Commonwealth v. Benjamin Ramirez-Lopez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-145

COMMONWEALTH

vs.

BENJAMIN RAMIREZ-LOPEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted following a jury trial in

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

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

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

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

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

discretion in not excusing for cause a prospective juror who had

worked years earlier with the student prosecutor on the case.

We affirm.

Background. Before voir dire of the potential jurors

commenced, the lead assistant district attorney introduced

herself and her colleague, whom she identified as "another

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

student prosecutor appearing under S.J.C. Rule 3:03 (1), as
amended, 463 Mass. 1301 (2012), though that fact was not

mentioned to the prospective jurors.

When the judge asked the venire whether they knew any of

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

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

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

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

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

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

whether this connection would impact his ability to be impartial

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

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

not. After the judge invited the parties to ask additional

questions, defense counsel asked how long the two had worked

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

half to two years.

Defense counsel challenged juror no. 3 for cause, citing

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

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

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

peremptory challenges, defense counsel renewed his challenge to

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

cause, stating,

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"I think he said he knew him in a very kind of happenstance
way. They weren't close friends who, you know, were
hanging out in each other's homes or socializing. I think
they knew each other for a brief period of time many years
ago. So, I don't think that's a for cause."

The defendant then used his two allotted peremptory challenges

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

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

jurors were seated without any challenges, and both parties

stated that they were "content with this jury."

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

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

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

defendant uses a peremptory challenge to excuse a juror that the

judge refused to excuse for cause and the defendant is later

'forced to accept a juror whom he otherwise would have

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

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

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

defendant exercised his two peremptory challenges to exclude

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

defendant wished to exercise an additional peremptory challenge.

At one point in the exchange on peremptory challenges, defense

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

he then listed prospective juror number 12 whom, the judge

noted, had already been excused for cause. Because the

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defendant "identifies no empanelled juror whom he would have

replaced if he had retained additional peremptory challenges,"

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

have peremptorily challenged" (citation omitted). Commonwealth

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

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

conclude that the judge did not abuse her discretion by refusing

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

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

considerable discretion in the jury selection process and [her]

finding that a juror stands indifferent will not be disturbed

except where juror prejudice is manifest." Commonwealth v.

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

indicated that he knew the student prosecutor, the judge

established that they had worked together at the Big Y

approximately four years prior. During this colloquy, the judge

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

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

would not.

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

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

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

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

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

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prospective juror's past relationship with a prosecutor will not

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

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

375 Mass. 73, 83 (1978).

While the defendant contends that the responses of juror

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

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

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

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

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

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

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

overturned on appeal unless the defendant makes a clear showing

of abuse of discretion or that the finding was clearly

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

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

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

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

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

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

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

decision to credit them.

We acknowledge that the judge could have conducted a more

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

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student prosecutor, and that the record does not fully support

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

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

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

inquiries directed to prospective jurors is to "determine

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

consider the evidence presented, and "follow the instructions of

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

Here, the judge determined the basic nature of the relationship

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

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

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

be fair and impartial. Significantly, when the judge invited

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

defense counsel asked how long he had worked with the student

prosecutor, but did not seek any further details about the

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relationship before challenging him for cause. The judge did

not abuse her discretion in denying this challenge.

Judgments affirmed.

By the Court (Vuono,
Wolohojian & Toone, JJ.1),

Assistant Clerk

Entered: March 11, 2024.

1 The panelists are listed in order of seniority.

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