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SJC-11447

                    COMMONWEALTH    vs.   BRIAN LEE.1



            Suffolk.       January 9, 2018. - May 15, 2018.

         Present:   Gants, C.J., Budd, Cypher, & Kafker, JJ.


Homicide. Constitutional Law, Jury, Fair trial. Due Process of
     Law, Fair trial. Jury and Jurors. Practice, Criminal,
     Empanelment of jury, Jury and jurors, Capital case.



     Indictment found and returned in the Superior Court
Department on January 23, 2007.

     The case was tried before John C. Cratsley, J.


     Elizabeth A. Billowitz for the defendant.
Julianne Campbell, Assistant District Attorney, for the
Commonwealth.


     CYPHER, J.     The defendant, Brian Lee, appeals from his

conviction of murder in the first degree.       We affirm.

     Background.       The victim was the defendant's father.   Ruth

Collins and her daughter, Caron Collins, had known the defendant


     1 As is our custom, we refer to the defendant by the name
appearing in the indictment.
                                                                    2


for several years at the time of the homicide.2   The defendant

was friendly with Caron and had done housework for Ruth.       On

October 28, 2006, Ruth saw the defendant walk behind her house

carrying white garbage bags.    Soon after, the defendant left

without any garbage bags.    Ruth and Caron checked the backyard

for the garbage bags.    They found white garbage bags in a

compost bin, and inside one of the garbage bags, they found a

human head.    When police arrived, officers found two arms and

two legs in the other garbage bags.

     Ruth reported that she had seen the defendant carrying

white garbage bags behind her house.    Police officers learned

that the defendant's father had sought an abuse prevention order

against him three days earlier.3   Officers went to the

defendant's father's house to check on his safety.    In the

house, officers found white garbage bags and a human torso in a

plastic tub.   A fingerprint on the tub was later identified as

the defendant's.

     That same day, the defendant spoke with the police.       He

told detectives that he had dismembered his father but not

killed him.    The defendant also told police that he had thrown

away his father's mattress, sheets, and blanket because they

     2 We refer to Ruth and Caron Collins by their first names to
avoid confusion.

     3 The victim had also sought abuse prevention orders against
the defendant in 2000 and 2004.
                                                                   3


were covered in blood.   The medical examiner testified that

multiple blows to the head caused the victim's death.       The

defendant's medical expert testified that the victim's death was

a homicide.

     At trial, the defendant represented himself4 and conferred

with standby counsel.    His theory of his defense was that the

Commonwealth did not meet its burden of proof, the police and

medical examiner altered evidence, and the victim was not the

defendant's father.

     Discussion.   The sole issue the defendant raises on appeal

is that the seating of a biased juror violated the defendant's

right to a fair and impartial jury under the Sixth Amendment to

the United States Constitution and art. 12 of the Massachusetts

Declaration of Rights.   During jury empanelment, the judge

informed each juror that participating in the trial would

include viewing "graphic photos of body parts" and inquired

about the impact of those photographs on each juror's

impartiality.   The defendant contends that prospective juror no.

226 "expressed doubts about his ability to be fair and

impartial" and was seated on the jury nonetheless.    The

transcript contains the following exchange between the judge and

prospective juror no. 226:


     4 The judge conducted a proper colloquy with the defendant
about waiving his right to counsel.
                                                                       4


     The judge: "All right. In this trial you will see some
     graphic photos of body parts, and the question is whether
     you think that would affect your ability to be a fair and
     impartial juror?"

     The juror:   "Yes."

     The judge: "All right, do you have any other concerns
     about being a fair and impartial juror for a first degree
     murder prosecution?"

     The juror:   "No, sir."

(Emphasis supplied.)

     After the judge finished questioning the prospective juror,

neither the defendant nor the Commonwealth opposed the juror's

empanelment.   Later, when discussing another juror, the

defendant asked to challenge prospective juror no. 226.    The

judge declined to allow the defendant do so.   The defendant

argues that the seating of prospective juror no. 226 was

structural error and seeks a new trial.

     The defendant's argument and the Commonwealth's response

were premised on the trial transcript.    After hearing oral

argument on this case, we acquired the transcriptionist's audio

recordings and learned that the transcript was inaccurate.5      The

actual exchange between prospective juror no. 226 and the judge

is as follows:


     5 After oral argument, the defendant also sought the
transcriptionist's audio recordings and was erroneously informed
that no recordings of the trial existed. Upon release of this
opinion, we will ensure that the defendant will have access to
all recordings of the trial.
                                                                   5


    The judge: "You will see in this trial some graphic photos
    of body parts. The question is whether you think you could
    see them and remain a fair and impartial juror."

    The juror:   "Yes."

    The judge: "Do you have any other concerns about being a
    fair and impartial juror in a first degree murder
    prosecution?"

    The juror:   "No, sir."

(Emphasis supplied.)

    The judge conducted a sufficient colloquy with juror no.

226 to determine that he would not be a biased juror.   We

therefore discern no error.

    We have thoroughly reviewed the entire record in accordance

with our duty under G. L. c. 278, § 33E, and decline to reduce

the degree of guilt or order a new trial.   The defense that the

Commonwealth did not meet its burden is without merit; the

physical and eyewitness evidence against the defendant was

overwhelming.   During closing argument and cross-examination,

the defendant advanced theories about the police and medical

examiner fabricating evidence and misidentifying the victim as

his father.   Neither of these theories had any evidentiary

support.

    Given the transcription error, we conclude that the

defendant should not be subject to the gatekeeper provision of

G. L. c. 278, § 33E, for any issue that was not apparent from
                                                             6


the transcript and could only be discovered from the audio

recording of the proceedings.

                                   Judgment affirmed.
