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SJC-11957

                      COMMONWEALTH   vs.   DAISY OBI.



         Middlesex.     January 8, 2016. - September 21, 2016.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.1


Constitutional Law, Sentence. Practice, Criminal, Sentence,
     Probation, Challenge to jurors, Jury and jurors, Conduct of
     judge, Disqualification of judge. Jury and Jurors. Judge.



     Complaint received and sworn to in the Somerville Division
of the District Court Department on August 28, 2012.

     The case was tried before Paul M. Yee, Jr., J., and a
motion for resentencing was heard by him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Kimberly M. Peterson for the defendant.
     Mary F.P. O'Neill, Assistant District Attorney, for the
Commonwealth.




     1
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                    2


    LENK, J.   The defendant, a landlord, was convicted of

assault and battery after pushing a tenant who is Muslim down a

flight of stairs.   The defendant was sentenced to a term of

incarceration of two years in a house of correction, six months

to serve, with the balance suspended for a period of two years.

The judge imposed two special conditions of probation during the

period of suspension:   that the defendant provide a written

disclosure to prospective tenants that she had been convicted of

assaulting a tenant and had had several harassment prevention

orders issued against her; and that the defendant attend an

introductory class on Islam.   A single justice of the Appeals

Court stayed execution of the defendant's sentence pending this

appeal.

    The defendant contends that imposition of this length of a

period of incarceration, and the special conditions of

probation, would violate her constitutional rights under both

the Federal and State Constitutions.   She also asserts error in

a number of the judge's rulings at trial.   We conclude that the

judge did not abuse his discretion in imposing the sentence of

incarceration or in requiring the defendant to provide written

disclosure to prospective tenants as a condition of probation.

We do not address the defendant's constitutional objections to

being required to attend the class on Islam as a condition of

probation, which were not raised in the trial court.   We further
                                                                       3


conclude that the judge's other contested rulings were not

error.   Accordingly, we affirm.

    1.   Trial proceedings.    We recite the facts the jury could

have found, reserving certain details for later discussion.      The

defendant, a septuagenarian Christian minister, owns a three-

family apartment building in Somerville, where she lives on the

second floor.   At the time of trial, the defendant had been a

landlord for almost twenty years.   Gilhan Suliman, a Muslim

woman, leased the third-floor apartment from the defendant on a

short-term basis from April 1, 2012, through August 31, 2012;

she lived there with her husband and five children.

    The relationship between the defendant and Suliman soured

over the course of Suliman's short tenancy.    Suliman contacted

the defendant multiple times to complain that there was no

electricity or heat in her apartment.   The defendant, for her

part, complained that Suliman and her family were too noisy, and

that more people were living in Suliman's apartment than were

permitted under the terms of her lease, an allegation that

Suliman denied.   At one point, the defendant attempted to raise

Suliman's rent to compensate for Suliman's purportedly excessive

water usage.    In addition, the defendant served Suliman with a
                                                                      4


notice to quit, asserting that the additional occupants violated

the terms of Suliman's lease.2

     The animosity between the defendant and Suliman, however,

went beyond typical landlord-tenant issues.     According to

Suliman, the defendant also made disparaging remarks to Suliman

about her religious beliefs.     One night in May, 2012, the

defendant stood on the stairs outside of Suliman's apartment,

screaming about "how Muslims are, they should be burned in hell,

and how [the] prophet should be burned in hell."     On another

occasion, in June, 2012, after accusing Suliman's children of

throwing trash in the street, the defendant shouted that they

were "wicked kids" and "evil."    She added, "[B]ecause they are

Muslims . . . they will be delivered in hell."     Suliman reported

the latter incident to police.

     The confrontation that resulted in the defendant's

conviction in this case occurred on August 28, 2012, three days

before Suliman's lease was to terminate.     That morning, as

Suliman was walking up the stairs to the second floor of the

apartment building on the way up to her third-floor apartment,

the defendant accosted her.    The defendant was upset because she


     2
       The record indicates that Suliman had obtained a
harassment prevention order against the defendant before August
28, 2012. The record is silent, however, about the basis for
that order. The order was not admitted in evidence, but was
considered by the judge during sentencing.
                                                                     5


believed that Suliman had been ringing her doorbell.    According

to Suliman, however, construction workers, not she, had rung the

bell, in connection with work that they were doing in the

neighborhood.   The defendant shouted, "Get out of my house," and

pushed Suliman, who fell down approximately fifteen to twenty

stairs, hitting her face on a railing.   As a result of the fall,

Suliman cut her lip and tore a ligament in her shoulder.

Suliman immediately telephoned the police.    When a police

officer arrived at the scene, Suliman's lip was bleeding and she

appeared to be in pain.3   Both Suliman and her children were

crying.   The officer placed the defendant under arrest in

connection with the incident.

     2.   Procedural posture.   The defendant was charged with one

count of violating an abuse prevention order, in violation of

G. L. c. 209A, § 7, and one count of assault and battery, in

violation of G. L. c. 265, § 13A (a).    After a series of

pretrial hearings and a period of pretrial probation, a one-day

jury trial was conducted in the District Court on April 23,

2014, on the charge of assault and battery.    The Commonwealth



     3
       Suliman did not testify that she received medical
treatment for her injuries. During the sentencing proceeding,
however, Suliman stated that, since the August 28, 2012
incident, she has taken prescription medication for shoulder
pain and has participated in physical therapy.
                                                                    6


filed a nolle prosequi with respect to the charged violation of

an abuse prevention order.4

     The defendant's theory of the case was that Suliman was

"the tenant from Hell."   During her testimony, the defendant

denied that she had pushed Suliman down the stairs, and

maintained that she was in her apartment praying when police

knocked on her door and arrested her.   The defendant argued that

Suliman had maneuvered to have her arrested in order to stave

off being evicted for having too many people living in her

apartment.   In support of this view, the defendant emphasized

that Suliman repeatedly had called the police to complain about

the defendant, and that Suliman had filed a complaint with the

Massachusetts Commission Against Discrimination alleging that

the defendant had sought to evict her because of her religion.

The defendant denied ever shouting at Suliman or her children,

and denied that there were any issues with the hot water or

electricity in Suliman's apartment.

     The jury found the defendant guilty of assault and battery.

The judge requested a mental health evaluation in aid of

sentencing, and ultimately sentenced the defendant on

     4
       As filed, the complaint incorrectly charged that the
defendant had violated an abuse prevention order, not a
harassment prevention order. See note 2, supra. The judge
denied the Commonwealth's motion to amend the complaint to
correct the error, on the ground that the motion was first made
on the day of trial.
                                                                    7


June 2, 2014.    On June 3, 2014, the defendant sought

postconviction relief, filing a notice of appeal and a motion to

be resentenced by a different judge.    After a hearing on June

10, 2014, the trial judge denied the motion for resentencing.

On July 17, 2014, a single justice of the Appeals Court allowed

the defendant's motion for a stay of execution of sentence, and

directed the District Court to enter an order releasing her from

custody and relieving her from compliance with the conditions of

probation pending her appeal.    We transferred the case to this

court on our own motion.

    3.   Discussion.    The defendant argues that the trial judge

imposed an unconstitutional term of incarceration and

unconstitutional conditions of probation.    She contends also

that it was error for the judge to deny a peremptory challenge

that defense counsel made during empanelment and that it was

error for the judge not to recuse himself from her case.

    a.   Sentencing.    The judge heard additional information in

aid of sentencing that was not presented to the jury.    A mental

health evaluation indicated that the defendant did not have a

history of mental illness or aggressiveness requiring treatment

or medication.   The judge also learned, however, that several

other tenants had obtained harassment prevention orders against

the defendant, some of which were still in effect at the time of
                                                                      8


sentencing.5    Furthermore, Suliman stated that "[t]he emotional

and health impact of what [the defendant] had done to [her]

family will be felt for years to come."

     As noted, the judge sentenced the defendant to a term of

incarceration of two years in a house of correction, six months

to serve, with the balance suspended.     The conditions of

probation included the following.    The defendant was required to

provide "a written disclosure to every tenant that [the

defendant] rents property to," stating that the defendant "has

been convicted of assaulting a tenant in the past, and has had

several harassment prevention orders issued against her by the

Court in the past."    In addition, the defendant was required to

enroll in and attend an introductory class on Islam, and to

provide her probation officer with written documentation that

she had done so.    Moreover, the defendant was required to comply

with all Federal and State laws, including antidiscrimination

and housing laws.     During the sentencing hearing, the judge told

the defendant, "You have to respect the rights of people of the

Muslim faith.    You have to respect all people.   All right.

That's the message I'm sending out to you.     That is the message

that I'm sending out to the community.    All right.   Even you,



     5
       The basis for these harassment orders is not in the
record.
                                                                     9


wanting to be a person of God, have to [show] respect for all

people."

     1.    Term of incarceration.   The defendant argues that the

term of her incarceration is so disproportionate to her offense

that it violates the Eighth Amendment to the United States

Constitution and art. 26 of the Massachusetts Declaration of

Rights.    In the defendant's view, the sentence of two years in a

house of correction with six months to serve is

disproportionately harsh, because she was a seventy-one year old

woman with no criminal record at the time of her conviction, and

because Suliman suffered relatively minor injuries as a result

of the assault and battery.6   "A judge has considerable latitude

within the framework of the applicable statute to determine the

appropriate individualized sentence."     Commonwealth v. Goodwin,

414 Mass. 88, 92 (1993).    Although some sentences may "be so

disproportionate to the offense as to constitute cruel [or]

unusual punishment," Commonwealth v. Sanchez, 405 Mass. 369, 379

(1989), quoting Cepulonis v. Commonwealth, 384 Mass. 495, 496

& n.2 (1981), and cases cited, a sentenced defendant must meet

the "heavy burden" of showing that the sentence "shocks the

conscience and offends fundamental notions of human dignity"

     6
       The judge told the defendant during the sentencing hearing
that some portion of her punishment "has to be incarceration.
So that you can reflect on what you have done and what you will
be doing in the future, that this shall never happen again."
                                                                  10


(citations omitted).   Commonwealth v. Jackson, 369 Mass. 904,

910 (1976).

     The defendant has not met the burden of showing that her

sentence was disproportionate to the seriousness of the offense,

and certainly not so disproportionate as to be cruel or unusual

punishment.   During the sentencing hearing, Suliman explained

that the defendant's assault and battery has had a "deep

physical impact" on her, that she has been unable to sleep at

night, and that she does not trust people in the same way she

did before the incident.   She added that her children are now

afraid of going outside, and that her six year old son had

started wetting his bed.   Compare Commonwealth v. Sanchez, supra

at 379-380 (imposition of two consecutive life sentences and two

other concurrent life sentences for defendant was not

disproportionate given extent of psychological harm, stigma, and

lasting injuries suffered by victims).   The sentence was within

the maximum permitted by statute.   See G. L. c. 265, § 13A

(authorizing sentence of up to two and one-half years in house

of correction for conviction of assault and battery).7   Cf.

Commonwealth v. Tart, 408 Mass. 249, 267 (1990) (short sentence

of incarceration was not disproportionate to offense of fishing


     7
       The record indicates that the defendant could face adverse
immigration consequences as a result of her conviction and
sentence. This issue was not, however, raised on appeal.
                                                                     11


commercially without required permit).     Simply put, the

defendant's sentence does not "shock[] the conscience and

offend[] fundamental notions of human dignity" (citation

omitted).   Commonwealth v. Jackson, supra at 910.

    2.    Written disclosure as condition of probation.      The

defendant argues that the condition of probation requiring her

to disclose in writing to prospective tenants that she has been

convicted of assaulting a tenant in the past, and has had

harassment prevention orders issued against her, violates art. 1

of the Massachusetts Declaration of Rights.      A trial judge

generally may impose a term of probation "for such time and upon

such conditions as [the judge] deems proper."      G. L. c. 276,

§ 87.    "A probation condition is enforceable . . . so long as

the condition is 'reasonably related' to the goals of sentencing

and probation."    Commonwealth v. Lapointe, 435 Mass. 455, 459

(2001), citing Commonwealth v. Pike, 428 Mass. 393, 403 (1998).

"The principal goals of probation are rehabilitation of the

defendant and protection of the public."       Commonwealth v.

Lapointe, supra.   Other goals include "punishment, deterrence,

and retribution" (citation omitted).     Id.   The goals "are best

served if the conditions of probation are tailored to address

the particular characteristics of the defendant and the crime"

(citation omitted).    Id.
                                                                   12


     Although a judge "may place restrictions on probationers'

freedoms that would be unconstitutional if applied to the

general public," Commonwealth v. Pike, supra, such restrictions

are not without limits, and merit "special scrutiny."   United

States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975).

The more tenuous the relationship between a given condition and

the goals of probation, and the more extensively a

constitutional right is burdened, the less likely the condition

is to be permissible.   In Commonwealth v. Lapointe, supra at

457, 460, for example, we upheld a condition that prohibited a

probationer convicted of indecent assault and battery on his

daughter from living with most of his minor children, on the

basis that the condition substantially advanced the public

safety, rehabilitation, and deterrence goals of probation.

Although we recognized that the condition might restrict his

constitutional rights, including freedom of association, we

concluded that it struck "an appropriate balance between the

facts of [his] case and the goals of sentencing and probation."

Id. at 461.8   In Commonwealth v. Power, 420 Mass. 410, 412-413,

418 (1995), cert. denied, 516 U.S. 1042 (1996) (Power), we

similarly upheld a condition that prohibited a probationer who

     8
       Contrast Commonwealth v. Pike, 428 Mass. 393, 405 (1998)
(determining that condition of probation banishing probationer
from Massachusetts did not bear reasonable relationship to
permissible goals of probation).
                                                                       13


had been convicted of armed robbery of a bank, after spending

twenty-three years as a fugitive, from profiting from the story

of her crime.     The condition was deemed permissible in the

circumstances to deter the probationer and others similarly

situated from seeking to profit from criminality.        Id. at 418.

Although we recognized that the condition "implicate[d]" the

probationer's constitutional right to freedom of speech, we

concluded that it did not burden that right unduly, because the

probationer remained free to speak about her crime if she did

not benefit financially from doing so.     Id. at 415.

     Had the probationer in Power, supra, been prohibited from

speaking about her crime outright, however, we might well have

reached a different result.9    We previously have rejected a

condition of probation that subjected probationers to a "blanket

threat of warrantless searches," see Commonwealth v. LaFrance,

402 Mass. 789, 795 (1988), notwithstanding the fact that such a

condition might aid in the probationers' rehabilitation and help

to ensure their compliance with other conditions of probation.

Id. at 792-793.     The condition was determined to be simply too

restrictive of the probationer's rights under art. 14 of


     9
       See Commonwealth v. O'Brien, 86 Mass. App. Ct. 1124 (2014)
(decision pursuant to Appeals Court rule 1:28 vacating condition
of probation that prohibited probationer from making oral or
written communications about victim to the probationer's
family).
                                                                      14


Massachusetts Declaration of Rights.     Id. at 795.   Accordingly,

we consider the extent to which the contested condition of

probation advances the goals of probation, and the extent to

which it burdens a constitutional right.

     The defendant maintains that requiring the written

disclosure as a condition of probation violates her right under

art. 1 to "acquir[e], possess[] and protect[] property."        As we

noted in Power, supra at 418, however, some limitation on a

probationer's ability to make a profit is permissible where that

limitation substantially advances an enumerated probationary

goal.     The condition here substantially advances one such goal -

- public safety.     The record does not indicate what caused

tenants to seek harassment prevention orders against the

defendant, but the fact that several tenants have sought such

orders suggests that her behavior towards tenants is a recurring

problem.    Complying with the notice condition in this case

likely will affect the defendant's ability to earn the same

level of rental income from her property as she has been able to

previously.    To the extent that the condition is

constitutionally burdensome at all, however, it is not so

burdensome as to be invalid.10


     10
       The defendant also argues, incorrectly, that the
condition violates the criminal offender record information
statute, G. L. c. 6, § 172 (d), which makes it "unlawful to
                                                                   15


     Although courts have split on whether conditions of

probation seeking to shame the probationer by requiring him or

her to provide public notice of a conviction are

constitutionally permissible,11 that is not squarely at issue

here.     The condition imposed on the defendant in this case is

directed narrowly at ensuring that future tenants are aware of

the risk they take by agreeing to rent one of the defendant's

apartments.12

     3.     Class on Islam as condition of probation.   The

defendant additionally argues that requiring her to attend a

class on Islam as a condition of probation is unduly restrictive

of her rights under the establishment and free exercise clauses

of the First Amendment to the United States Constitution, and

the cognate provisions of the Massachusetts Declaration of


request or require a person to provide a copy of his criminal
offender record information" in certain circumstances.
"[C]riminal offender record information," however, is defined
only to include "records and data . . . compiled by a
Massachusetts criminal justice agency." See G. L. c. 6, § 167.
That information is distinct from the disclosure required here.
     11
       See Comment, The Ideology of Shame: An Analysis of First
Amendment and Eighth Amendment Challenges to Scarlet-Letter
Probation Conditions, 77 N.C. L. Rev. 783, 787-803 (1999)
(cataloging inconsistent treatment of "shame" conditions
considered by courts).
     12
       The judge explained, "There has to be a written
disclosure to every tenant that you rent property to. I cannot
take away your rental property, but any tenants or prospective
tenants that are renting need to know the type of person you
are."
                                                                    16


Rights.   While conditions of probation that touch on religion

and risk incursion upon constitutionally protected interests

should be imposed only with great circumspection, the defendant

raised no such concerns before the trial court judge, and there

is no information in the record that would allow us to evaluate

her claims.   Because she raises these claims for the first time

on appeal, they have been waived.     See Commonwealth v. Cowels,

470 Mass. 607, 617 (2015).

    4.    "Respect" as condition of probation.    The defendant

contends further that the judge should not have required as a

condition of her probation that she "respect the rights of

people of the Muslim faith," because that requirement was

impermissibly vague.   While "[t]he constitutional rule against

vague laws applies as equally to conditions of probation as it

does to legislative enactments," Power, supra at 421, in context

the judge's statement was clear.    "Respect" for Muslims was not

an independent condition of probation; the judge merely was

explaining his reasoning for requiring that the defendant comply

with all Federal and State laws, including antidiscrimination

and housing laws.   The requirement that the defendant obey

local, State, and Federal laws and court orders is a standard,

permissible condition of probation.    See Commonwealth v. Maggio,

414 Mass. 193, 194 (1993) (condition of probation requiring
                                                                 17


compliance with all existing laws is "essentially . . . imposed

on all defendants who are placed on probation").

    b.   Peremptory challenge.    During jury empanelment, defense

counsel used a peremptory challenge to remove from the panel a

prospective juror who was wearing a headscarf of the sort

commonly worn by Muslim women.    Although the juror did not

indicate her religious beliefs on her juror questionnaire, the

Commonwealth requested that the judge confirm defense counsel

had not exercised the peremptory challenge for a "religious

purpose."    The judge then asked defense counsel why he had

exercised the peremptory.    Defense counsel replied, "I don't

have any particular reason, just a gut feeling that she wouldn't

be sympathetic to my client, and I'm exercising my peremptory

based on that, Your Honor, nothing to do with her religion,

race, creed, or national origin."    The judge found that the

response was not a "sufficient answer" to overcome the

Commonwealth's objection, and sat the juror over the defendant's

objection.    As a result of a randomized process,13 the juror

later served as foreperson of the jury.

    The defendant argues that the judge's denial of her trial

counsel's peremptory challenge deprived her of her right to a

    13
       The judge's practice was to select as foreperson of the
jury the juror sitting closest to him. In this case, the juror
at issue was sitting closest to the judge after the only juror
sitting closer was chosen randomly as an alternate.
                                                                     18


fair and impartial jury.     She also contends, for the first time

on appeal, that there was insufficient evidence in the record

that the juror was Muslim, and that the judge should have

conducted an individual voir dire regarding the juror's

religion.   In addition, the defendant maintains that her trial

counsel incorrectly was required to articulate a credible reason

for his peremptory challenge.     These arguments are without

merit.

    Defendants have a right under the United States

Constitution and the Massachusetts Declaration of Rights to be

tried by an impartial jury.     Commonwealth v. Wood, 389 Mass.

552, 559 (1983).   "The right to use peremptory challenges,

however, is not absolute."     Commonwealth v. Prunty, 462 Mass.

295, 305 (2012) (Prunty).     Although "[w]e presume that

peremptory challenges are properly made," that presumption can

be rebutted by a prima facie showing that there is "a pattern of

challenges of members of the same discrete group" (citation

omitted).   Id. at 306.    The presumption can also be rebutted by

a prima facie showing that a challenge was made to "a single

prospective juror within a protected class, . . . where there is

a likelihood that [the prospective juror is] being excluded from

the jury solely on the basis of . . . group membership"

(citation and quotation omitted).     Id.   Discrete groups that are

protected include groups defined by potential jurors' sex, race,
                                                                    19


color, creed, or national origin.   See id. at 305 n.13, citing

Commonwealth v. Soares, 377 Mass. 461, 488-489 & n.33, cert.

denied 444 U.S. 881 (1979).   After a prima facie showing has

been made, the burden shifts to the challenging party to provide

"a neutral explanation establishing that the challenge is

unrelated to the prospective juror's group affiliation."

Prunty, supra at 306, quoting Commonwealth v. Harris, 409 Mass.

461, 464 (1991).   We review the denial of a peremptory challenge

for abuse of discretion.   See Prunty, supra at 304.

    Here, the Commonwealth objected to the defendant's exercise

of a peremptory challenge on the basis that the prospective

juror, like Suliman, was Muslim.    Although the defendant argues

on appeal that there was insufficient evidence that the juror

actually was Muslim, the judge observed that the juror's

headscarf was of a type traditionally worn by Muslim women, and

that no other prospective jurors appeared to be Muslim.     The

Commonwealth further pointed out that Suliman, who identified

herself as Muslim, wore a similar headscarf.    Accordingly, there

was a prima facie showing that defense counsel exercised a

peremptory challenge based on the prospective juror's religion.

See Commonwealth v. Issa, 466 Mass. 1, 9 (2013) (considering

percentage of group members excluded, and "whether the

challenged jurors are members of the same constitutionally

protected group as the defendant or the victim").    Given this,
                                                                  20


the burden shifted to the defendant to provide a group-neutral

explanation for the challenge.

    We defer to the judge's determination that the defendant's

burden was not met here.    In Prunty, supra at 307, 309-310 &

n.21, we deferred to a judge's conclusion that a proffered

reason for exercising a peremptory challenge of the only

African-American in the venire was a "mere sham," noting that

the judge "made clear findings as to both [the] adequacy and

[the] genuineness" of that reason.    Here, although defense

counsel stated that the challenge was not motivated by religious

considerations, his only other explanation for the challenge was

a "gut feeling" that the juror would not be sympathetic to the

defendant.    Like the judge in Prunty, supra at 309-310, the

judge in this case found clearly that that explanation was

inadequate.   We discern no abuse of discretion in the judge's

ruling.

    c.    Recusal.   During the posttrial hearing on the

defendant's motion for resentencing by a different judge, the

defendant argued that the trial judge relied on improper

considerations in his sentencing decision, including a dislike

of her that was based on the judge's interactions with her at

prior proceedings.    According to the record, the judge

previously had presided at a hearing with respect to a

harassment prevention order that Suliman had sought against the
                                                                   21


defendant.   In addition, the judge had presided over a civil

complaint that Suliman had filed against the defendant to

recover her security deposit.

    The judge rejected these arguments, noting that he was one

of three judges who regularly sat in the District Court in

Somerville, where the defendant's trial was held, and that "some

familiarity" with defendants passing through that court house

was to be expected.   He added, "In this particular case I didn't

see anything, when I searched my own mind, that I could not be

fair and impartial towards [the defendant] whether or not during

the trial or whether or not during sentencing."   On appeal, the

defendant argues for the first time that the trial judge should

have recused himself for the entirety of the trial.   In the

alternative, the defendant argues, as she did after sentencing,

that her motion for resentencing by a different judge should

have been allowed.

    Posttrial recusal motions, however, "are presumptively

untimely at least absent a showing of good cause for tardiness."

Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 547

(1998).   Although the defendant's trial counsel stated that he

was unaware of the judge's involvement in prior proceedings

against her, he was at least aware that those proceedings had

occurred; the Commonwealth attempted unsuccessfully to introduce

Suliman's harassment prevention order in evidence at the start
                                                                  22


of trial.   In addition, defense counsel cross-examined Suliman

regarding her civil complaint.   Accordingly, the defendant has

not shown good cause for waiting to raise this claim until after

her conviction.   See Anthony's Pier Four, Inc. v. HBC Assocs.,

411 Mass. 451, 464 (1991) ("The judicial process can hardly

tolerate the practice of a litigant with knowledge of

circumstances suggesting possible bias or prejudice holding

back, while calling upon the court for hopefully favorable

rulings, and then seeking recusal when they are not forthcoming"

[citation omitted]).

                                    Judgment affirmed.
