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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.
