NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-145

COMMONWEALTH

vs.

BENJAMIN RAMIREZ-LOPEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted following a jury trial in 

District Court of assault and battery, in violation of G. L. 

c. 265, § 13A (a); furnishing false identification information 

to law enforcement, in violation of G. L. c. 268, § 34A; and 

unlicensed operation of a motor vehicle, in violation of G. L. 

c. 90, § 10. On appeal, he argues that the judge abused her

discretion in not excusing for cause a prospective juror who had 

worked years earlier with the student prosecutor on the case. 

We affirm.

Background. Before voir dire of the potential jurors 

commenced, the lead assistant district attorney introduced 

herself and her colleague, whom she identified as "another 

assistant district attorney." At the time, the colleague was a 

student prosecutor appearing under S.J.C. Rule 3:03 (1), as 
2

amended, 463 Mass. 1301 (2012), though that fact was not 

mentioned to the prospective jurors.

When the judge asked the venire whether they knew any of 

the lawyers or witnesses in the case, prospective juror number 3 

("juror no. 3") answered in the affirmative. At sidebar, juror

no. 3 identified the student prosecutor as the person he knew, 

and the judge asked how he knew him. Juror no. 3 stated that 

they worked together at the Big Y, a supermarket, four or five 

years prior to the trial. The judge twice asked juror no. 3 

whether this connection would impact his ability to be impartial 

or would result in an "unknown or unconscious bias towards the 

prosecution," and both times juror no. 3 responded that it would 

not. After the judge invited the parties to ask additional 

questions, defense counsel asked how long the two had worked 

together, and juror no. 3 answered approximately a year and a 

half to two years.

Defense counsel challenged juror no. 3 for cause, citing 

his "potential for bias" and "unconscious bias." The judge 

denied this challenge, stating that juror no. 3 said "he was 

going to be fair and impartial." Later, before exercising his 

peremptory challenges, defense counsel renewed his challenge to 

juror no. 3. The judge again declined to excuse the juror for 

cause, stating,
3

"I think he said he knew him in a very kind of happenstance 

way. They weren't close friends who, you know, were 

hanging out in each other's homes or socializing. I think 

they knew each other for a brief period of time many years 

ago. So, I don't think that's a for cause." 

The defendant then used his two allotted peremptory challenges 

to strike juror no. 3 and another venire member, prospective 

juror number 22 ("juror no. 22"). The next day, two additional 

jurors were seated without any challenges, and both parties 

stated that they were "content with this jury."

Discussion. At the outset, it does not appear that the 

judge's refusal to excuse juror no. 3 for cause was adequately 

preserved for our review. Such a decision is preserved when "a 

defendant uses a peremptory challenge to excuse a juror that the 

judge refused to excuse for cause and the defendant is later 

'forced to accept a juror whom he otherwise would have 

challenged peremptorily'" (citation omitted). Commonwealth v. 

Kennedy, 478 Mass. 804, 815 (2018). Here, after the judge 

denied the defendant's for-cause challenge to juror no. 3, the 

defendant exercised his two peremptory challenges to exclude 

juror no. 3 and juror no. 22. The record does not show that the 

defendant wished to exercise an additional peremptory challenge. 

At one point in the exchange on peremptory challenges, defense 

counsel referred to "the three that I have just mentioned," but 

he then listed prospective juror number 12 whom, the judge 

noted, had already been excused for cause. Because the 
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defendant "identifies no empanelled juror whom he would have 

replaced if he had retained additional peremptory challenges," 

he has not shown that he was "forced to accept a juror he would 

have peremptorily challenged" (citation omitted). Commonwealth

v. Bryant, 447 Mass. 494, 500 (2006).

Even if the issue had been preserved for review, we would 

conclude that the judge did not abuse her discretion by refusing 

to exclude juror no. 3 for cause. See Commonwealth v. Moore, 

489 Mass. 735, 755 (2022). "A trial judge is accorded 

considerable discretion in the jury selection process and [her] 

finding that a juror stands indifferent will not be disturbed 

except where juror prejudice is manifest." Commonwealth v. 

Clark, 446 Mass. 620, 629-630 (2006). Here, after juror no. 3 

indicated that he knew the student prosecutor, the judge 

established that they had worked together at the Big Y 

approximately four years prior. During this colloquy, the judge 

twice asked juror no. 3 whether this experience would impact his 

ability to be fair and impartial, and he twice responded that it 

would not. 

"[T]he mere fact that a juror knows a police officer or 

prosecutor, or is related to them, does not disqualify a juror 

from service or show any bias." Commonwealth v. Murphy, 59 

Mass. App. Ct. 571, 581 (2003); see also Commonwealth v. Duran, 

435 Mass. 97, 106-107 (2001). If a judge determines that a 
5

prospective juror's past relationship with a prosecutor will not 

affect his impartiality, it is not an abuse of discretion to

decline to excuse him for cause. See Commonwealth v. Amazeen, 

375 Mass. 73, 83 (1978).

While the defendant contends that the responses of juror 

no. 3 to the judge's questions (i.e., "I don't think so, no," 

and, "No, I think I'd be okay") were not unequivocal statements 

of impartiality, the trial judge was in the best position to 

determine –- and accept -– them to be credible assertions of 

impartiality. See Commonwealth v. Colton, 477 Mass. 1, 17 

(2017); Commonwealth v. Leahy, 445 Mass. 481, 495-496 & n.13 

(2005). A judge's finding of impartiality "will not be 

overturned on appeal unless the defendant makes a clear showing 

of abuse of discretion or that the finding was clearly 

erroneous." Commonwealth v. Emerson, 430 Mass. 378, 384 (1999); 

see also Commonwealth v. Ferguson, 425 Mass. 349, 352-353 

(1997). Here, juror no. 3's responses "mirror[ed] the syntax"

of the judge's questions about impartiality (e.g., "So do you 

think that may impact your ability to be fair and impartial here 

today?"), see Commonwealth v. Williams, 481 Mass. 443, 449 n.4 

(2019), and we discern no abuse of discretion in the judge's 

decision to credit them.

We acknowledge that the judge could have conducted a more 

detailed inquiry into juror no. 3's work relationship with the 
6

student prosecutor, and that the record does not fully support 

her remark later in the proceeding that juror no. 3 knew the 

student prosecutor "in a very kind of happenstance way" that did 

not involve "socializing." Nevertheless, the primary purpose of 

inquiries directed to prospective jurors is to "determine 

whether [they] will set aside their own opinions," impartially 

consider the evidence presented, and "follow the instructions of 

the judge." Commonwealth v. Stroyny, 435 Mass. 635, 639 (2002). 

Here, the judge determined the basic nature of the relationship 

between juror no. 3 and the student prosecutor, including how 

they knew each other and how long ago they had worked together, 

before turning to the key question of whether juror no. 3 could 

be fair and impartial. Significantly, when the judge invited 

the parties to ask their own questions of the prospective juror, 

defense counsel asked how long he had worked with the student 

prosecutor, but did not seek any further details about the 
7

relationship before challenging him for cause. The judge did 

not abuse her discretion in denying this challenge.

Judgments affirmed.

By the Court (Vuono, 

Wolohojian & Toone, JJ.1),

Assistant Clerk

Entered: March 11, 2024.

1 The panelists are listed in order of seniority.