M.
was not offended by the defendant's act of exposure, and the
defendant continued his actions in the face of M.M.'s repeated
protests.
In sum, there was no error in the trial judge's decision to
deny the defendant's request for an instruction on mistake of
fact.
b. First complaint testimony. The defendant asserts that
the judge improperly allowed J.D.'s objected-to first complaint
testimony, because there was no need for the first complaint
testimony to rebut any possibility that the victim's delay in
reporting suggested that the crime had not in fact occurred.
The defendant argues also that Whitney and Briggs should not
have been allowed to testify as to the investigative process,
because their testimony in effect served as additional first
complaint testimony and unfairly buttressed the Commonwealth's
case.7
7
The defendant did not object at trial to the investigative
testimony by Whitney and Briggs, so we review that testimony for
17
We clarified in Commonwealth v. Aviles, 461 Mass. 60, 73
(2011), that the standard of review for admission of first
complaint evidence is abuse of discretion.
i. Testimony by the victim's friend. The defendant argues
that the judge abused his discretion by not evaluating fully the
particular circumstances of this case in deciding whether to
allow admission of the evidence. As the defendant notes, our
modification of the first complaint doctrine in Commonwealth v.
King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216
(2005), acknowledged the risk of "unfairly enhanc[ing] a
complainant's credibility as well as prejudic[ing] the defendant
by repeating for the jury the often horrific details of an
alleged crime."
We addressed that risk, however, by limiting first
complaint testimony to one witness in order to prevent "piling
on," allowing defendants to cross-examine that witness and the
complainant, and encouraging judges "to curtail direct or cross-
examination to avoid any undue prejudice." Id. at 245.
Additionally, "[f]irst complaint testimony may be admitted for a
limited purpose only, to assist the jury in determining whether
to credit the complainant's testimony about the alleged sexual
a substantial risk of a miscarriage of justice. See
Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010).
18
assault." Id. at 219. "The testimony may not be used to prove
the truth of the allegations." Id.
The first complaint doctrine is intended to accomplish two
goals: "to refute any false inference that silence is evidence
of a lack of credibility on the part of rape complainants," id.
at 243, and "to give the jury as complete a picture as possible
of how the accusation of sexual assault first arose," id. at
247. The defendant seeks to limit this doctrine in cases
involving an adult complainant to situations where the
complainant delayed reporting, which might tend to suggest
fabrication. Questions involving a complainant's credibility,
however, may be at issue even absent any delay in disclosure.
"There is a continued need in sexual assault cases to
counterbalance or address inaccurate assumptions regarding
stereotypes about delayed reporting of a sexual assault or about
sexual assault victims in general." Id. at 240.
M.M. sent a text message to J.D. shortly after the incident
with the defendant to tell her what had happened. J.D.'s
testimony about this text message is a textbook example of the
reasons for permitting first complaint testimony, and provided
the jury with a contemporaneous description of the victim's
reaction to the defendant's actions. The judge properly limited
J.D.'s friend's testimony, and did not permit her to discuss the
content of the telephone call she had with M.M. after having
19
received the text message. In addition, he twice instructed the
jury on the limited purpose of J.D.'s testimony. There was no
abuse of discretion.
ii. Investigative testimony by Whitney and Briggs. There
also was no error in allowing the investigative testimony by
Whitney and Briggs. While the first complaint doctrine
prohibits "piling on" of additional complaint witnesses, "it
does not exclude testimony that 'is otherwise independently
admissible' and serves a purpose 'other than to repeat the fact
of a complaint and thereby corroborate the complainant's
accusations.'" See Commonwealth v. McCoy, 456 Mass. 838, 845
(2010), quoting Commonwealth v. Arana, 453 Mass. 214, 220-221,
229 (2009). But see Commonwealth v. Stuckich, 450 Mass. 449,
457 (2008) (fact that Commonwealth "brought resources to bear on
this incident creates the imprimatur of official belief in the
complainant" and may be prejudicial; jury do not "need to know
how the complaint of abuse evolved into the case before them").
Whitney testified that she met with M.M., reviewed the
messages sent between M.M. and the defendant, was present when
photographs of M.M.'s apartment were taken, applied for a search
warrant for the defendant's personal cellular telephone,
obtained surveillance video -- that was played for the jury
during Whitney's testimony -- of the in-person meeting between
M.M. and the defendant at the gasoline station, and was aware of
20
subpoenaed information on the two accounts used by M.M. and the
defendant on the dating Web site. Briggs testified that he used
forensic software to acquire the contents of M.M.'s cellular
telephone, including text messages and call logs. He then
explained how to read the information on the resulting records.
None of the testimony of the officers reiterated M.M.'s
accusations or enhanced her credibility by suggesting that the
officers believed her. See McCoy, 456 Mass. at 851-852. The
testimony simply described how different exhibits were obtained.
Such testimony may have been repetitive, particularly because
the messages and photographs had been admitted in evidence.
While the first complaint doctrine exists to prevent the
appearance of buttressing a victim's allegations, here, the
testimony by the investigating officers was not a "piling on" of
first complaint evidence. See id. at 845. Contrast Stuckich,
450 Mass. at 456-457.
c. Jury empanelment. The defendant also challenges the
judge's refusal to excuse for cause two members of the venire
who, the defendant contends, had admitted to bias during
attorney-conducted voir dire. The judge ultimately denied the
defendant's request to excuse those two jurors for cause after
asking them follow-up questions to determine whether any
potential bias would affect their ability to be fair and
impartial in judging the defendant's guilt. The defendant used
21
peremptory challenges to remove the two prospective jurors, and
then properly preserved for the record his inability to use an
additional peremptory challenge on a juror who had been seated
and then deliberated.
"When a defendant uses a peremptory challenge to excuse a
juror that the judge refused to excuse for cause and the
defendant is later 'forced to accept a juror whom he otherwise
would have challenged peremptorily' . . . the correctness of the
judge's refusal to excuse the former juror for cause is
preserved for review" (citation omitted). Commonwealth v.
Clark, 446 Mass. 620, 629 (2006). "If the judge's refusal to
excuse the juror for cause is determined to be error, the
defendant is entitled to a new trial without a showing of
prejudice." Id.
The first juror, juror no. 27, originally indicated, in
response to the prosecutor's questions, that her ability to be
fair and impartial might be affected by the defendant having
worn his uniform at the time of the alleged crime. In response
to defense counsel's questions, she continued to suggest that
her judgment might be affected by that evidence, and also said
that she would be affected by evidence that the defendant was
married and seeking a sexual encounter with someone who was not
his wife. The judge then posed some additional questions to the
juror:
22
The judge: "How would it [a]ffect you?"
The juror: "If he was married and an officer and he went
to have sexual relations with someone else or relations, I
don't agree with it."
The judge: "Whether you agree with it or not, would it
affect your ability as to whether he committed a crime?"
The juror: "No, no."
The judge: Well, that's the issue. The Commonwealth says
he committed a crime.
The juror: "Yeah."
The judge: "The issue is would the fact that he was
wearing a uniform and went to this place in a cruiser
affect your ability to judge whether or not he committed
the crime . . . when he got there."
The juror: "I guess not. I guess no."
The judge: "It would not?"
The juror: "No."
The judge found juror no. 27 indifferent and denied the
defendant's request to excuse her for cause.
The second challenged juror, juror no. 37, said that she
would not be affected by the defendant having worn a uniform or
having driven a police vehicle, so long as he was off duty, but
indicated that the defendant's being married might affect her
ability to be fair and impartial: "I have a very close girl
friend in that predicament right now. Her husband is cheating
on her, so I am empathetic to her and I am not sure I could
23
separate that, hearing the case like this. . . . I don't know,
it may color how I hear the details."
The judge again asked clarifying questions:
The judge: "Do you think it would affect your ability to
judge whether or not the Commonwealth can prove him guilty
of committing a crime?"
The juror: "I would hope not. I would hope I could
separate the two."
The judge: "Well, that is the issue."
The juror: "Correct. Correct."
The judge: "If he was cheating on his wife, I think we all
can agree, that was not a good thing."
The juror: "Correct."
The judge: "But would that affect -- that fact, alone,
make you more likely to convict him?"
The juror: "No."
The judge: "Can you be fair to him, even though he may
have been cheating on his wife, in regard to these
charges?"
The juror: "I believe so."
The judge found juror no. 37 indifferent and denied a request to
excuse her for cause. The defendant argued that the judge's
follow-up questions were designed to provide answers "the court
wants." The judge explained, "It's not a matter of what the
court wants; it's a matter of getting to the point. The point
is whether [the juror] can be fair to the defendant and judge
24
the case with an open mind, whether or not [the juror] think[s]
he was cheating on his wife."8
The defendant contends that attorney questioning had
uncovered "real indicia of bias from [j]urors [nos.] 27 and 37."
He argues that the judge's follow-up questions were inadequate
because the judge failed fully to explore the jurors'
conflicting responses on questions of potential bias. In the
defendant's view, the judge was required "[a]t a minimum . . .
to ask why each potential juror had changed answers depending on
the identity of her questioner." We do not agree.
A trial judge has considerable discretion in conducting the
process of jury selection. See Commonwealth v. Andrade, 468
Mass. 543, 547 (2014); Clark, 446 Mass. 629-630. It is the
judge's obligation to "examine jurors fully regarding possible
bias or prejudice where it appears that there is a substantial
risk that jurors may be influenced by factors extraneous to the
evidence presented to them" (quotations and citation omitted).
8
After attorney questions and his own follow-up questions,
the judge sua sponte excused nine prospective jurors he
determined likely would be unable to be fair and impartial. The
judge also allowed one of the Commonwealth's challenges for
cause when the prospective juror indicated that evidence that
M.M. and the defendant met through a dating Web site, and that
the defendant was cheating on his wife, might affect his ability
to be fair and impartial. After the jury had been seated, the
judge asked the entire panel "one more time" whether anyone
wanted to change his or her answer to any of the questions or
had "any issue or problem . . . relative to serving on [the]
case as fair and impartial jurors."
25
See Commonwealth v. Perez, 460 Mass. 683, 688 (2011). Nothing
in the process of attorney-conducted voir dire restricts a
judge's exercise of his or her broad authority to ask
prospective jurors appropriate questions designed to determine
whether the juror is impartial. See G. L. c. 234A, §§ 67A-67D,
inserted by St. 2016, c. 36 § 4; Commonwealth v. Pytou Heang,
458 Mass. 827, 856, (2011), quoting Commonwealth v. Garuti, 454
Mass. 48, 52 (2009) (judge shall examine prospective jurors to
determine if extraneous issues impact ability to stand
indifferent); Rule 6(1) of the Rules of the Superior Court
(2017) (trial judge has discretion to determine procedure for
selection of impartial jurors).
We discern no error in the judge's inquiry in this case.
He was required to determine whether jurors nos. 27 and 37 were
capable of setting aside their own opinions, weighing the
evidence without considering extraneous issues, and following
his legal instructions. See Commonwealth v. Bryant, 447 Mass.
494, 501 (2006); Commonwealth v. Stroyny, 435 Mass. 635, 639
(2002). Juror no. 27 expressed concerns about the allegation
that the defendant committed a crime while in uniform and
driving a police cruiser, as well as concerns about the
defendant's infidelity. The judge asked the juror how the
extramarital affair would affect her. After clarifying that she
did not approve of the defendant's infidelity, the juror stated
26
that those feelings would not affect her decision "on whether
the defendant had committed a crime." In response to the
judge's inquiry, juror no. 27 also stated that the defendant's
wearing a uniform and driving a police cruiser would not affect
her decision-making. Similarly, juror no. 37 told the attorneys
that she was bothered by allegations that the defendant was
cheating on his spouse. The judge asked more specific questions
about this subject, and that juror answered that evidence of the
defendant's infidelity would not prevent her from being a fair
juror.
We conclude that the judge did not abuse his discretion in
denying the challenges for cause. See Commonwealth v.
Lattimore, 396 Mass. 446, 450 n.6 (1985) (judge who observes
prospective juror is in best position to determine whether
follow-up questions are warranted). Jurors nos. 27 and 37
affirmatively stated, and demonstrated, to the judge's
satisfaction, an ability to set aside personal dislike of some
aspect of the defendant's actions, such as marital infidelity,
and impartially decide the case. See Commonwealth v. Ruell, 459
Mass. 126, 136, cert. denied, 565 U.S. 841 (2011) (judge vested
with broad discretion in deciding whether prospective juror is
impartial). Contrast Commonwealth v. Vann Long, 419 Mass. 798,
804 (1995) (error where juror never answered unequivocally that
he could put aside ethnic bias against defendant); Commonwealth
27
v. Auguste, 414 Mass. 51, 57-58 (1992) (judge's inquiry failed
to ascertain whether juror would be impartial). We see no
reason to disturb the judge's determination.
Judgments affirmed.