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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. 

10 The 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, 

 

11 The judge resolved the identification issue on 

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.

 

12 The 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.

13 To 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 followup 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 followup 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.