Commonwealth v. Chambers , 93 Mass. App. Ct. 806 ( 2018 )

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17-P-441 Appeals Court
COMMONWEALTH vs. NJISANE CHAMBERS.
No. 17-P-441.
Suffolk. March 7, 2018. - August 29, 2018.
Present: Meade, Rubin, & Neyman, JJ.
Jury and Jurors. Constitutional Law, Jury. Practice, Criminal,
Jury and jurors, Empanelment of jury, Instructions to jury,
Mistrial, Disclosure of evidence, Argument by prosecutor.
Indictments found and returned in the Superior Court
Department on November 18, 2014.
The cases were tried before Christopher J. Muse, J.
Rebecca Rose for the defendant.
Kathryn E. Leary, Assistant District Attorney, for the
Commonwealth.
MEADE, J. After a jury trial, the defendant was convicted
of three counts of assault and battery by means of a dangerous
weapon and carrying a dangerous weapon. After a separate jury
trial, he was convicted of carrying a dangerous weapon as a
second and subsequent offense. On appeal, he claims that the
2
judge abused his discretion by not dismissing a juror and by
denying a motion for a mistrial. The defendant also claims that
the prosecutor's opening statement and closing argument were
errors that created a substantial risk of a miscarriage of
justice. We affirm.
1. Background. On the night of June 6, 2014, off-duty
State Police Trooper Peter Bien-Aime; his wife, Leslie Bien-
Aime;1 and another couple, David Lebrun and Elizabeth Almeida,
went out for the night in Boston. Sometime after midnight, the
group went to Venu (hereinafter, club), a night club located on
Warrenton Street.
After getting drinks, Peter and Lebrun were making their
way back to Leslie and Almeida, who were conversing when the
defendant approached the women. The defendant, a short, skinny,
black male with very short hair, wished to dance with Almeida;
she had no interest.2 Upon seeing the two women upset, Lebrun
and Peter approached the defendant, who greeted them by throwing
a drink at them; the cup hit Peter in his face. Pushing ensued,
1 Given the married couple's identity of surname, we will
refer to each by his or her first name.
2 The defendant was accompanied by another man, who was
described as being a tall black male with braids.
3
which resulted in intervention by Mercelino Amaro, the club
manager. The defendant was escorted out of the club.
Outside the club, Boston police Officer Stephen Fabiano and
Detective Kevin Guy, who were working a detail in the theater
district, saw the defendant being removed from the club.3 They
saw him yell at someone in the doorway and try to reenter the
club a few times before he and his friend walked away on
Warrenton Street in the direction of Stuart Street.
Approximately thirty minutes later, the two couples left
the club and began walking up Warrenton Street towards a parking
lot where their car was parked. While they walked, the group
was approached by the defendant and the other man Peter had seen
earlier in the club.4 They asked the group in a sarcastic manner
if they were "the guys that were fighting, beating up those two
people in [the club]." The defendant began "violently" waving
his hands around and stabbed Lebrun in his lower back. When
3 They described the defendant as a short, thinly built,
black male.
4 Peter recognized the two men from the earlier incident in
the club. At first, Leslie and Lebrun did not recognize the two
men from the earlier incident. Lebrun had not recognized the
defendant at first because he had on a leather jacket when he
approached them in the street. As the two men approached,
Almeida did not recognize them from the earlier incident in the
club. However, her physical description of the defendant, a
short, skinny, black male, was consistent with her description
of the man who threw the drink in the club.
4
Almeida screamed "what are you doing," the defendant grabbed her
arm, spun her around, and stabbed her in the upper left back,
next to her lungs, ribs, and spine. Almeida immediately fell to
the ground, and Leslie began screaming. The defendant then
swung at Peter and stabbed him just below his belt, piercing his
clothing. When the defendant attempted to flee, Peter tackled
him.
Officer Fabiano and Detective Guy saw the fight occurring
from their position up the street. They recognized both Peter
and the defendant, who was one of the men who had been removed
from the club. The officers separated Peter and the defendant,
who had been rolling on the ground and fighting. The defendant
struggled to get away, but Guy pinned him against a nearby
parked bus. Amaro, who followed the police down the street,
also recognized the group from the earlier drink-throwing
incident. As the defendant was pinned against the bus, Amaro
saw a knife fall to the ground between Guy and the defendant,
and Amaro secured it by stepping over it (to block its use).
After the fight, Lebrun identified the defendant as the
person who stabbed them, and the defendant was arrested. Peter
also was arrested and transported to the police station where he
was later released.
2. Discussion. a. Jury selection. Juror number (no.)
twelve's fears and concerns. The defendant claims that he was
5
denied his right to an impartial jury because the judge abused
his discretion when he declined to dismiss juror no. twelve, who
expressed a concern about his ability to be impartial due to the
stress of missing college classes. We disagree.
The Sixth Amendment to the United States Constitution and
art. 12 of the Declaration of Rights of the Massachusetts
Constitution guarantee criminal defendants trial by an impartial
jury. See Skilling v. United States, 561 U.S. 358, 377 (2010);
Commonwealth v. McCowen, 458 Mass. 461, 494 (2010). "We afford
a trial judge a large degree of discretion in the jury selection
process." Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995).
See G. L. c. 234A, § 39. The judge is duty bound to question
potential jurors to ferret out any possible bias, prejudice,
partiality, or whether there exists a substantial risk that the
potential juror may be influenced by factors extraneous to the
evidence at trial. Commonwealth v. Andrade, 468 Mass. 543, 547
(2014). When evaluating juror impartiality, it is sufficient
for the judge to inquire whether potential jurors can set aside
their own opinions, properly weigh the evidence, and follow the
judge's instructions. Id. at 547-548. See Commonwealth v.
Perez, 460 Mass. 683, 688-689 (2011). "[A] determination by the
judge that a jury are impartial will not be overturned on appeal
in the absence of a clear showing of abuse of discretion or that
the finding was clearly erroneous." Commonwealth v. Andrade,
6
supra at 548, quoting from Commonwealth v. Lopes, 440 Mass. 731,
736 (2004). See Commonwealth v. Ferguson, 425 Mass. 349, 352-
353 (1997) (determination of juror impartiality "is essentially
one of credibility"); Commonwealth v. Emerson, 430 Mass. 378,
384 (1999) ("A finding that a juror is impartial will not be
overturned on appeal unless the defendant makes a clear showing
of abuse of discretion or that the finding was clearly
erroneous").
The judge conducted the empanelment process and asked the
prospective jurors questions along the lines prescribed by G. L.
c. 234, § 28.5 During this process, the judge inquired whether
juror no. twelve had raised his hand to any of the questions.
The juror indicated that he had done so in response to the
judge's question regarding whether the length of the trial would
be a burden. The juror explained that he was a student at
Northeastern University (university) and that serving as a juror
would "significantly impact" his course work. The judge
informed the juror that he would not excuse him for that reason,
and that the university would support his service as a juror.
Juror no. twelve agreed and had no other questions. Neither
party exercised any form of challenge to the juror.
5 General Laws c. 234, § 28, was repealed after the
defendant's trial. See St. 2016, c. 36, § 1. For the current
applicable statute, see G. L. c. 234A, § 67A.
7
At the end of the first day of trial, juror no. twelve sent
the judge a note stating, "I believe that the stress of missing
school will result in an impartial [sic] decision on my part. I
am terrified that I will fail my classes and do not know if I
can make a fair decision in the near future." The judge was
understandably troubled by the note and questioned juror no.
twelve at sidebar. The judge explained that jury service by
college students in the Boston area was in no way unique and
that it was a great opportunity to be given such a
responsibility as a young adult. He told the juror that many
other students have had the same concerns and that the
universities are required to make accommodations for jury
service. The juror understood, but he remained concerned about
missing classes and having to make up the work. The judge
understood the juror's concerns, wanted him to be "comfortable"
with his jury service, and instructed him to speak to university
officials about what accommodations they would make for him and
to report back to the judge the next day. The juror agreed,
noted that he had already contacted the registrar's office, and
told the judge that he "definitely want[ed] to participate in
[his] civic duty," but remained concerned. After reassuring the
juror that the university would permit him to make up the work
he missed, the juror agreed to do as the judge requested.
8
The next morning, after the judge confirmed with juror no.
twelve that the university would make accommodations for his
jury service, the judge nevertheless inquired whether the juror
could be fair to the defendant and give his attention to the
judge's instructions and the evidence. The juror responded, "I
would definitely do my best, but I can't promise anything." On
further inquiry, the juror explained that he feared falling
behind in his class work, but then indicated that he would "man
up" and do his best.
At the conclusion of the colloquy, the judge told the juror
he was "a perfect candidate" to make sure the right result was
reached, to which the juror responded, "I simply don't know."
The judge decided to continue with the trial and to keep the
juror seated. Defense counsel requested that the juror be
struck for cause. The judge explained that he would "keep [him]
as a work in progress, and assured counsel that he would not
keep the juror for deliberation if "he's impaired."
"As a general principle, it is an abuse of discretion to
empanel a juror who will not state unequivocally that he or she
will be impartial." Commonwealth v. Colton, 477 Mass. 1, 17
(2017). However, evaluating a juror's use of seemingly
equivocal language to make that determination lies within the
judge's discretion. Here, in response to the judge's questions,
the juror said he would do his "best" but could not "promise
9
anything." The judge reasonably could have concluded that these
responses merely reflected the juror's habits of speech,
contrast Commonwealth v. Vann Long, 419 Mass. at 804 & n.5
("statements that [the juror] 'would hope' he could be fair to
the Cambodian defendant were not habits of speech, but
indications of ethnic bias"), or were, at bottom, "not
determinative of the juror's ability to be impartial."
Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 274 (2002).
See Commonwealth v. Prunty, 462 Mass. 295, 302 (2012) (no abuse
of discretion to retain African-American juror who stated he
"would be able to do my best" to not let defendant's racial
prejudice affect juror's ability to be impartial); Commonwealth
v. Colton, supra (no abuse of discretion to empanel juror who,
when asked if she could be fair to both sides, responded, "Yes,
I think so," which "could be viewed as unequivocal").6 See also
6 In Commonwealth v. Colton, supra, the Supreme Judicial
Court cited Commonwealth v. Vann Long, 419 Mass. at 804, in
support of the general principle that jurors need to be
unequivocally impartial. In Vann Long, where a juror expressed
that he "would really hope" that he could be fair to the
Cambodian defendant, the court held that the judge abused his
discretion by seating that juror, who harbored an ethnic bias
against Cambodians. Ibid. Of course, nothing of the kind
appears on this record. In fact, more in line with this case,
is another response from the juror in Vann Long, where he
indicated that because his mother suffered from terminal breast
cancer, he was "afraid [he] would be a little impatient here,
especially with the deliberations. I will want to get out of
here." Id. at 799. As in this case, the judge did not treat
10
Commonwealth v. Wilborne, 382 Mass. 241, 254 (1981) (no abuse of
discretion in empanelling juror who stated that she "did not
think" that her friend's experience as rape victim would affect
juror's ability to be impartial); Commonwealth v. Ascolillo, 405
Mass. 456, 459 (1989) (no abuse of discretion in empanelling
juror whose final answer was, "No, I don't think so," to judge's
inquiry whether juror's experience as police officer and assault
victim would make him partial). Also, that juror no. twelve
expressed some uncertainty with the judge's assessment of the
juror being a perfect candidate for jury service did not require
the judge to find that uncertainty to be an indicator of
partiality any more than humility.
Unlike this court's review of the cold record, the judge
was uniquely situated to measure juror no. twelve's demeanor and
credibility. Although early on in the judge's inquiry, the
juror stated his concern about his ability to be "impartial,"
the judge did not end the matter there. Instead, he conducted a
careful and thorough examination of the matter, after which the
judge was in a better position to evaluate and to credit (or
discredit) the motivation and the effect of the juror's stated
concerns. Compare Commonwealth v. Auguste, 414 Mass. 51, 57
the juror's expression of frustration with the length of the
trial as an indicator of partiality.
11
(1992) (finding abuse of discretion where judge's inquiry
"avoided the very issue" of juror's ability to be impartial and
coerced juror's responses). Our review of the record supports
the judge's apparent determination that the juror's "doubts
about his . . . own impartiality [were] unfounded," id. at 58,
and were not an indicator of partiality at all. While the juror
classified his stress and concern about falling behind in his
class work under the label of partiality, the judge was not
required to credit what the juror reported. See Commonwealth v.
Ferguson, 425 Mass. at 352-353. However, even if the judge did
credit the juror's scholastic concerns, those concerns are not a
basis to discharge a juror. As we held in Commonwealth v.
Campbell, 51 Mass. App. Ct. 479, 483-484 (2001), "A juror's
complaints about the length of the proceedings, or expressions
of frustration about having to serve as a juror, do not
necessarily reflect the juror's inability to perform his or her
function as an impartial trier of fact and, therefore, it is
properly within the trial judge's discretion to refuse to
discharge such a juror." See Commonwealth v. Mabey, 299 Mass.
96, 99 (1937) (no indication that jury were unable or unwilling
to give full and careful consideration to evidence in spite of
foreperson's statements that jury were beginning to "get kind of
jumpy" and that "[w]e [the jury] are just dying to get out").
12
Indeed, at its core, this juror's concerns centered on his
frustration about the inconvenience inherent in performing jury
service. It did not reflect partiality or bias such that
retaining him constituted reversible error. See Commonwealth v.
Campbell, supra at 483, citing Commonwealth v. Vann Long, supra
at 804 & n.5. Instead, juror no. twelve's concern about missing
his classes was a "run-of-the mill frustration[] by an
exasperated juror about the judicial process," which is "to be
expected." Commonwealth v. Campbell, supra at 484. Notably,
after the judge's thorough colloquy, the juror never again
raised his concerns regarding his stress from the length of the
trial and its impact on his course load. Indeed, in his written
findings,7 the judge wrote that when juror no. twelve returned to
the trial (after having conferred with the university), the
juror was "satisfied that he could continue with his service.
The [judge] found that there was no reason to discharge him."
Fairly read, the judge concluded that the juror could perform
his function impartially. Given these findings, the judge's
7 Prior to deliberations, the judge denied a motion from
both parties to dismiss juror no. twelve. The Commonwealth also
filed a petition pursuant to G. L. c. 211, § 3, seeking the
discharge of juror no. twelve. In response, the judge filed
written findings, which the defendant does not challenge,
explaining his denial of the motion to discharge the juror. A
single justice of the Supreme Judicial Court denied the
Commonwealth's petition.
13
decision to retain the juror was not an abuse of discretion
where the judge could properly conclude that he had allayed the
juror's school work concerns so that the juror could render an
impartial verdict based on the evidence. See Commonwealth v.
Ferguson, supra; Commonwealth v. Colton, 477 Mass. at 16-17. In
other words, even though it might have been our choice in the
first instance to have excused this juror, it falls outside our
appellate office to substitute our judgment for the judge, who
conducted the colloquies, assessed the juror's demeanor, and
subsequently credited the juror's statements as being
unequivocal.8 See Commonwealth v. Ferguson, supra at 352-354.
The decision the judge made was neither a "clear error of
judgment," nor did his "decision fall[] outside the range of
reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014) (citation omitted).
Juror no. twelve's opinion of the law. The defendant also
claims that juror no. twelve should have been dismissed after he
spoke of jury nullification and expressed his disagreement with
a point of law from the judge's instructions. We disagree.
8 The dissent maintains that "[t]he judge is required to ask
them if they can be [fair and impartial], and to take them at
their word" (emphasis supplied). Post at . This "rule,"
advanced without support, would strip the judge of any
discretion to assess a juror's credibility and would relegate
our appellate role to simply determining whether all of the
"magic words" had been spoken in the colloquy.
14
After the judge completed his instructions to the jury, but
before deliberations began, juror no. twelve sent a note to the
judge stating, "I believe I may know information that would
affect my ability to judge the case based solely on the
information received in the trial." When questioned by the
judge, the juror clarified that he had not been exposed to
extraneous evidence, but that he had "heard about how the jury
actually has more power than [the judge] expressed, that [the
jury] can judge not only based on just information, but whether
they believe the law is fair, or their personal convictions
. . . to judge guilty or not guilty." The judge explained that
this was known as jury nullification, and that it was not
permitted. The judge further explained that although he cannot
instruct the juror on how to deliberate, he told the juror that
the jury determine what the facts are, and that the jury must
accept the judge's statement of the law regardless of the jury's
agreement with it. The judge queried whether juror no. twelve
had any question regarding his ability "to take the law as I
gave it to you, and apply it to the facts as you and [the] other
jurors find them?" The juror responded, "I don't think so."
Sensing some hesitancy, the judge again explained the two
different roles performed by the judge and the jury, and
reiterated his instructions on the elements of the charged
offenses.
15
Although agreeing with much of what the judge explained,
juror no. twelve stated that he did not believe it should be
unlawful to possess a small knife. The judge further explained
that it was not just that the knife's blade must be more than
one-and-one-half inches, but that the knife must also have a
case that enables the knife to be drawn in a locked position.
See G. L. c. 269, § 10(b). After this explanation, the judge
asked the juror if he had any problem applying that law, to
which the juror said, "I guess not." Not satisfied with the
juror's response, and sensing that the juror may nevertheless
disagree with the law, the judge further instructed that the
juror had to apply the law even if he disagreed with it. The
juror responded that he "thought that the jury had the power to
choose whatever way to --," whereupon the judge interrupted and
said, "I just told you it doesn't." The juror said, "Okay."
The judge continued to explain the importance of the jury
understanding their obligations and that there should not be any
hesitancy.9 The judge then asked if the juror was able to apply
9 The juror asked if there was "punishment if the jury does
not --" The judge interrupted, believing that the juror was
concerned about punishment of the defendant, and told the juror
not to worry about punishment and to only judge the facts. The
juror indicated his understanding by saying, "Okay." Contrary
to the dissent's suggestion, the judge did not tell the juror
that he would be punished if he engaged in jury nullification.
See post at .
16
the law to the elements as the judge explained, and juror
replied, "Yes." The judge then painstakingly went through his
other "major" jury instructions to ascertain whether the juror
had any problem applying those instructions, and juror said he
had no problem. Finally, the judge asked, in reference to jury
nullification, whether the juror was able to forget about "what
other people have told [him]." The juror agreed that he could,
and that he could be fair and honest to his oath. When the
judge asked if the juror was "all set," the juror replied that
he was and thanked the judge for speaking with him. The judge
thanked the juror and shared his appreciation for the juror
having the courage to speak up and resolve his concerns.10
At the close of this colloquy, defense counsel renewed his
request that the juror be discharged, and the prosecutor joined
the request. In response, the judge explained to both counsel
how the juror's concerns were resolved, that the juror would put
aside his personal beliefs, would not engage in jury
nullification, and was able to serve dispassionately with full
10Given this ending to the colloquy, we have difficulty
crediting the defendant's characterization of the judge's
colloquy as an "interrogation," or that it was "coercive."
Rather, the judge never dropped his proper neutral role, and
went to great lengths to resolve the juror's concerns and
misconceptions. Equally unavailing is the dissent's claim that
when the judge asked the juror if the juror could apply the law
as the judge instructed, "[Y]es" was the only answer the judge
would accept. See post at .
17
attention to the case. The judge explained that he "went to
great pains to give [the juror the] security of being able to be
a juror as well as a student, . . . and [the judge did not] find
any reason to discharge [the juror] after the colloquy that
[they] engaged in." Counsels' objections were noted.
Contrary to the defendant's claim, the juror did not
continually express his inability to be impartial and to apply
the law as given. As the juror admitted, he was not exposed to
any extraneous information. Instead, and apparently, the juror
had been apprised of the concept of jury nullification. The
judge properly explained that jury nullification was not
permitted and would be a violation of his oath to apply the law
as given. See Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007)
("Jury nullification is inconsistent with a jury's duty to
return a guilty verdict of the highest crime proved beyond a
reasonable doubt"). See also Commonwealth v. Paulding, 438
Mass. 1, 9 (2002) (jury may not "exercise clemency"; their
verdict may not be "contrary to the facts or the law of the
case," and that verdict may not be an effort "to control the
punishment which they think should be imposed on the defendant
for his crime"), quoting from Commonwealth v. Dickerson, 372
Mass. 783, 812 (1977) (Quirico, J., concurring). Cf. art. 30 of
18
the Massachusetts Declaration of Rights (Commonwealth is "a
government of laws and not of men").11
When juror no. twelve told the judge that he did not agree
with the law regarding the knife as a dangerous weapon, the
judge first discussed the issue with the juror and clarified
what the law was. After this explanation, the judge asked the
juror if he had any problem applying that law, to which the
juror said, "I guess not." Not satisfied, the judge asked
additional questions, which culminated in the juror agreeing
that he would be able to apply the law to the elements as the
judge explained. As an added measure of caution, the judge
returned to other major portions of his instructions to
ascertain the juror's proper understanding of his role.
Contrary to the defendant's claim, the judge addressed the
juror's "initial uncertainty competently" by "ask[ing] probing
questions designed to clarify the juror's position."
Commonwealth v. Jaime J., 56 Mass. App. Ct. at 275. Based on
the juror's response that he could apply the law as instructed,
the judge did not abuse his discretion in crediting the juror's
response and declining to discharge the juror. "We defer to the
judge's conclusion not to excuse this juror, because he had the
11To the extent the dissent claims that it would be
erroneous to instruct a jury that they lacked the power to
nullify a verdict, see post at , the defendant makes no
such claim and the matter is not before us.
19
opportunity to observe [the juror's] demeanor while he
questioned [the juror] at some length, and because [the juror's]
answers to his probing questions allayed any concerns he might
have had." Commonwealth v. Seabrooks, 433 Mass. 439, 443-444
(2001).12 The judge was within his discretion to decline to
dismiss juror no. twelve.13
b. Late disclosed discovery. After the second day of
trial, the Commonwealth disclosed eighty-five crime scene
photographs and an eighteen-page crime scene response report
with diagrams showing the location of the knife. In response,
the defendant requested a mistrial on the ground that the
prejudice to the defense was too great to overcome because
12In his written findings, see n.7 supra, the judge
expressly found that the juror "indicated to the satisfaction of
this judge that he would apply the law."
13The defendant properly acknowledges that it is improper
for a juror to disregard the law as given by the judge, but
claims that the judge should have instructed the juror that it
remained within his power to "vote his conscience." However,
the defendant never requested that the judge so instruct, and
has failed to identify any authority that would have required
the judge to have done so sua sponte. Pursuing the matter from
an angle not raised by the defendant, the dissent claims that
"it also cannot be permissible to instruct a juror falsely that
he or she lacks the power to vote his or her conscience." Post
at . Given that the defendant makes no such claim, and
that the judge did not so instruct, the matter is not before us.
However, it is worth noting that the judge explained to the
juror that he (the judge) cannot instruct the juror on how to
deliberate, and that the jury had the power to determine what
the facts are.
20
defense counsel would have altered his trial strategy and
tactics if the evidence had been timely disclosed. The judge
denied the motion.
On appeal, the defendant claims that the judge abused his
discretion by denying the request for a mistrial because the
late disclosure of the evidence compromised his prepared
defense, which he already had been pursuing in his opening
statement and through cross-examination of witnesses who already
had been dismissed. We disagree.
"We review the denial of a motion for a mistrial for abuse
of discretion." Commonwealth v. Martinez, 476 Mass. 186, 197
(2017), citing Commonwealth v. Lao, 460 Mass. 12, 19 (2011).
"The trial judge is in the best position to assess any potential
prejudice and, where possible, to tailor an appropriate remedy
short of declaring a mistrial." Commonwealth v. Martinez,
supra. See Commonwealth v. Amran, 471 Mass. 354, 360 (2015).
"[T]he burden of demonstrating an abuse of discretion is a heavy
one." Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985).
The question, when dealing with the delayed disclosure of
exculpatory or inculpatory evidence,14 is "whether, given a
14The "distinction between inculpatory and exculpatory
evidence is not significant where the issue is delayed
disclosure, as opposed to failure to disclose." Commonwealth v.
Baldwin, 385 Mass. 165, 175 n.10 (1982).
21
timely disclosure, the defense would have been able to prepare
and present its case in such a manner as to create a reasonable
doubt that would not otherwise have existed." Commonwealth v.
Baldwin, 385 Mass. 165, 175 (1982), quoting from Commonwealth v.
Wilson, 381 Mass. 90, 114 (1980).
"Absent a showing of bad faith, we consider the primary
issue of prejudice. In measuring prejudice, 'it is the
consequences of the delay that matter, not the likely
impact of the nondisclosed evidence, and we ask whether the
prosecution's disclosure was sufficiently timely to allow
the defendant "to make effective use of the evidence in
preparing and presenting his case."'"15
Commonwealth v. Stote, 433 Mass. 19, 23 (2000), quoting from
Commonwealth v. Wilson, supra. See Commonwealth v. Nolin, 448
Mass. 207, 224 (2007).
After hearing arguments on the motion for a mistrial, the
judge took the matter under advisement and gave the defendant
four days to digest the new evidence and to determine how he
would proceed.16 The judge also ordered a copy of the transcript
of defense counsel's opening statement so the judge could
determine whether counsel had made any promises he could no
longer keep in light of the new evidence. When the trial
15The parties agree that the prosecutor exercised no bad
faith in the late disclosure of the report and the photographs.
16The motion was made on a Thursday morning and Friday was
a scheduled day off, so defense counsel had until Monday morning
to review the new evidence.
22
resumed, the judge denied the request for a mistrial. He held
that counsel had made no promise he could not keep, and the
judge ordered the Commonwealth to make the witnesses who had
already testified available in the event that the defendant
wished to recall them.
There was no abuse of discretion for several reasons. As
the judge noted, the photographs and the diagrams in the
eighteen-page report were neither exculpatory nor exceptionally
probative to either party's case. The judge even offered to
exclude the evidence, if the defendant so chose. Also, as the
judge noted, although there were eighty-five crime scene
photographs, they appeared to him to be cumulative and
repetitive of other crime scene evidence; all were taken in the
same general areas.
There is no merit to the defendant's claim that the late
disclosed evidence changed the blocking of the crime scene. Nor
did the new evidence depict the area as more "complicated" than
described by the Commonwealth's witnesses in a manner that
weakened the Commonwealth's case. In fact, the photographs and
the diagrams corroborated the witnesses' testimony that
Detective Guy pulled the defendant and Peter away from each
other and pinned the defendant up against a parked bus, and that
the knife fell to the ground near the bus during the struggle
between Detective Guy, the defendant, and Peter.
23
In view of the continuance, the delayed disclosure cannot
be said to have forced the defense to change any tactics that
already had been in place. The defense was that the police
investigation was inadequate. See Commonwealth v. Bowden, 379
Mass. 472, 485-486 (1980). The gravamen of the defense was that
the police conducted a subpar investigation because they were
biased and had chosen sides because one of the victims was an
off-duty State trooper. The crime scene photographs and the
diagrams would have added little to this argument. Also, it was
understood by all parties that the Commonwealth would not
introduce the photographs or any portion of the crime scene
report. Given the remedies applied and the lack of prejudice to
the defendant, there was no error or abuse of discretion in the
denial of the request for a mistrial. See Commonwealth v.
Costello, 392 Mass. 393, 399-400 (1984); Commonwealth v.
Hamilton, 426 Mass. 67, 70-71 (1997).
c. Prosecutor's opening statement and closing argument.
Finally, the defendant claims that the prosecutor made a series
of improper remarks during her opening statement and closing
argument that created a substantial risk of a miscarriage of
justice. We disagree.
Opening statement. "The proper function of an opening is
to outline in a general way the nature of the case which the
counsel expects to be able to prove or support by evidence."
24
Commonwealth v. Staines, 441 Mass. 521, 535 (2004) (citation
omitted). See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 417
(2016). Here, the defendant takes issue with the prosecutor's
statement that "[w]e are here today because the defendant, Mr.
Njisane Chambers, doesn't handle rejection well. He can't let
things go." The prosecutor repeated this theme in other
portions of her opening statement.17
Contrary to the defendant's claim, when viewed in light of
the entire opening, these statements do not amount to improper
argument, but rather were a proper outline of the general nature
of the case and gave context to the defendant's stabbing of the
victims. See Commonwealth v. Tarjick, 87 Mass. App. Ct. 374,
381 (2015) (prosecutor may "place in context the evidence that
the Commonwealth reasonably expected to produce at trial"). The
prosecutor's statements were made in the context of the
anticipated evidence regarding Almeida's rejection of the
defendant's advances in the club and the defendant's reaction to
that rejection by throwing a drink as well as by attacking the
group with a knife after they left the club. There was no
error, and thus no risk that justice miscarried.
17The prosecutor told the jury that "[h]e waited. He
waited outside as the minutes ticked by, and his anger built up
more and more"; he "can't let things go. He doesn't handle
rejection well"; and "his anger built up like a ticking time
bomb."
25
The defendant also finds impropriety in the prosecutor's
statement that James Feeney, who was in a band tour bus parked
on Warrenton Street at the time of the stabbing, would testify
"that it was the defendant, Mr. Chambers, [who] stabbed these
three individuals in the street . . . and it was the defendant
and the defendant alone who is responsible for these actions."
This the defendant claims was improper because Feeney did not
make an out-of-court identification. We disagree.
In general, "a prosecutor in a criminal action may state
anything in [her] opening argument that [she] expects to be able
to prove by evidence. . . . This general rule also permits the
prosecutor to state those facts which would have to be proved by
inferences." Commonwealth v. Smith, 58 Mass. App. Ct. 166, 175
(2003). Here, Feeney testified that he saw a smaller black male
push a woman to the ground and attempt to run away before being
tackled to the ground by a tall, muscular black male, and that
the bigger male was on top of the smaller male when the police
arrived. Also, both Officer Fabiano and Detective Guy testified
that Peter was pinning the defendant down when they arrived.
Based on the descriptions of the scene and the defendant, the
prosecutor's statement was a fair inference from the evidence.
To the extent there was any misstep, the judge instructed the
jury that opening statements are not intended to persuade them,
26
but only to offer an outline of what the expected evidence will
be. See Commonwealth v. Simpson, 434 Mass. 570, 584 (2001).
Closing argument. Finally, the defendant claims that the
prosecutor argued facts not in evidence and engaged in burden
shifting. The defendant did not object to the prosecutor's
closing argument and, therefore, we review for error and, if
any, whether it created a substantial risk of a miscarriage of
justice. See Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 697
(2015).
The defendant claims that the prosecutor misstated the
evidence when she argued that "not only [Peter], but all of the
victims gave statements. Mercelino Amaro gave statements. Jim
Feeney, never met these people in his life, he gave a statement.
And who did they all say was responsible? The defendant." The
defendant offers, however, that this was false because only
Peter and Lebrun identified the defendant. We disagree. The
argument was properly based on the reasonable inferences from
the evidence. Amaro, Feeney, and Almeida each described the
defendant by his physical appearance in a consistent manner,
i.e., that he was a short, slim, black male with short hair.
This physical description of the assailant matched the
defendant, who Peter and Lebrun identified as the same person
from the earlier altercation in the club. Although Almeida,
Feeney, and Amaro, did not directly make out-of-court or in-
27
court identifications of the defendant, the prosecutor properly
suggested, based on the circumstantial evidence and reasonable
inferences therefrom, that the person they described as the
perpetrator was the defendant. See Commonwealth v. Deane, 458
Mass. 43, 55-56 (2010) ("A prosecutor is entitled to argue the
evidence and fair inferences to be drawn therefrom" [quotation
omitted]). There was no error and, thus, no risk that justice
miscarried.
The defendant also claims that the prosecutor engaged in
impermissible burden shifting when she argued, regarding the
deoxyribonucleic acid (DNA) evidence: "The DNA doesn't tell us
why, and defense counsel is only focusing on the police, the
police failures, the DNA, because that's all he has to hang his
hat on, because he has no reasonable explanation, no rational
explanation for the actions of the defendant." This, the
defendant argues, signaled to the jury that the defendant had an
affirmative duty to bring forth evidence of innocence.
However, as the Commonwealth maintains, the argument should
be understood to be a comment on the weakness of the defendant's
case and the trial tactic of highlighting the prosecution's
failure to test the blood on the knife for DNA. See
Commonwealth v. Feroli, 407 Mass. 405, 409 (1990); Commonwealth
v. Buzzell, 53 Mass. App. Ct. 362, 367-368 (2001). In fact, in
the defendant's closing, in support of his Bowden defense,
28
counsel highlighted that because the knife had not been tested
for DNA, it was unknown whether the knife had a mixture of DNA
on it or whether it may have had only the defendant's DNA on it,
and how the latter would have damaged the Commonwealth's case.
The prosecutor was entitled to "comment on the trial tactics of
the defence," Commonwealth v. Grimshaw, 412 Mass. 505, 507
(1992), and to respond to the defendant's closing argument. See
Commonwealth v. Smith, 404 Mass. 1, 7 (1989). See also
Commonwealth v. Feroli, supra ("A prosecutor is entitled to
emphasize the strong points of the Commonwealth's case and the
weaknesses of the defendant's case, even though he may, in so
doing, prompt some collateral or passing reflection on the fact
that the defendant declined to testify"); Commonwealth v. Cohen,
412 Mass. 375, 388 (1992) ("It is . . . not improper for a
prosecutor to comment on a defendant's attempt to confuse or
distract the jury by diverting their attention from the strong
evidence of the defendant's guilt").
However, even if the prosecutor's argument was improper, we
conclude that it did not create a substantial risk of a
miscarriage of justice. Several components of the case lead to
this conclusion. See Commonwealth v. Randolph, 438 Mass. 290,
297 (2002). First, there was no objection to the statements,
which lends credence to the belief that they did not create an
unfair or prejudicial impact. See Commonwealth v. Lyons, 426
29
Mass. 466, 471 (1998). Second, the Commonwealth's case was
particularly strong. The defendant was identified and detained
at the scene of the stabbing after his attack on the victims
with whom he had earlier fought inside the club. Third, the
judge instructed the jury on the limited purpose of closing
arguments and, more importantly, that the Commonwealth bore the
burden of proof and that "the defendant in a criminal case never
has any duty or obligation to testify or to come forward with
any evidence."18
Judgments affirmed.
18Given our resolution of the appeal, there is no need to
address the defendant's argument relative to cumulative error.
RUBIN, J., dissenting. This is a straightforward case.
Both the public and the defendant are entitled to fair and
impartial jurors, and the requirement of fairness and
impartiality includes the ability to attend to and fairly to
consider the evidence and the judge's instructions. See
Commonwealth v. Sleeper, 435 Mass. 581, 589 (2002) ("Both the
Commonwealth and the defendant are entitled to an attentive
jury"). Therefore, as the Supreme Judicial Court reminded us
during the pendency of this very appeal, "As a general
principle, it is an abuse of discretion to empanel a juror who
will not state unequivocally that he or she will be impartial."
Commonwealth v. Colton, 477 Mass. 1, 17 (2017).
Juror number (no.) twelve would not, and did not, make any
such statement. Indeed, the majority does not attempt to
identify a single statement of the juror in which he said he
could be fair and impartial. The very closest the juror came to
that was to say, "I would definitely do my best, but I can't
promise anything," which, as a matter of law, does not amount to
the required unequivocal statement. The Supreme Judicial Court
has already held that a juror's statement that "he would 'do
[his] best'" is not an "unequivocal[] state[ment] that [the
juror] would be impartial," and that it does not suffice to
permit a juror to sit whose impartiality is in question.
Commonwealth v. Vann Long, 419 Mass. 798, 804 (1995). Juror no.
2
twelve's "I can't promise anything" addendum only weakens his
statement.
In fact, far from unequivocally stating that he would be
fair and impartial, juror no. twelve stated unequivocally that
he believed that he could not be fair and impartial in this
matter, and never subsequently stated unequivocally that he
could or would be fair or impartial or, indeed, that he could
listen and attend to the evidence and the instructions. He
never even said that he thought he could. It was, therefore, an
abuse of discretion to seat him.
During trial, both parties moved that he be discharged
because of his statements. Though the Commonwealth here
attempts to defend its favorable verdict, in the trial court it
went so far as to seek emergency interlocutory relief before the
single justice of the Supreme Judicial Court from the refusal of
the trial judge to discharge juror no. twelve.
The law is clear that no one in this Commonwealth should be
required to stand trial before a juror like this who cannot
unequivocally say he will fairly and impartially judge the case
before him. Rather than identifying any purportedly unequivocal
statement by the juror, the majority first suggests –-
incorrectly in light of Vann Long –- that a judge has discretion
to find a juror who says he cannot be fair or impartial
nonetheless can be. More fundamentally though, and more
3
troubling because the judge never made any such finding about
this juror, the majority, in order to affirm the judgments,
announces without support that where a juror cannot be fair and
impartial because of "frustration about the inconvenience
inherent in performing jury service," he or she may nonetheless
be seated. Ante at .
But there are no kinds of unfairness or partiality that are
tolerable in a juror. Because I think the judgments therefore
should be reversed, I must respectfully dissent.
A. The first and second days of trial. 1. Facts. At the
end of the first day of trial, juror no. twelve, an
undergraduate student only six weeks into his freshman year at
Northeastern University (university), sent the judge a note that
said, "I believe that the stress of missing school will result
in an impartial [sic] decision on my part. I am terrified that
I will fail my classes and do not know if I can make a fair
decision in the near future." This was a statement that juror
no. twelve did not believe that he could be fair and impartial.
At a sidebar conference, the judge encouraged the juror,
and told him that the university would make accommodations for
jury service. The judge instructed the juror to speak to
university officials about what accommodations they would make
for him, and to report back. The next morning, in response to
questions from the judge that reflected the judge's clear
4
understanding of the issue, "Are you going to be able to give me
attention, are you going to be able to be fair to this guy and
this woman in their respective cases? Are you going to be able
to listen attentively to my instructions? Are you going to be
able to listen to the evidence?" juror no. twelve said only, "I
would definitely do my best, but I can't promise anything."
The judge did not respect that answer but said, among other
things, "People have to step up to the plate." The juror
responded, "I agree that you're telling me to man up, and I
will."
The judge, presumably recognizing the impropriety of
shaming the juror into giving what the juror perceived as the
judge's desired response, immediately said, "I'm not saying man
up. I didn't say that." See Commonwealth v. Auguste, 414 Mass.
51, 58 (1992) (judge may probe impartiality with questions, but
may not seat juror on basis of "answers suggested or, in fact,
required by the questions. . . . Jurors should not be coerced
into a particular response"). The judge then told juror no.
twelve, "[Y]ou're almost a perfect candidate for being able to
use your analytical skills to be able to listen to the evidence
and . . . factor in . . . where the evidence lead[s] you to
. . . . You're a perfect candidate to be able to help out the
Commonwealth and the defendant to make sure that their result is
reached." The juror responded, "I simply don't know."
5
The defendant moved to discharge the juror, and his motion
was denied. Although the Commonwealth did not move at this
point to discharge the juror, it did at the end of trial in part
"based on what he said from Day 1 that he couldn't be impartial
after the opening statements and hearing from the first
witness." Indeed, the Commonwealth sought emergency
interlocutory relief in the Supreme Judicial Court from the
order denying this motion.
2. Analysis. "As a general principle, it is an abuse of
discretion to empanel a juror who will not state unequivocally
that he or she will be impartial." Colton, 477 Mass. at 17. As
these facts describe, juror no. twelve stated unequivocally that
he believed that the stress of missing school would render him
partial, and that terror at the prospect of failing his classes
would compromise his ability to be fair. In response to the
judge's questions, this juror would not state unequivocally that
he could be fair or impartial or that he could be attentive and
listen to the evidence and the judge's instructions. He did not
even say that he thought he could. His strongest statement, "I
would definitely do my best, but I can't promise anything," is
inadequate. In Vann Long, 419 Mass. at 804, the Supreme
Judicial Court held that as a matter of law, "[I will] do [my]
best" is not the requisite "unequivocal[] state[ment] that [the
juror] would be impartial." Consequently, it cannot suffice to
6
permit a juror to sit whose impartiality is in question. Ibid.
See Commonwealth v. Prunty, 462 Mass. 295, 312 (2012). The
cases put forward by the majority in which no abuse of
discretion was found in seating a juror who put forth some
version of "I think I could," are therefore irrelevant. Ante
at .
Nor is Prunty, the first case cited in the majority list,
ante at , which the majority describes as finding "no
abuse of discretion to retain African-American juror who stated
he 'would be able to do my best' to not let defendant's racial
prejudice affect juror's ability to be impartial," of any
relevance here. As the court there explained, Prunty did not
alter the rule articulated in Vann Long that a statement that "I
will do my best" is an insufficiently unequivocal statement of
an ability to be fair and impartial. Prunty, supra at 311-312.
The statement in Prunty was made by an African-American juror
who had already expressed unequivocally that he could be
impartial and with respect to whom there was no reason to
question whether he could be fair and impartial. Ibid. The
juror made the statement when called back for further voir dire
after defense counsel, whose client had made several highly
offensive racist comments that were expected to be introduced at
trial, attempted to utilize a peremptory challenge to strike the
juror and the judge concluded that a prima facie showing had
7
been made that it was based on the juror's race. Ibid. Defense
counsel then alleged without any basis that his client's
comments "certainly are going to perhaps get under the skin of
somebody who might be a little bit more sensitive to that issue,
particularly where that is their descent." Id. at 300. There
was no evidence that the juror harbored any racial prejudice
and, as the court explained, the rule of Vann Long was not
applicable in that circumstance because, since "no . . . bias
was apparent, . . . an unequivocal response was not necessary to
rehabilitate the juror's impartiality." Id. at 312. By
contrast, of course, it is applicable here, where there was
reason to believe the juror could not stand indifferent based on
the juror's explicit statement that he could not be fair or
impartial.
Consistent with case law, when the defendant moved at the
end of the colloquy for the juror's discharge he should have
been excused for cause. That should have been the end of this
case. No one would want this juror sitting on his or her own
case, and the defendant was not required to have him sitting on
his.
In support of its conclusion to the contrary, the
majority's most fundamental conclusion is that the juror's
concerns "centered on his frustration about the inconvenience
inherent in performing jury service. It did not reflect
8
partiality or bias such that retaining him constituted
reversible error." Ante at . Thus even if the judge
"credited" the juror's statement that his "scholastic concerns"
made it impossible for him to be fair and impartial, this was
"not a basis to discharge [the] juror." Ante at .
This is meritless. The law is clear that jurors must
fairly, impartially, and attentively consider the evidence
before them and the judge's instructions. See, e.g.,
Commonwealth v. Dickerson, 372 Mass. 783, 794 (1977) ("only
jurors who will fairly and attentively consider the evidence
before them" may be seated). The majority concedes as much.
See ante at ("When evaluating juror impartiality," judges
must among other things inquire whether potential jurors can
"properly weigh the evidence, and follow the judge's
instructions"). That juror no. twelve's inability to fairly and
impartially attend to the evidence and the judge's instructions
arose from the burdens the juror concluded were put on his
studies by jury service obviously does not render his service
proper.
To the extent the majority by this language means
otherwise, i.e., that there are some jurors who cannot be fair
or impartial who may nonetheless sit, the case they cite of
course does not support that proposition. Commonwealth v.
Campbell, 51 Mass. App. Ct. 479 (2001), rather, held correctly
9
that "[a] juror's complaints about the length of the
proceedings, or expressions of frustration about having to serve
as a juror, do not necessarily reflect the juror's inability to
perform his or her function as an impartial trier of fact." Id.
at 483-484. The court there made clear that, unlike in the
instant case, "[t]here was no indication that the juror's
complaints . . . reflected an inability to perform his function
as an impartial trier of fact." Id. at 484.
By contrast, in this case that inability is precisely what
the juror asserted. The juror's statements were not merely
understandable complaints or expressions of frustration,
something that, the majority tells us, need not be taken "as an
indicator of partiality." Ante at . They were actual
statements by a juror who believed that he could not be fair and
impartial. As the rule requiring an unequivocal statement from
a juror that he or she will be fair and impartial makes clear,
there is no variety of unfairness or partiality that is
tolerable in a juror, and holding otherwise, as the majority
appears to do here, contravenes centuries of precedent to the
contrary: "[W]here there is abundant latitude for selection [of
jurors,] none should sit who are not entirely impartial. This
is equally demanded by the general principles of the common law,
(Hesketh v. Braddock, 3 Burr. 1856,) and by those of our own
constitution, requiring all judges to be as free, impartial and
10
independent as the lot of humanity will admit. Declaration of
Rights, art. 29." (Emphasis supplied.) Davis v. Allen, 11
Pick. 466, 467-468 (1831) (Shaw, C.J., for a unanimous court).
If instead the majority means only to say that the juror
was, in fact, merely frustrated, and did not actually mean that
he could not be fair and impartial, such a finding of fact -–
one never made by the trial judge (notwithstanding the
majority's suggestions), and which cannot be made properly by an
appellate court on appeal -– is foreclosed in this case by the
case law that allows a finding that a juror will be fair and
impartial only where a juror states unequivocally that he or she
will be impartial.1 Put another way, the law mandates a
particular method for determining whether jurors can be fair and
impartial, a method designed to make sure no unfair or partial
juror sits: the judge is required to ask them if they can be,
and to take them at their word. This is precisely why, "[a]s a
1 The majority goes so far as to assert that the judge
"credited the juror's statements as being unequivocal," ante
at . The transcript shows that the judge made no finding
that the statements were unequivocal nor, as the text makes
clear, could he. Nor did the judge's hastily prepared findings,
made in writing during the brief pendency of the Commonwealth's
own interlocutory appeal from the judge's denial of its motion
to discharge the juror, say there was an unequivocal statement
by the juror that he could be fair and impartial. Indeed, they
do not, and could not, say even that the juror said he could be
fair or impartial.
11
general principle, it is an abuse of discretion to empanel a
juror who will not state unequivocally that he or she will be
impartial." Colton, 477 Mass. at 17.2
The majority also holds that "the judge could properly
conclude that he had allayed the juror's school work concerns,"
ante at , without any citation to the record of what the
juror actually said. Here is what the juror said: After the
juror confirmed that he had contacted university officials and
that they had told him that they would "work with [him]," the
judge asked, "Are you going to be able to be fair to this guy
and this woman in their respective cases? Are you going to be
able to listen attentively to my instructions? Are you going to
be able to listen to the evidence?" The juror responded, "I
2 The majority asserts that I am advancing a "'rule' . . .
without support," ante at . But the text quoted supra is
contained in the Supreme Judicial Court opinion in Colton, which
I cite. Quarreling essentially with that decision, the majority
says that the rule "would strip the judge of any discretion to
assess a juror's credibility and would relegate our appellate
role to simply determining whether all of the 'magic words' had
been spoken in the colloquy." Ante at .
Determining whether someone said something
unequivocally does not involve a credibility determination, nor
does requiring an unequivocal answer to one question mean that a
colloquy is nothing more than a series of required words.
Finally, no "magic" words must be spoken. Just some version of
the word "yes" –- even, "Yes, I think so," may suffice, see
Colton, supra -- something the juror here, even under pressure
from the judge to "step up to the plate," indeed, even after
agreeing to sit, could never bring himself to say.
12
would definitely do my best, but I can't promise anything,"
words that, as described supra, as a matter of law, cannot
suffice to show that a juror whose impartiality is in question
can stand fair and impartial. See Vann Long, 419 Mass. at 804.
Concluding that the juror's response meant that the juror's
concerns were not allayed -– which is what the words mean -– the
judge immediately asked him what would "interfere with" his
ability to exercise these three essential functions, and the
juror responded, "Just fear of, just completely falling behind
and failing my classes and just all the stress of everything."
The judge responded, "But I thought that the [university] was
going to give you a little bit of an antidote, maybe not enough"
(emphasis supplied). The juror then agreed with the judge that
what the school would give him was not enough: "They will give
a little more time, but that still means doing double the work
in the same amount of time." The only other statements the
juror made on the subject were, "I agree that you're telling me
to man up, and I will," which the judge told the juror was
somehow a misinterpretation of what he (the judge) had said,
and, "I simply don't know," in response to the suggestion that
he would be "a perfect candidate" to listen to the evidence and
to deliberate on the case. Not one of the juror's statements
even hints at the possibility that the judge had allayed his
concerns.
13
The other reasons given by the majority for refusing to
take the juror at his word are insubstantial. Stating that he
could not be fair and impartial could not have been a "habit[]
of speech" that did not mean that the juror could not be fair
and impartial. See ante at . Indeed, the case in which
the "habit[] of speech" language appears was one in which the
court concluded that a juror who said he "would really hope"
that he could be fair was not utilizing a mere habit of speech,
but was asserting that he could not assure the judge that he
could be impartial. Vann Long, supra. Today is the first time
either of our appellate courts has held that the words of
someone who did not unequivocally state that he could be fair
and impartial might merely have been a habit of speech. Yet no
halfway competent English speaker would habitually use the
phrases, "I believe that the stress of missing school will
result in [a partial] decision on my part," "I am terrified that
I will fail my classes and do not know if I can make a fair
decision in the future," or "I can't promise anything," with
respect to fairness to the parties or ability to listen to the
evidence or the instructions, to mean, "I can be fair and
impartial."
Nor, of course, is it particularly impressive -– though the
majority finds it "notabl[e]," ante at –- that the juror
"never again raised his concerns," when he had already twice
14
done so only to be told by the presiding judge, on the bench and
in a robe, to "step up to the plate." And while, doubtless,
"the judge was uniquely situated to measure juror no. twelve's
demeanor and credibility," ante at , the judge never
suggested that juror no. twelve was not credible or that his
concerns should not be taken at face value. Because the juror
would not state unequivocally that he would be fair and
impartial, indeed because he would not even say that he thought
he could be -– even as he agreed to sit because the judge told
him to "step up to the plate" -– there is no basis in the record
for a finding that he would. And no amount of meaningful gazing
by a judicial officer into this juror's eyes could render his
statements unequivocal expressions of an ability to be fair and
impartial.
At the end of the day, there is not a single statement in
the record, and the majority does not purport to point to one,
in which juror no. twelve in fact said that he could be fair and
impartial. This is all that is needed to decide the case and on
this basis alone I would reverse.
But of course there is on this record much more. Because
after the jury had been instructed, but before deliberations
began, this selfsame juror sent another note to the judge, this
one stating, "I believe I may know information that would affect
15
my ability to judge the case based solely on the information
received in the trial."
B. After the jury were instructed. 1. Facts. Called to
sidebar after sending the note just described, juror no. twelve
said, "I heard about how the jury actually has more power than
you expressed, that they can judge not only based on just
information, but whether they believe the law is fair, or their
personal convictions . . . to judge guilty or not guilty."
The judge explained that what the juror had heard about was
jury nullification. The judge said, "That is not permitted.
That is definitely not permitted . . . ." Nonetheless, the
juror still hesitated when the judge asked, "Is there any
question of your ability to be able to take the law as I gave it
to you, and apply it to the facts as you and your other jurors
find them?"
The judge decided therefore to go through the law on which
the entire jury had been instructed, element by element, asking
this one juror whether he had any difficulty understanding that
law and applying it to the facts as he found them. When the
judge reached the point of explaining the elements of possession
of a weapon, and in particular that knives with certain kinds of
casements, when one-and-one-half-inches in length or longer, are
defined as dangerous weapons, he asked, "Do you have any problem
with taking the law as I give it to you, the statute that I gave
16
you, and applying it to the facts as you might find them?" and
juror no. twelve said, "I don't believe that the law should be
that a knife of that size should be a dangerous weapon, but I
guess . . . ."
The judge then said, "Well, you know what you get to do
with that, and I'm not being facetious, you get to call up your
legislator and you get to ask him to change the law, but that's
the law as it is right now." The judge then went on to quarrel
with the juror's understanding of the law on which he had now
twice been instructed, saying, "It's not one-and-a-half inches,
it's with that casement . . . ." When finally asked again, "Do
you have any problem applying that law?" the most the juror
would muster was, "I guess not."
Still, the judge did not dismiss the juror. But,
correctly, the judge did say, "I guess not is not good enough
for me because it's something that you may disagree with." He
then went on, "You have every right. I disagree, we all
disagree with some of the laws as it relates to some of the
things that are prohibited by our government. . . . But that's
what the law is, and as a juror, regardless of your personal
beliefs you have to apply the law. Will you be able to do
that?"
Having thus been told that "yes" was the only answer that
the judge would accept -– "I guess not is not good enough," the
17
judge said -– the juror did not even then say yes. He responded
again, "Well I thought that the jury had the power to choose
whatever way to . . . ." The judge interrupted the juror and
said, "I just told you it doesn't," which is incorrect as a
matter of law, see Commonwealth v. Hebert, 379 Mass. 752, 755
(1980) ("[I]t remains within the power of a juror to vote his or
her conscience"). The juror responded, "So, there's a legal
punishment if the jury does not . . . ."
He was cut off by the judge, who misunderstood the juror's
statement, thinking that he was addressing punishment of the
defendant when, as the record reflects, the juror meant that he
misunderstood the judge to have told him –- what is also
incorrect –- that he (the juror) would be punished by law if he
engaged in jury nullification.3
3 I note that, while courts have long held that jurors
should not be instructed that they have the power to nullify, no
court of which I am aware has ever approved an instruction -–
erroneous as a matter of law -– that the jury lacks this power.
See Hebert, supra ("[I]t remains within the power of a juror to
vote his or her conscience"); Commonwealth v. Floyd P., 415
Mass. 826, 832 n.6 (1993) ("Cases acknowledge that, while it is
improper for a jury to take such action, in practice they have
the power to accomplish such a result"). While the judge
therefore should not instruct a juror that he or she has the
power of nullification, it also cannot be permissible to
instruct a juror falsely that he or she lacks the power to vote
his or her conscience, or to leave an impression that there is
some punishment that may be associated with doing so. The
majority does not even attempt to justify the judge's erroneous
instruction, and claims only that "the matter is not before us."
Ante at . But the defendant argued on appeal that "it
18
At this point, unsurprisingly, the defendant requested
again that the juror be discharged and, equally unsurprisingly,
the Commonwealth joined in that motion.
2. Analysis. Although of course the Commonwealth here
argues in support of the verdict, at trial the prosecutor joined
in the motion to discharge the juror based "on what [juror no.
twelve] said from Day 1 that he couldn't be impartial after the
opening statements and hearing from the first witness, and the
fact that again now he's saying he doesn't believe that the law
--." The judge denied the motion. (And, less than two hours
later the prosecutor informed the judge that she had filed a
motion under G. L. c. 211, § 3, to the single justice of the
Supreme Judicial Court on an emergency basis to stay
proceedings, and appealing the refusal to discharge juror no.
twelve, a request that, given its interlocutory posture, the
single justice unsurprisingly denied.) Having failed to
persuade the judge, the Commonwealth is not technically
judicially estopped from defending the seating of the juror
here, see Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 644
(2005) (judicial estoppel precludes party from "asserting a
remains within the power of a juror to vote his or her
conscience," quoting from Hebert, supra, and that "the judge did
not so instruct this juror." Although I do not believe we need
to reach the issue, this does suffice to raise it.
19
position inconsistent with a position previously and
successfully asserted" [emphasis supplied]), but its postverdict
defense of the seating of the juror rings particularly hollow in
light of its strenuous challenge to the juror at the time of
trial.
By the time of the joint motion to excuse the juror, he had
repeatedly stated an inability or an unwillingness to apply the
law as given, and he should have been excused for cause.
Indeed, there can be little doubt that the judge's lengthy and
repeated statements to the juror -– including both a refusal to
accept an answer that the juror could not follow the law, and
leaving the juror with the incorrect impression that he could be
punished for voting his conscience -– may well have "affect[ed]
the juror's judgment." Hebert, 379 Mass. at 755 (judge's
"coercive" interaction with juror, where juror believed that
Commonwealth had proved each element of crime beyond reasonable
doubt but could not in good conscience convict, was improper);
Auguste, 414 Mass. at 58 (juror may not be seated on basis of
"answers suggested or, in fact, required by the [judge's]
questions").4 For this independent reason, the juror should have
4 The majority is of course correct that the judge did not
tell the juror that he would be punished for engaging in jury
nullification, but this does not change the fact that the juror
clearly, and incorrectly, believed that he could be punished.
The majority's implicit conclusion –- that it somehow matters
20
been dismissed. And even if either his statements on the first
and second days of trial, or his statements after the jury were
instructed, alone would not have warranted it, certainly taken
together they required his dismissal.
Although I appreciate that trial judges sometimes may have
a difficult task in ensuring that jurors do not impermissibly
avoid their obligation to serve, and while the judge's decision
not to dismiss juror no. twelve appears to have been at least
partially motivated by the desire to avoid a mistrial,5 as both
that the judge is less blameworthy for neglecting to correct the
juror's obvious misconception than he would have been for
creating it –- is plainly wrong. See ante at . Our
question is whether the defendant received a fair trial, and the
fact is that a citizen entered the jury room believing falsely
that he could be punished for voting his conscience.
5 After his colloquy with juror no. twelve on the second day
of trial, the judge stated, "I'm going to keep it as a work in
progress. He's not going to be a juror that is going to
deliberate if he's impaired. I'm with you on that part of it,
and I think I may do a little inquiry as to the detail of this
letter, and I think I did a splendid job of trying to salvage
this so you don't mistry the case . . . ." Also, after learning
that the defendant and the Commonwealth were seeking relief from
the single justice of the Supreme Judicial Court, he (the judge)
requested that a court room clerk transmit certain statements to
the clerk of the Supreme Judicial Court, including that, "The
jury has been reduced to thirteen, and one of the jurors
received a commitment from this Court that they would [be]
released from duty to complete travel plans, and it is likely
that a mistrial will occur. Further, there are factual
misstatements in the petition that can be addressed by a
transcript which this Court has ordered, and at the present time
this trial judge, having had the ability to inquire of the
challenged juror is satisfied that he ought not to be
discharged, period." The inconvenience to either party or to
21
parties recognized below, he pushed too hard in this case, and
impermissibly failed to excuse juror no. twelve for cause.
For these reasons, it seems to me that a reversal of the
judgments is required. I therefore respectfully dissent.
the judge of declaring a mistrial of course properly has no
bearing on the question whether a juror stands fair and
impartial.