Commonwealth v. Cassino

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SJC-11684

COMMONWEALTH vs. ADAM CASSINO.

Suffolk. December 11, 2015. - April 8, 2016.

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

Homicide. Search and Seizure, Clothing, Warrant, Probable
cause. Constitutional Law, Search and seizure, Probable
cause. Probable Cause. Deoxyribonucleic Acid. Mental
Impairment. Jury and Jurors. Practice, Criminal, Capital
case, Motion to suppress, Instructions to jury, Voir dire,
Jury and jurors.

Indictment found and returned in the Superior Court
Department on November 15, 2011.

Pretrial motions to suppress evidence were heard by Charles
J. Hely, J., and the case was tried before Garry V. Inge, J.

Azi Safar for the defendant.
Zachary Hillman, Assistant District Attorney (Ian
Polumbaum, Assistant District Attorney, with him) for the
Commonwealth.

HINES, J. In August, 2011, a sixty-five year old woman was

found dead in her apartment in the South Boston section of

Boston. She was the victim of blunt force trauma caused by a
 2

baseball bat. The defendant, Adam Cassino, was indicted for the

crime and a jury convicted him of murder in the first degree on

theories of deliberate premeditation and extreme atrocity or

cruelty. On appeal, the defendant claims (1) error in the

denial of his three motions to suppress evidence stemming from a

claimed illegal search of his clothing and shoes that were

stored in a secured area while he was civilly committed pursuant

to G. L. c. 123, § 35; (2) error in the presentation of

deoxyribonucleic acid (DNA) results; (3) error in the failure to

give a diminished capacity instruction; and (4) abuse of

discretion in the judge's juror bias determination. We affirm

the order denying the defendant's motions to suppress as well as

the defendant's convictions, and we discern no basis to exercise

our authority pursuant to G. L. c. 278, § 33E.

1. Motion to suppress. a. Background. After the

discovery of the victim's body on August 27, 2011, the police

investigation soon focused on the defendant, the victim's

neighbor, as a possible suspect. The investigation led police

to the Massachusetts Alcohol and Substance Abuse Center (center)

where the defendant had resided since August 24, 2011, after

being civilly committed for drug treatment under G. L. c. 123,

§ 35. On August 29, 2011, two days after the discovery of the

body, two Boston police detectives went to the center to

interview the defendant. While there, the detectives viewed the
 3

defendant's clothing and shoes and observed reddish brown stains

on the shoes. On August 31, 2011, police applied for and

obtained a warrant seeking the authority to search and seize the

clothing and shoes. The affidavit submitted in support of the

warrant application referenced the reddish brown stains. Later

that same day, police seized the items from the center pursuant

to the warrant.

On September 8, 2011, police submitted applications for two

additional search warrants, one pertaining to the apartment

where the defendant stayed on August 23, 2011, the night before

he was apprehended for the G. L. c. 123, § 35, civil commitment

and the other for the defendant's primary residence. The

affidavits accompanying both applications cited the forensic

evidence obtained from the defendant's shoes, including that DNA

samples from the reddish brown stains matched the known DNA

profile of the victim.

The defendant filed three motions to suppress, claiming, on

State and Federal constitutional grounds, that the viewing of

his clothing and shoes at the center was an illegal, warrantless

search and that the three subsequent search warrants for the

shoes and the two residences, based on that illegal "search,"

lacked probable cause. As background for the analysis of this

issue, we summarize the relevant facts from the affidavit

submitted in support of the warrant application dated August 31,
 4

2011, and from the undisputed testimony adduced at the hearing

on the motion to suppress.

The last known contact with the victim occurred Monday

evening, August 22, 2011, and the last outgoing call from her

cellular telephone was the next afternoon. Police estimated

that the murder occurred sometime between Monday and Tuesday

evenings. During a search of the victim's apartment, police

seized an empty bottle of Clonazepam that was issued to the

victim on August 11, 2011, and initially contained ninety pills.

Police believed, based on witness interviews,1 that the victim

had been having ongoing problems with the defendant and that he

had stolen her prescription medication and other belongings in

the past. A neighbor reported that the defendant stole

prescription medicine from her that Monday. The defendant told

police that he met with the victim that Monday evening to

discuss buying pills. He stated that he would have purchased

some, but he did not have any money.

Blood on the victim's hands and nails indicated that she

struggled with, and possibly caused injury to, her attacker.

1
The affidavit does not state whether these interviews
occurred before or after detectives spoke with the defendant and
viewed his personal property at the Massachusetts Alcohol and
Substance Abuse Center (center) on August 29, 2011. The
Commonwealth may rely on evidence obtained before or after an
illegal search if it can show that the evidence was
independently obtained. Commonwealth v. Estabrook, 472 Mass.
852, 868 n.26 (2015).
 5

Moreover, the police asserted in the search warrant affidavit

that "the damage to the victim coupled by the amount of blood

throughout the scene showed an extreme force which would have

made it very difficult for any person involved, or even present,

to avoid a transfer of some blood evidence to either themselves

or their clothing or footwear."

The defendant's mother told police that the defendant was

taken into custody for civil commitment on a warrant of

apprehension on August 24, 2011, a process she started the day

before because of the defendant's substance abuse. The

defendant arrived at the center with injuries to his hand and

knee. The inner perimeter security commander for the center

testified that booking and admission procedures require that the

clothing and shoes of a person committed under G. L. c. 123,

§ 35, be taken and stored in a secure property storage area.

Property is returned to its owner after discharge, or it is

transferred to follow the owner to any future confinement.

On August 29, 2011, two Boston police detectives

interviewed the defendant at the center and requested to view

the defendant's personal property.2 A sergeant retrieved the

2
The Commonwealth contests the motion judge's finding that
the viewing occurred at the request of the detectives, asserting
a lack of evidence to support this finding. We are not
persuaded that the finding is clearly erroneous because the
affidavit supporting one of the September 8 warrant applications
 6

property from the storage facility, opened the bag containing

the defendant's clothing and shoes, and lifted the items out of

the bag so that the detectives could view the items. As noted,

reddish brown stains were visible on the defendant's shoes.

b. Discussion. "In reviewing a ruling on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error 'but conduct an independent review of [his]

ultimate findings and conclusions of law.'" Commonwealth v.

Craan, 469 Mass. 24, 26 (2014), quoting Commonwealth v. Scott,

440 Mass. 642, 646 (2004). We "make an independent

determination of the correctness of the judge's application of

constitutional principles." Commonwealth v. Woods, 466 Mass.

707, 717, cert. denied, 134 S. Ct. 2855 (2014), quoting

Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

The judge denied the defendant's motions, concluding that

the defendant had no reasonable expectation of privacy in the

clothing and shoes when the officers first observed them at the

center and that all three warrants were supported by probable

cause. On appeal, the defendant reprises his argument that the

viewing of his personal items was a warrantless search that

unlawfully infringed on his reasonable expectation of privacy

and tainted the three warrant applications.

stated that the detectives requested a view of the defendant's
property.
 7

"Warrantless searches are presumptively unreasonable, under

both the Fourth Amendment to the United States Constitution and

art. 14 of the Massachusetts Declaration of Rights, subject only

to 'a few specifically established and well-delineated

exceptions.'" Commonwealth v. Gouse, 461 Mass. 787, 792 (2012),

quoting Commonwealth v. Bostock, 450 Mass. 616, 624 (2008).

The defendant bears the "burden of showing that a warrantless

search or seizure occurred." Commonwealth v. Bly, 448 Mass.

473, 490 (2007), citing Commonwealth v. D'Onofrio, 396 Mass.

711, 714-715 (1986). "This question is analyzed under the

familiar two-part query whether [the defendant] had a subjective

expectation of privacy in the items seized, and if so, whether

that expectation was reasonable objectively." Bly, supra.

The defendant asserts that he had a subjective expectation

of privacy that society would deem reasonable because he

surrendered his personal property with the expectation the

property would be returned to him. He asserts that the storage

of his property in compliance with the center's policy created

an involuntary bailment and the sergeant exceeded his authority

by producing the items for viewing by detectives. The

Commonwealth counters that any expectation of privacy the

defendant may have had was not reasonable, analogizing to

Commonwealth v. Silva, 471 Mass. 610, 619-620 (2015), in which

we considered whether a pretrial detainee who was on notice of
 8

the facility's policy treating detainee and inmate clothing as

contraband has a constitutionally protectable privacy interest

in such clothing. We held that there was not, because any

expectation of privacy was not objectively reasonable under

those circumstances. Id. Our decision in Silva is not

dispositive, however, because the center had no policy treating

the defendant's property as contraband. The center's policy

specifically distinguishes between street clothes, shoes, and

contraband.3

Although the defendant's challenge to the search warrant

rests on the claim that the police viewing of his property was

an illegal search, we bypass the issue because the legality of

the search is not determinative of the propriety of the judge's

order denying the motion to suppress. The denial of the

defendant's motions to suppress was proper under the principle

that, "[e]ven though the exclusionary rule generally bars from

admission evidence 'obtained during an illegal search as fruit

of the poisonous tree, evidence initially discovered as a

3
Under the section titled, "Property for Commitments,"
which is applicable to the defendant's status as a person
civilly committed pursuant to G. L. c. 123, § 35, the policy
states, "When a commitment is admitted into the institution, his
street clothes (except shoes and/or contraband) will be
inventoried, laundered, boxed and stored in the Property Room."
The defendant in Commonwealth v. Silva, 471 Mass. 610, 615 n.14
(2015), signed an intake form stating that his personal property
would be treated as contraband. Conversely, the intake records
submitted in this case do not make any such reference.
 9

consequence of an unlawful search may be admissible if later

acquired independently by lawful means untainted by the initial

illegality.'" Commonwealth v. Estabrook, 472 Mass. 852, 865

(2015), quoting Commonwealth v. DeJesus, 439 Mass. 616, 624

(2003). Accordingly, the evidence deriving from the defendant's

shoes was admissible "as long as the affidavit in support of the

application for a search warrant contains information sufficient

to establish probable cause to [seize the defendant's shoes],

apart from the observation of the [reddish brown stains]."

Commonwealth v. Gray, 465 Mass. 330, 346, cert. denied, 134 S.

Ct. 628 (2013), quoting DeJesus, supra at 625. To establish

probable cause, "[a]n affidavit must contain sufficient

information for an issuing magistrate to determine that the

items sought are related to the criminal activity under

investigation, and that the items reasonably may be expected to

be located in the place to be searched at the time the search

warrant issues." Commonwealth v. Almonte, 465 Mass. 224, 233

(2013), quoting Commonwealth v. Wilson, 427 Mass. 336, 342

(1998).

The affidavit in support of the warrant to search and seize

the defendant's shoes included the following information. The

defendant previously had stolen prescription medication from the

victim. He admitted to being with her during the period when

the murder was estimated to have occurred. He told police that
 10

he wanted to buy her prescription medication at that time, but

he did not have the money. The defendant was apprehended for

civil commitment to treat substance abuse issues no more than

thirty-six hours after the murder was estimated to have

occurred. The crime scene indicated that the assailant likely

would have injuries and blood evidence on his or her clothing

and shoes. The defendant's clothing and shoes were stored at

the center. The affidavit also linked the defendant to the

victim during the estimated time of her murder, established a

conflict between the two, and created a reasonable inference

that the defendant may have brought some or all of the items he

was wearing at the time of the murder into the center. Thus, we

conclude that the affidavit supporting the August 31 warrant

application contained sufficient facts, traceable to sources

independent of the reddish brown stains observed on August 29,

to establish probable cause.

Because a valid search warrant would have issued regardless

of the inclusion of the reddish brown stains observed on the

defendant's shoes, there was an independent source for the

challenged evidence. See Gray, 465 Mass. at 347. On this

basis, we affirm the denial of the defendant's motion to
 11

suppress the shoes.4 The defendant's challenges to the other two

warrants are premised on the same argument. Although the

defendant claims that the September 8 warrants impermissibly

relied on evidence derived from the shoes, he does not argue

that they otherwise lack probable cause. Because we conclude

that the shoes were lawfully seized, and thus, evidence deriving

from them was properly included in the two affidavits dated

September 8, we do not address those warrants except to note our

agreement with the denial of the defendant's three motions to

suppress.

2. Trial. a. Background. We recite the facts as the

jury could have found them, reserving other facts for later

discussion. On Saturday, August 27, 2011, the body of the

victim was found by her daughter and the daughter's boy friend.

On Tuesday afternoon, August 23, the victim left a voicemail

message for her daughter. Because the daughter could not

contact her after that voicemail, she went to the victim's

apartment on Friday and Saturday to check on her. On Saturday,

4
We reject the defendant's argument that the independent
source doctrine is not appropriate in this case because there
was no mistake or inadvertence on the part of police. The
independent source doctrine balances the "interest of society in
deterring unlawful police conduct and the public interest in
having juries receive all probative evidence of a crime . . . by
putting the police in the same, not a worse, position [than]
they would have been in if no police error or misconduct had
occurred." Estabrook, 472 Mass. at 868 n.26, quoting
Commonwealth v. Frodyma, 393 Mass. 438, 443 (1984).
 12

the daughter's boy friend entered the apartment through a window

in the rear of the house leading to the victim's bedroom.

Once inside, he saw the apartment in disarray and with

blood in several areas. The victim's feet were sticking out

from under a blanket on the couch. He and the daughter

telephoned 911. They started cleaning up pipes used to smoke

"crack" cocaine and needles that were in the apartment, but then

realized it was a crime scene and placed those items on the

counter.

Boston police arrived to process the scene and canvass the

neighborhood for information. A criminalist observed that the

assault had occurred in the main living area and that the body

was later moved to the couch and covered with a blanket. The

victim had severe trauma to the head, and the police did not

find anything in the apartment that was consistent with being

the murder weapon. Police found an empty pill bottle that was

labeled as Clonazepan, filled on August 11, 2013, and has a

brand name of Klonopin. A v-neck T-shirt and gray cut-off

shorts, both wet, were collected from the bathroom.

The medical examiner who performed the autopsy determined

the cause of death to be blunt impact injuries to the victim's

head. He concluded that a cylindrical, round object such as a

baseball bat or pipe caused the injuries. The autopsy revealed

decomposition, which begins approximately thirty-six hours after
 13

death, and mummification, which begins four to five days after

death. From that information, he estimated that death occurred

more than thirty six hours before the body was found, by at

least "several days." The prosecutor argued that the defendant

murdered the victim between late afternoon Tuesday and Wednesday

morning.

The victim sold prescription Klonopin pills, sometimes

using the money to purchase "crack" cocaine. The defendant

lived across the street from the victim and had previously

purchased drugs from her. His mother testified that he had

relapsed into taking drugs approximately one week before the

victim's body was found. Although she said that he agreed to go

to a treatment facility for a "few" days, he would not agree to

a longer period. She threatened to have him civilly committed

for treatment several times. The defendant was accused of

stealing prescription pills from a different woman who lived in

the same building as the victim. Following the neighbor's

accusation, the defendant's mother kicked him out of the house

and, on Tuesday afternoon, went to court to have him committed.

The defendant was apprehended for commitment early on

Wednesday morning. Between the time that his mother kicked him

out of the house and when he was apprehended, he stayed at the

nearby house of his friend, Thomas Kinsella. Kinsella's house
 14

and the victim's apartment are connected by a staircase in the

rear of both buildings.

Kinsella and his sister, who was at Kinsella's house on

Tuesday with her young daughter, testified that defendant was

gone for approximately a three-hour period sometime after 2 or

3 P.M. Kinsella's sister testified that the defendant left the

house wearing a white T-shirt and black mesh shorts and returned

sweaty and wearing a black Boston team shirt and cargo shorts.

Kinsella and his sister both testified that defendant said he

had been helping a neighbor with yard work. The neighbor

testified that the defendant did not help him in the yard that

day.

After he returned, the defendant filled two plastic grocery

bags and placed them outside the door to Kinsella's apartment.

A neighbor testified that he saw the defendant's brother placing

a plastic store bag in a trash receptacle in front of a

convenience store, but he could not recall when that occurred.

The defendant's brother testified that he only used the trash

can for his family's home, not the one at the convenience store.

Kinsella and his sister went to bed at approximately

7:30 P.M. The defendant was at Kinsella's house when they went

to bed. Kinsella's sister woke up at approximately 6:30 A.M. on

Wednesday, and the defendant was in the living room with items

from a doughnut shop for her and her daughter.
 15

In addition to the seizure of the defendant's shoes

discussed supra, police seized a baseball bat from Kinsella's

home, which had one fingerprint on the grip and reddish brown

stains. Blood found on the grip, barrel, and butt of the bat

was consistent with the victim's DNA profile.5 Handler DNA taken

from the grip of the bat contained a mixture that was consistent

with three DNA profiles: the victim, the defendant, and

Kinsella.6 When testing for handler DNA, the analyst swipes an

entire area to determine if any nonvisible DNA may be collected

from locations where an item is typically handled. The tongue

of the defendant's right shoe and the sole of the left shoe

contained a mixture of DNA that was consistent with DNA profiles

for the victim and the defendant.7 Kinsella was excluded as a

possible contributor to the DNA found on the shoes.

5
An analyst testified that the statistical probability of a
match in the general population to the blood found on the bat
consistent with the victim's deoxyribonucleic acid (DNA) profile
was in the trillions to septillions.
6
The analyst testified that the statistical probability of
a match in the general population to the handler DNA found on
the grip of the bat consistent with the defendant's DNA was in
the millions and billions. No statistics were provided for the
handler DNA consistent with the victim or Kinsella.
7
The analyst testified that the statistical probability of
a match in the general population to the defendant's DNA found
on the sole of the left shoe was one in four Caucasians, one in
twenty African Americans, and one in five Southeastern
Hispanics. The analyst did not provide statistical
probabilities for a match in the general population to the
 16

The defendant, who did not testify or present witnesses,

argued through cross-examination and closing that lack of motive

and faulty police investigation created reasonable doubt. He

named Kinsella as the killer and argued that the defendant's DNA

was on the baseball bat because he took the bat from Kinsella's

niece the morning before he was committed and that Kinsella wore

his shoes to commit the murder.

b. DNA evidence. Relying on Commonwealth v. Mattei, 455

Mass. 840, 855 (2010), in which we held that nonexclusion DNA

results must be presented with statistics explaining the

significance of that evidence, the defendant challenges the

admission of evidence that the victim's blood was on his shoes

because the DNA test results were not provided with statistics.

Where the defendant did not object at trial and claims that

counsel was ineffective for failing to preserve the issue, we

review under G. L. c. 278, § 33E, "to determine whether any

defendant's DNA found on the tongue of the right shoe or the
victim's DNA found on either shoe. The parties agreed to enter
the DNA report by the Boston police crime laboratory in the
appellate record. The conclusions contained in the report
demonstrate that the statistical probability for a match in the
general population to the victim's DNA on the sole of the left
shoe is in the trillions and quintillions, and that the
statistical probability for a match in the general population to
the victim's DNA on the tongue of the right shoe is in the
millions and billions. The report also demonstrates that the
statistical probability for a match in the general population to
the defendant's DNA on the tongue of the right shoe is one in
8.1 million Caucasians, one in 1.5 billion African-Americans,
and one in 130,000 Southeastern Hispanics.
 17

substantial conduct or omission by counsel 'was likely to have

influenced the jury's conclusion.'" Commonwealth v. Montez, 450

Mass. 736, 754 (2008), quoting Commonwealth v. Wright, 411 Mass.

678, 682 (1992), S.C., 469 Mass. 447 (2014).

The defendant's argument is unavailing. The DNA report by

the Boston police crime laboratory was provided to the defendant

before trial. The report stated that the statistical likelihood

of a match in the general population to the victim's DNA profile

taken from the defendant's shoes was in the millions to

quintillions. Where the statistics in this case, if admitted,

would have demonstrated that the likelihood of another person

besides the victim leaving the DNA on the defendant's shoes was

less than one in one million, the evidence would have been

damaging to the defendant. Underlying our holding in Mattei was

the concern that nonexclusion DNA results without statistics

could mislead jurors into thinking that the results are

conclusive when the DNA could have been left by "half the people

in the world." Mattei, 455 Mass. at 852, quoting Commonwealth

v. Mattei, 72 Mass. App. Ct. 510, 522 (2008) (Rubin, J.,

dissenting). Such a concern is not applicable to the facts of

this case, where the statistics would have demonstrated the high

probability that the DNA on the defendant's shoes belonged to

the victim.
 18

c. Jury instruction on mental impairment. The defendant

argues that the judge committed reversible error by failing to

instruct the jury that they could consider evidence of the

defendant's consumption of drugs as it related to his ability to

act with extreme atrocity or cruelty or with deliberate

premeditation. If requested, a defendant is entitled to such an

instruction. See Commonwealth v. Doucette, 391 Mass. 443, 455

(1984), citing Commonwealth v. King, 374 Mass. 501, 508 (1978)

(premeditation), and Commonwealth v. Perry, 385 Mass. 639, 648-

649 (1982), S.C., 424 Mass. 1019 (1997) (extreme atrocity or

cruelty). Additionally, a judge must instruct the jury that

they could consider evidence of a defendant's mental impairment

on the question of extreme atrocity or cruelty where evidence of

such "mental impairment is significant and where it is a

critical aspect of [his] defense." Commonwealth v. Rutkowski,

459 Mass. 794, 799 (2011).

In this case, the defendant did not request such an

instruction or specifically object to its omission. The

defendant requested a manslaughter instruction, and the

Commonwealth objected, arguing that there was no specific

evidence of drug or alcohol use that had any effect on the

defendant's state of mind. The defendant asserted that the

relevant evidence was the Commonwealth's theory that the

defendant "was in such a state of withdrawal that he was willing
 19

and able and actually did . . . kill someone to get her

prescription bottle of Klonopin."8 The judge denied the

defendant's request, and the defendant objected. The defendant

concedes that this discussion was not sufficient to preserve the

issue, and we review to determine if any error created a

substantial likelihood of a miscarriage of justice.

Commonwealth v. Smith, 449 Mass. 12, 19 (2007), citing

Commonwealth v. Berry, 420 Mass. 95, 113 (1995).

The omission of a mental impairment instruction in this

case did not create a substantial likelihood of a miscarriage of

justice. First, mental impairment was not central to his

defense where the defendant argued that someone else was the

perpetrator. See Commonwealth v. Sanna, 424 Mass. 92, 102

(1997). Also, there was nothing close to "significant" evidence

of the defendant's mental impairment. Contrast Rutkowski, 459

Mass. at 798-799.

Several witnesses testified about the defendant's behavior

around the estimated time of the murder. The defendant's mother

and sister both testified that the defendant was "upset" on

8
Trial counsel argued that the "strongest" evidence of the
defendant's mental impairment was the judicial determination on
August 24, 2011, which occurred according to the Commonwealth's
theory between one and twenty-four hours after the murder, that
he was in a "state that was associated with drug intoxication
and/or withdrawal." The Commonwealth correctly asserted,
however, that the judicial finding that led to the commitment is
not in evidence.
 20

Monday and Tuesday afternoons because he had been kicked out of

the house. Kinsella testified that the defendant was upset on

Tuesday afternoon before the two- to three-hour period when he

was unaccounted for and that he returned "more relaxed."

Kinsella noted that the defendant had one and one-half Suboxone

pills (a medication to treat opiate dependency) when he

returned, but Kinsella had no knowledge about whether the

defendant took the pills. The police officers who apprehended

the defendant for commitment on Wednesday morning testified that

the defendant appeared "nervous" but cooperated after being told

that he was being committed, and he asked questions relevant to

the apprehension. Significantly, no witness noted that the

defendant appeared impaired or testified to any observations of

the defendant's consumption of drugs or alcohol.

Because any diminished capacity instruction would have been

of minimal significance considering the lack of evidence

demonstrating any mental impairment, we conclude that the

failure to give such an instruction did not create a substantial

likelihood of a miscarriage of justice.9 See Commonwealth v.

Rosado, 434 Mass. 197, 207, cert. denied, 534 U.S. 963 (2001).

9
Moreover, it appears that the jury did consider the
defendant's mental state in their deliberations. The foreperson
submitted the following question to the judge: "When [the
defendant] was admitted to the [center] what did his toxicology
report read?" The judge responded that the jury must reach a
 21

d. Juror bias. During the afternoon break on the third

day of trial testimony, an individual who had been watching the

trial approached defense counsel and told him that he overheard

two jurors discussing the trial during the morning break. The

judge conducted a voir dire, and the individual explained that

he was at the court for a civil case scheduled for 2 P.M. and

decided to sit in on this trial while he waited. He said he was

outside smoking during the morning break when he heard a female

juror telling a male juror that "the witness was not credible"

and the male respond, "nobody's paying attention to the case,

and he probably guilty already."10 After he heard the two

talking, the individual started eavesdropping by pretending that

he was looking at a statue. The individual told the judge that

he had been falsely accused of murder in the early 1990s, and

the conversation bothered him because he knew from his murder

trial that jurors were not supposed to talk to each other about

the case. The individual provided conflicting testimony about

the timing of his realization that the conversation was between

two jurors.

verdict based on the evidence before them and may not engage in
speculation.
10
Later in his voir dire testimony, the individual
attributed the statement, "he's probably guilty already," to the
female juror.
 22

The judge conducted a voir dire of the two jurors in

question. The female juror, in seat three, testified that she

did not remember speaking to anyone and did not remember making

any statements about a witness's credibility or the guilt of the

defendant. The juror said that she did not "really know all the

jurors so [she did not] speak to any of them" and did not know

"who the black male is with beige pants." Lastly, she told the

judge that she could say with confidence that she did not make

the statements attributed to her.

The judge then conducted a voir dire of the male juror in

seat nine. The juror testified that he did speak with the

female juror, and referred to her correctly by her first name,

but said that they were discussing a case in Florida that was in

the news at the time and did not discuss this case. The juror

stated that the only reference he may have made to this case was

to say that he was keeping a clear mind.

The judge discussed an option of making the female juror an

undisclosed alternate, but instead determined that the juror was

indifferent. He found the two jurors to be credible and the

individual to lack credibility, and he rejected defense

counsel's argument that the testimony by the two jurors was

contradictory. Neither juror was chosen as an alternate.

The defendant argues that the judge abused his discretion

in finding the female juror to be impartial. Because "[t]he
 23

determination of a juror's impartiality 'is essentially one of

credibility, and therefore largely one of demeanor,' . . . we

give a trial judge's determination of impartiality great

deference" (citations omitted). Commonwealth v. McCowen, 458

Mass. 461, 493 (2010). Accordingly, we review questions of

juror bias for "clear abuse of discretion or a showing that the

judge's findings were clearly erroneous." Commonwealth v.

Torres, 437 Mass. 460, 469 (2002), quoting Commonwealth v.

Amirault, 399 Mass. 617, 626 (1987), S.C., 404 Mass. 221 (1989).

Specifically, the defendant argues that the female juror

was intentionally dishonest and should have been excused. We

conclude that the judge did not abuse his discretion, as the

testimony of the two jurors was not necessarily contradictory.

Although the male juror testified that the two spoke, it is

possible that the female juror did not recall the conversation

because it was not concerning this case. Moreover, we cannot

say that the juror's statement that she did not know "who the

black male is with beige pants" was dishonest as even the court

officers first obtained the wrong juror based on that

description, and the individual had to correct them so that the

proper male juror was identified. Our review demonstrates that

the judge reasonably could have found the juror credible and,

therefore, did not abuse his discretion.
 24

3. Relief pursuant to G. L. c. 278, § 33E. We have

examined the record pursuant to our duty under G. L. c. 278,

§ 33E, and we discern no basis on which to grant the defendant

relief.

So ordered.