Commonwealth v. Proia

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16-P-1191 Appeals Court

COMMONWEALTH vs. KAYLA M. PROIA.

No. 16-P-1191.

Barnstable. October 4, 2017. - March 2, 2018.

Present: Agnes, Sacks, & Lemire, JJ.

Controlled Substances. Practice, Criminal, Failure to make
objection, Waiver, Argument by prosecutor, Jury and jurors,
Empanelment of jury. Evidence, Prior misconduct,
Constructive possession. Jury and Jurors.

Complaint received and sworn to in the Barnstable Division
of the District Court Department on February 17, 2015.

The case was tried before Christopher D. Welch, J.

Kerry A. Haberlin for the defendant.
Elizabeth M. Carey, Assistant District Attorney, for the
Commonwealth.

AGNES, J. Following a jury trial, the defendant, Kayla

Proia, was convicted of one count of possession of a class A

substance. G. L. c. 94C, § 34. The defendant moved for a

required finding of not guilty pursuant to Mass.R.Crim.P. 25(a),

378 Mass. 896 (1979), at the close of all evidence. The
 2

defendant's motion was denied, and the case was submitted to the

jury. After the jury returned their guilty verdict, the

defendant again moved for a required finding of not guilty, both

orally and in a subsequent written motion, pursuant to

Mass.R.Crim.P. 25(b)(2), 378 Mass. 8962 (1979). The defendant's

motion for a required finding of not guilty was again denied.

On appeal, the defendant argues that testimony relating to

a prior search of her apartment was erroneously admitted at

trial. The defendant further argues that the Commonwealth

failed to present sufficient evidence to convict her of

possession of a class A substance. The defendant also claims

that the prosecutor made improper remarks in his closing

argument and that the judge did not remain impartial during the

jury empanelment process. For the reasons set forth below, we

affirm.

Background. The jury could have found the following facts.

1. January, 2015, search of the defendant's apartment. In

January, 2015, a search warrant (January warrant) was executed

at the defendant's apartment (January search or first search).

Although the January warrant is not included in the record on

appeal, it is inferable from the evidence concerning the second

warrant, discussed below, that Alan Carey1 was named in the

1
The status of the relationship between Carey and the
defendant is unclear. The defendant and Carey have children
 3

January warrant and was the target of the police investigation.

While conducting the January search, the police found

approximately seventeen grams of heroin on top of the

defendant's kitchen cabinets, as well as a scale. The defendant

was not arrested or charged with any crime stemming from the

January search of her apartment, although she was present in the

apartment for the duration of that search. Instead, the

defendant was advised by the police that "she shouldn't be

hanging around" Carey.2 Carey was subsequently arrested and

charged with drug-related offenses based on the discovery of the

heroin in the defendant's kitchen during the January search.

2. February, 2015, search of the defendant's apartment.

On February 13, 2015, the police again executed a search warrant

at the defendant's apartment. Carey was the target of the

search and his name appeared on the search warrant. The

defendant was not referenced in the warrant application, or the

warrant itself, and was not a target of the police

investigation.

together, but both parties testified that Carey does not live
with the defendant beyond occasionally spending the night in her
apartment. At trial, the defendant indicated that she and Carey
were no longer in a romantic relationship.
2
There is evidence in the record indicating that Carey was
banned from entering the defendant's apartment after the January
warrant had been executed.
 4

Upon arriving at the defendant's residence, the police

knocked on the door of the apartment and announced themselves.

The apartment was breached after no one answered the door.

After entering the defendant's apartment, the police found

Carey, along with a three month old child, in the defendant's

bedroom. After being read the Miranda rights, Carey stated that

the defendant resided at the apartment, and that although he is

not supposed to be there, he occasionally spent time at the

apartment. When questioned about whether there were any drugs

present in the apartment, Carey informed the police that "he had

drugs under [the defendant's] dresser." He then directed the

police to one of two dressers located in the room, under "which

nine little knotted clear plastic baggies [containing] a brown,

rock-like substance" were found. The police questioned Carey

about the contents of the baggies, with Carey replying that they

contained heroin.3 Police also located a box of clear sandwich

baggies in the living room of the apartment, a digital scale in

a container located in the kitchen of the apartment, and $226 in

cash located in a separate container in the kitchen.

The defendant was not in the apartment during the execution

of the February search warrant. Both the defendant and Carey

testified that, approximately one hour after letting Carey into

3
The parties stipulated prior to trial that the substance
found by police was heroin.
 5

the apartment, the defendant asked him to watch their infant

daughter while the defendant picked up their son from the bus

stop. The search of the defendant's apartment began while the

defendant was away from the residence picking up her son. Upon

returning to the apartment, the defendant was immediately

approached by police and placed under arrest. No drugs were

found on the defendant's person. The police informed the

defendant that drugs were found under her dresser and that Carey

said the drugs were his. The defendant responded by stating

that the drugs were not hers and that they belonged to Carey.

The defendant was subsequently charged with one count of

possession of a class A substance. G. L. c. 94C, § 34.4

Discussion. 1. Evidence of the first search of the

defendant's apartment. During trial, the Commonwealth sought to

introduce testimony relating to the January search of the

defendant's apartment. The defendant objected. At a sidebar

conversation following her objection, defense counsel stated,

"I'd object. I think it's terribly prejudicial, and has nothing

to do with the police [inaudible]."5 The judge admitted the

testimony after concluding that the testimony "goes to [the

4
Carey was also charged with drug-related offenses as a
result of the February search of the defendant's apartment.
5
It is the defendant's burden to reconstruct the record of
an inaudible sidebar if the information is relevant to her
claims. See Commonwealth v. Sargent, 449 Mass. 576, 582 n.10
(2007). The defendant did not seek to do so here.
 6

defendant's] state of mind." At the time the testimony was

proffered, the judge provided the jury with a limiting

instruction that confined the use of the testimony to the issue

of the defendant's knowledge. The defendant did not object to

the limiting instruction or request that any alternative or

additional instruction be given to the jury.

On appeal, the defendant argues that the judge erred in

allowing testimony concerning the January search of the

defendant's apartment in evidence on the basis that it was prior

bad act evidence and its probative value was outweighed by the

risk of unfair prejudice to the defendant. We disagree.

The defendant's objection was not sufficient to put the

judge on notice as to the nature of her objection beyond

challenging the evidence as not being relevant to the case

before the jury. "When objecting, counsel should state the

specific ground of the objection unless it is apparent from the

context." Commonwealth v. Marshall, 434 Mass. 358, 365 (2001),

overruled on other grounds by Commonwealth v. Santiago, 437

Mass. 620, 625-626 (2002), quoting from Liacos, Evidence

§ 3.8.3, at 85 (7th ed. 1999). See Mass. G. Evid. § 103(a)

(2017). By stating only that the testimony of the

Commonwealth's witness was "terribly prejudicial," the defendant

did not object with the precision required to preserve the error

on appeal, as she failed to delineate any specific evidentiary
 7

basis for the objection, and thus did not put the judge on

notice that she was objecting to the testimony on the basis that

it was prior bad act evidence.6 See Marshall, 434 Mass. at 365;

Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192 (2002).

The defendant's imprecise objection is of particular consequence

in this case because a more exacting evidentiary standard must

be applied by the trial judge when determining whether to admit

prior bad act evidence.7 See Commonwealth v. Crayton, 470 Mass.

228, 249 & n.27 (2014). The defendant's failure to preserve the

issue for appeal requires us to consider whether the complained-

of error created a substantial risk of a miscarriage of justice.

See Commonwealth v. Jackson, 419 Mass. 716, 719 (1995).

Prior bad act evidence "is inadmissible for the purpose of

demonstrating the defendant's bad character or propensity to

6
As stated above, the defendant did not object to the
judge's limiting instruction given at trial.
7
We take this opportunity to note the importance of placing
on the record a judge's weighing of the probative value and
prejudicial effect of evidence when a prior bad act objection is
raised. While we are able to infer from the conversation taking
place between the judge and the parties in the present case that
the judge considered both the probative value and prejudicial
effect of this evidence, it is helpful not only to this court,
but also to the parties at trial, for a judge's reasoning
concerning such evidentiary determinations to be clearly stated.
See, e.g., Commonwealth v. Dew, 443 Mass. 620, 628-629 (2005)
(sustaining objection on basis that evidence to be introduced
was irrelevant prior bad act evidence); Commonwealth v. Montez,
450 Mass. 736, 747 (2008) (overruling objection to prior bad act
evidence on basis that it was relevant to issues of motive and
intent, but not identity).
 8

commit the crimes charged." Crayton, 470 Mass. at 249. See

Mass. G. Evid. § 404(b)(1) (2017). However, if such evidence is

offered "for a purpose other than character or propensity, such

as to establish motive, opportunity, intent, preparation, plan,

knowledge, identity, or pattern of operation, the evidence is

admissible where its probative value is not outweighed by the

risk of unfair prejudice to the defendant." Commonwealth v.

Veiovis, 477 Mass. 472, 481-482 (2017). See Crayton, 470 Mass.

at 249; Mass. G. Evid. § 404(b)(2) (2017).

Here, the Commonwealth, proceeding on a theory that the

defendant constructively possessed the heroin found in her

bedroom, was required to prove, among other things, that the

defendant had knowledge of the drugs located under her dresser.

See, e.g., Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct.

677, 680 (2006). The testimony that the defendant was present

during a prior search of her apartment, which uncovered

seventeen grams of heroin, indicates that the defendant knew

Carey had stored drugs in her apartment, and thus supports an

inference that she had knowledge of the drugs located under her

dresser that she was charged with possessing. See Commonwealth

v. Mullane, 445 Mass. 702, 710 (2006) (evidence of prior

prostitution investigation admissible to show "defendant's

knowledge that illicit sexual activity was occurring at [the

defendant's place of business]").
 9

Additionally, the prejudicial effect of the testimony was

greatly reduced by the circumstances surrounding the first

search of the defendant's apartment. As was made clear through

the testimony of all witnesses at trial, Carey, who admitted to

being a heroin dealer at trial, was arrested after the first

search of the defendant's apartment, while the defendant was not

charged with any crime. Instead, the defendant was given advice

by a police detective on the scene, which highlighted the fact

that the defendant was not suspected of any wrongdoing at the

time of the first search of her apartment. Therefore, the

introduction of the testimony concerning the first search of the

apartment was, at best, minimally prejudicial to the defendant.

Any prejudice to the defendant was further mitigated by the

judge's strong, unobjected-to limiting instruction.8 "We

generally 'presume that a jury understand and follow limiting

8
The judge instructed the jury as follows: "Any time
uncharged conduct is testified to, the [d]etective is testifying
to prior to the date of uncharged conduct, that uncharged
conduct is not in any way involved in this case. In other
words, the [d]efendant is not charged with anything regarding
that particular incident. You may not consider that evidence as
any substantive or any proof in the case that we're hearing
today, which means the later search with the evidence that we've
heard already. The only issue that it really may go to, and
it's up to you whether it does because at the end of the day if
an issue goes to you, you decide it's [sic] value, is whether or
not it addresses any knowledge of any type of drugs on the
premises by the [d]efendant, and that's it. But it is not --
that is -- she's not charged so they're not considering any --
as the proof of the case that is actually before you."
 10

instructions, . . . and that the application of such

instructions ordinarily renders any potentially prejudicial

evidence harmless.'" Crayton, 470 Mass. at 251, quoting from

Commonwealth v. Donahue, 430 Mass. 710, 718 (2000). The judge's

limiting instruction, which was given immediately after the

testimony concerning the first search of the defendant's

apartment had been elicited, informed the jury that they could

consider the testimony only to infer the defendant's knowledge

of the heroin that she was charged with possessing, and that the

testimony was otherwise not in any way related to the

Commonwealth's case.

The judge's decision to admit the prior bad act evidence

did not constitute error.9

2. Sufficiency of the evidence. The defendant next argues

that insufficient evidence was presented to convict her beyond a

reasonable doubt of possession of a class A substance. G. L.

c. 94C, § 34. We disagree.

Because the defendant did not make a motion for a required

finding until the close of all evidence, we consider whether the

evidence presented during the entirety of the trial, when viewed

in the light most favorable to the Commonwealth, was "sufficient

9
We note that the testimony set forth at trial consisted of
a single act of uncharged criminal conduct. This is not an
instance where the prior bad act evidence overwhelmed the case.
Contrast Commonwealth v. Dwyer, 448 Mass. 122, 129-130 (2006).
 11

so that the [fact finder] might properly draw inferences, not

too remote in the ordinary course of events, or forbidden by any

rule of law, and conclude upon all the established circumstances

and warranted inferences that the guilt of the defendant was

proved beyond a reasonable doubt." Commonwealth v. Dustin, 476

Mass. 1003, 1004-1005 (2016), quoting from Commonwealth v.

McGovern, 397 Mass. 863, 868 (1986).

The Commonwealth proceeded on a theory that the defendant

constructively possessed the contraband found under her dresser.

In order to prove that a defendant constructively possessed

contraband, the evidence must be sufficient to permit the jury

to infer that the defendant had knowledge of the contraband, as

well as the ability and intention to exercise dominion and

control over it. Frongillo (No. 1), 66 Mass. App. Ct. at 680.

While "[p]roof of possession of a controlled substance may be

established by circumstantial evidence, and the inferences that

can be drawn therefrom," Commonwealth v. LaPerle, 19 Mass. App.

Ct. 424, 426 (1985), mere presence in an area where contraband

such as drugs are found will not support a finding of

constructive possession, Commonwealth v. Clarke, 44 Mass. App.

Ct. 502, 505 (1998). Likewise, the mere fact that a person has

the ability to exercise control over the premises where

contraband is found is not sufficient to support a finding of

constructive possession. Commonwealth v. Sespedes, 442 Mass.
 12

95, 101 (2004). "Living in a place where drugs are in plain

view and being sold, or associating with someone who controls

the contraband is not enough to prove constructive possession."

Commonwealth v. Boria, 440 Mass. 416, 418-419 (2003). Rather,

the Commonwealth has the burden of presenting evidence that

establishes a "particular link" between the defendant and the

contraband for the purposes of proving constructive possession.

Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 411 (2013).

Where contraband is found in a home or apartment, this may

be accomplished in one of two ways: by linking the defendant to

the contraband via "other incriminating evidence," Commonwealth

v. Brzezinski, 405 Mass. 401, 410 (1989), or by linking the

defendant to the particular area of the dwelling in which the

contraband was found, see Boria, 440 Mass. at 419-420. See also

Commonwealth v. Caraballo, 81 Mass. App. Ct. 536, 541-543

(2012). Accord Hamilton, 83 Mass. App. Ct. at 411.

a. Proximity plus other incriminating evidence. In some

cases, the particular location where contraband was found cannot

be linked to the defendant. This is often the case when the

contraband at issue is found in a common area of a shared

dwelling. See, e.g., Boria, 440 Mass. at 420-421; Commonwealth

v. Brown, 34 Mass. App. Ct. 222, 225-227 (1993). In such a

situation, a person's presence alone in an area where the

contraband was found will not support a finding of constructive
 13

possession. Commonwealth v. Gonzalez, 452 Mass. 142, 147

(2008). See Boria, 440 Mass. at 418-419. Rather, "presence,

supplemented by other incriminating evidence, will serve to tip

the scale in favor of sufficiency." Brzezinski, 405 Mass. at

410, quoting from Commonwealth v. Albano, 373 Mass. 132, 134

(1977). See Boria, 440 Mass. at 420-421 (concluding that

"particular relationship" analysis was inapplicable where

contraband was found in common area of apartment and holding

that mere presence of defendant in common area was insufficient

to allow for inference of constructive possession); Commonwealth

v. Booker, 31 Mass. App. Ct. 435, 437-438 (1991) (evidence that

defendant shared apartment with another and was not present when

drugs were found in common area was not sufficient to support

finding of constructive possession); Brown, 34 Mass. App. Ct. at

225-227 (evidence that defendant lived with others in apartment

from which drugs were being sold, absent any evidence of drugs

or cash found on her person or in her belongings, including

bedroom she occupied, was not sufficient to permit inference

that she constructively possessed drugs). We require other

incriminating evidence linking the defendant to the contraband

to be introduced at trial based on "the peril . . . that the

[constructive possession] doctrine may be used in narcotics

prosecutions as support for preexisting suspicions rather than
 14

as an abstraction fostering fair analysis." Commonwealth v.

Gonzalez, 42 Mass. App. Ct. 235, 238 (1997).

b. Particular relationship between the defendant and the

location of contraband. Alternatively, in other cases, the jury

may infer constructive possession upon a showing that the

defendant occupied a particular area of the dwelling in which

the contraband was found. This concept is best illustrated by

this court's opinion in Clarke, 44 Mass. App. Ct. 502. In

Clarke, the police found in the rear bedroom of the apartment:

a plastic bag containing "crack" cocaine concealed in a shoe

stored in the bedroom closet; three guns, one under a mattress

and two in a brown paper bag; and $840 in cash and small red

plastic bags on top of a dresser that also contained the

defendant's Social Security card and birth certificate. Id. at

504. When the police initially entered the apartment, the

defendant and another male were observed running from the rear

bedroom to the kitchen. Ibid. After the defendant and the

other male were placed under arrest,10 the police allowed the

shirtless defendant to retrieve a shirt prior to being

transported to the police station, and he did so by accessing

the rear bedroom. Ibid. The police also searched the front

bedroom of the apartment at that time and discovered a sawed-off

10
Two other men were in the living room of the apartment
during the execution of the warrant, but neither was arrested at
that time. Clarke, 44 Mass. App. Ct. at 504.
 15

shotgun under the bed. Ibid. The defendant was charged with

possessing the items found in both the front and rear bedrooms

of the apartment. Id. at 503.

The defendant argued that there was insufficient evidence

to convict him of possessing the drugs and weapons found in the

rear bedroom, as well as the shotgun found in the front bedroom.

Id. at 504-505. This court held that sufficient evidence had

been presented to convict the defendant of possessing the items

located in the rear bedroom because "the jury could reasonably

have inferred that the defendant occupied the rear bedroom and

was, indeed, in constructive possession of the contraband

discovered therein." Id. at 506. However, we went on to

conclude that there was insufficient evidence presented to prove

that the defendant constructively possessed the shotgun located

in the front bedroom of the apartment because "there was no

evidence linking the defendant or any of his possessions to the

front bedroom," and "the items found in the front bedroom tended

to show that someone other than the defendant occupied that

room." Id. at 506-507.

As Clarke demonstrates, upon a showing that the defendant

has a "particular relationship" to the location within a home or

apartment in which the contraband is found, the defendant is

adequately linked to that contraband, and the jury may

reasonably infer that the defendant had knowledge of the
 16

contraband, as well as the ability and intention to exercise

dominion and control over it. Id. at 506, citing Commonwealth

v. Rarick, 23 Mass. App. Ct. 912, 912 (1986).11 See Boria, 440

Mass. at 420, quoting from Commonwealth v. Pratt, 407 Mass. 647,

652 (1990) ("Contraband found in proximity to a defendant's

personal effects may provide a link between a defendant and the

contraband, if other evidence shows that 'the defendant has a

particular relationship' to that location within the

apartment"); Commonwealth v. Rivera, 31 Mass. App. Ct. 554, 556-

557 (1991) (sufficient evidence was presented to convict

defendant of constructive possession of cocaine found in bedroom

closet, notwithstanding her statement that she was merely casual

visitor, on basis that "[t]here was ample circumstantial

evidence, apart from the defendant's presence in the apartment

when the search warrant was executed, to support an inference

that she lived there and occupied the . . . bedroom with [her

boy friend]"); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87,

99-100 (2010) (evidence that defendant occupied house with his

mother and sister and that loft area where drugs and drug

11
In Rarick, 23 Mass. App. Ct. at 912, this court stated:
"When contraband is found in a dwelling shared by a defendant
and one or more other persons, a finder of fact may properly
infer that the defendant is in possession of the contraband (not
necessarily exclusive possession) from evidence that the
contraband was found in proximity to the personal effects of the
defendant in areas of the dwelling, such as a bedroom or closet,
to which other evidence indicates the defendant has a particular
relationship."
 17

paraphernalia along with personal items belonging to defendant

were found was used exclusively as bedroom by defendant was

sufficient to permit inference that defendant had knowledge of

drugs and ability and intention to exercise control over drugs

and thus to support finding of constructive possession).12

Moreover, where the defendant has a particular relationship to

the location in which the contraband is found, it is not

necessary that the defendant be in the vicinity of the

contraband or even present in the location when the contraband

is discovered in order for the jury to infer that she was in

constructive possession of such contraband. See Farnsworth, 76

Mass. App. Ct. at 100.

The present case fits squarely into this second category of

cases. There was evidence that the defendant resided in a two-

bedroom apartment with her son, who was seven years old at the

time of trial, and her daughter, who was one year old at the

12
Contrast Sespedes, 442 Mass. at 100-102 (evidence that
defendant had access to and was present briefly at apartment in
which contraband was found was insufficient to demonstrate
defendant's knowledge of contraband for purposes of proving
constructive possession); Commonwealth v. Araujo, 38 Mass. App.
Ct. 960, 961-962 (1995) (insufficient evidence was presented to
prove constructive possession of sawed-off shotgun found in
closet of room in which defendant was sleeping where "[t]he
Commonwealth did nothing to establish that the defendant was
anything more than a visitor to the apartment"); Frongillo (No.
1), 66 Mass. App. Ct. at 683-684 (no constructive possession
where defendant had no intent to exercise dominion and control
over contraband found in closets, given that no personal effects
or other evidence connected defendant to area in which
contraband was located).
 18

time of trial. One bedroom was occupied exclusively by the

defendant's daughter. In the other bedroom, where the drugs

were found, and which the defendant admitted she occupied, there

were two dressers, one used by the defendant and one used by her

son. Under the defendant's dresser, the police found nine

knotted, clear plastic baggies containing heroin. Carey did not

reside in the apartment, and there was no evidence that he had

any personal belongings in the apartment. The evidence

presented thus linked the defendant to the particular location

within the apartment in which the contraband was found, and the

jury were free to infer that the defendant was in constructive

possession of the drugs located under her dresser as a result.

See Clarke, 44 Mass. App. Ct. at 506. Carey's presence in the

defendant's bedroom at the time the drugs were found, as well as

his testimony that the drugs were his, does not diminish the

reasonableness of the jury's conclusion, as they were free to

disregard Carey's testimony, as well as the defendant's denial

that the drugs were hers, and find that both Carey and the

defendant jointly possessed the contraband found under the

defendant's dresser. See Commonwealth v. Dinnall, 366 Mass.

165, 168-169 (1974); Rivera, 31 Mass. App. Ct. at 556-557;

Farnsworth, 76 Mass. App. Ct. at 99.

3. Prosecutor's closing argument. In his closing

argument, the prosecutor described the defendant as being "sort
 19

of willfully blind about the drugs that were in her home," and

further suggested that the defendant was "very much aware of

what was going on in her home." The prosecutor continued: "I

would suggest that the heroin that was located was located [sic]

in her bedroom underneath her dresser and that if she's

portraying to you today that she didn't know of it, she's trying

to blind you. She at the very least was willfully blind I would

suggest." The defendant argues for the first time on appeal

that the prosecutor's statement likely misled the jury as to the

knowledge element of constructive possession. We disagree.

Because the defendant did not object to the prosecutor's

closing statement at trial, we review for a substantial risk of

a miscarriage of justice. Commonwealth v. Pearce, 427 Mass.

642, 646 (1998). In making his closing argument, the prosecutor

is entitled to argue that the jury should disbelieve the

testimony of witnesses testifying on behalf of the defendant.

See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005).

Here, the defendant testified that she had no knowledge of

the drugs that she was charged with possessing. The prosecutor

was thus entitled to argue to the jury that the defendant was

not being truthful in her testimony, and he did so by suggesting

that the defendant was, at a minimum, "willfully blind" to the

fact that drugs were being stored in her apartment. The

prosecutor then went on to argue that the evidence showed that
 20

the defendant had actual knowledge of the drugs located under

her dresser. We do not believe that the prosecutor's closing

argument, taken as a whole, indicated to the jury that "willful

blindness" was sufficient to satisfy the knowledge element of

constructive possession. Although it would have been preferable

to simply argue that the defendant's testimony that she was

unaware that drugs were present in her apartment had a hollow

ring to it in view of the defendant's presence in the apartment

when the January warrant was executed, we regard the statements

in question as a comment on the evidence, not a statement about

the law.13

4. Jury selection. At sidebar, after speaking with a

juror during jury empanelment, the judge described the juror as

"kind of kooky," and, presumably speaking to the Commonwealth,

went on to state: "You have two peremptories."14 Immediately

after the judge's comments, the Commonwealth used a peremptory

challenge to remove the juror from the jury panel. On appeal,

the defendant argues that the judge's statement tainted the jury

13
Even if we were to assume that the statement constituted
a misstatement of the law, any prejudice to the defendant was
cured by the judge's proper jury instruction relating to
constructive possession. See Commonwealth v. Horn, 23 Mass.
App. Ct. 319, 325-326 (1987) (unobjected-to misstatement of law
during prosecutor's closing argument was cured by judge's proper
jury instructions).
14
The defendant had already used one of her two peremptory
challenges prior to the judge's comments at sidebar, while the
Commonwealth had yet to use either of its peremptory challenges
at that point.
 21

empanelment process because the judge was acting as an advocate

for the Commonwealth, as opposed to an "impartial arbiter." As

the defendant did not object at the time of the judge's

comments, we review for a substantial risk of a miscarriage of

justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564

(1967).

A trial judge has broad discretion to determine whether a

juror is able to stand indifferent and may dismiss a juror for

cause sua sponte, or at the request of either party. See G. L.

c. 234A, § 39, inserted by St. 1982, c. 298, § 1 ("The court

shall have the discretionary authority to dismiss a juror at any

time in the best interests of justice"); Commonwealth v. Clark,

446 Mass. 620, 629-630 (2006) ("A trial judge is accorded

considerable discretion in the jury selection process and his

finding that a juror stands indifferent will not be disturbed

except where juror prejudice is manifest"). Once a juror is

declared indifferent (i.e., not excused for cause), a judge

should not make comments about that juror, unless they relate to

dismissing the juror for cause. In this instance, while the

judge's statements were best left unsaid, we do not believe that

a single, off-hand comment about a juror's demeanor, coupled

with an allusion to the Commonwealth's remaining peremptory

challenges, caused the judge to "become an advocate for the
 22

prosecution." Commonwealth v. Meadows, 33 Mass. App. Ct. 534,

539 (1992).

Judgment affirmed.