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SJC-12549

            COMMONWEALTH   vs.   QUINTON K. WILLIAMS.



      Plymouth.      October 2, 2018. - February 13, 2019.

  Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano,
               Lowy, Budd, Cypher, & Kafker, JJ.


Jury and Jurors.   Practice, Criminal, Jury and jurors, Challenge
     to jurors.



     Complaint received and sworn to in the Brockton Division of
the District Court Department on March 1, 2016.

    The case was tried before Daniel J. Hourihan, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Edward Crane for the defendant.
     Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
     Anthony Mirenda, Caroline S. Donovan, Amanda Hainsworth,
Christopher J. Cifrino, & Justin Marble, for Massachusetts
Association of Criminal Defense Lawyers & others, amici curiae,
submitted a brief.
     Rebecca Kiley, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.
                                                                     2


     BUDD, J.   The defendant, Quinton K. Williams, an African-

American man, was charged with possession of a class B substance

with the intent to distribute pursuant to G. L. c. 94C,

§ 32A (a).   During jury selection, over the defendant's

objection, the judge excused for cause a prospective juror who

stated that she believed that "the system is rigged against

young African American males."    The defendant subsequently was

convicted and now appeals, claiming that the judge abused his

discretion in dismissing the prospective juror.

     Our jurisprudence regarding how to assess beliefs or

opinions expressed by prospective jurors during voir dire has

been less than clear.     Accordingly, we take this opportunity to

set forth the factors that a judge should consider when a

prospective juror discloses a belief or opinion based on his or

her world view.   We conclude that although the voir dire was

incomplete, it did not prejudice this defendant.     Thus, we

affirm the conviction.1




     1 We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services and by the Massachusetts
Association of Criminal Defense Lawyers, the American Civil
Liberties Union of Massachusetts, the New England Innocence
Project, the Innocence Project, the Charles Hamilton Houston
Institute for Race and Justice, the Criminal Justice Institute
at Harvard Law School, retired Supreme Judicial Court Justice
Geraldine S. Hines, retired United States District Court Judge
for the District of Massachusetts Nancy Gertner, Harvard Law
School Professor Ronald S. Sullivan, Jr., and Northeastern
University Professor Jack McDevitt.
                                                                  3


    Background.   During jury selection, the judge asked

questions of the entire venire, including the following:

    "[Y]ou've been read a copy of the complaint which charges
    [the defendant], which is just an allegation, that he
    possessed [a] class B controlled substance, cocaine, with
    the intent to distribute.

    "Is there anything about the subject matter or your views
    about the subject matter that would affect your ability to
    be fair and impartial in deciding the case?"

Prospective juror no. 15 (prospective juror), among other

potential jurors, answered in the affirmative.   Subsequently,

the judge and the prospective juror had the following exchange

at sidebar:

    Q.: "I believe you might have answered a question
    affirmatively. Was that a -- a hardship question?"

    The clerk: "No. . . .    It was on fair and impartial . . .
    [o]r bias."

    Q.:   "You feel like you might have a bias in the case?"

    A.: "Yeah. I worked with, like, low income youth in a
    school setting. I worked a lot with people who were
    convicted of -- like teenagers who were convicted of drug
    crimes.

    "And frankly, I think the system is rigged against young
    African American males.

    "I'm happy to serve on the jury trial -- on the jury
    because I think it's important, but -- "

    Q.: "You think that belief might interfere with your
    ability to be fair and impartial?"

    A.:   "I don't think so."

    Q.: "You -- you think you can put aside that opinion and
    bias -- "
                                                                      4



    A.:   "I don't think I can put it aside.         I think that's --"

    Q.:   "No?"

    A.: " -- the lens that I view the world through, but I
    think I can be unbiased -- I think I can be -- I think I
    can listen to the evidence."

    Q.: "All right. But you're going to have to be able to
    put that out of your mind and look at only the evidence.
    Do you think you can do that?"

    A.:   "I think so."

    Q.: "I have to be assured that you can though. You think
    you -- as -- as you sit in there, it might -- your
    experiences with -- with people in that type of a situation
    is going to have you look at it differently?"

    A.:   "Probably."

    Q.:   "Okay.    Step over there for a minute."

    When the prospective juror stepped away from the sidebar,

the Commonwealth requested that she be excused for cause and the

following discussion ensued between the judge and the parties:

    The prosecutor:     "I ask that she be excused for cause."

    The judge:     "Okay.    What do you say?"

    Defense counsel:        "Judge, I'm objecting.

    "I mean there -- there's -- the drug -- the issues
    regarding the mass incarceration of young African American
    males has been all over the news. Everybody has read about
    it. This is -- she has a little more information, but she
    did say she could be impartial.

    "And by the way, he's not a juvenile.        He's an adult."

    The judge: "Yeah. But he's a youthful looking guy, and
    she says she's going to have trouble. She hesitated quite
                                                                     5


    a bit, Counsel, and I -- I -- I find on the record that she
    really struggled with it.

    "She said I'll try to and then that --

    "I'm going to let her go for cause.    I think -- "

    The judge thereafter excused the prospective juror for

cause.   By the end of jury selection, the Commonwealth and the

defendant each had one remaining peremptory challenge.

Ultimately, the jury found the defendant guilty.    We granted the

defendant's application for direct appellate review.

    Discussion.    The defendant argues on appeal that it was

error to dismiss the prospective juror for cause because neither

her work experience nor her belief that the criminal justice

system is unfair to African-American men rendered her unfit to

serve, and further that the dismissal was prejudicial.

    We agree that holding particular beliefs about how African-

American men are treated in the criminal justice system should

not be automatically disqualifying.    See Mason v. United States,

170 A.3d 182, 187 (D.C. 2017).    However, that is not what

happened here.    The judge undertook to determine whether, given

her opinion about the criminal justice system, the prospective

juror could nevertheless be an impartial juror in the trial of

an African-American man.    However, the voir dire ultimately was

incomplete because the judge did not inquire further to

determine whether, given the prospective juror's beliefs based
                                                                   6


on her life experiences, she nevertheless could fairly evaluate

the evidence and follow the law.

    Instead, the judge decided that the prospective juror was

not able to be impartial because she expressed uncertainty about

being able to "put aside" her beliefs and experiences and

because she acknowledged that she would look at the case

"differently" due to her experiences.   As discussed infra, a

judge in this situation should focus not on a prospective

juror's ability to put aside his or her beliefs formed as a

result of life experiences, but rather on whether that juror,

given his or her life experiences and resulting beliefs, is able

to listen to the evidence and apply the law as provided by the

judge.

    A judge's discretion in this realm, although broad, is

rooted in determining a prospective juror's impartiality based

on the juror's answers in a sufficiently thorough voir dire.

Because the voir dire of the prospective juror here did not

address whether she could fairly evaluate the evidence and apply

the law given her belief regarding the justice system, the

judge's assessment of her ability to be a fair and impartial

juror was incomplete.   However, because we conclude that the

defendant was not prejudiced as a result, we affirm.

    1.   Standard.   A criminal defendant is entitled to a trial

by an impartial jury pursuant to the Sixth Amendment to the
                                                                       7


United States Constitution and art. 12 of the Massachusetts

Declaration of Rights.    See Commonwealth v. Vann Long, 419 Mass.

798, 802 (1995), and cases cited.    That is, each juror must be

"impartial as to the persons involved and unprejudiced and

uncommitted as to the defendant['s] guilt or past misconduct."

Commonwealth v. Ricard, 355 Mass. 509, 512 (1969).     General Laws

c. 234A, § 67A, addresses the situation when a prospective juror

indicates that he or she may not be able to be impartial,

stating in pertinent part:

    "To determine whether a juror stands indifferent in the
    case, if it appears that, as a result of the impact of
    considerations which may cause a decision to be made in
    whole or in part upon issues extraneous to the case,
    including, but not limited to, community attitudes,
    possible exposure to potentially prejudicial material or
    possible preconceived opinions toward the credibility of
    certain classes of persons, the juror may not stand
    indifferent, the court shall, or the parties or their
    attorneys may, with the permission and under the direction
    of the court, examine the juror specifically with respect
    to such considerations, attitudes, exposure, opinions or
    any other matters which may cause a decision to be made in
    whole or in part upon issues extraneous to the issues in
    the case."

    Thus, if it appears that a juror might not stand

indifferent, the judge must hold an individual voir dire, the

scope of which is within the judge's sound discretion.      See

Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994).      Concluding

whether a prospective juror stands indifferent is also within

the judge's discretion.    Commonwealth v. Ruell, 459 Mass. 126,

136, cert. denied, 565 U.S. 841 (2011).   However, this
                                                                   8


discretion is not unfettered; the judge's conclusion must be

supported by a voir dire that sufficiently uncovers whether the

prospective juror can fairly evaluate the evidence and follow

the law.   See Commonwealth v. Perez, 460 Mass. 683, 688 (2011)

("judge's duty is to 'examine jurors fully regarding possible

bias or prejudice'").

     We have not been particularly precise when discussing the

handling of juror opinions, and, as a result, our jurisprudence

is somewhat muddled regarding the proper procedure for

determining impartiality when a prospective juror expresses any

preconceived opinions he or she has regarding the case to be

tried as compared to an opinion formed based on his or her life

experiences or belief system.   Nonetheless, there is an

important difference between the two:   asking a prospective

juror to put aside his or her preconceived notions about the

case to be tried is entirely appropriate (and indeed necessary)2;

however, asking him or her to put aside opinions formed based on

his or her life experiences or belief system is not.

     We acknowledge that we have said repeatedly that, in

determining juror impartiality, the general rule is that a judge




     2 The same is true for other extraneous information related
to the trial but not admitted in evidence. See, e.g.,
Commonwealth v. Blanchard, 476 Mass. 1026, 1029 (2017);
Commonwealth v. Entwistle, 463 Mass. 205, 221-222 (2012), cert.
denied, 568 U.S. 1129 (2013).
                                                                     9


must look at whether jurors can "set aside their own opinions."

See, e.g., Commonwealth v. Kennedy, 478 Mass. 804, 819 (2018);

Commonwealth v. Brown, 477 Mass. 805, 821 (2017), cert. denied,

139 S. Ct. 54 (2018); Commonwealth v. Andrade, 468 Mass. 543,

547-548 (2014); Perez, 460 Mass. at 688-689; Commonwealth v.

Bryant, 447 Mass. 494, 501 (2006); Commonwealth v. Leahy, 445

Mass. 481, 495 (2005); Commonwealth v. Stroyny, 435 Mass. 635,

639 (2002).    However, in so doing, we have not differentiated

between opinions regarding the case and opinions about

particular topics based on a prospective juror's life

experiences or world view.    Even so, none of the above-cited

cases has to do with the latter.

       Where a prospective juror "has expressed or formed an

opinion regarding the case, or has an interest, bias, or

prejudice related to the unique situation presented by the

case," the judge must satisfy him or herself that the

prospective juror will set aside that opinion or bias and

properly weigh the evidence and follow the instructions on the

law.   Commonwealth v. Soares, 377 Mass. 461, 482, cert. denied,

444 U.S. 881 (1979).    Otherwise, removal of the prospective

juror "is clearly appropriate in the interest that persons

actually prejudiced not be seated on the jury even if it tends

to skew an otherwise balanced panel."    Id.   Where, on the other

hand, a prospective juror has expressed an opinion or world view
                                                                  10


based upon his or her life experience or belief system, rather

than asking him or her to set it aside (which is difficult if

not impossible to do), a judge must determine whether, given

that particular opinion, the juror nevertheless is able to be

impartial in the case to be tried.3   See id. at 487 ("No human

being is wholly free of the interests and preferences which are

the product of his cultural, family, and community experience.

Nowhere is the dynamic commingling of the ideas and biases of

such individuals more essential than inside the jury room").

     Thus, we emphasize that, in determining each prospective

juror's ability to be impartial, although a judge may require a

prospective juror to set aside an opinion regarding the case,

the judge should not expect a prospective juror to set aside an

opinion born of the prospective juror's life experiences or

belief system.

     2.   Analysis.   After the prospective juror responded

affirmatively to the question put to the entire venire regarding




     3 Whether a juror's thoughts about a particular matter that
have been formed through his or her life experiences are
characterized as an opinion, point of view, belief system, or
bias, as discussed infra, the dispositive question that must be
asked is whether the juror can decide the case based on the
evidence presented and the law as provided by the judge. That
said, we agree with the view expressed by the concurrence that
there are some belief systems that may be incompatible with the
ability to be a fair and impartial juror. See post at     .
Religious beliefs that prohibit one from sitting in judgment of
another are an example.
                                                                       11


whether there was anything about their views on the subject

matter that would affect their ability to be fair and impartial

in deciding the case, she was called to sidebar for an

individual voir dire.       See Flebotte, 417 Mass. at 355.   At

sidebar, the prospective juror stated her opinion that the

"system is rigged against young African American males."         The

judge asked questions in an attempt to determine whether the

prospective juror could be impartial.       See Perez, 460 Mass. at

688-689.      See also G. L. c. 234A, § 67A.   The colloquy that

followed warrants closer review.

       The judge's first question to the prospective juror was

proper:       "You think that belief might interfere with your

ability to be fair and impartial?"       The prospective juror

responded, "I don't think so."4      The judge went on to ask the

juror:       "You . . . think you can put aside that opinion and bias

--."       He did not get a chance to finish the question because the




       The prospective juror phrased this answer, as well as
       4

others, to reflect the form of the judge's questions, i.e., her
answer sometimes began with, "I think," in response to a
question phrased, "You think . . . ?" We note that an answer
that mirrors the syntax of a judge's question does not
necessarily indicate an equivocal answer. See Commonwealth v.
Prunty, 462 Mass. 295, 311-312 (2012); Commonwealth v. Bryant,
447 Mass. 494, 501 (2006), citing Commonwealth v. Leahy, 445
Mass. 481, 495-496 & n.13 (2005) (affirming judge's
determination of impartiality where juror responses included "I
think. I've never done this before so it's hard"; "I think I
could"; and "I suppose so"); Commonwealth v. Ascolillo, 405
Mass. 456, 459-460 (1989).
                                                                   12


prospective juror interrupted him, stating that she did not

think that she could put "it" aside, and that "it" was "the lens

that [she viewed] the world through."   Although she also

affirmed that she could be unbiased and could listen to the

evidence, it was within the judge's discretion to inquire

further if he was not satisfied that her answer was unequivocal.

See Commonwealth v. Clark, 446 Mass. 620, 629-630 (2006).

    The judge did continue to question the prospective juror,

telling her that she would "have to be able to put that out of

[her] mind and look at only the evidence."   When the judge asked

her, "Do you think you can do that?" the prospective juror

responded, "I think so."   Finally the judge asked:   "You think

. . . your experiences with . . . people in that type of a

situation is going to have you look at it differently," implying

that the prospective juror could not take her life experiences

into account as a juror.   After the juror responded, "Probably,"

the judge excused her for cause.

    Although the prospective juror indicated that, due to

experiences she had, she believed that the "system is rigged

against young African American males," and that this belief was

not one that she could "put aside," she did not express any

opinions having to do with the defendant or the case about to be
                                                                   13


tried.5   Nevertheless, the record here indicates that the judge

required the prospective juror to "put aside" her firmly held

beliefs shaped by her life experiences in order to serve, and

excused her because her experiences would cause her to "look at

[the case] differently."

     Every prospective juror comes with his or her own thoughts,

feelings, opinions, beliefs, and experiences that may, or may

not, affect how he or she "looks" at a case.   Indeed, this court

has acknowledged on multiple occasions that jurors do not

approach their duties with a tabula rasa.   See, e.g.,

Commonwealth v. Mutina, 366 Mass. 810, 817-818 (1975) ("Jurors

do not come to their temporary judicial service as sterile

intellectual mechanisms purged of all those subconscious factors

which have formed their characters and temperaments such as

racial or ethnic background, sex, economic status, intellectual


     5 At a certain point during the colloquy, after the
prospective juror told the judge that she could not put aside
"the lens that [she] view[ed] the world through," the judge
responded that she was "going to have to be able to put that out
of [her] mind and look at only the evidence." The concurrence
suggests that it is not clear whether the judge "was directing
the juror to set aside any preconceived notions that may affect
her ability fairly to consider the evidence in this case or to
set aside the 'lens' through which she viewed the world." Post
at    . However, there is nothing in the record to indicate
that the judge was referring to the former. In fact, except for
the judge informing the prospective juror that she would have to
be able to "look at only the evidence," and asking her, "Do you
think you can do that?" to which she replied, "I think so,"
there was no discussion about whether the prospective juror had
any opinions about the case at all.
                                                                  14


capacity, family status, religious persuasion, political

leanings, educational attainment, moral convictions, employment

experience, military service or their individual appreciations

of the social problems of the moment"); Ricard, 355 Mass. at 512

("Every individual has impressions and beliefs, likes and

dislikes").

     It would neither be possible nor desirable to select a jury

whose members did not bring their life experiences to the court

room and to the jury deliberation room.   See, e.g., J.E.B. v.

Alabama ex rel. T.B., 511 U.S. 127, 149 (1994) (O'Connor, J.,

concurring) ("Individuals are not expected to ignore as jurors

what they know as men -- or women").   See also Mutina, 366 Mass.

at 820 ("Juries are generally instructed by judges in their

charges and urged by counsel in their argument that they must

not leave their common sense outside the jury room").   Thus, a

prospective juror may not be excused for cause merely because he

or she believes that African-American males receive disparate

treatment in the criminal justice system.6   For that reason a


     6 We note that there is ample empirical evidence to support
such a conclusion. See generally E. Hinton, L. Henderson, &
C. Reed, Vera Institute of Justice, An Unjust Burden: The
Disparate Treatment of Black Americans in the Criminal Justice
System, at 7-9 (May 2018), citing Starr & Rehavi, Mandatory
Sentencing and Racial Disparity: Assessing the Role of
Prosecutors and the Effects of Booker, 123 Yale L.J. 2, 28-30
(2013) (Federal prosecutors are more likely to charge African-
Americans than similarly situated Caucasians with offenses that
carry higher mandatory minimum sentences); C. Crawford, T.
                                                                  15


trial judge must take care to determine whether such an opinion

would affect a prospective juror's ability to be impartial.

     The questioning here raises two concerns.   First, as

discussed supra, a judge should not require a prospective juror

to disregard his or her life experiences and resulting beliefs

in order to serve.7   As we have acknowledged, bringing one's life



Chiricos, & G. Kleck, Race, Racial Threat, and Sentencing of
Habitual Offenders, 36 Criminology 481, 503 (1998) (similar
disparity for State prosecutors with respect to decisions to
charge under habitual offender statutes). See also United
States Sentencing Commission, Demographic Differences in
Sentencing: An Update to the 2012 Booker Report, at 6 (Nov.
2017) (African-American male defendants received sentences that
were 19.1 per cent longer on average than similarly situated
Caucasian male defendants). These disparities also exist for
victims of crime. See C. Spohn & D. Holleran, Prosecuting
Sexual Assault: A Comparison of Charging Decisions in Sexual
Assault Cases Involving Strangers, Acquaintances, and Intimate
Partners, 18 Just. Q. 651, 680-681 (2001) (prosecutors in Kansas
City and Philadelphia were less likely to file sexual assault
charges when victim was African-American rather than Caucasian).

     The problem of racial discrimination in the criminal
justice system has not escaped the attention of this court.
See, e.g., Commonwealth v. Buckley, 478 Mass. 861, 877 (2018)
(Budd, J., concurring); Commonwealth v. Warren, 475 Mass. 530,
539-540 (2016). See also Commonwealth v. Gonsalves, 429 Mass.
658, 670 (1999) (Ireland, J., concurring).

     The Commonwealth, too, acknowledges in a letter it filed
pursuant to Mass. R. A. P. 16 (l), as amended, 386 Mass. 1247
(1982), that the "views and opinions expressed by [the
prospective juror] are generally accepted, and shared within the
community at large."

     7 Again, this is not to be confused with the firm
requirement that all jurors set aside any preconceived opinions
they may have formed regarding a case or a defendant prior to
having heard the evidence. See Commonwealth v. Soares, 377
Mass. 461, 482, cert. denied, 444 U.S. 881 (1979).
                                                                  16


experiences to jury service is appropriate (and perhaps

inevitable).   Mutina, 366 Mass. at 820.    Asking prospective

jurors to "put aside" or "disregard" what they think, feel, or

believe comes perilously close to improperly requiring them to

"leave behind all that their human experience has taught them."

Beck v. Alabama, 447 U.S. 625, 642 (1980) ("Jurors are not

expected to come into the jury box and leave behind all that

their human experience has taught them").

    Second, a judge who proceeds in this fashion mistakenly

equates an inability to disregard one's life experiences and

resulting beliefs with an inability to be impartial.    A judge

should not assume that a prospective juror is unable to be

impartial merely because he or she expressed uncertainty about

being able to put aside his or her firmly held beliefs.

Instead, an otherwise qualified prospective juror should only be

excused for cause if, given his or her experiences and resulting

beliefs, the judge concludes that the prospective juror is

unable to fairly evaluate the evidence presented and properly

apply the law.   See Commonwealth v. Entwistle, 463 Mass. 205,

221-222 (2012), cert. denied, 568 U.S. 1129 (2013) ("defendant

is not entitled to a jury that knows nothing about the crime, so

long as jurors are able fairly to weigh the evidence in the

case, set aside any information they learned outside the court
                                                                   17


room, follow the judge's instructions, and render an impartial

verdict").

     Thus, when a prospective juror states an opinion or belief,

whether it is specific to the case or not, the judge must

satisfy himself or herself that the prospective juror will be

able to fairly evaluate the evidence and apply the judge's

instructions on the law.8   See Perez, 460 Mass. at 688-689;

Commonwealth v. Auguste, 414 Mass. 51, 53-54, 57 (1992) (judge

was required to investigate whether "juror would be impartial in

his or her determination of the evidence" after juror expressed

concern regarding convicting based on defendant's race).     See

also Commonwealth v. McAlister, 365 Mass. 454, 459 & n.4 (1974),

cert. denied, 419 U.S. 1115 (1975) (before excusing three jurors

for cause, "judge took pains to assure that the attitudes

expressed were more than just personal convictions and that they

would interfere with the jurors' capacity to perform their

duty").   Compare Vann Long, 419 Mass. at 804-805; Commonwealth




     8 There are countless variations of a proper voir dire in a
situation such as this. The exchange between the judge and a
prospective juror during jury selection for the trial of
Commonwealth v. Kennedy, 478 Mass. 804, 816-817 (2018) provides
a good example; the concurrence also provides a helpful outline.
See post at    . No special terms or particular phrasing is
required. However, through the voir dire the trial court judge
must determine whether a prospective juror who has expressed a
deeply held opinion or belief relevant to the issues or parties
in the case can nevertheless fairly evaluate the evidence and
follow the instructions on the law.
                                                                     18


v. Somers, 44 Mass. App. Ct. 920, 921-922 (1998) (juror

improperly empaneled in case where defendant charged with

firearm-related offenses and juror stated he has "strong

opinions about gun control" and defendant "would not want me on

a jury").

     Judges are expected to, and indeed must, use their

discretion and judgment to determine whether a prospective juror

will be fair and impartial based on verbal and nonverbal cues as

well as the totality of the circumstances.     See Ruell, 459 Mass.

at 136.     Here, however, the judge made that determination based

upon whether the prospective juror could do something that is

arguably impossible to do -- put aside her life experiences and

her resulting world view.9    See Mutina, 366 Mass. at 820.

     3.   Prejudice.    At oral argument the defendant conceded,

and we agree, that he suffered no actual prejudice from the

error, as the Commonwealth completed jury selection with a




     9 The question is not, as the concurrence implies, whether
the voir dire was done in an artful way, see post at     , but
instead whether it was done in a way that would allow the judge
to determine the prospective juror's ability to fairly evaluate
the evidence and follow the judge's instructions. Although the
judge determined that the prospective juror could not be
impartial because he found that "she hesitated quite a bit" and
that "she really struggled with it," the record reflects that
the question with which she "hesitated" and "struggled" was
essentially whether she could put aside her world view, not
whether she could, given her world view, fairly evaluate the
evidence and follow the law.
                                                                   19


peremptory challenge left available to use (and which could have

been used on the prospective juror had she not been excused for

cause).   Moreover, the defendant has not argued that any member

of the jury that ultimately convicted him was biased.    We

therefore address only the defendant's arguments that the error

should result in an automatic reversal of his conviction.

     The defendant claims that striking the prospective juror

for cause resulted in structural error,10 warranting automatic

reversal for two different reasons:   (1) it effectively resulted

in an extra peremptory challenge for the Commonwealth; and (2)

it infringed on the defendant's constitutional right to a jury

comprised of a representative cross section of the community.11

     Structural error is "[g]enerally . . . error that

'necessarily render[s] a criminal trial fundamentally unfair or




     10The defendant uses the terms "presumed prejudice" and
"prejudicial per se" rather than "structural error" throughout
his briefs. We note that presumptions of prejudice can be
rebutted and, here, the Commonwealth can demonstrate that the
error was harmless beyond a reasonable doubt because of its
unexercised peremptory challenge. See Commonwealth v. McNulty,
458 Mass. 305, 318 (2010) (applying harmless beyond reasonable
doubt standard to nonstructural constitutional error). However,
we do not consider the arguments for structural error waived
because the defendant makes clear that he is analogizing to two
well-established types of structural error -- denied peremptory
challenges and Soares violations. See discussion, infra.

     11The defendant raised the second argument during oral
argument. We granted both parties leave to submit further
briefing on this issue pursuant to Mass. R. A. P. 16 (l), as
amended, 386 Mass. 1247 (1982).
                                                                     20


an unreliable vehicle for determining guilt or innocence.'"

Commonwealth v. Hampton, 457 Mass. 152, 163 (2010), quoting

Washington v. Recuenco, 548 U.S. 212, 218-219 (2006).       As such,

structural errors defy harmless error analysis, and when claims

of structural error that are timely raised and preserved on

appeal are upheld, they require automatic reversal.

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 118-119 (2010) (no

prejudice analysis necessary where defendant's right to public

trial was violated).   Structural errors "have been recognized in

limited circumstances . . . [and] occur rarely."     Hampton,

supra, citing Recuenco, supra at 218 n.2.   The defendant argues

that the facts here are analogous to cases that have resulted in

structural error.   We conclude that the defendant's comparisons

miss the mark.

    a.   "Extra" peremptory challenge for Commonwealth.      The

defendant contends that the dismissal of a prospective juror for

cause at the Commonwealth's request had the practical effect of

giving the Commonwealth an "extra" peremptory challenge, and

claims that in such an instance prejudice should be presumed.

He argues that an extra peremptory challenge erroneously awarded

to the Commonwealth is equivalent to denying a valid peremptory

challenge to the defendant.   We have held that the latter

results in the automatic reversal of a conviction.    See

Commonwealth v. Wood, 389 Mass. 552, 564 (1983).     The defendant
                                                                    21


reasons that a bonus peremptory challenge for the Commonwealth

should similarly result in presumed prejudice.     Although the

argument is creative, we are not convinced.

    Denying a defendant the right to exercise a valid

peremptory challenge is prejudicial per se because "[t]he

purpose of the properly exercised peremptory challenge is to aid

the constitutional right to a fair and impartial jury."       Id. at

560, citing Swain v. Alabama, 380 U.S. 202, 216-220 (1965).       And

we have held that "the right to be tried by an impartial jury is

so basic to a fair trial that an infraction can never be treated

as harmless error."   Wood, supra at 564.

    Here, the judge did not deny the defendant the opportunity

to exercise a peremptory strike; instead, the judge dismissed a

prospective juror whom the defendant had hoped would be on the

jury.   This scenario did not implicate the defendant's right to

an impartial jury because where a potential juror is erroneously

excused, the presumption is that that individual was replaced by

another fair and impartial juror.   See Northern Pac. R.R. v.

Herbert, 116 U.S. 642, 646 (1886) (after judge excused juror

favored by employer, "[a] competent and unbiased juror was

selected and sworn, and the [employer] had . . . a trial by an

impartial jury, which was all it could demand").    See also

Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (defendants are

not entitled to jury of any particular composition).    The
                                                                   22


defendant is not entitled to automatic reversal based on an

extra, unused peremptory strike provided to the Commonwealth.

     b.   Fair cross section of community.   A defendant's right

to a fair and impartial jury includes the right to a jury drawn

from a venire representing a fair cross section of the

community.   See Soares, 377 Mass. at 478.   The defendant

acknowledges that "the right to a jury representative of a

cross-section of the community cannot require that each jury

include constituents of every group in the population."

Commonwealth v. Benjamin, 430 Mass. 673, 677 (2000), quoting

Soares, supra at 481.   However, he claims that erroneously

dismissing the prospective juror was reversible error because it

deprived him of his constitutional right to a jury made up of a

fair and representative cross section of the community by

limiting the chance that citizens, including African-Americans,

holding this viewpoint about the criminal justice system would

be represented on the jury.   We disagree.

     The defendant asserts that his case may be compared

favorably to Soares, supra.   In Soares, this court held that the

intentional use of peremptory challenges to exclude certain

"discrete groups," including African-Americans,12 from a jury is


     12"[T]hose generic group affiliations which may not
permissibly form the basis for juror exclusion . . . [are] sex,
race, color, creed or national origin." Soares, 377 Mass. at
488-489.
                                                                  23


an art. 12 violation of a defendant's right to a fair and

impartial jury.13   Id. at 486, 488, 492.   As a result, this

error, unaddressed at the time of trial, was held to be

prejudicial per se.   Id. at 492.    See Commonwealth v. Jones, 477

Mass. 307, 325-326 (2017) (Soares violation is structural

error).

     The defendant argues that although the error in this case

is different, he is harmed similarly in that it reduced the

likelihood that his jury would be drawn from a representative

cross section of the community.     The comparison is inapt.

     In Soares, 377 Mass. at 488-490, the Commonwealth

improperly used peremptory challenges to strike prospective

jurors because they were members of a discrete group.     In

contrast, here, the prospective juror was not struck due to

being a member of a discrete group.     Instead, after conducting a

voir dire, the judge excused the prospective juror because he

found that she could not be a fair and impartial juror based on

how she responded to his questions.     Although, as discussed

supra, the judge made this finding without determining whether

the prospective juror could fairly evaluate the evidence and




     13The court reasoned that the right to a representative
jury pool is "wholly susceptible to nullification" if the
Commonwealth is permitted to exercise peremptory challenges to
remove jurors on the basis of their membership in certain
groups. Soares, 377 Mass. at 486.
                                                                     24


follow the instructions on the law, the judge made a good faith

attempt to gauge whether she was qualified to serve.     The judge

did not conclude or otherwise suggest that the prospective

juror's belief about the criminal justice system was

disqualifying in and of itself.

    It is the exclusion of prospective jurors "solely by virtue

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

groupings in the community" that violates a defendant's

constitutional right to a fair and impartial jury, Soares, 377

Mass. at 486, not excusing prospective jurors for cause because

the judge believes, after voir dire, that they cannot be

impartial, see id. at 482.   This is so even if, as here, the

voir dire is not complete.

    In arguing that prejudice should be presumed in these

circumstances, the defendant points to Mason v. United States,

170 A.3d 182 (D.C. 2017), and King v. State, 414 A.2d 909 (Md.

1980).   These extrajurisdictional cases are distinguishable.    In

King, supra at 910, prospective jurors were excused because they

disagreed with marijuana laws in a marijuana possession case.

In Mason, supra at 185, a potential juror was disqualified

specifically because of her belief that the criminal justice

system is biased against African-American men.   In both cases

the trial court judges treated the beliefs of the prospective

jurors as "in themselves disqualifying."   Id. at 187.    See King,
                                                                   25


supra at 910-913.   Here, by contrast, as discussed supra, the

judge conducted a voir dire to determine whether the prospective

juror could be impartial.

    4.   Conclusion.   Although the voir dire of the prospective

juror was incomplete, the defendant has not shown that the

resulting dismissal of the prospective juror for cause resulted

in prejudice.   We therefore decline to set aside the verdict.

                                    Judgment affirmed.
    GANTS, C.J. (concurring, with whom Gaziano, J., joins).      I

agree with the court that a prospective juror may not be excused

for cause from sitting on a jury simply because the juror

believes that "the system is rigged against young African

American males."   And I would like to believe that, if I were

once again a trial court judge, I would have conducted the voir

dire of this prospective juror a bit differently from how the

judge in this case did after the juror raised her hand to the

question, "Is there anything about the subject matter or your

views about the subject matter that would affect your ability to

be fair and impartial in deciding the case?"

    I would like to believe that I would have acknowledged that

I respect the juror's point of view, but noted that it was this

particular defendant and not the criminal justice system that

was on trial, and then asked whether the juror was confident

that she could fairly and impartially decide in this case, based

on the evidence she would hear at trial and the law I would

explain to her, whether the Commonwealth had met its burden of

proving beyond a reasonable doubt each element of the offense

charged.   And I would like to believe that I would have

evaluated her answer to that question, including her demeanor

and any apparent equivocation, to determine whether she would be

a fair and impartial juror.
                                                                     2


    But I know, based on my experience questioning thousands of

prospective jurors during more than eleven years as a Superior

Court judge, that a trial judge often needs to discuss with

potential jurors whether their personal beliefs, opinions, and

life experience would affect their ability to be fair and

impartial, and that not every such discussion travels down the

same road.    And I know from that experience that there are

times, with the benefit of additional thought and the wisdom of

hindsight, in which a judge will recognize that a discussion

with a juror could have been handled more artfully.    We have no

template for such questioning; nor would it make sense to

attempt to create one because there are so many different ways

that prospective jurors may share their concerns about the risk

of possible bias.    Addressing such concerns is necessarily

improvisational, and therefore often imperfect.

    It is with the benefit of this trial court experience that

I examine whether the judge abused his discretion in excusing

this prospective juror for cause, recognizing that we "afford a

trial judge a large degree of discretion in the jury selection

process."    Commonwealth v. Vann Long, 419 Mass. 798, 803 (1995).

    Every prospective juror brings his or her opinions,

beliefs, and life experience to the court house when asked to

perform juror service.    We do not require jurors to leave them

at the front door; nor could they.    See Commonwealth v. Mutina,
                                                                      3


366 Mass. 810, 817 (1975) ("Jurors do not come to their

temporary judicial service as sterile intellectual mechanisms

purged of all those subconscious factors which have formed their

characters and temperaments . . .").     Indeed, we expect jurors

to apply common sense derived from their life experience when

evaluating the evidence presented at trial.     See Commonwealth v.

Caruso, 476 Mass. 275, 289 (2017) ("Jurors may rely on their own

common sense and life experience in their role as fact

finders").    And we aim for diverse juries precisely because we

believe that the quality of fact finding will be enhanced by

jurors' varied life experiences and points of view.    See

Commonwealth v. Soares, 377 Mass. 461, 487, cert. denied, 444

U.S. 881 (1979) ("No human being is wholly free of the interests

and preferences which are the product of his cultural, family,

and community experience.    Nowhere is the dynamic commingling of

the ideas and biases of such individuals more essential than

inside the jury room"); id. at 478 ("fair jury is one that

represents a cross section of community concepts" [citation

omitted]).    The goal in jury selection is not to select jurors

without opinions or beliefs, but to select jurors whose opinions

and beliefs do not affect their ability fairly and impartially

to find the facts, to follow the law, and to render a just

verdict.     See Commonwealth v. Kennedy, 478 Mass. 804, 818 (2018)

(judge "required to determine whether jurors . . . were capable
                                                                     4


of setting aside their own opinions, weighing the evidence

without considering extraneous issues, and following his legal

instructions").

    But there certainly are opinions, beliefs, and life

experiences that might affect a juror's ability to fairly and

impartially find the facts or apply the law, or a judge's

confidence in the juror's ability to do so.   If a juror were to

characterize himself or herself as a white nationalist, we would

expect a judge to inquire into whether those beliefs would

affect the juror's ability to be fair and impartial, especially

in a case with an African-American defendant.   See G. L.

c. 234A, § 67A ("if it appears that, as a result of the impact

of considerations which may cause a decision to be made in whole

or in part upon issues extraneous to the case, . . . the juror

may not stand indifferent, the court shall . . . examine the

juror specifically with respect to such considerations,

attitudes, exposure, opinions or any other matters which may

cause a decision to be made in whole or in part upon issues

extraneous to the issues in the case").   And even if such a

juror were to insist that he or she would be fair, we would not

fault a judge -- who has the benefit of observing the juror's

affect and demeanor -- for questioning the sincerity of the

juror's claim and deciding to excuse the juror for cause.      See

Commonwealth v. Mattier (No. 2), 474 Mass. 261, 274-275 (2016)
                                                                   5


(judge's determination regarding juror bias "is essentially one

of credibility, and therefore largely one of demeanor" [citation

omitted]); Commonwealth v. Ruell, 459 Mass. 126, 136, cert.

denied, 565 U.S. 841 (2011) ("A judge has broad discretion in

deciding whether a prospective juror is impartial . . .").

    Nor need the opinion or belief be on the fringe to warrant

such inquiry.   Opinions about the proper balance between the

needs of law enforcement and the protection of civil liberties

in a criminal case, about defensive medicine in a medical

malpractice case, or about the prevalence of racism in a

discrimination case, for instance, could provide reason for

further individual questioning.    And while we do not expect

people to transform into blank slates upon taking a seat in the

jury box, dismissal for cause is appropriate where the judge,

after evaluating a prospective juror's responses to voir dire

questions, reasonably concludes that a belief or opinion will

cloud that juror's ability fairly to evaluate the evidence and

follow the court's instructions.    See Commonwealth v. Colton,

477 Mass. 1, 17 (2017) ("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").

    Here, the prospective juror indicated that she was

concerned about her own potential bias by raising her hand when

members of the venire were asked whether anything about the
                                                                     6


subject matter of the case, or their views on the subject

matter, would affect their ability to be fair and impartial.

Under such circumstances, it was certainly appropriate for the

judge to explore through individual voir dire whether this juror

would, in fact, be fair and impartial.    See G. L. c. 234A,

§ 67A.

    I infer from the judge's questions that he wanted to be

assured that the juror would decide the case based solely on the

evidence, and that her fact finding would not be unfairly

influenced by her opinion and life experience.    The judge began

his questioning by asking whether the prospective juror felt

that she might have a bias in the case.    When the juror answered

in the affirmative and expressed her view that "the system is

rigged against young African American males," the judge

proceeded to ask whether her belief might interfere with her

ability to be fair and impartial.   "I don't think so," the juror

responded.   The judge followed up on this response, asking

whether the juror thought she would be able to "put aside that

opinion and bias."   When the juror told the judge that she did

not think she could "put it aside" and that her belief was "the

lens that [she] view[ed] the world through," the judge informed

the juror that she was "going to have to be able to put that out

of [her] mind and look at only the evidence."    It is not clear

from this instruction whether the judge -- who properly
                                                                      7


emphasized the importance of looking only at the evidence -- was

directing the juror to set aside any preconceived notions that

may affect her ability fairly to consider the evidence in this

case or to set aside the "lens" through which she viewed the

world.   While asking a juror to set aside preexisting opinions

regarding a particular case or set of circumstances is proper,

see Kennedy, 478 Mass. at 818, I agree with the court that it

would be improper to instruct a juror to set aside his or her

life experiences or beliefs more broadly.     Cf. Soares, 377 Mass.

at 486 n.30 (where "tendencies do not stem from individual

biases related to the peculiar facts or the particular party at

trial, but from differing attitudes toward the administration of

justice and the nature of criminal offenses," "differences in

juror attitudes" enhance jury deliberations).     I also agree that

the judge's subsequent question, which asked whether the juror's

experience working with low-income youth was "going to have

[her] look at it differently" wrongly implied that the juror was

required to set aside her world view.

    Nevertheless, I infer from the judge's spare findings (and

findings are routinely spare when a prospective juror is

dismissed) that the judge excused this juror for cause not

because of her opinions or world view, but because he was not

assured of her ability to be impartial.     A juror certainly may

not be excused for cause solely because he or she believes that
                                                                    8


the criminal justice system disfavors African-American

defendants.   See Mason v. United States, 170 A.3d 182, 187 (D.C.

2017) ("Standing alone, the belief that the criminal-justice

system is systemically unfair to blacks is not a basis to

disqualify a juror").   In fact, the belief voiced by this

prospective juror is shared by many in our community, including

most African-Americans.1   Aggressively excusing jurors who hold

this belief therefore risks excusing a disproportionate number

of African-American jurors.   Here, however, the judge appeared

less concerned with the juror's beliefs about the inequities of

the criminal justice system or her specific answers to his




     1 See Hyams Foundation and MassINC Polling Group, Racial
Inequities, Policy Solutions: Perceptions of Boston's
Communities of Color on Racism and Race Relations 19 (Mar. 2018)
(in Boston, fifty-two percent of all people surveyed and forty-
one percent of black people surveyed thought Boston police
officers treat black and Latino people "somewhat or very
fairly"; forty-five percent of all people surveyed and twenty-
seven percent of black people surveyed thought Boston courts
treat black and Latino people "somewhat or very fairly"); Voters
Split on Whether Criminal Justice System Treats All People
Fairly, NBC News, Nov. 8, 2016, https://www.nbcnews.com/card/
nbc-news-exit-poll-voters-split-whether-criminal-justice-system-
n680366 [https://perma.cc/PTF8-XGT8] (nationwide, eighty-two
percent of black voters and forty-two percent of white voters
believe criminal justice system treats black people unfairly).
See generally Balko, Opinion, There's Overwhelming Evidence that
the Criminal-Justice System Is Racist. Here's the Proof, Wash.
Post, Sept. 18, 2018, https://www.washingtonpost.com/news/
opinions/wp/2018/09/18/theres-overwhelming-evidence-that-the-
criminal-justice-system-is-racist-heres-the-proof/
?utm_term=.7fc6ef33714f [https://perma.cc/BU4Z-8E37] (compiling
studies demonstrating racial bias in various aspects of criminal
justice system).
                                                                    9


questions than with the manner in which she responded.   The

judge noted that the juror "hesitated quite a bit" and "really

struggled with it."2   I infer from these findings that the judge

understood the juror's hesitation and struggle to reflect her

uncertainty whether she could decide the case based solely on

the evidence.   And because the judge was not assured that she

would be fair and impartial, he exercised his discretion to err

on the side of caution and excuse the juror for cause.   Cf.

Commonwealth v. Seguin, 421 Mass. 243, 246 (1995), cert. denied,

516 U.S. 1180 (1996) (judge properly "pursued the subject" where

prospective juror hesitated before answering question regarding

opinion on insanity defense).




     2 The court correctly asserts that a prospective juror's
hesitation in answering a question, or his or her apparent
struggle in answering it, means little if the question itself
asks the juror to do the impossible. See ante at note 9. But
the record does not clearly identify which question the judge
was referring to when he said that the prospective juror
"hesitated quite a bit" and "really struggled with it." The
court assumes, perhaps correctly, that the judge was referring
to his question, "But you're going to have to be able to put
that out of your mind and look at only the evidence. Do you
think you can do that?" The court then assumes that the judge
found that the prospective juror hesitated and struggled with
"whether she could put aside her world view." Id. Given the
compound nature of the judge's question, however, the judge
reasonably could have understood the prospective juror to be
hesitating and struggling with whether she could "look at only
the evidence." It is also possible that the judge, in
describing the prospective juror's hesitation and struggle, was
referring to her manner of response to an earlier question --
whether she thought her "belief might interfere with [her]
ability to be fair and impartial."
                                                                   10


    I might have exercised my discretion differently and denied

the prosecutor's motion to excuse this juror for cause, leaving

it to the prosecutor to use a peremptory challenge if she wanted

to remove the juror from the panel.    And I might have credited

the juror's assertion that she did not think her opinion of the

criminal justice system might interfere with her ability to be

fair and impartial, and that she believed she could decide the

case based solely on the evidence.    But I did not speak with

this prospective juror -- the trial judge did.    His evaluation

of the juror's demeanor and her confidence in her ability to be

fair is therefore entitled to great deference.   See Commonwealth

v. Stroyny, 435 Mass. 635, 639 (2002) ("Whether to accept the

declaration of a juror that he or she is disinterested lies

within the broad discretion of the trial judge").    See also

Mattier (No. 2), 474 Mass. at 274-275.    "An appellate court's

review of a trial judge's decision for abuse of discretion must

give great deference to the judge's exercise of discretion; it

is plainly not an abuse of discretion simply because a reviewing

court would have reached a different result."    L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

    Because judges' quick and often difficult decisions

concerning whether to excuse a juror for cause are entitled to

substantial deference, I am reluctant to find that a judge

abused his discretion where, as here, the judge made a good
                                                                   11


faith decision to excuse the juror because of concerns about her

ability to decide the case based solely on the facts and the

law.    I do not believe that such a decision satisfies the test

for an abuse of discretion articulated in L.L., 470 Mass. at 185

n.27:    that "a judge's discretionary decision constitutes an

abuse of discretion where we conclude the judge made a clear

error of judgment in weighing the factors relevant to the

decision . . . such that the decision falls outside the range of

reasonable alternatives" (quotation and citation omitted).

       Therefore, as much as I appreciate the concerns raised by

the defendant regarding the judge's manner of addressing the

prospective juror's opinion on racial biases in our criminal

justice system, I would decide the issue the court did not

decide and conclude that the judge's decision to excuse the

juror was not an abuse of discretion.    For these reasons, I

concur.
