Commonwealth v. Kennedy

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SJC-12345

COMMONWEALTH vs. CHRISTOPHER J. KENNEDY.

Hampshire. October 3, 2017. - February 9, 2018.

Present (Sitting at Greenfield): Gants, C.J., Gaziano, Lowy,
Budd, & Kafker, JJ.

Indecent Assault and Battery. Indecent Exposure. Assault and
Battery. Mistake. Practice, Criminal, Instructions to
jury, Jury and jurors, Voir dire, Challenge to jurors.
Jury and Jurors. Evidence, First complaint.

Indictments found and returned in the Superior Court
Department on October 15, 2014.

The cases were tried before Daniel A. Ford, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Merritt Schnipper for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
The following submitted briefs for amici curiae:
David Rangaviz, Committee for Public Counsel Services, for
Committee for Public Counsel Services.
Thomas J. Carey for Kari Hong & others.
Wendy J. Murphy for Women's and Children's Advocacy Project
at New England Law|Boston.
 2

GAZIANO, J. A Superior Court jury convicted the defendant

of indecent assault and battery on a person over fourteen, G. L.

c. 265, § 13 H, assault and battery, G. L. c. 265, § 13 A (a),

and indecent exposure, G. L. c. 272, § 53. The charges stemmed

from an encounter between the victim, M.M., and the defendant, a

State trooper, who met on a dating Web site and exchanged

flirtatious messages. They arranged to meet in person for

coffee, and M.M. agreed to the defendant's suggestion that they

finish their conversation at her apartment. Once inside, the

defendant exposed himself to M.M. She immediately informed the

defendant that he had the wrong idea, and repeatedly told him,

"No." Despite M.M.'s requests to stop, the defendant advanced

toward her, grabbed her wrist, and forced her to touch his

penis. She told him, "No means no," and that he had to leave.

He then apologized and left the apartment.

At trial, the defendant requested a jury instruction on

mistake of fact, asserting that he honestly and reasonably had

believed that M.M. had consented to the contact leading to the

charges, and would not have been offended by his act of exposing

himself. The request was denied. The defendant appeals from

the denial and from the admission of what he asserted was

unnecessary first complaint evidence. We conclude that the

trial judge did not err in declining to give an instruction on

mistake of fact for either the charge of indecent assault and
 3

battery or the charge of indecent exposure. The judge also did

not err in allowing the admission of the challenged testimony.

This case also presents the issue of the extent to which a

judge has discretion to question prospective jurors following

attorney-conducted voir dire, and to rule on challenges for

cause. The defendant contends that the answers provided by the

prospective jurors when questioned by the judge were not

sufficient to address issues of bias raised during attorney-

conducted voir dire on the same topics, and that the judge erred

by refusing to excuse the jurors for cause. We conclude that

the judge did not abuse his discretion either in asking follow-

up questions or in his rulings that the jurors were impartial.

Accordingly, we affirm the defendant's convictions.1

1. Facts. The jury could have found the following. The

defendant first contacted M.M. on a dating Web site in June,

2014. Over the following week, the defendant and M.M. exchanged

messages through the Web site and via text messages on their

cellular telephones, with both of them sending multiple

flirtatious and explicit messages. They also spoke on the

telephone at least once. Early on in these exchanges, the

defendant told M.M. that he was a State trooper who was

1
We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services; Kari Hong, Brooke
Kootman, and Nicholas Dodson; and the Women's and Children's
Advocacy Project at New England Law|Boston.
 4

separated from his wife, but was still living in the same house

with her for financial reasons. M.M., who was separated from

her husband, said that his "situation," as he had portrayed it,

was not a "deal breaker" for her.

As the relationship progressed, M.M. became suspicious that

the defendant was trying to cheat on his wife, a suspicion that

he denied. They continued to send each other explicit messages

and to try to find a time at which they could meet in person.

Both said that they were working long hours and looking for

someone "to spend time with on a casual basis."

In July, 2014, the defendant offered to meet M.M. at a

coffee shop next to a gasoline station in Williamsburg on her

way home from work. M.M. told the defendant she could meet him

for a short period of time while getting gasoline, but that she

had promised to help her landlord with some work. M.M.

testified at trial that she did need to get gasoline, but she

had no plans with her landlord, and that she simply "wanted an

excuse to just cut it off" if she decided to leave. She wanted

an opportunity to meet the defendant face to face in order "to

see what the situation really was" with his wife.

While at the gasoline pumps, M.M. saw the defendant arrive

in uniform in a police cruiser and enter the coffee shop. She

moved her vehicle next to his and began a conversation with him

in the parking lot. M.M. and the defendant discussed their
 5

relationships with their spouses and otherwise had "a friendly

conversation" in which they "were shooting the breeze." M.M.

testified at trial that she felt comfortable with the defendant

and was not intimidated. They spoke for approximately ten

minutes and then M.M. said she had to leave. The defendant told

M.M. that he was enjoying their conversation and asked if he

could go back to her house with her to finish the coffee and the

conversation. M.M. agreed, and he followed her vehicle as she

drove home.

When M.M. and the defendant arrived at M.M.'s apartment,

three of her landlords' children were in the swimming pool.

M.M. asked the defendant to wait outside for a minute so that

she could put away laundry that was hanging up inside. M.M.

then told the defendant he could come in.

As the defendant walked into M.M.'s apartment, he started

walking toward her and unzipped his pants. He pulled out his

penis and said, "I want you to see what you're doing to me."

M.M. responded, "No. This isn't what I thought was going to

happen here," but the defendant continued to walk towards her

with his penis exposed. M.M. continued to say "no" and "no

means no" as the defendant reached for her wrist and forced her

to touch his penis. She tried to pull away, but her back was

against the kitchen counter. The defendant kissed M.M. until

she turned her head away. He then backed off, and M.M. said,
 6

"You need to fucking leave." The defendant zipped his pants,

apologized, and said that he would leave. On his way out, the

defendant asked M.M. if she was going to report him. The

defendant had been inside M.M.'s apartment for approximately

five minutes.

A few minutes after the defendant left, M.M. sent a text

message to a friend, J.D.,2 to tell her what had happened. She

then spoke to J.D. on the telephone and sent text messages to

several other friends. That night, M.M. telephoned both the

Worthington and Williamsburg police departments, and left voice

mail messages. The next morning, not having heard from either

police department, M.M. called 911.

The defendant sent M.M. a text message that afternoon,

asking how her day was going, but M.M. did not respond. At some

point that day, the defendant removed his profile from the

dating Web site. The defendant was arrested and charged with

indecent assault and battery, indecent exposure, and assault and

battery.

All of the messages between M.M. and the defendant were

introduced at trial through M.M.'s testimony.3 In addition, the

jury heard testimony from J.D. as a first complaint witness, and

2
A pseudonym.
3
The prosecutor presented M.M. with copies of the messages
while she was on the stand and she testified from those copies.
 7

testimony from State trooper Robin Whitney and Northampton

police Detective Michael Briggs concerning the investigation.

At the close of all the evidence, defense counsel requested

a jury instruction on mistake of fact for the charges of

indecent assault and battery and indecent exposure.4 The judge

declined to give the instructions. On the charge of indecent

assault and battery, he decided that the current state of the

law does not require that a defendant intend that the touching

4
The defendant proposed the following mistake of fact
instruction for indecent assault and battery:

"You must also consider whether a reasonable person in
[the defendant's] situation, considering all of the
circumstances, could have been reasonably mistaken about
whether [M.M.] consented to any touching that the
Commonwealth has proven beyond a reasonable doubt. Again,
because the Commonwealth always bears the burden of proof
of all elements of the offenses by proof beyond a
reasonable doubt, if after considering all of the evidence
you have a reasonable doubt as to whether a person in [the
defendant's] situation reasonably could have been mistaken
about whether [M.M.] consented to the touching at issue,
the defendant is entitled to the benefit of that reasonable
doubt and must be acquitted."

The defendant proposed the following instruction for the
charge of indecent exposure:

"If you find beyond a reasonable doubt the defendant
exposed his genitals, you should then consider whether a
reasonable person in [the defendant's] position,
considering all the circumstances, might have been mistaken
as to whether exposing his genitals would be offensive to
[M.M.]. Keep in mind that the burden of proof is always on
the Commonwealth, so the Commonwealth has to prove beyond a
reasonable doubt that a reasonable person in [the
defendant's] position, considering all of the
circumstances, could not have been mistaken as to whether
[M.M.] would find the exposure of his genitals offensive."
 8

be without consent and, therefore, a mistake of fact as to

consent was both irrelevant and not supported by the facts in

this case. The judge similarly ruled that giving the

instruction for the charge of indecent exposure would add an

element not otherwise required by current jurisprudence,

although he acknowledged that this court has not addressed the

issue of mistake of fact for indecent exposure. He observed

that the facts in this case may support a mistake of fact

defense for the charge of indecent exposure.

The defendant was convicted of all three offenses. He

appealed from his convictions, and we allowed his application

for direct appellate review.

2. Discussion. The defendant challenges his convictions

on three bases: (1) the jury should have been instructed on

mistake of fact for both indecent assault and battery and

indecent exposure where he reasonably believed that M.M. had

consented to the touching and would not be offended by his

exposure; (2) the judge should not have allowed first complaint

testimony from J.D. and "a related category of evidence" from

the investigating officers; and (3) the judge incorrectly

refused to dismiss for cause two members of the venire who had

indicated bias during attorney-conducted voir dire.

a. Mistake of fact instruction. Because the defendant

requested mistake of fact instructions for the indictments
 9

alleging indecent assault and battery and indecent exposure, and

objected to the judge's ruling, we review for prejudicial error.

Commonwealth v. Kelly, 470 Mass. 682, 687 (2015).

A mistake of fact instruction "is available where the

mistake negates the existence of a mental state essential to a

material element of the offense." Commonwealth v. Lopez, 433

Mass. 722, 725 (2001). See Commonwealth v. Liebenow, 470 Mass.

151, 161-162 (2014) (allowing mistake of fact instruction for

charge of larceny where defendant thought property was

abandoned); Commonwealth v. Kenney, 449 Mass. 840, 857 (2007)

(defendant may present evidence of honest mistake about age of

child depicted in pornographic material); Commonwealth v. Vives,

447 Mass. 537, 540-541 (2006) (defendant entitled to jury

instruction on defense of honest and reasonable belief that he

was collecting debt to refute element of intent to steal). See

also Lopez, supra at 725-726, quoting Model Penal Code

§ 2.04(1)(a) (1985) (ignorance or mistake of fact is defense "if

. . . the ignorance or mistake negatives the purpose, knowledge,

belief, recklessness or negligence required to establish a

material element of the offense").

In Lopez, 433 Mass. at 727-728, we held that a defendant

charged with rape is not entitled to raise a defense of an

honest and reasonable mistake as to the victim's consent, noting

that our rape statute, G. L. c. 265, § 22, does "not require
 10

proof of a defendant's knowledge of the victim's lack of consent

or intent to engage in nonconsensual intercourse." A defendant

need only intend to perform the act by force or threat of force.

Id. at 728-729. Because the Commonwealth is not required to

prove that a defendant intended the intercourse be without

consent, "a mistake of fact as to that consent cannot . . .

negate a mental state required for the commission of the

prohibited conduct." Id. at 728.

We further determined that requiring the Commonwealth to

prove that a defendant "compelled the victim's submission by use

of force; nonphysical, constructive force; or threat of force"

negates "any possible mistake as to consent." Id. at 729. In

so holding, we observed that a mistake of fact defense has the

potential to "eviscerate the long-standing rule in this

Commonwealth that victims need not use any force to resist an

attack." Id. A rape victim need not fend off attackers with

physical force "in order to communicate an unqualified lack of

consent to defeat any honest and reasonable belief as to

consent." Id.

Nonetheless, we concluded our analysis by acknowledging

that a mistake of fact defense as to consent might, in some

circumstances, be appropriate. Accordingly, we left open the

possibility of its use in "a future case where a defendant's
 11

claim of reasonable mistake of fact is at least arguably

supported by the evidence." Id. at 732.

Seven years later, in Commonwealth v. Blache, 450 Mass.

583, 594 (2008), we considered whether a defendant charged with

raping someone incapable of consenting to intercourse (due to

intoxication) was entitled to an instruction on mistake of fact.

Because the Commonwealth is not required to prove the use of

force beyond that necessary for penetration, "the possibility of

a defendant's reasonable mistake about the complainant's consent

could increase, creating the potential for injustice." Id. We

held that "in such a case the Commonwealth must prove that the

defendant knew or reasonably should have known that the

complainant's condition rendered her incapable of consenting to

the sexual act." Id.

i. Indecent assault and battery on a person over fourteen.

To prove indecent assault and battery on a person over fourteen,

the Commonwealth is required to establish that the defendant

committed "an intentional, unprivileged, and indecent touching

of the victim." Commonwealth v. Marzilli, 457 Mass. 64, 67

(2010), overruled on another grounds by Commonwealth v. Brie,

473 Mass. 754 (2016), quoting Commonwealth v. Mosby, 30 Mass.

App. Ct. 181, 184 (1991). The intent element is satisfied upon

proof that "the defendant intended -- had a conscious purpose

. . . -- to commit an indecent or offensive touching without
 12

[the victim's] consent" (citation omitted). Marzilli, supra.

See Commonwealth v. Burke, 390 Mass. 480, 482-484 (1983) (lack

of consent is element of indecent assault and battery where

victim is over age fourteen).

The defendant contends that sexual assaults involving an

adult victim, like indecent assault and battery on a person over

the age of fourteen, which do not require proof of the use of

force, and whose criminality depends on the victim's lack of

consent, are subject to a mistake of fact defense. In an

attempt to equate this case to the circumstances in Blache, he

argues, "The principles underlying this rule are as applicable

to cases like the defendant's which involve allegations of

brief, offensive touching and non-contact exposure, as they are

to cases involving an alleged victim's incapacity, since in both

situations the key question is what a defendant understood about

another's wishes in the absence of clear, objective indicia of

consent or non-consent."

The problem with this claim is not the defendant's legal

argument. Rather, it is that, here, M.M. did provide clear,

objective indicia of nonconsent. She said, "No." The

defendant, undeterred by M.M.'s statement of nonconsent,

persisted by moving closer to her as she continued to say "no."

At one point, M.M. even said, "No means no," and held her hands

up in the air in front of her. The defendant continued to
 13

advance toward her and backed her up against a kitchen counter

where she could no longer move away. He reached out and grabbed

her hand and pulled it toward his penis as she tried to pull her

hand away. M.M.'s indications of non-consent were abundantly

clear. A defendant who ignores a victim's clear and unambiguous

pleas to stop does not raise a legitimate claim of mistake of

fact as to consent.

The prior communications from M.M., regardless of their

flirtatious or sexually explicit content, were not sufficient to

support a mistake of fact instruction. "The law of rape is not

a part of the law of contracts. If on Friday you manifest

consent to have sex on Saturday, and on Saturday you change your

mind but the man forces you to have sex with him anyway, he

cannot use your Friday expression to interpose, to a charge of

rape, a defense of consent or of reasonable mistake as to

consent." Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir. 1995),

cert. denied, 516 U.S. 1041 (1996).

We continue to adhere to our decision in Lopez, and hold

open the possibility that a mistake of fact instruction may be

an appropriate and fair defense to charges of indecent assault

and battery on a person over fourteen. See Lopez, 433 Mass. at

732. On these facts, however, we agree with the judge that the

defendant was not entitled to an instruction on mistake of fact.
 14

ii. Indecent exposure. The crime of "[i]ndecent exposure

requires proof of an intentional act of lewd exposure, offensive

to one or more persons" (quotations and citation omitted).5

Commonwealth v. St. Louis, 473 Mass. 350, 364 (2015). "The

exposure of one's genitalia is a necessary element to indecent

exposure." Id. Offensive acts are those that cause

"displeasure, anger or resentment, and are repugnant to the

prevailing sense of what is decent or moral" (quotations and

citation omitted). Id. See Commonwealth v. Bishop, 296 Mass.

459, 460, 462 (1937) (evidence sufficient to support conviction

of indecent exposure where defendant was in his bedroom but

intentionally exposed himself to his neighbor by flashing mirror

to get her attention).6

5
The crime of indecent exposure is a misdemeanor punishable
by imprisonment in a house of correction for up to six months, a
fine, or both imprisonment and a fine. See G. L. c. 272, § 53.
The crime of open and gross lewdness and lascivious behavior, by
contrast, requires proof that a defendant intentionally exposed
him or herself in a manner designed to "shock" or "alarm" one or
more persons, and is a felony punishable by incarceration in a
State prison. See G. L. c. 272, § 16; Commonwealth v. Maguire,
476 Mass. 156, 158 (2017), citing Commonwealth v. Fitta, 391
Mass. 394, 396 (1984).
6
The judge instructed the jury in accordance with
Instruction 7.340 of the Criminal Model Jury Instructions for
Use in the District Court (2009). He stated, "To prove guilt on
this offense, the Commonwealth must prove three . . . essential
elements beyond a reasonable doubt. Number one, that the
defendant exposed his genitals to one or more persons, and in
this case [M.M.]; number two, that the defendant did so
intentionally; and number three, that the person to whom he
 15

To raise a defense of mistake of fact, the defendant would

have been required to demonstrate that his mistaken belief

negated the culpability required for conviction of the crime of

indecent exposure. See Lopez, 433 Mass. at 728. Here, the

Commonwealth bore the burden of proving that the defendant

intentionally exposed his genitalia to M.M. Commonwealth v.

Broadland, 315 Mass. 20, 21-22 (1943). See, e.g., Commonwealth

v. Swan, 73 Mass. App. Ct. 258, 261-262 (2008) (sufficient

evidence of defendant's intent to expose himself in public

school bathroom). The Commonwealth did not have to prove that

the defendant intended to offend M.M. Cf. St. Louis, 473 Mass.

at 364 (mens rea for crime of indecent exposure consists of

intentional exposure of genitalia). Thus, the defendant's

belief (whether reasonable or not) that M.M. would not be

offended by the display of his penis did not negate a mental

state required for commission of the crime of indecent exposure.

Moreover, in these circumstances, we discern no reason that

a mistake of fact instruction was necessary to prevent an

injustice. See Lopez, 433 Mass. at 728 (discussing necessity of

mistake of fact instruction in interests of justice). As

stated, M.M. reacted to the defendant's act of exposure by

informing him, "No, this isn't what I thought was going to

exposed himself was offended by the defendant's thus exposing
himself."
 16

happen here." She also told the defendant, "No means no." The

defendant ignored her statements and advanced toward her with

his penis exposed. Therefore, regardless of any possible

misunderstanding by the defendant of the circumstances when he

entered the apartment, M.M.'s subsequent negative reaction

vitiated any belief, whether reasonable or otherwise, that M.M.

was not offended by the defendant's act of exposure, and the

defendant continued his actions in the face of M.M.'s repeated

protests.

In sum, there was no error in the trial judge's decision to

deny the defendant's request for an instruction on mistake of

fact.

b. First complaint testimony. The defendant asserts that

the judge improperly allowed J.D.'s objected-to first complaint

testimony, because there was no need for the first complaint

testimony to rebut any possibility that the victim's delay in

reporting suggested that the crime had not in fact occurred.

The defendant argues also that Whitney and Briggs should not

have been allowed to testify as to the investigative process,

because their testimony in effect served as additional first

complaint testimony and unfairly buttressed the Commonwealth's

case.7

7
The defendant did not object at trial to the investigative
testimony by Whitney and Briggs, so we review that testimony for
 17

We clarified in Commonwealth v. Aviles, 461 Mass. 60, 73

(2011), that the standard of review for admission of first

complaint evidence is abuse of discretion.

i. Testimony by the victim's friend. The defendant argues

that the judge abused his discretion by not evaluating fully the

particular circumstances of this case in deciding whether to

allow admission of the evidence. As the defendant notes, our

modification of the first complaint doctrine in Commonwealth v.

King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216

(2005), acknowledged the risk of "unfairly enhanc[ing] a

complainant's credibility as well as prejudic[ing] the defendant

by repeating for the jury the often horrific details of an

alleged crime."

We addressed that risk, however, by limiting first

complaint testimony to one witness in order to prevent "piling

on," allowing defendants to cross-examine that witness and the

complainant, and encouraging judges "to curtail direct or cross-

examination to avoid any undue prejudice." Id. at 245.

Additionally, "[f]irst complaint testimony may be admitted for a

limited purpose only, to assist the jury in determining whether

to credit the complainant's testimony about the alleged sexual

a substantial risk of a miscarriage of justice. See
Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010).
 18

assault." Id. at 219. "The testimony may not be used to prove

the truth of the allegations." Id.

The first complaint doctrine is intended to accomplish two

goals: "to refute any false inference that silence is evidence

of a lack of credibility on the part of rape complainants," id.

at 243, and "to give the jury as complete a picture as possible

of how the accusation of sexual assault first arose," id. at

247. The defendant seeks to limit this doctrine in cases

involving an adult complainant to situations where the

complainant delayed reporting, which might tend to suggest

fabrication. Questions involving a complainant's credibility,

however, may be at issue even absent any delay in disclosure.

"There is a continued need in sexual assault cases to

counterbalance or address inaccurate assumptions regarding

stereotypes about delayed reporting of a sexual assault or about

sexual assault victims in general." Id. at 240.

M.M. sent a text message to J.D. shortly after the incident

with the defendant to tell her what had happened. J.D.'s

testimony about this text message is a textbook example of the

reasons for permitting first complaint testimony, and provided

the jury with a contemporaneous description of the victim's

reaction to the defendant's actions. The judge properly limited

J.D.'s friend's testimony, and did not permit her to discuss the

content of the telephone call she had with M.M. after having
 19

received the text message. In addition, he twice instructed the

jury on the limited purpose of J.D.'s testimony. There was no

abuse of discretion.

ii. Investigative testimony by Whitney and Briggs. There

also was no error in allowing the investigative testimony by

Whitney and Briggs. While the first complaint doctrine

prohibits "piling on" of additional complaint witnesses, "it

does not exclude testimony that 'is otherwise independently

admissible' and serves a purpose 'other than to repeat the fact

of a complaint and thereby corroborate the complainant's

accusations.'" See Commonwealth v. McCoy, 456 Mass. 838, 845

(2010), quoting Commonwealth v. Arana, 453 Mass. 214, 220-221,

229 (2009). But see Commonwealth v. Stuckich, 450 Mass. 449,

457 (2008) (fact that Commonwealth "brought resources to bear on

this incident creates the imprimatur of official belief in the

complainant" and may be prejudicial; jury do not "need to know

how the complaint of abuse evolved into the case before them").

Whitney testified that she met with M.M., reviewed the

messages sent between M.M. and the defendant, was present when

photographs of M.M.'s apartment were taken, applied for a search

warrant for the defendant's personal cellular telephone,

obtained surveillance video -- that was played for the jury

during Whitney's testimony -- of the in-person meeting between

M.M. and the defendant at the gasoline station, and was aware of
 20

subpoenaed information on the two accounts used by M.M. and the

defendant on the dating Web site. Briggs testified that he used

forensic software to acquire the contents of M.M.'s cellular

telephone, including text messages and call logs. He then

explained how to read the information on the resulting records.

None of the testimony of the officers reiterated M.M.'s

accusations or enhanced her credibility by suggesting that the

officers believed her. See McCoy, 456 Mass. at 851-852. The

testimony simply described how different exhibits were obtained.

Such testimony may have been repetitive, particularly because

the messages and photographs had been admitted in evidence.

While the first complaint doctrine exists to prevent the

appearance of buttressing a victim's allegations, here, the

testimony by the investigating officers was not a "piling on" of

first complaint evidence. See id. at 845. Contrast Stuckich,

450 Mass. at 456-457.

c. Jury empanelment. The defendant also challenges the

judge's refusal to excuse for cause two members of the venire

who, the defendant contends, had admitted to bias during

attorney-conducted voir dire. The judge ultimately denied the

defendant's request to excuse those two jurors for cause after

asking them follow-up questions to determine whether any

potential bias would affect their ability to be fair and

impartial in judging the defendant's guilt. The defendant used
 21

peremptory challenges to remove the two prospective jurors, and

then properly preserved for the record his inability to use an

additional peremptory challenge on a juror who had been seated

and then deliberated.

"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' . . . the correctness of the

judge's refusal to excuse the former juror for cause is

preserved for review" (citation omitted). Commonwealth v.

Clark, 446 Mass. 620, 629 (2006). "If the judge's refusal to

excuse the juror for cause is determined to be error, the

defendant is entitled to a new trial without a showing of

prejudice." Id.

The first juror, juror no. 27, originally indicated, in

response to the prosecutor's questions, that her ability to be

fair and impartial might be affected by the defendant having

worn his uniform at the time of the alleged crime. In response

to defense counsel's questions, she continued to suggest that

her judgment might be affected by that evidence, and also said

that she would be affected by evidence that the defendant was

married and seeking a sexual encounter with someone who was not

his wife. The judge then posed some additional questions to the

juror:
 22

The judge: "How would it [a]ffect you?"

The juror: "If he was married and an officer and he went
to have sexual relations with someone else or relations, I
don't agree with it."

The judge: "Whether you agree with it or not, would it
affect your ability as to whether he committed a crime?"

The juror: "No, no."

The judge: Well, that's the issue. The Commonwealth says
he committed a crime.

The juror: "Yeah."

The judge: "The issue is would the fact that he was
wearing a uniform and went to this place in a cruiser
affect your ability to judge whether or not he committed
the crime . . . when he got there."

The juror: "I guess not. I guess no."

The judge: "It would not?"

The juror: "No."

The judge found juror no. 27 indifferent and denied the

defendant's request to excuse her for cause.

The second challenged juror, juror no. 37, said that she

would not be affected by the defendant having worn a uniform or

having driven a police vehicle, so long as he was off duty, but

indicated that the defendant's being married might affect her

ability to be fair and impartial: "I have a very close girl

friend in that predicament right now. Her husband is cheating

on her, so I am empathetic to her and I am not sure I could
 23

separate that, hearing the case like this. . . . I don't know,

it may color how I hear the details."

The judge again asked clarifying questions:

The judge: "Do you think it would affect your ability to
judge whether or not the Commonwealth can prove him guilty
of committing a crime?"

The juror: "I would hope not. I would hope I could
separate the two."

The judge: "Well, that is the issue."

The juror: "Correct. Correct."

The judge: "If he was cheating on his wife, I think we all
can agree, that was not a good thing."

The juror: "Correct."

The judge: "But would that affect -- that fact, alone,
make you more likely to convict him?"

The juror: "No."

The judge: "Can you be fair to him, even though he may
have been cheating on his wife, in regard to these
charges?"

The juror: "I believe so."

The judge found juror no. 37 indifferent and denied a request to

excuse her for cause. The defendant argued that the judge's

follow-up questions were designed to provide answers "the court

wants." The judge explained, "It's not a matter of what the

court wants; it's a matter of getting to the point. The point

is whether [the juror] can be fair to the defendant and judge
 24

the case with an open mind, whether or not [the juror] think[s]

he was cheating on his wife."8

The defendant contends that attorney questioning had

uncovered "real indicia of bias from [j]urors [nos.] 27 and 37."

He argues that the judge's follow-up questions were inadequate

because the judge failed fully to explore the jurors'

conflicting responses on questions of potential bias. In the

defendant's view, the judge was required "[a]t a minimum . . .

to ask why each potential juror had changed answers depending on

the identity of her questioner." We do not agree.

A trial judge has considerable discretion in conducting the

process of jury selection. See Commonwealth v. Andrade, 468

Mass. 543, 547 (2014); Clark, 446 Mass. 629-630. It is the

judge's obligation to "examine jurors fully regarding possible

bias or prejudice where it appears that there is a substantial

risk that jurors may be influenced by factors extraneous to the

evidence presented to them" (quotations and citation omitted).

8
After attorney questions and his own follow-up questions,
the judge sua sponte excused nine prospective jurors he
determined likely would be unable to be fair and impartial. The
judge also allowed one of the Commonwealth's challenges for
cause when the prospective juror indicated that evidence that
M.M. and the defendant met through a dating Web site, and that
the defendant was cheating on his wife, might affect his ability
to be fair and impartial. After the jury had been seated, the
judge asked the entire panel "one more time" whether anyone
wanted to change his or her answer to any of the questions or
had "any issue or problem . . . relative to serving on [the]
case as fair and impartial jurors."
 25

See Commonwealth v. Perez, 460 Mass. 683, 688 (2011). Nothing

in the process of attorney-conducted voir dire restricts a

judge's exercise of his or her broad authority to ask

prospective jurors appropriate questions designed to determine

whether the juror is impartial. See G. L. c. 234A, §§ 67A-67D,

inserted by St. 2016, c. 36 § 4; Commonwealth v. Pytou Heang,

458 Mass. 827, 856, (2011), quoting Commonwealth v. Garuti, 454

Mass. 48, 52 (2009) (judge shall examine prospective jurors to

determine if extraneous issues impact ability to stand

indifferent); Rule 6(1) of the Rules of the Superior Court

(2017) (trial judge has discretion to determine procedure for

selection of impartial jurors).

We discern no error in the judge's inquiry in this case.

He was required to determine whether jurors nos. 27 and 37 were

capable of setting aside their own opinions, weighing the

evidence without considering extraneous issues, and following

his legal instructions. See Commonwealth v. Bryant, 447 Mass.

494, 501 (2006); Commonwealth v. Stroyny, 435 Mass. 635, 639

(2002). Juror no. 27 expressed concerns about the allegation

that the defendant committed a crime while in uniform and

driving a police cruiser, as well as concerns about the

defendant's infidelity. The judge asked the juror how the

extramarital affair would affect her. After clarifying that she

did not approve of the defendant's infidelity, the juror stated
 26

that those feelings would not affect her decision "on whether

the defendant had committed a crime." In response to the

judge's inquiry, juror no. 27 also stated that the defendant's

wearing a uniform and driving a police cruiser would not affect

her decision-making. Similarly, juror no. 37 told the attorneys

that she was bothered by allegations that the defendant was

cheating on his spouse. The judge asked more specific questions

about this subject, and that juror answered that evidence of the

defendant's infidelity would not prevent her from being a fair

juror.

We conclude that the judge did not abuse his discretion in

denying the challenges for cause. See Commonwealth v.

Lattimore, 396 Mass. 446, 450 n.6 (1985) (judge who observes

prospective juror is in best position to determine whether

follow-up questions are warranted). Jurors nos. 27 and 37

affirmatively stated, and demonstrated, to the judge's

satisfaction, an ability to set aside personal dislike of some

aspect of the defendant's actions, such as marital infidelity,

and impartially decide the case. See Commonwealth v. Ruell, 459

Mass. 126, 136, cert. denied, 565 U.S. 841 (2011) (judge vested

with broad discretion in deciding whether prospective juror is

impartial). Contrast Commonwealth v. Vann Long, 419 Mass. 798,

804 (1995) (error where juror never answered unequivocally that

he could put aside ethnic bias against defendant); Commonwealth
 27

v. Auguste, 414 Mass. 51, 57-58 (1992) (judge's inquiry failed

to ascertain whether juror would be impartial). We see no

reason to disturb the judge's determination.

Judgments affirmed.