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11-P-729                                                Appeals Court

                  COMMONWEALTH   vs.   QUINCY BUTLER.


                            No. 11-P-729.

       Suffolk.       November 9, 2015. - November 4, 2016.

            Present:     Cypher, Trainor, & Rubin, JJ.


Homicide. Constitutional Law, Jury. Jury and Jurors.
     Practice, Criminal, Challenge to jurors, Jury and jurors,
     Capital case, Argument by prosecutor, Witness, Conduct of
     prosecutor. Evidence, Argument by prosecutor, Cross-
     examination, Credibility of witness. Witness, Cross-
     examination, Credibility. Perjury.


     Indictments found and returned in the Superior Court
Department on May 4, 2004.

    The cases were tried before Patrick F. Brady, J.


     John M. Thompson for the defendant.
     Cailin M. Campbell, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, with her) for the
Commonwealth.


    CYPHER, J.    The defendant, Quincy Butler, appeals from his

convictions of murder in the second degree (G. L. c. 265, § 1),
                                                                    2


and eight related offenses.1   The defendant was tried with a

codefendant, William Wood, on a theory of joint venture for

crimes committed in the course of a botched kidnapping and

robbery attempt.2   Wood was convicted of murder in the first

degree and various other charges.3   He appealed his convictions

to the Supreme Judicial Court which found no reversible error

and found no reason to reduce or reverse the conviction of

murder in the first degree pursuant to its authority under G. L.

c. 278, § 33E.4   See Commonwealth v. Wood, 469 Mass. 266 (2014).


     1
       The defendant was also convicted of armed carjacking, in
violation of G. L. c. 265, § 21A; two counts of kidnapping, in
violation of G. L. c. 265, § 26; armed home invasion, in
violation of G. L. c. 265, § 18C; two counts of armed robbery,
in violation of G. L. c. 265, § 17; assault and battery by means
of a dangerous weapon, in violation of G. L. c. 265, § 15A(b);
larceny of a motor vehicle, in violation of G. L. c. 266,
§ 28(a); and possession of a firearm without a license, in
violation of G. L. c. 265, § 10(a). The armed home invasion
conviction was subsequently dismissed as duplicative.
     2
       There were four trials, two of which ended in mistrials
when the jury were unable to reach a unanimous verdict. A third
trial ended in a mistrial because the presiding judge became ill
during the trial. Commonwealth v. Wood, 469 Mass. 266, 268
(2014).
     3
       Wood was also convicted of armed carjacking, two counts of
kidnapping, armed home invasion, and larceny of a motor vehicle.
His convictions on two counts of armed robbery were dismissed as
duplicative by the judge but were reinstated by the Supreme
Judicial Court. Wood was acquitted of assault and battery by
means of a dangerous weapon. Wood, 469 Mass. at 268 & n.3.
     4
       Wood argued, in his appeal, that if he and the defendant
were both guilty of armed robbery as joint venturers, satisfying
the predicate felony for felony murder in the first degree, the
defendant should also have been convicted of murder in the first
                                                                        3


     On appeal, the defendant argues that he was deprived of

equal protection and due process because the prosecutor engaged

in racial and gender discrimination during jury empanelment.

Specifically, he claims that the prosecutor attempted to select

jurors who resembled the victim, a white female, and to avoid

jurors who resembled the defendants, African American men.        The

defendant also argues several other issues, some of which were

raised by Wood and reviewed and rejected by the Supreme Judicial

Court in Wood, supra.5    We affirm.

     The Supreme Judicial Court thoroughly explicated the facts

of the case in Wood, supra.    We will address relevant facts

where necessary.

     Discussion.    1.   Jury empanelment.   "Article 12 of the

Massachusetts Declaration of Rights proscribes the use of

peremptory challenges 'to exclude prospective jurors solely by

virtue of their membership in, or affiliation with, particular,

defined groupings in the community.'"     Commonwealth v. Smith,

450 Mass. 395, 405 (2008), quoting from Commonwealth v. Soares,

377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979).

"Peremptory challenges are presumed to be proper."      Commonwealth


degree. The Supreme Judicial Court noted that "[t]o be sure,
the jury could have so found. However, the jury have the
inherent power to enter into compromises in reaching their
verdict." Wood, 469 Mass. at 294.
     5
         The jury empanelment issue was not raised in Wood.
                                                                      4


v. Maldonado, 439 Mass. 460, 463 (2003).    However, that

presumption may be rebutted by showing that "(1) there is a

pattern of excluding members of a discrete group and (2) it is

likely that individuals are being excluded solely on the basis

of their membership" in that group.   Ibid., quoting from

Commonwealth v. Garrey, 436 Mass. 422, 428 (2002).    "A single

peremptory challenge can constitute a prima facie showing that

rebuts the presumption of proper use."     Commonwealth v. Curtiss,

424 Mass. 78, 79 (1997).

    When the question of an improper use of a peremptory

challenge is raised, the judge must make an initial finding as

to whether the opposing party has made a prima facie showing

that the use of the challenge was improper.    Maldonado, 439

Mass. at 463, citing Commonwealth v. Burnett, 418 Mass. 769, 771

(1994).   See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 431

(2016).   We do not disturb a judge's finding regarding whether a

permissible ground for a peremptory challenge exists unless the

judge abused his or her discretion.   See Commonwealth v.

Rodriguez, 431 Mass. 804, 811 (2000); Commonwealth v. Issa, 466

Mass. 1, 9-11 (2013).   When reviewing such a claim we consider

the totality of the circumstances presented to the judge,

including the composition of the venire, the composition of the

jury, the previous use of peremptory challenges, and other

possible reasons that the juror could have been excluded.       See
                                                                      5


Commonwealth v. LeClair, 429 Mass. 313, 321 (1999) (composition

of final deliberating panel); Commonwealth v. Issa, supra.

    If the judge determines that the opposing party has

established a prima facie case that the challenge was used for a

discriminatory purpose, the burden shifts to the party seeking

to exercise the challenge to provide a permissible explanation

for that challenge.     The judge must then determine whether the

reason provided is genuine.     See Maldonado, 439 Mass. at 463-

464, and cases cited.

    The jury empanelment for the trial in this case occurred

over two days.   At the outset of empanelment, defense counsel

objected to the "numbering system" and to the "strike method"

and order in which the jurors were being selected.     He objected,

in part, as follows:

    "I would note that for the first twenty-five jurors only
    five are males, so that means we're down to four to one
    during the first twenty-five. The second set of twenty-
    six, nineteen are females and seven are males. It's only
    when we get to the last twenty-four that we see what looks
    to be close to a 49 to 51 percent.

    "In other words, Mr. Butler is being asked to pick a jury
    where the first, over first fifty potential jurors are
    predominantly, close to 70 percent female. And I would
    suggest, and I object on his behalf, but I suggest that is
    not a fair representation or cross section."

    The defendant has not demonstrated that any alleged

underrepresentation in the venire was caused by systematic
                                                                   6


exclusion of a distinctive group.6   See Commonwealth v. Leitzsey,

421 Mass. 694, 700 (1996), quoting from Duren v. Missouri, 439

U.S. 357, 364 (1979), and citing Taylor v. Louisiana, 419 U.S.

522, 531 (1975), and Commonwealth v. Pope, 392 Mass. 493, 500

(1984) ("[T]o prove that a petit jury selection process

infringes a defendant's constitutional right to be tried by a

jury representative of a fair cross section of the community,

the defendant must show 'that the group alleged to be excluded

is a "distinctive group" in the community; . . . that the

representation of this group in venires . . . is not fair and

reasonable in relation to the number of such persons in the

community; and . . . that this underrepresentation is due to

systematic exclusion of the group in the jury-selection

process'").    "[T]he procedure used in this Commonwealth to

choose jury panels from lists of qualified jurors is random

selection. . . .    Inevitably, some panels drawn by this method

will fail to represent proportionately various groupings in the

population."    Commonwealth v. Soares, 377 Mass. at 482.

     The total number of prospective jurors in the venire was

130 persons, of whom forty-nine were men and eighty-one were

women.   On the first day of empanelment, Wood and the defendant


     6
       Indeed, it is unclear from the argument on appeal and a
review of the trial transcript whether the defendant considered
all men or only African American men to be underrepresented.
                                                                    7


challenged fourteen females, who were excused from the group

that the judge had found to be impartial.     Wood and the

defendant also challenged two males who had been found to be

impartial, and the judge excused them.

    The Commonwealth challenged and the judge excused four

females and four males on the first day.     The Commonwealth

expressed a concern on one challenge about the juror's ability

to serve because she was on summer break from college.       The

Commonwealth then challenged the juror and she was excused.

Next, the Commonwealth challenged a male juror who was on summer

break from college.    The Commonwealth also challenged a young

black male and explained that he should not have been found

indifferent.   The Commonwealth argued that because he had stated

to the judge that he was only "ninety percent" (rather than one

hundred percent) sure that he could be unbiased and that he felt

that blacks were punished disproportionally to whites, he should

not have been found to be indifferent.     When the judge

disagreed, the Commonwealth challenged the juror and the judge

excused the juror.     Compare Commonwealth v. Colon, 408 Mass.

419, 440-441 (1990).    Upon the defendant's objection to the

Commonwealth's challenge, the judge declared that there was no

pattern of discrimination and therefore did not ask for an

explanation for the challenge.    In any event, the Commonwealth

had just provided a detailed reason to the judge, prior to the
                                                                     8


defendant's objection, regarding why it believed this particular

juror should have been excused for cause.      Day one of the jury

selection concluded with three females being seated.

     The defendant and Wood opened day two of the empanelment

process by filing a motion for a mistrial on the grounds that

they had made a prima facie case of discrimination.     The judge

denied the motion.   The Commonwealth challenged and excused a

female.   Two females were then seated.     The Commonwealth next

challenged and excused a male, juror number 100.      An objection

was made based on gender discrimination and the judge declined

to find a pattern of discrimination.      The defendant then

immediately challenged the next juror, a male.      Two more males

were then seated and the defendant then challenged and excused

the next juror, a male.   The Commonwealth then challenged a

female.   The defendant objected, arguing that the pool had too

few minorities and that this was the third challenge of a

minority based on race or ethnicity.7     The judge declined to find

a pattern of discrimination.   Two males were then seated.




     7
       As we noted in note 6, supra, it was unclear on the record
and on appeal whether the focus of the defendant's objection to
the venire was that it was comprised of too few men or only
specifically two few African American men. It is also unclear
whether the defendant's objections to the Commonwealth's
exercise of its peremptory challenges included both race and
gender.
                                                                      9


     The defendant and Wood objected, claiming that the venire

had more females than males.    The judge overruled the objection.

At this point in the process, five females and four males had

been seated.

     The Commonwealth challenged and excused another male and,

after objection, the judge again found no pattern of

discrimination.8    A female was then seated.   Wood challenged and

excused two females.    A male was seated.   The Commonwealth then

challenged and excused a male.    The defendant and Wood objected

and the judge declined to find a pattern of discrimination.9       The

Commonwealth next challenged and excused a female student on

summer break.   Wood and the defendant objected, claiming that

the female student had some percentage of African descent and

although the judge agreed, he declined to find a pattern of

discrimination.10   A male and a female were then seated.   Wood

challenged the next female.    The Commonwealth objected, arguing

     8
       Significantly, prior to challenging this male juror, the
Commonwealth had passed on challenging six male jurors, four of
whom were seated and two of whom were challenged by Wood.
Compare LeClair, 429 Mass. at 321.
     9
       The judge was able to observe the entire proceeding when
determining whether there was a pattern of discrimination. The
Commonwealth had just passed on challenging a male juror, and he
was seated.
     10
       The judge would have been aware of the Commonwealth's
previously stated concerns about seating students on summer
break when determining if a pattern of discrimination existed.
Compare Colon, 408 Mass. at 440-441.
                                                                     10


that nine of Wood's twelve challenges were to white females.

The judge declined to find a pattern of discrimination and

excused the juror.     The Commonwealth challenged the next juror,

a male, and no objection was made.11    Wood and the defendant

challenged and excused two more females.     A male and two females

were seated without challenge.

     A total of sixteen jurors were empanelled -- nine females

and seven males.     Of the females, five were white, three were

Hispanic, and one was black.     Of the males, four were white and

three were black.12

     "A trial judge is in the best position to decide if a

peremptory challenge appears improper and requires an

explanation by the party exercising it."     Commonwealth v.

LeClair, 429 Mass. at 321.     We do not substitute our judgment

for that of the judge as to whether the presumption of proper

peremptory challenge has been rebutted when there is support in

the record for the judge's determination.     See Commonwealth v.

Colon, 408 Mass. at 440.     Considering the totality of the

prosecutor's challenges, including the defendant's objection to

     11
       This prospective juror taught at a school attached to a
Department of Youth Services treatment facility.
     12
       The Commonwealth used fifteen peremptory challenges
consisting of four white, two black, and one Hispanic female and
six white and two black males. Wood and the defendant used
twenty-three peremptory challenges consisting of sixteen white,
two black, and one Hispanic female and four white males.
                                                                  11


almost every peremptory challenge the Commonwealth made to

prospective male jurors coupled with the defendant's own

challenges to prospective male jurors, the reasons expressed by

the Commonwealth for challenging certain jurors, as well as the

composition of the members of the jury, there was ample support

for the judge to determine that the presumption of appropriate

use of peremptory challenges had not been rebutted by the

defendant.   The defendant has not established that the judge

abused his discretion.   The defendant also did not establish

that any particular group was underrepresented in the venire.

    2.   The defendant's other issues.13   A number of the

defendant's arguments before us were specifically addressed and

rejected in Wood.   We think that, in general, the reasoning of



    13
       The defendant was given leave to appeal the single
justice's denial of his motion to file a Moffett brief, see
Commonwealth v. Moffett, 383 Mass. 201 (1981), and the appeal
was consolidated with the direct appeal. The single justice did
not abuse his discretion in denying the defendant's motion to
file a Moffett brief. There is no constitutional right to
hybrid representation. See Commonwealth v. Molino, 411 Mass.
149, 153 (1991) ("Hybrid representation is not prohibited;
appointment of counsel in any hybrid situation is left to the
discretion of the . . . judge"). "While a court may, in its
discretion, permit a party to proceed in a hybrid manner, it is
not obligated to do so." Commonwealth v. LeBaron, 464 Mass.
1020, 1020 (2013), citing Molino, supra at 152-154. Here,
defense counsel filed a fifty-page brief on behalf of the
defendant. The parameters of Moffett were not complied with by
the defendant, or his counsel, who submitted a detailed
memorandum in support of the defendant's arguments in the
Moffett brief.
                                                                    12


the Supreme Judicial Court in rejecting Wood's identical

arguments applies here as well.14

     a.    Prosecutor's closing argument.   The defendant's first

argument concerning the prosecutor's statement in closing

regarding the relationship of the victim and one of the

witnesses is substantially the same as the argument already made

in Wood.   The Supreme Judicial Court, in Wood, noted that the

error was objected to, after which the judge instructed the jury

that they were to disregard the erroneous statement.    The

Supreme Judicial Court concluded that the error would not have

made a difference in the jury's conclusion.    The Supreme

Judicial Court also concluded that "[t]he prosecutor was


     14
       Our concurring colleague notes that in addition, the
Supreme Judicial Court conducted a mandatory statutory G. L.
c. 278, § 33E, review of Wood's conviction of murder in the
first degree on the same record. See Wood, 469 Mass. at 295.
The concurrence views this review as having a preclusive effect
regarding the Batson claim of constitutional error in this
appeal with respect to juror selection, see Batson v. Kentucky,
476 U.S. 79 (1986), because § 33E review is mandatory in all
appeals from convictions of murder in the first degree, and,
when conducting such § 33E statutory review, the Supreme
Judicial Court considers whether any unpreserved or unbriefed
error at trial has created a "substantial likelihood of a
miscarriage of justice." Considering the defendant's zealous
advocacy regarding the alleged error in jury selection, it is
not likely that the Supreme Judicial Court overlooked this
point. Concurrence, post at         . Having no express
authority by the Supreme Judicial Court that we may, in some
circumstances, consider its § 33E review of a first degree
murder conviction as dispositive of a codefendant's appeal from
a conviction of murder in the second degree, we decline to
consider the question.
                                                                   13


attempting to rebut defense counsel's argument that [the

witness] was not credible and was motivated to lie to protect

himself or the third-party killer.    The prosecutor properly

responded by pointing out that [the witness] had no motive to

lie and that he was nearly killed in the same assault. . . .

[The witness] was exhaustively cross-examined, and defense

counsel ably challenged his credibility throughout the trial."

Wood, 469 Mass. at 286.

    Next, the defendant complains that the prosecutor's closing

argument was improper because he commented on the credibility of

the defendant, and the judge erred in declining to give a

requested curative instruction.

    Here, the prosecutor attacked the defendant's credibility

both by suggesting he was rehearsed, robotic, and acting during

his testimony, and by comparing his testimony with that of two

Commonwealth witnesses who the prosecutor suggested were more

genuine and unrehearsed.   "The prosecution may properly attack

the credibility of . . . [a] defendant, . . . and may ask the

jury to compare the credibility of two opposing witnesses."

Commonwealth v. Donovan, 422 Mass. 349, 357 (1996).   "Similarly,

a prosecutor may argue in support of the credibility of

witnesses based on their demeanor."    Commonwealth v. Miles, 46

Mass. App. Ct. 216, 222 (1999).   The prosecutor referred to the

cross-examination of the defendant to support his argument that
                                                                      14


the defendant would be more believable if he had not been

rehearsed and actually tried to remember what happened.      During

cross-examination the defendant admitted to reading over his

testimony from two years earlier to prepare for his current

testimony.   See Commonwealth v. Freeman, 430 Mass. 111, 118–119

(1999) ("A prosecutor can address, in a closing argument, a

witness's demeanor, motive for testifying, and believability,

provided that such remarks are based on the evidence, or fair

inferences drawn from it").   See generally Commonwealth v.

Kozec, 399 Mass. 514, 521 (1987) ("not improper to make a

factually based argument that, due to the demeanor, disclosed

circumstances, and appearance of a witness, a particular witness

should be believed or disbelieved").   The defendant took the

stand and testified to his innocence, thus making his

credibility a central issue in the case.   The defendant's

testimony and demeanor could be referred to in closing argument.

See Donovan, supra; Miles, supra.   There was no error in the

prosecutor's arguing that the defendant was not credible.

    Furthermore, where, as here, the prosecutor's questioning

of the defendant's credibility during his closing argument was

adequately grounded in the evidence at trial, the judge did not

err in declining to give a curative instruction.   See

Commonwealth v. Carter, 475 Mass. 512, 521 (2016), quoting from

Commonwealth v. Brewer, 472 Mass. 307, 315 (2015) ("While a
                                                                    15


prosecutor may not vouch for the truthfulness of a witness's

testimony, . . . we consistently have held that, where the

credibility of a witness is an issue, counsel may 'argue from

the evidence why a witness should be believed'" [citations

omitted]).   Moreover, the judge made it clear to the jury that

closing arguments must always be distinguished from evidence and

the jury themselves were the final arbiters of the facts and the

sole judges of the credibility of the witnesses and the weight

to be accorded to their testimony.     See Carter, supra at 522

("Even if there had been an appearance of impropriety in the

statements, the judge carefully and clearly instructed the jury

that closing arguments are not evidence and that they alone were

tasked with determining credibility.    These instructions offset

any prejudice").

    b.   Evidentiary rulings and limitations on cross-

examination. The defendant argues that the judge's evidentiary

rulings and limitations on cross-examination were error and

deprived him of his right to present a complete defense and

cross-examine all adverse witnesses.    Both Wood and the

defendant objected to the judge's evidentiary rulings and the

limitations on cross-examination.    Wood made this identical

argument in his appeal.    The Supreme Judicial Court rejected the

argument.    "In a pretrial motion joined by [the defendant],

[Wood] sought to introduce, through several witnesses and cross
                                                                    16


examination, evidence intended to show that a third party . . .

killed [the victim], as well as evidence that the police failed

to investigate certain statements . . . .   We discern no error

in the judge's rulings excluding much of the proffered

evidence."   Wood, 469 Mass. at 274.   The Supreme Judicial Court

concluded that certain excluded evidence would have been

cumulative of other admitted evidence.    Id. at 277.   The Supreme

Judicial Court also concluded that "where the issue of an

inadequate investigation was fairly before the jury, the

defendant suffered no prejudice from the exclusion of the

proffered evidence."   Id. at 278.

    c.   Purported false testimony.    The defendant argues that

the prosecutor knowingly used false evidence from two witnesses,

which denied the defendant his opportunity for a fair trial.

The Supreme Judicial Court, in Wood, however, specifically

reviewed the testimony of these two witnesses both before the

grand jury and at trial.   The Supreme Judicial Court concluded

that there was no knowing use of false testimony.   "Given that

both witnesses' versions of the core facts of the case remained

essentially the same at all proceedings, and given that their

testimony corroborated each other's stories, the prosecution did

not knowingly elicit perjury. . . .    The defendant's due process

rights were not violated where the facts that went to the heart

of the case remained essentially unchanged throughout the
                                                                  17


trials."   469 Mass. at 288-289.   Neither Wood nor the defendant

had objected to the evidence on this basis.15

                                    Judgments affirmed.

                                    Order of the single justice
                                      denying motion to file
                                      Moffett brief affirmed.




     15
       Nor is there merit in the defendant's argument that these
witnesses were coached, and that, therefore, it was error for
the prosecutor to argue otherwise in his closing.
     TRAINOR, J. (concurring).    I concur with the majority

opinion in every respect but would add that the Supreme Judicial

Court conducted a mandatory § 33E review of codefendant William

Wood's conviction of murder in the first degree.       See

Commonwealth v. Wood, 469 Mass. 266, 295 (2014).       The

codefendants, at trial, conducted their defense in unison.     They

joined in each other's objections and each other's arguments,

and as a result, I believe that the G. L. c. 278, § 33E, review

should have preclusive effect on the Batson1 claim of

constitutional error made by defendant Butler in this appeal.

     Generally, when a party appeals from a ruling or a decision

of a trial court or other adjudicative body, our standard of

review is determined by whether an objection was preserved below

and other appropriate circumstances related to the alleged

error.    Direct appeals from convictions of murder in the first

degree however are handled differently because the Supreme

Judicial Court has a statutory duty under G. L. c. 278, § 33E,

to review the entire case, whether or not errors were preserved

at trial or briefed on appeal, in order to guarantee that the

conviction was not the result of a miscarriage of justice.

"Under § 33E, [the Supreme Judicial Court] review[s] the entire

record of a conviction of murder in the first degree, examining


     1
         See Batson v. Kentucky, 476 U.S. 79 (1986).
                                                                   2


both the law and the evidence, considering the issues raised on

appeal, the issues raised through objections at trial, and the

issues that reasonably should have been raised on appeal and

objected to at trial, to ensure that there has not been a

miscarriage of justice" (emphasis added).   Commonwealth v.

Johnson, 461 Mass. 1, 6 (2011).   The Supreme Judicial Court has

further elaborated on this duty by stating, "We are empowered

under G. L. c. 278, § 33E, to consider questions raised by the

defendant for the first time on appeal, or even to address

issues not raised by the parties, but discovered as a result of

our own independent review of the entire record. . . .   This

uniquely thorough review of first degree murder convictions is

warranted by the infamy of the crime and the severity of its

consequences."   Dickerson v. Attorney Gen., 396 Mass. 740, 744

(1986).

     When conducting its § 33E statutory review, the Supreme

Judicial Court looks for whether any error unpreserved at trial

or unbriefed on appeal has created a "substantial likelihood of

a miscarriage of justice."2   See, e.g., Commonwealth v. Wright,

411 Mass. 678, 682 (1992); Commonwealth v. Ruddock, 428 Mass.

288, 292 n.3 (1998).   While the court will use the "substantial

     2
       The substantial likelihood standard is "more forgiving to
a defendant" than is the substantial risk of a miscarriage of
justice standard. Commonwealth v. Smith, 460 Mass. 318, 321 n.2
(2011).
                                                                   3


likelihood" standard on issues that were either not preserved at

trial or not included in an appellate brief, when issues were

properly preserved at trial and raised on appeal, the court will

apply the standard of review typically used for preserved claims

in criminal cases.

    Here, both the defendant and Wood carefully laid a

foundation for appeal on the issue of racial and gender

discrimination in both the venire pool and the juror selection

process.   The defendant and Wood objected to the prosecutor's

use of peremptory challenges and argued that the challenges were

based on either race or gender discrimination.   The defendant

and Wood took exception to the judge's declining to sustain

their objections and his declining to find a pattern of improper

challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 97

(1986), and J.E.B. v. Alabama, 511 U.S. 127, 128-129 (1994).

Both the defendant and Wood moved for a mistrial on the second

day of jury selection.   Inexplicably, Wood did not include this

issue, even though well preserved at trial, in his appellate

brief to the Supreme Judicial Court.   Now, the defendant

contends that even if the Supreme Judicial Court reviewed the

Batson issue, it would have used the likelihood of a miscarriage

of justice standard of review because Wood did not include the

claim in his appellate brief.   We on the other hand, according

to this argument, are required to use a different and stricter
                                                                    4


standard of review because the defendant has argued the Batson

issue in his appellate brief.    Under different circumstances

this could be a legitimate observation, and create an

unfortunate anomaly in our system of justice, but it does not

here.

    The defendant relies on Commonwealth v. Morganti, 467 Mass.

96, cert. denied, 135 S. Ct. 356 (2014), for his argument that

Wood had waived any claim of constitutional error by not

including the claim in his direct appeal.    The defendant argues

that the Supreme Judicial Court therefore could only have

reviewed this potential error under § 33E and the substantial

likelihood of a miscarriage of justice standard.    Morganti held

that while "[i]t is well settled that the violation of a

defendant's Sixth Amendment right to a public trial is

structural error requiring reversal . . . even structural error

is subject to the doctrine of waiver."    Id. at 101-102

(quotation omitted).    The defense counsel in Morganti was aware

that the court room had been closed to the public in order to

facilitate jury empanelment and did not object.    The Supreme

Judicial Court concluded that the defendant had waived his right

to a public trial for that portion of the proceedings because

defense counsel was aware of the closing and chose not to

object.   Id. at 102.   That is not the situation we face here.

Defense counsel for both the defendant and Wood made great
                                                                    5


effort to preserve any potential error.    Wood objected to the

venire panel, moved for a mistrial, objected on the basis of

racial discrimination, objected on the basis of gender

discrimination, and renewed each of the objections based on

discrimination.   The defendant joined Wood in each of these

objections and objected alone only once to a juror challenge by

the Commonwealth.

     The defendant would have us view the Wood decision as

considering the Batson claim under the "substantial likelihood

of a miscarriage of justice" standard of review, not because

defense counsel waived the claimed error at trial but because

appellate counsel failed to preserve the objection on appeal.3

In this unique circumstance, I believe this reasoning to be

incorrect.   "When constitutional error calls into question the

objectivity of those charged with bringing a defendant to

judgment, a reviewing court can neither indulge a presumption of

regularity nor evaluate the resulting harm. . . .    [W]hen a

petit jury has been selected upon improper criteria . . . we

have required reversal of the conviction because the effect of

the violation cannot be ascertained."     Vasquez v. Hillery, 474

U.S. 254, 263 (1986).   Our Supreme Judicial Court, long before

the holding in Batson, prohibited the use of peremptory

     3
       The claimed errors were objected to at trial on numerous
occasions.
                                                                      6


challenges to exclude prospective jurors solely on the basis of

their membership in, or affiliation with, defined groupings in

the community.   The court held that "there are some

constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error.     The right to

be tried by an impartial jury of peers is one such right."

Commonwealth v. Soares, 377 Mass. 461, 492, cert. denied, 444

U.S. 881 (1979), quoting from Commonwealth v. Gilday, 367 Mass.

474, 499 n.3 (1975).

     Whether this species of constitutional error can ever be

waived remains to be determined.4   Here, however, the alleged

error clearly was not waived and, if substantiated, could never

be treated as harmless, never mind only creating the possibility

of a likelihood of a miscarriage of justice.   That standard of

review is simply inappropriate for reviewing this kind of

alleged constitutional error.   If the alleged error existed,

after being so clearly highlighted in the record of the trial,

     4
       Federal Circuit Courts of Appeal have determined that
"intentional discrimination on the basis of race in jury
selection is structural error." Winston v. Boatwright, 649 F.3d
618, 628 (7th Cir. 2011). Compare Vasquez v. Hillery, 474 U.S.
at 263 (grand jury selection); Arizona v. Fulminante, 499 U.S.
279, 309-310 (1991) (Rehnquist, C.J., writing for a majority)
(other structural errors). While this question has not been
decided yet in Massachusetts, the requirement of an impartial
jury is fundamental to our concept of a fair trial. I do not
believe that a § 33E review could have considered the issue to
have been waived simply because it was not included in an
appellate argument after being so extensively argued at trial.
                                                                   7


the court in Wood would have been required to reverse Wood's

conviction.

    I conclude then that the Supreme Judicial Court's holding

in Wood included a determination that there was no error and no

basis to these constitutional claims made by both the defendant

and Wood at trial and by the defendant in this appeal.    See

Wood, 469 Mass. at 295 ("We have reviewed the record in

accordance with G. L. c. 278, § 33E, to determine whether there

is any basis to set aside or reduce the verdict of murder in the

first degree, regardless of whether such grounds were raised on

appeal.   We find no such reason, and we decline to exercise our

powers under the statute").   (Emphasis added.)
     RUBIN, J. (dissenting).    The court majority errs in

concluding that the defendant failed to make out a prima facie

claim of gender discrimination in the Commonwealth's use of its

peremptory challenges.    Further, to the extent it intimates that

the Supreme Judicial Court's failure to address the Batson claim

in the case of Commonwealth v. Wood, 469 Mass. 266 (2014), the

appeal of Butler's codefendant, in which it was not raised or

addressed, might have preclusive effect here because of G. L. c.

278, § 33E -- a view fleshed out by my concurring colleague --

it is also in error, an error that, if raised to the level of a

holding, would have broad implications for the criminal law.     I

therefore respectfully dissent.1

     1.   Batson claim.   The defendant raises a claim that he

made out a prima facie case of a violation on the basis of

     1
       The defendant testified on cross-examination that he had
reviewed his own prior testimony at the direction of counsel.
In closing, the prosecutor said, "Did you find [the defendants']
testimony credible or did you find it rehearsed? Did you find
it prepared? Did you find it very informed, having read their
transcripts, knowing what questions I was going to ask them?
Keep that in mind, ladies and gentlemen, when you look at their
testimony." There was no objection.

          Though the majority does not address it, in the
absence of any evidence of coaching, this aspect of the
prosecutor's closing was error. See Commonwealth v. Beauchamp,
424 Mass. 682, 691 (1997) ("the prosecutor may not elicit
evidence of . . . the discussions the defendant had with his
attorney to argue that these were evidence that the defendant
fabricated his story"). Nonetheless, because I conclude that
the error did not create a substantial risk of a miscarriage of
justice, I do not think it requires reversal.
                                                                    2


gender under Batson v. Kentucky, 476 U.S. 79 (1986).    See J.E.B.

v. Alabama, 511 U.S. 127 (1994) (extending Batson to cover

discrimination on the basis of gender).    That is the only claim

about empanelment made here by the defendant.    The defendant

does not argue that there was a fair cross-section problem, so

the majority's conclusion asserted at the outset of its opinion

that there was no such problem is irrelevant to the defendant's

appeal.

    The Batson claim is not a complicated one.    After thirty-

one jurors had been found indifferent during jury selection, the

defendant interposed a Batson objection for discrimination on

the basis of gender.   At that point, the prosecutor had struck

five of the twenty-four women found indifferent, or 20.83

percent.   During the same period he had struck five of the seven

men found indifferent, or 71.43 percent.

    The burden of making out a prima facie case is not "a

terribly weighty one."   Commonwealth v. Maldonado, 439 Mass.

460, 463 n.4 (2003).   Indeed, the "challenge of a single

prospective juror within a protected class could, in some

circumstances, constitute a prima facie case of impropriety."

Commonwealth v. Fryar, 414 Mass. 732, 738 (1993), S.C., 425

Mass. 237, cert. denied, 522 U.S. 1033 (1997).    The pattern of

strikes here suffices to raise an inference that the prosecutor

was using peremptory challenges to exclude individuals from the
                                                                 3


jury because of their sex.   The defendant is thus entitled at

least to a remand to the trial court to allow the Commonwealth

to explain its challenges.   See Commonwealth v. Mathews, 31

Mass. App. Ct. 564, 571 n.6 (1991) (stating that, where the

judge had not adequately probed the prosecutor's

nondiscriminatory reasons for exercising peremptory strikes, "we

could remand the case to the trial judge for additional

findings").2

     The court majority concludes that no prima facie case of

discrimination was made out.   Its analysis, however, rests on

three different errors.


     2
       See Sanchez v. Roden, 753 F.3d 279, 308 (1st Cir. 2014)
(remanding case for evidentiary hearing after finding prima
facie case of Batson violation). See also United States v.
Battle, 836 F.2d 1084, 1086 (8th Cir. 1987) (same); United
States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989) (same);
Jones v. West, 555 F.3d 90, 102 (2d Cir. 2009) (same). The
alternative would be to order a new trial. See Commonwealth v.
Long, 419 Mass. 798, 807 (1995). See also Commonwealth v. Issa,
466 Mass. 1, 11 n.14 (2013) ("Where, as here, a judge fails to
find a prima facie case or otherwise require the prosecutor to
provide an explanation, the record on appeal includes no
explanation of the prosecutor's reasons for the challenge, the
defendant is not given an opportunity to reply to the
explanation, and the judge does not make the required findings
as to the adequacy and genuineness of the prosecutor's
explanation. Therefore, where a judge abuses his or her
discretion by failing to find a prima facie case, the error is
unlikely to be harmless. . . . Consequently, when a defendant
claims that a prosecutor's peremptory challenge of a prospective
juror is motivated by discriminatory intent, we urge judges to
think long and hard before they decide to require no explanation
from the prosecutor for the challenge and make no findings of
fact").
                                                                       4


     First, the majority examines both the actions of the

Commonwealth after the point of the objection, ante at            ,

and the final composition of the jury, ante at           .   Neither

was known at the time of the objection, and thus neither could

have played any role in the decision under review, which is the

judge's determination that the defendant failed to make out a

prima facie case of gender discrimination.

     The objection at issue, concerning juror number 100,

occurred on the second day of trial after the Commonwealth used

its first peremptory challenge of the day to excuse a male

juror.   This is described in the majority opinion, ante

at        .   The actions of the parties during empanelment after

that point are, of course, irrelevant.   The same is true of the

final composition of the jury.   To the extent our cases have

examined the composition of the jury in determining whether a

prima facie case of discrimination has been made out, they have

looked only to the composition of the jury at the time of the

objection.3   See Commonwealth v. Sanchez, 79 Mass. App. Ct. 189,

190-192 (2011).   Commonwealth v. LeClair, 429 Mass. 313, 321

(1999), cited by the majority, is actually an example of this;

     3
       We note that on Federal habeas review, the United States
Court of Appeals for the First Circuit recently deemed this
court's overreliance on the composition of the jury at the time
of the objection in that very case "objectively unreasonable in
light of clearly established federal law." Sanchez v. Roden,
753 F.3d at 300.
                                                                      5


the court there cites the final composition of the jury not in

support of its affirmance of the judge's determination that

there was no prima facie case of discrimination, but only as

evidence that the defendant received a trial before "a fair and

impartial jury of his peers," i.e., that the fair cross-section

requirement was met, a different matter and, again, one not

raised here.   Issa, which the majority also cites, does not

discuss the final composition of the jury at all.     See

Commonwealth v. Issa, 466 Mass. 1, 10-11 (2013).     Were we to

consider the composition of the jury at the time of the

objection, it would undermine the majority's argument.      At that

time, the jury contained five women and no men.

    Neither subsequent actions nor the final composition of the

jury can be relevant to whether a defendant made out a prima

facie case.    Each individual juror has the right not to be

struck for a discriminatory reason.    See Foster v. Chatman, 136

S. Ct. 1737, 1747 (2016) ("The Constitution forbids striking

even a single prospective juror for a discriminatory purpose"

[quotation omitted]).    Thus, a constitutional violation can

occur even if the final jury contains members of the group that

was allegedly subjected to discriminatory strikes.    See Alvarado

v. United States, 497 U.S. 543, 544 (1990) (Vacating and

remanding where United States conceded that "[t]he Court of

Appeals erred in holding that as long as the petit jury chosen
                                                                      6


satisfied the Sixth Amendment's fair-cross-section concept, it

need not inquire into the claim that the prosecution had

stricken jurors on purely racial grounds").

    To the extent the majority's discursive discussion of the

facts might create an appearance of evenhandedness between the

parties, that appearance is misleading.    The Commonwealth had,

at the time of the objection to juror number 100, struck an

equal number of men and women, five of each.    But that was over

70 percent of the men, and only about 20 percent of the women.

Likewise, the defendant's own use of peremptories described in

the majority opinion is irrelevant.    Because two wrongs don't

make a right in this context, nothing one party can do in its

use of such challenges licenses the other party to use its own

challenges in a discriminatory manner.

    Second, the majority speculates about valid reasons for

striking some jurors when, because of the trial judge's error,

the Commonwealth was never asked to and never did put forth any

nondiscriminatory reason for any of its peremptory challenges.

See ante at        ,        note 10.     We may not speculate about

possible nondiscriminatory reasons for peremptory strikes that

are not apparent from the record.   See Johnson v. California,

545 U.S. 162, 172 (2005) ("The Batson framework is designed to

produce actual answers to suspicions and inferences that

discrimination may have infected the jury selection process");
                                                                   7


Williams v. Lousiana, 136 S. Ct. 2156, 2156-2157 (2016)

(Ginsburg, J., concurring in the decision to grant, vacate, and

remand, with whom Breyer, Sotomayor, and Kagan, JJ. join),

quoting from Johnson v. California, supra at 173 (It is

"improper to 'rel[y] on judicial speculation to resolve

plausible claims of discrimination'").   In this case, the

prosecutor did argue during voir dire that one of the male

potential jurors should have been dismissed for cause because of

his views on race, a significant concern of the trial judge in

this case, and so that argument may play some role in this

court's analysis.    See Batson v. Kentucky, supra at 97 ("[T]he

prosecutor's questions and statements during voir dire

examination and in exercising his challenges may support or

refute an inference of discriminatory purpose").    See also

Commonwealth v. Issa, 466 Mass. at 11 (relying on

nondiscriminatory reasons for a strike that were apparent in the

voir dire record).   However, the majority is simply mistaken in

stating that the Commonwealth ever expressed a particular

concern about the jurors who were on summer break from college.

By the time of the relevant objection, the judge had asked four

jurors4 whether they were on summer break from college.   The

prosecutor struck all four jurors, two women and two men,


     4
       Including the man whom the prosecutor argued should be
dismissed for cause.
                                                                   8


without mentioning the fact that they were on summer break.

Even if this court is willing to conclude from the silent record

that this nongender factor explains these four strikes, the

prosecutor still struck three out of five (60 percent) of the

remaining men and three out of twenty-two (13.6 percent) of the

remaining women.

    Third, the majority fails to engage in one of the most

important analyses in determining whether a strike was

discriminatory:    comparison of similarly situated male and

female jurors.    See Miller-El v. Dretke, 545 U.S. 231, 241

(2005) ("More powerful than the[] bare statistics, however, are

side-by-side comparisons of some black venire panelists who were

struck and white panelists allowed to serve"); Sanchez v. Roden,

753 F.3d 279, 302 (1st Cir. 2014), quoting from Aspen v.

Bissonnette, 480 F.3d 571, 577 (1st Cir. 2007) ("[W]e take into

account 'whether similarly situated jurors from outside the

allegedly targeted group were permitted to serve' on the jury in

ruling on a Batson challenge").    Here, for example, the very

first potential juror questioned, juror number 1, was a female

lawyer who had worked at a large firm, was married to another

lawyer who worked at a large firm, and was going to start

working for a Justice of the Supreme Judicial Court in four

months.   The Commonwealth did not exercise a peremptory

challenge.   The twenty-second and twenty-third potential jurors
                                                                     9


questioned, juror number 79 and juror number 84, were both male

lawyers, one of whom specialized in medical malpractice and the

other of whom specialized in trademark law.     Juror number 84,

like juror number 1, was married to a lawyer.    The Commonwealth

used peremptory strikes on both male lawyers.     At the time the

prosecutor chose not to strike the female lawyer, he had sixteen

peremptory strikes remaining and no jurors had been seated.     At

the time the prosecutor chose to strike the two male lawyers

back-to-back, he had ten peremptory strikes remaining and only

three jurors had been seated.5

     The statistical evidence alone establishes a prima facie

case of discrimination.   Additional evidence apparent from the

record, including a side-by-side comparison of similarly

situated jurors, supports it.    The majority thus errs in

concluding that the facts it raises, which have only limited

relevance, establish that the judge did not abuse his

discretion.   I would not at this point in the proceedings

reverse the judgment here, but I would remand the case to allow

the Commonwealth to present a gender-neutral explanation for its




     5
       In addition, the record on appeal contains no relevant
information about juror number 100, the man whose strike
prompted the gender-based Batson objection. The prosecutor
failed to strike a number of female jurors about whom there is
also little information in the record (e.g., jurors number 15,
25, 53, 88, 96, and 97).
                                                                  10


peremptory challenges to the male prospective jurors.       See

Sanchez, 753 F.3d at 308.

     2.   The preclusive effect of § 33E review in the

codefendant's case.     The codefendant, Wood, did not raise a

Batson claim in his direct appeal to the Supreme Judicial Court,

see Commonwealth v. Wood, 469 Mass. 266 (2014), despite

litigating the issue in the trial court.     Although the

Commonwealth does not contend that we are precluded by Wood from

addressing the Batson claim here,6 the court majority, while

ultimately reserving the question, may be read to imply that if

we could be certain the Supreme Judicial Court had not

"overlooked" the Batson issue in its mandatory G. L. c. 278, §

33E, review of Wood's first-degree murder case for a substantial

likelihood of a miscarriage of justice, it might make sense that

the court's silence on the issue would have preclusive effect,

barring the defendant from raising the claim here, even though

it was never raised on appeal by his codefendant.    See ante

at           note 14.   That Wood's silence on this issue has

preclusive effect is the thrust of the opinion of my concurring

colleague.


     6
       The issue was raised sua sponte by the panel at oral
argument. At his request, the defendant was permitted to submit
a postargument letter responding to the panel's questions. The
Commonwealth did not submit a postargument letter on this
subject.
                                                                   11


    Any such holding would affect the way in which we interpret

many, and maybe most, of the Supreme Judicial Court's myriad

decisions in first-degree murder cases, potentially affecting

all manner of questions of criminal law.   Although I do not

fault the logic of my concurring colleague, I do not believe the

Supreme Judicial Court intends its silence on an issue in a case

like Wood to be given this weight.   Indeed, I believe it would

violate the fundamental principles of our adversary legal system

to accord such precedential weight to the Supreme Judicial

Court's § 33E review of a claim neither raised by a defendant

nor explicitly addressed by that court.

    The Anglo-American system of law is an adversary one.

"Ours is the accusatorial as opposed to the inquisitorial

system.   Such has been the characteristic of Anglo-American

criminal justice since it freed itself from practices borrowed

by the Star Chamber from the Continent . . . ."   Watts v.

Indiana, 338 U.S. 49, 54 (1949) (plurality opinion of

Frankfurter, J.).   "[W]ithin the framework of our adversary

system, the adjudicatory process is most securely founded when

it is exercised under the impact of a lively conflict between

antagonistic demands, actively pressed, which make resolution of

the controverted issue a practical necessity."    Poe v. Ullman,

367 U.S. 497, 503 (1961).   Opposing parties joining issues and

providing argument to the court are aspects of adjudication
                                                                   12


under our judicial system essential both to identifying issues

that require adjudication and to ensuring they are determined

appropriately.   This is one of the reasons arguments not made

before our appellate courts are ordinarily deemed waived, even

if they have been raised below.   See, e.g., Commonwealth v.

Stevenson, 46 Mass. App. Ct. 506, 507 n.3 (1999) ("Although [one

of two codefendants] also raised this issue at trial, he has not

raised it on appeal; therefore, he has waived his claims

regarding this issue").   Indeed, the absence of argument is one

of the reasons the Supreme Judicial Court's advisory opinions

issued under Part II, c. 3, art. 2 of the Massachusetts

Constitution, as amended by art. 85 of the Amendments, are not

given stare decisis effect.   See, e.g., Commonwealth v. Welosky,

276 Mass. 398, 400 (1931) ("It has been uniformly and many times

held that such opinions, although necessarily the result of

judicial examination and deliberation, are advisory in nature,

given by the justices as individuals in their capacity as

constitutional advisers of the other departments of government

and without the aid of arguments, are not adjudications by the

court, and do not fall within the doctrine of stare decisis.

When the same questions are raised in litigation, the justices

then composing the court are bound sedulously to guard against

any influence flowing from the previous consideration, to

examine the subject anew in the light of arguments presented by
                                                                  13


parties without reliance upon the views theretofore expressed,

and to give the case the most painstaking and impartial study

and determination that an adequate appreciation of judicial duty

can impel") (Emphasis added).

    The Supreme Judicial Court's § 33E review, mandated by the

Legislature, is an exception to the ordinary rules of our

adversary adjudicative system.   Section 33E, as appearing in St.

1979, c. 346, § 2, provides, "In a capital case . . . the entry

in the supreme judicial court shall transfer to that court the

whole case for its consideration of the law and the evidence.

Upon such consideration the court may, if satisfied that the

verdict was against the law or the weight of the evidence, or

because of newly discovered evidence, or for any other reason

that justice may require (a) order a new trial or (b) direct the

entry of a verdict of a lesser degree of guilt, and remand the

case to the superior court for the imposition of sentence."

Section 33E review does not follow the adversary model.    It

calls upon the court –- not the zealous advocate for the

defendant –- to review the record with an eye toward identifying

potential errors, and, without adversarial briefing, to decide

any questions it finds.   It does not involve full-blown

litigation.   It is designed to serve as a backstop in the case

of first degree murder convictions in light of "the infamy of

the crime and the severity of its consequences."   Commonwealth
                                                                   14


v. Angiulo, 415 Mass. 502, 509 (1993), quoting from Dickerson v.

Attorney Gen., 396 Mass. 740, 744 (1986).

    It is true that the Supreme Judicial Court utilizes a

standard of review (asking whether there has been a "substantial

likelihood of a miscarriage of justice") that is at least

formally slightly more favorable to the defendant than we do

when we review convictions for unpreserved claims of error

("substantial risk of a miscarriage of justice").   See

Commonwealth v. Smith, 460 Mass. 318, 321 n.2 (2011) ("The

substantial likelihood of a miscarriage of justice standard that

is associated with plenary review under G. L. c. 278, § 33E

. . . is more forgiving to a defendant than the substantial risk

standard applicable in other criminal cases") (emphasis

omitted).   Nonetheless, to treat a decision of the Supreme

Judicial Court on § 33E review as binding precedent on all

questions that might have been presented in all § 33E cases

would ignore the reality that the determination was not the

result of an adversary proceeding.   Where the issue is one that

was neither raised by any party, nor mentioned by the court, we

cannot tell whether the court's silence indicates that the issue

was seen, evaluated, and found meritless, or missed altogether.

Treating that silence as binding precedent on all issues not

raised in a case would introduce a fundamental unfairness into

our proceedings, particularly where what is at issue is an error
                                                                    15


that can "never be treated as harmless," see ante at 6 (Trainor,

J., concurring), the very characteristic that the concurring

opinion concludes renders the defendant's claim unreviewable

here.

    A judge engaged in review of the record is not a lawyer for

one of the parties charged with his or her zealous

representation.   In a case like this, in the absence of briefing

by the codefendant's lawyer, it is not realistic to assume that

a judge reviewing the trial record will necessarily find every

colorable error of law, nor that he or she will necessarily be

completely familiar with each legal issue presented.

    Thus, for example, less than three months prior to the

Supreme Judicial Court's decision in Wood, the United States

Court of Appeals for the First Circuit in Sanchez v. Roden,

supra, granted a State prisoner an evidentiary hearing on his

Batson claim and concluded that the courts of our Commonwealth

had been utilizing a threshold for determining whether an

inference of discrimination arises with respect to peremptory

challenges that was, as a matter of Federal law, too high.    See

753 F.3d at 300, 308.   The Sanchez opinion is persuasive, and

though our courts are not formally bound by it, it does appear

to reflect the appropriate standard.

    Yet there is no reason to believe, even if they noticed the

Batson issue here, that the justices of the Supreme Judicial
                                                                    16


Court were even aware of this then-recent decision at the time

they engaged in their review under § 33E.    Although it had been

published, no lawyer put it before the court for its

consideration.

    What Justice Jackson said of the members of the high Court

on which he sat could also be said of the justices of our

Supreme Judicial Court with respect to the law of our

Commonwealth:    The justices are "not final because [they] are

infallible, but [they] are infallible only because [they] are

final."   Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J.,

concurring in result).

    Yet not even the talented justices of our Supreme Judicial

Court are omniscient.    And, in a circumstance such as this, to

hold that their failure sua sponte to find a legal error and to

reverse a judgment should be binding on another criminal

defendant whose counsel has identified that error and has

presented to a reviewing court his client's claim along with

supporting authority would be fundamentally unfair.

    Further, I think that it would be inconsistent with the

role of the Appeals Court, which was in fact created to assist

the Supreme Judicial Court in light of that court's heavy

caseload.   Although further guidance from the Supreme Judicial

Court is necessary on this question, I find it difficult to

believe that it intends its determinations under § 33E of an
                                                                  17


issue not presented to it, and which it has left unaddressed, to

foreclose our consideration of that issue in the first instance

when it is properly raised.   To the extent, if any, the majority

intimates that it does, I respectfully dissent.
