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16-P-1470                                           Appeals Court

              COMMONWEALTH   vs.   DOMINICK R. ALVES.


                         No. 16-P-1470.

        Plymouth.    January 4, 2019. - November 20, 2019.

 Present:   Green, C.J., Vuono, Meade, Rubin, & Wolohojian, JJ.1


Constitutional Law, Jury. Jury and Jurors. Practice, Criminal,
     Jury and jurors, Voir dire. Evidence, Identification of
     inanimate object. Due Process of Law, Identification of
     inanimate object.



     Indictments found and returned in the Superior Court
Department on September 27, 2013.

    The cases were tried before Brian A. Davis, J.


     Patrick A. Michaud for the defendant.
     Laurie Yeshulas, Assistant District Attorney, for the
Commonwealth.




    1  This case was initially heard by a panel comprising
Justices Vuono, Meade, and Rubin. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Chief Justice
Green and Justice Wolohojian. See Sciaba Constr. Corp. v.
Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993) (explaining
procedure if majority of justices agree with dissent).
                                                                   2


     RUBIN, J.   Following a jury trial in the Superior Court,

the defendant, Dominick R. Alves, who is African-American, was

convicted in this racially charged criminal case of aggravated

assault and battery by means of a dangerous weapon (knife),

G. L. c. 265, § 15A (c) (i); two counts of assault and battery

by means of a dangerous weapon, G. L. c. 265, § 15A (b); and

possession of a class B controlled substance (cocaine), G. L.

c. 94C, § 34.2   He now appeals.

     The defendant's principal argument is that he was denied a

fair trial before a jury of his peers because the trial judge

improperly struck certain prospective jurors for cause.      We

agree; the judge's voir dire questions improperly excluded

jurors holding a specific belief with respect to racial

discrimination "born of the prospective juror's life

experiences," and who, as a consequence, might have been

particularly attentive to the racial dynamics of the case.

Commonwealth v. Williams, 481 Mass. 443, 449 (2019).   The

consequence was that the defendant was tried by an all-white

jury that did not contain a representative cross-section of the

community, and whose selection denied his right to an impartial

jury, in violation of art. 12 of the Massachusetts Declaration




     2 The defendant was found not guilty of assault with intent
to murder, G. L. c. 265, § 15. The Commonwealth entered a nolle
prosequi on one count of assault and battery.
                                                                       3


of Rights.   We therefore conclude that his convictions must be

reversed and the case remanded so that he may have a new trial

before a properly constituted jury.

    Background.      The events that led to the defendant's arrest

were as follows.     Based on the testimony at trial, the jury

could have found that the violence on the night in question

began at about 1 A.M., when someone from among a group of white

people who had been attending a graduation party, and who were

escorting Timothy Rounds, a friend of the defendant, away from

their party, punched Rounds in the mouth.     The defendant, who is

African-American, approached Rounds, who told the defendant he

was afraid of the group of white men.     The defendant took a few

steps toward the group and told them to leave Rounds alone.

    Three or four of the group, whom Rounds did not know,

responded by shouting racial epithets at the defendant, calling

him "nigger" and "nigger boy."    The defendant told Rounds to

run, which he did.

    Sometime later, someone who was identified as the defendant

punched one of the white men in the back of the head, and ran

into a crowd of over thirty people, many African-American.       The

adult son of the man who had been punched testified that he, the

son, ran into the crowd yelling, "Which one of you fucking

niggers hit my father?"
                                                                     4


       The son grabbed an individual identified as the defendant

and they began fighting.    The son was stabbed.   A friend of the

son, the stabbing victim, testified that, after he watched the

stabbing, he yelled, "Which one of you niggers just stabbed my

friend."   The friend also admitted that he might have posted on

the website Facebook the day after the incident, "Bet that

nigger is regretting it, too."    And, at the very end of his

testimony, he volunteered, completely unsolicited, the

following:   "Want to hear an old saying? . . .    They say,

'Niggers come in . . . all colors.'"

       After the stabbing, the stabbing victim's brother called

911 to report the altercation.    The brother testified that he

described the black individuals in the area, including both the

defendant and some who were helping his brother, the stabbing

victim, as "fucking niggers."

       A fourth witness, the initial punching victim, the father

of the stabbing victim, testified that he "could [have]" used

the word "nigger" during the altercation but did not think he

did.   Furthermore, another friend of the stabbing victim who was

a percipient witness testified that he "might [have]" used the

word "nigger" on the night in question, and had used it on other

occasions, "but not like in a racist way."

       Only two out of seven percipient witnesses (apart from

Rounds) did not make statements either suggesting that they had,
                                                                     5


or explicitly admitting to having, used the word "nigger" to

refer to members of the defendant's race.

    Voir dire.     Prior to jury empanelment the judge informed

counsel that he intended to ask, inter alia, the following three

questions of each juror in individual voir dire, in the

following order:    (1) "One or more of the persons who are

allegedly assaulted in this case are white, and the defendant is

black.   Do these facts in any way affect or impair your ability

to render a fair and just verdict with respect to some, or all

of the charges against the defendant?"; (2) "Would you be

influenced in any way by the defendant's race in reaching a

verdict in this case?"; and (3) "Would you be able to fairly and

impartially weigh the credibility of a witness who has shown to

have used a derogator[y] racial term?"    The judge, however,

ultimately did not ask most of the prospective jurors the third

question as he had framed.    He began questioning the prospective

jurors by asking them the questions as he had proposed, and

three jurors were seated.    When he asked the third question of

prospective juror no. 17, she responded, "What was the last

part?"   When the judge repeated the question, the juror paused,

and the judge sua sponte rephrased the question.    The following

colloquy ensued:

    The court: "I will rephrase it. Would the fact that a
    witness used a derogatory racial term -- is shown to
    have used a derogatory racial term, would that fact
                                                                  6


    affect in any way how you would view the credibility or
    the testimony of that witness?"

    Juror 17:    "Yes."

    The court:    "You think it would?"

    Juror 17:    "Yes."

    The court: "You think it would impair? How would it
    affect how you would view that witness?"

    Juror 17: "It would just prove to me that they thought,
    like, if it's a white person saying something against a
    black person, that they are somewhat racist."

    The court: "I see, and do you think that would affect
    how you would view whether the person was telling the
    truth?"

    Juror 17:    "Yeah."

    The court:    "You think it would?"

    Juror 17:    "Yeah."

    The court: "All right, ma'am. I am going to excuse
    you. Thank you very much for coming."

    As should be clear, the "rephrased" third question was a

different question entirely from the one initially proposed

by the judge.    It did not ask whether the fact that a witness

had used a racial slur would render the juror unable to be

fair or impartial.   Rather, as prospective juror no. 17

understood, it asked whether a witness's use of a racial slur

in the past would affect the juror's assessment of the
                                                                    7


witness's credibility when he was testifying against a member

of the racial group against whom he had spoken the slur.3

     After the colloquy with prospective juror no. 17, the

prosecutor requested that the judge continue to use this version

of the third question, and the judge responded, "I'll try to do

it that way going forward."   The judge used this new question or

some equivalent formulation for the rest of empanelment, never

returning to the question that asked prospective jurors whether

they could fairly and impartially evaluate the credibility of a

witness who used derogatory racial terms.

     The next juror excused for cause on the basis of this

question was prospective juror no. 21.   The judge asked this

prospective juror, "If you heard that one or more of the

witnesses in this case had used a derogatory racial comment or

term, how would that affect your view or your ability to weigh

the credibility, the truthfulness of the witness?"   After

clarifying the meaning of the question, the prospective juror

responded only, "Yes," and the judge excused her.

     Defense counsel objected, and pointed out that, of the

entire venire on the first day of empanelment, the excused




     3 Given our disposition, we need not determine whether the
question as initially phrased by the judge would have been
permissible.
                                                                    8


prospective juror was one of only two people of color.4    The

other prospective juror of color, prospective juror no. 37, was

also excused because of his response to the question.     In

response to the judge's question, prospective juror no. 37 said,

"Yes, it would. . . .   Because I'd feel they're being biased,

you know."   Defense counsel at this point objected to the

exclusion for cause and also moved to discharge the entire

venire.

     Over the course of the two-day empanelment process, a total

of eleven prospective jurors were excused for cause because they

gave some form of an affirmative response to this new version of

the third question, including the only identifiable people of

color who underwent voir dire.5   This included prospective juror

no. 24, whose response was, "Maybe, yeah," and prospective juror

no. 19, who stated only, "I might wonder if prejudice has played

into it."




     4  Defense counsel described for the record prospective
juror no. 21 as having "darker skin color," and prospective
juror no. 37 as "appear[ing] to be of Cape Verdean background."
The record contains no further information about the race of
each of those prospective jurors, and we accordingly refer to
them as being "of color."

     5 From the first day of empanelment, prospective juror nos.
17, 21, 23, 24, 28, 37, and 63; from the second day of
empanelment, prospective juror nos. 11, 19, 25, and 26.
                                                                    9


    Depending on all the facts and circumstances, in a case

like this it may be reasonable to conclude that a witness who

has used what "is widely regarded as the most hateful and

offensive" racial slur against African-Americans, see Thomas

O'Connor Constructors, Inc. v. Massachusetts Comm'n Against

Discrimination, 72 Mass. App. Ct. 549, 567 (2008) (Rubin, J.,

concurring in judgment and dissenting in part), is less credible

in his testimony against a black criminal defendant.    Indeed,

those prospective jurors who were given the chance to explain

their answers, such as prospective juror nos. 17 and 37, quite

reasonably explained the reasons why a witness's prior use of a

racial slur might affect their judgments of the witness's

credibility in testifying against a black defendant.    They were

not asked, and did not say, that they could not be fair or

impartial in assessing the witness's testimony.     They merely

described accurately why the prior use of a racist term might

have bearing on a witness's credibility in certain

circumstances.   Yet they were excused for cause.

    Other prospective jurors, such as prospective juror nos. 24

and 19, were given no opportunity to explain or elaborate on

their statements regarding their views of the credibility of

witnesses who had used derogatory racial terms.     They were

excused for cause simply for saying that a witness's prior use

of a racial slur might play a role in their assessment of the
                                                                  10


credibility of the witness when he or she was testifying against

a defendant about whose racial group he or she had used a

derogatory slur.

    Unsurprisingly, as a result of excusing prospective jurors

for cause if they responded affirmatively to the rephrased

question in this racially charged case, the only two jurors of

color identified during voir dire were excused, and this

defendant was tried before an all-white jury, none of whose

members who were asked thought that a person who had expressed

racist views might be less credible if he or she testified

against a black person.

    The recent case of Williams, 481 Mass. 443, makes clear

that considerations such as these are not appropriate bases on

which to exclude prospective jurors.   That case held that "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."   Id. at 451.    A judge

who excludes a prospective juror on this basis "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 be
                                                                     11


excused for cause only 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."    Id. at 452.

    This reasoning applies with full force to prospective

jurors whose life experiences lead them to believe that people

who have expressed racist views against members of the

defendant's race are less likely to be credible when testifying

against that defendant.    These prospective jurors are not

necessarily "unable to fairly evaluate the evidence presented

and properly apply the law."    Williams, 481 Mass. at 452.

    Indeed, we recently explained in the context of police

officer witnesses that it does not amount to bias when a

prospective juror has a rational reason to find one category of

witness more or less credible.     In Commonwealth v. Nelson, 91

Mass. App. Ct. 645 (2017), we held that a judge did not err by

seating a juror who admitted that he was "more inclined to

believe the testimony of a police officer over someone who is

not a police officer solely because that individual is a police

officer."   Id. at 646.    In Nelson, after the juror gave this

response, the trial judge subsequently asked him "whether he

would 'be able to listen to all of the facts and evidence in the

case before [he would] be able to render a fair verdict.'"        Id.

The juror responded affirmatively.    We held that the juror did
                                                                   12


not demonstrate bias and that he was qualified to serve.     See

id. at 650.    The same of course goes for prospective jurors who

are predisposed reasonably to negatively view the credibility of

certain classes of witnesses, such as those with criminal

records.    See Commonwealth v. Nickerson, 388 Mass. 246, 249

(1983) ("At trial, a juror may consider the record of conviction

of crime of a witness on the issue of that witness's

credibility").   That rule likewise applies to prospective jurors

who believe that witnesses who have used words of racial hatred

toward a defendant's racial group may be less likely to be

credible when testifying against that defendant.    "Individuals

are not expected to ignore as jurors what they know as men —- or

women."    Williams, 481 Mass. at 451, quoting J.E.B. v. Alabama

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

concurring).

    Article 12 of the Massachusetts Declaration of Rights

"mandate[s] that a jury be drawn from a fair and representative

cross section of the community."    Commonwealth v. Soares, 377

Mass. 461, 478 (1979).    "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."    Williams,

481 Mass. at 455.   As such, the fair cross section requirement

is an aspect of the right to a fair and impartial jury.     See

Taylor v. Louisiana, 419 U.S. 522, 530-531 (1975).     Of course
                                                                    13


there is no requirement "that each jury include constituents of

every group in the population."     Soares, supra at 481.   And, one

"reason why absolute proportionality cannot be guaranteed is the

proper provision for removal of any prospective juror, whether

of a discrete group or not," who is unable to be fair and

impartial.   Id. at 482.

     In this case, however, although we do not suggest the judge

asked the question in bad faith, the two people of color on the

jury venire who were brought up for individual voir dire were

removed not for an inability to be fair or impartial, but for

giving a reasonable answer to an improper question that could

only be reasonably understood to be asking whether a witness who

had engaged in racist speech might be less credible when

testifying against a member of the racial minority group he has

indicated he despises.     Because only people of color were

improperly excluded from the jury, the defendant was deprived of

the right to be tried by a jury representing a fair cross

section of the community in violation of the Massachusetts

Constitution and Declaration of Rights.6    So fundamental is the

right to trial by a jury composed of a fair cross section of the


     6 Actions by the court system can of course violate a
defendant's fair cross section right even if they are done
without discriminatory intent. See, e.g., Commonwealth v.
Tolentino, 422 Mass. 515, 524 (1996) (selection of jury
venires).
                                                                   14


community that, if there is no "fair cross section on the petit

jury," Soares, 377 Mass. at 483, the defendant is entitled to a

new trial without any need to show further prejudice.   See id.

at 492.   Thus, the defendant's conviction must be reversed, and

the case remanded for a new trial before a properly constituted

jury.

     The defendant's art. 12 right to an impartial jury was also

violated for another independent reason:   The jury were scrubbed

improperly of a group of jurors, representative of a substantial

segment of society, who might have been particularly sensitive

to the racial dynamics at play in the case, and whose absence

may have affected the jury's assessment of the credibility of

witnesses who expressed racist views toward people of the

defendant's race.7   Indeed, eleven of the twenty-nine prospective

jurors who were asked the "rephrased" question -– over one-third

of prospective jurors drawn from the venire who were asked -–

were struck by the judge solely for their answer.8   Treating the

beliefs of prospective jurors as "in themselves disqualifying"


     7 This of course is not to say that none of the seated
jurors could have had any sensitivity to the racial dynamics
involved in the case.

     8 The concurrence asserts that "[i]n most instances . . .
the determination of impartiality was made on the basis of
follow-up questions after a prospective juror responded
affirmatively to the question." Post at         . Without
belaboring the point, that is not the case with respect to these
eleven jurors.
                                                                  15


is impermissible when the disqualification of the prospective

jurors holding those beliefs would distort the composition of

the jury in a way that, because of the race of the defendant,

might affect the jury's judgment on an issue entrusted to them

–- in this case the credibility of certain witnesses.     Williams,

481 Mass. at 457, quoting Mason v. United States, 170 A.3d 182,

187 (D.C. 2017) (in case with African-American defendant,

improper exclusion of juror because of her belief that criminal

justice system is biased against African-American men did not

require reversal because judge did not treat such beliefs of

prospective jurors as "in themselves disqualifying").     See

Witherspoon v. Illinois, 391 U.S. 510, 522 (1968) (under Sixth

Amendment to United States Constitution, systematic exclusion of

"veniremen for cause simply because they voiced general

objections to the death penalty or expressed conscientious or

religious scruples against its infliction," where their views

would not prevent or substantially impair performance of their

duties as jurors in accordance with judge's instructions and

their oath, deprives defendant right to impartial jury); United

States v. Salamone, 800 F.2d 1216, 1226-1227 (3d Cir. 1986)

(conviction of defendant on firearms charges by jury from which

individuals were excluded solely on basis of membership in
                                                                  16


National Rifle Association violated principles of fundamental

fairness).9   This, too, requires reversal.10

     Identification of the defendant's shirt. In light of our

conclusion we need not reach the defendant's other arguments

save for one that relates to an issue that may recur on retrial.

One of the defenses at trial was misidentification.   The

defendant filed a motion in limine to preclude the introduction


     9 As these cases make clear, and contrary to the suggestion
in the concurrence, post at         n. 6, this aspect of the
right to an impartial jury does not fall within the rubric of
the "representative cross section of the community" requirement.
To the extent the concurrence reads our opinion to rest on the
possibility that this exclusion created a less racially
sensitive jury, it misperceives our argument. The problem with
the exclusion of this group of prospective jurors is that,
because of the question that led to the exclusion, it eliminated
prospective jurors, not shown to be partial, in a way that
skewed the composition of the jury with respect to how they
would judge an issue entrusted to them, the credibility of
certain witnesses.

     10The defendant did not object at trial, but, because this
case involves the systematic exclusion of an entire class of
jurors, not just a single juror, this is a structural error.
See Williams, 481 Mass. at 456-457 (distinguishing cases such as
this, in which error is structural). On direct appeal reversal
is therefore required without inquiry into prejudice, that is,
whether there was a substantial risk of a miscarriage of
justice. See Commonwealth v. Villanueva, 47 Mass. App. Ct. 905,
906 (1999). Cf. Commonwealth v. LaChance, 469 Mass. 854, 856-
860 (2014) (limiting this rule in context of collateral attack
on conviction claiming ineffective assistance of counsel for
failure to object to court room closure). If an examination of
the question were warranted, the defendant has certainly shown
prejudice. This is not a case like Williams where the
Commonwealth had sufficient additional peremptory challenges
left at the end of jury selection that could have been used on
the excluded jurors. Here, eleven jurors were excluded. The
Commonwealth had but two remaining peremptory challenges.
                                                                    17


of a witness's identification of a shirt, made on the basis of a

single photograph of the shirt that witness Detective Sergeant

Jacinto sent to witness Anthony Mallozzi's cell phone by text

message, as the shirt worn by the defendant during the melee.

The defendant alleged that the identification procedure was

impermissibly suggestive.    At a pretrial hearing, the defendant

also challenged the identification of the same shirt by a second

witness, Alex Tarr, to whom the shirt had been Tarr had been

shown at the police station.    Relying on Commonwealth v.

Simmons, 383 Mass. 46, 49-53 (1981), S.C., 392 Mass. 45, cert.

denied, 469 U.S. 861 (1984), the judge concluded that testimony

regarding the identification of the shirt was admissible, and

denied the motion in limine.    The defendant preserved his

objection.

    Appellate courts have recognized that, "in an extreme case,

the degree of suggestiveness of an identification procedure

concerning an inanimate object might rise to the level of a

denial of due process."     Simmons, 383 Mass. at 51.   See

Commonwealth v. Thomas, 476 Mass. 451, 466 (2017).      "Due process

may be denied by admitting in evidence an identification of an

inanimate object where, first, the police knew or reasonably

should have known that identification of the object effectively

would identify the defendant as the perpetrator of the crime and

where, second, the police needlessly and strongly suggested to
                                                                    18


the witness that the object was the object at issue."    Id. at

466-467.   See Commonwealth v. Spann, 383 Mass. 142, 148 (1981)

(extreme case of suggestiveness might involve improper

statements by police during identification procedure).       But,

although "the police should take reasonable steps to avoid

unnecessary suggestiveness in what will generally be a showup

procedure, that is, the showing of the object alone or a single

photograph of the object," Thomas, supra at 467, "it has never

been the case that identification of an object must be subject

to the same precautions given the identification of a person."

Simmons, supra at 51, quoting Commonwealth v. Carter, 271 Pa.

Super. 508, 516 (1979).

    The defendant contends on appeal that the actions of the

police in showing the shirt to Tarr and texting the single

photograph to Mallozzi, without giving any precautionary

warnings, were so unduly suggestive that they violated the

defendant's due process rights under art. 12.    "Where an

identification arises from a police procedure, we apply the

standard appropriate for review of a decision implicating

constitutional rights:    we review a judge's findings of fact to

determine whether they are clearly erroneous but review without

deference the judge's application of the law to the facts as

found."    Commonwealth v. Johnson, 473 Mass. 594, 602 (2016).

See Commonwealth v. Watson, 455 Mass. 246, 250 (2009).
                                                                     19


      We conclude the judge here did not err.11   To begin with, it

does not appear that identification of the shirt by Tarr was

even used to "identify the defendant as the perpetrator of the

crime."    Thomas, 476 Mass. at 467.   Tarr had already identified

the perpetrator of the crime as the defendant through a

photograph array before the defendant's shirt was shown to him.

In any event, in the arguments below, the defendant alleged only

that there had been with respect to each witness a one-shirt

"showup."    There was no evidence that Jacinto made any improper

statements to either witness, nor of anything else beyond the

mere fact of each witness being shown a single shirt, that might

have "strongly suggested" the shirt was the defendant's.     See

id.   On this record, we do not think the defendant has borne his

burden of demonstrating that this was an "extreme" case that

rose to the level of a violation of due process.

      Conclusion.   The judgments are reversed, the verdicts are

set aside, and the case is remanded to the trial court, where,




       The judge resolved the identification issue on
      11

constitutional grounds, and that is the focus of the defendant's
arguments on appeal. Accordingly, we do not consider whether
the witnesses' identifications of the shirt should have been
deemed inadmissible based on our common law of evidence. See
Thomas, 476 Mass. at 465-466.
                                                                  2


should the Commonwealth choose to retry the defendant, he shall

have a new trial before a properly constituted jury.12,13


                                    So ordered.




     12The defendant argues that there should be no retrial on
the charge of aggravated assault and battery by means of a
dangerous weapon because the evidence was insufficient to
support the verdict. He claims that the Commonwealth failed to
present any evidence to show that he stabbed the stabbing victim
in the back with a knife and, therefore, the jury's guilty
verdict on this charge was based on speculation. We disagree.
Although none of the witnesses saw a knife in the defendant's
hands, a jury can reasonably infer the use of a dangerous weapon
from testimony about an altercation and the nature of a victim's
wounds. See Commonwealth v. Liakos, 12 Mass. App. Ct. 57, 60-61
(1981). See also Commonwealth v. Roman, 43 Mass. App. Ct. 733,
736 (1997), S.C., 427 Mass. 1006 (1998). One witness who knew
the defendant testified that he saw him fighting with the
stabbing victim, that the victim landed on the ground and was
bleeding profusely, and that the defendant ran away. Another
witness testified that he saw the defendant punching the victim,
that the victim's back was to the defendant, that he saw the
victim fall, and that he heard the victim screaming that he had
been stabbed. Finally, the victim sustained serious stab wounds
to the base of his neck and his upper back, and he spent four
days in the hospital. This evidence, if believed by the jury,
was sufficient to support a verdict of guilt.

     13To the extent the defendant requests a change of venue,
we express no opinion on the matter, which should be decided in
the first instance in the trial court, should the Commonwealth
choose to retry the defendant and should he continue to seek
such a change.
     VUONO, J. (concurring, with whom Meade, J., joins).   The

defendant contends that he was denied a fair trial because the

individual voir dire question about the use of racist language

resulted in the removal of two prospective jurors of color.1

Both individuals, prospective juror no. 21 and prospective juror

no. 37, responded to the question by indicating that a witness's

use of a derogatory racial term could negatively affect their

view of the witness's credibility or truthfulness.   Thereafter,

they were excused for cause without further inquiry over the

defendant's objection.2   The defendant asserts that the judge


     1 As the majority observes, the record contains no
information about the race of these two prospective jurors other
than trial counsel's assessment of them. See Commonwealth v.
Prunty, 462 Mass. 295, 298 n.5 (2012).

     2 It bears noting that the defendant's objection was based
solely on the composition of the jury venire. He argued that
his rights under the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights were violated because the venire did not adequately
represent a fair cross section of the community in Plymouth
County. He did not claim, as he does on appeal, that the
dismissal of either prospective juror violated his right to be
tried by an impartial jury. After prospective juror no. 21 was
excused, the defendant orally moved to dismiss the venire and
strike the seated jurors. He renewed his motion after
prospective juror no. 37 was dismissed. The motions were denied
and the process of selecting a jury continued. The following
day, the defendant filed a written motion to strike the venire.
The motion was supported by an affidavit from counsel who
averred that, in his opinion, there were no African-Americans in
the jury pool. He also stated that the two potential "minority"
jurors had to be struck for cause. Following the hearing, the
judge concluded that the defendant had not met his burden of
establishing a prima facie case of jury underrepresentation and
                                                                     2


failed to question these two potential jurors thoroughly and, as

a result, could not assess whether either individual properly

could be seated on the jury.   I agree that the judge's voir dire

of these two individuals was incomplete and, therefore, the

dismissal of these two prospective jurors was an abuse of

discretion.   See Commonwealth v. Ruell, 459 Mass. 126, 136,

cert. denied, 565 U.S. 841 (2011).   In the circumstances

presented, this error entitles the defendant to a new trial.     I

write separately, however, for two reasons.   First, I do not

believe, as the majority maintains, that the question -- to

which there was no objection before or after it was modified --

was inherently flawed.   The problem here was not so much with

the question itself, but with the absence of sufficient follow-

up questions to determine whether a juror who responded

affirmatively to the question could nevertheless fairly evaluate

the evidence and apply the law as provided by the judge.

Second, I do not agree with the majority's conclusion that nine

additional prospective jurors were improperly removed for cause

on the basis of their responses to the question.

    1.   The voir dire questions.    Before trial commenced,

defense counsel and the prosecutor informed the judge that the



denied the motion. In light of my conclusion that the defendant
is entitled to a new trial, there is no need to address the
validity of the defendant's challenge to the venire.
                                                                     3


facts in this case were "racially charged."3   Both sides filed a

motion for the examination of jurors, setting forth proposed

questions to be asked during the individual voir dire portion of

the jury selection process for the purpose of exposing potential

racial bias.    Given the inflammatory and offensive comments made

by several witnesses, the judge appropriately was concerned

about such bias.   See Commonwealth v. Cruzado, 480 Mass. 275,

279 (2018).    After discussion, the judge informed the parties

that he intended to ask the following question:    "Would you be

able to fairly and impartially weigh the credibility of a

witness who has [been] shown to have used a derogator[y] racial

term?"   There were no objections to the language of this

question, which was carefully crafted to identify whether any

prospective jurors harbored a bias against persons who used

derogatory language toward African-Americans and, therefore,

could not be impartial.    See Commonwealth v. Prunty, 462 Mass.

295, 311 (2012) (potential jurors may be asked about race-




     3 The defendant waived his Miranda rights and was
interviewed by the police. He denied committing the stabbing,
but admitted that he had hit three people after "he was jumped
by [fifteen] white guys." The defendant's theory of the case
was that a melee erupted when he told a group of racist and
intoxicated partygoers to leave his friend alone, that he acted
in self-defense when he threw punches at several people, and
that the credibility of the victim and partygoers who testified
against him was undermined by their racial bias, as exhibited by
their use of hateful and offensive racial slurs.
                                                                     4


related bias).   This question was asked of the first fourteen

prospective jurors, three of whom were seated on the jury.

     Thereafter, as the majority explains, the question was

rephrased after one prospective juror asked for clarification.

Going forward, the judge asked the following question, with

slight variations:   "If you heard that one or more of the

witnesses in this case had used a derogatory racial comment or

term, how would that affect your view or your ability to weigh

the credibility, the truthfulness of that witness?"    As the

majority correctly observes, the modified question did not ask

whether the fact that a witness had used a racial slur would

render the juror unable to be fair and impartial.     As such, the

question was not an improvement, as the judge and the parties

clearly had intended.4   Instead, the question was inartful and,

in the absence of further inquiry, improper.   In most instances,

however, the determination of impartiality was made on the basis


     4 There is no doubt, in my view, that the judge's decision
to modify the question was made in good faith. As Chief Justice
Gants acknowledged in his concurring opinion in Commonwealth v.
Williams, 481 Mass. 443, 458 (2019), "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." I further note that the judge did
not have the benefit of the court's analysis in Williams, which
was decided after the trial in this case concluded.
                                                                     5


of follow-up questions after a prospective juror responded

affirmatively to the question.

    By way of example, in response to the modified question,

prospective juror no. 18 initially indicated that a witness's

use of a derogatory racial term "might affect" his view of the

witness's credibility.    The judge then asked a series of follow-

up questions, the answers to which satisfied the judge that the

prospective juror could be impartial.   There was no objection

and prospective juror no. 18 was seated on the jury.   Another

example of the efficacy of the question when the judge continued

the inquiry was the voir dire of prospective juror no. 19.      In

response to the question, prospective juror no. 19 told the

judge that she would view a witness who used a derogatory racial

term "as kind of a jerk," but not necessarily as less truthful.

During the course of the voir dire, she agreed with the judge

that she "would look at the entire package . . . of how the

person acted on the stand."    After being assured of her

impartiality, the judge seated prospective juror no. 19 on the

jury with no objection.   Yet another example is the voir dire of

prospective juror no. 14, who was seated on the jury during the

second day of empanelment.    She responded to the question as

follows:   "Well, the way I was brought up, I mean, I know that

language of how they say racism and whatever they call it and

everything, and I've never done that, never.   I just don't."
                                                                      6


The judge then probed further, asking the prospective juror to

explain how the use of a derogatory racial term would affect her

view of the witness's credibility.     The prospective juror

replied, "It's very hard to say.     I mean like I said, when I was

brought up that word was never used in my home."     The

prospective juror continued:   "And my father told me to respect

white, chinese, red, yellow, black and white."     Additional

questions were posed by the judge, including the following

question:   "We are looking for jurors who will come and sit on

this jury, listen carefully to the evidence and then decide the

case based solely on the evidence presented here at trial with

no preconceived notion, bias, prejudice, one way or the other,

decide it right down the middle based solely on the evidence and

the law that I will give to the jury in my instructions, and you

would have to follow the law regardless of whether you agree

with it or not.   Would you be able to do that?"    Prospective

juror no. 14 responded affirmatively, "Yes, I would," and

subsequently was seated on the jury.

    Clearly, with respect to prospective juror nos. 18 and 19

on the first day of empanelment and prospective juror no. 14 on

the second day of empanelment, the judge was in a position to

determine whether, despite the prospective jurors' natural and

understandable opinion about people who use racist language,

they could nevertheless be impartial jurors in this case.       My
                                                                   7


point is that the question itself did not exclude prospective

jurors who held a specific belief with respect to racial

discrimination.   Rather, it was the absence of further inquiry

in the case of some of the prospective jurors, most notably (and

unfortunately) with respect to the two prospective jurors of

color, that resulted in the risk that such jurors might be

excluded.

    2.   The nine additional prospective jurors excused for

cause.   The defendant argues, and the majority agrees, that

apart from prospective juror no. 21 and prospective juror no.

37, nine additional prospective jurors (nos. 17, 23, 24, 28, and

63 from the first day of empanelment, and nos. 11, 19, 25, and

26 from the second day of empanelment) were improperly excused

on the basis of their responses to either the original or the

modified question.   The defendant did not object when the judge

dismissed these potential jurors.   The absence of an objection

is not surprising; as I previously noted, in the majority of

instances the responses of these prospective jurors during

individual voir dire made clear that they could not be

impartial.   I also note that the defendant did not argue at

trial, nor does he claim on appeal, that these nine prospective

jurors should have been seated on the jury.   Nor does he claim

that these prospective jurors were replaced by others who were

not impartial.    Finally, I disagree with the majority's
                                                                   8


contention that, as a result of removing these potential jurors

for cause, the jury were "scrubbed" of prospective jurors "who

might have been particularly sensitive to the racial dynamics at

play in this case."   In fact, as noted above, several potential

jurors who expressed concerns and sensitivity about the use of

racially derogatory language were seated on the jury.5

     Certainly, there can be no doubt that a juror's reasonable

beliefs about people who use racial epithets should not be

automatically disqualifying.   See Williams, 481 Mass. at 448-449

("Where . . . a prospective juror has expressed an opinion or

world view 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


     5 I also disagree with the majority's position that these
nine prospective jurors comprised a "group of jurors" whose
exclusion "distort[ed] the composition of the jury" resulting in
a violation of the defendant's right to an impartial jury under
art. 12. As I understand the majority's view, they posit that
by excluding this "group" of prospective jurors who are racially
sensitive, the likelihood that the defendant's jury would be
drawn from a representative "substantial segment of society,"
i.e., a representative cross section of the community, was
reduced. The court addressed a similar argument in Williams,
481 Mass. at 457, and rejected it: "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, not excusing prospective jurors for
cause because the judge believes, after voir dire, that they
cannot be impartial" (citations omitted). In Williams, as here,
the prospective juror who was removed for cause did not belong
to a "particular, defined, group[] in the community." Id.,
quoting Soares, 377 Mass. at 486.
                                                                    9


whether, given that particular opinion, the juror nevertheless

is able to be impartial in the case to be tried").    Here,

however, none of these nine prospective jurors were dismissed

because they could not put aside their life experiences and

resulting world view.    They were excused, properly, after the

judge determined that they could not listen to the evidence and

apply the law.   The judge was much better positioned than we are

to evaluate a prospective juror's credibility and impartiality.

See Commonwealth v. Hunt, 462 Mass. 807, 821 (2012) ("We give

great deference to a judge's decision to excuse a prospective

juror for cause during empanelment, because a judge who has

spoken directly with the juror is better positioned than we are

to evaluate the juror's credibility and impartiality").       See

also Commonwealth v. McCoy, 456 Mass. 838, 843 (2010) (judge

entitled to rely on juror's demeanor and responses when

ascertaining bias).     Because I discern no abuse of discretion

regarding the dismissal of these nine additional prospective

jurors, I disagree with the majority that excusing them for

cause provides a basis to order a new trial.
