Commonwealth v. Hamza H. Abdo.

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

25-P-643

COMMONWEALTH

vs.

HAMZA H. ABDO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant was

convicted of driving under the influence of intoxicating liquor.1

On appeal the defendant challenges the empanelment of two jurors

who, he contends, showed bias in favor of the police. The

defendant further contends that his trial counsel was

ineffective for failing to request an instruction on lost or

destroyed exculpatory evidence. We affirm.

1The judge also found the defendant responsible for the
civil infractions of speeding and possessing an open container
of alcohol in a motor vehicle.
1. Juror selection. During jury empanelment, defense

counsel challenged juror no. 12 and juror no. 7 after the judge

questioned each of them about whether they would believe the

testimony of a police officer over that of a civilian.3 The

judge declined to excuse either juror for cause, and both were

empaneled.4 The defendant argues on appeal that this was an

abuse of discretion. We disagree.

After the judge posed questions to the venire, including

whether they would "believe the testimony of a police officer

over the testimony of a civilian witness just because that

person is employed in law enforcement," the judge called juror

no. 1 to sidebar. In response to further questioning, juror

no. 1 stated that he would "believe in a police officer over a

civilian" because police "know . . . the laws and stuff." When

the judge explained that "the question is whether you think you

2 The defendant identifies this juror as juror no. 3, but
the Commonwealth represents that the juror actually took the
first seat. From our reading of the transcript, it appears that
the Commonwealth is correct, so we will refer to the juror as
juror no. 1. This discrepancy is not, in any event, material to
our analysis.

3 The defendant challenged juror no. 7 for cause but raised
only a general objection to juror no. 1. As the Commonwealth
treats the objection as a challenge for cause, we will do
likewise and assume the challenge was preserved.

4 The defendant later used his peremptory challenges on two
other jurors.

2
can follow my instruction on assessing the police officer's

credibility and testimony just like anybody else that

testifies," juror no. 1 answered, "Right." The judge then asked

directly, "Can you follow my instruction in deciding whether to

believe the officer or not?" to which juror no. 1 answered,

"Yeah." At this point the judge had juror no. 1 step back, and

a discussion ensued between the judge and defense counsel.

Although portions of that discussion are designated as

inaudible, it appears that defense counsel raised an objection

based on "some hesitation" in juror no. 1's answers. The judge

overruled the objection, expressly stating that she "didn't find

any hesitation after [her] final question."

With regard to juror no. 7, the judge called her to sidebar

for additional questioning because she had written on her

questionnaire, "I don't trust anyone." In the course of that

questioning, juror no. 7 stated, "I guess I should have raised

my hand when you said about the police officer." When the judge

probed further by asking juror no. 7 whether she would "tend to

believe a police officer," juror no. 7 answered, "Uh-huh." The

judge then asked, "So even with the notion that you're coming in

with a disposition to potentially believe police officers,

nevertheless, can you still follow my instruction and assess a

police officer's credibility on the witness stand just like you

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would a civilian witness?" Juror no. 7 answered, "Sure," and

said, "I don't," in response to the judge's follow-up question

whether juror no. 7 had concerns about her ability to follow the

instruction. The judge found juror no. 7 to be indifferent and

denied defense counsel's challenge for cause.

In light of these exchanges, we are unpersuaded by the

defendant's argument that the judge abused her discretion by

empaneling the challenged jurors. "A trial judge has broad

discretion in determining the partiality of a prospective

juror." Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 271-

272 (2002). "When a trial judge -- who is in a much better

position than an appellate court to evaluate a prospective

juror's ability to be impartial -- has examined a juror for

possible bias and declared [that juror] indifferent, appellate

courts defer to the judge's discretion 'unless juror prejudice

is manifest.'" Id. at 272, quoting Commonwealth v. Seabrooks,

433 Mass. 439, 443 (2001). Thus, "[a] determination by the

judge that a jury are impartial will not be overturned on appeal

in the absence of a clear showing of abuse of discretion or that

the finding was clearly erroneous." Commonwealth v. Chambers,

93 Mass. App. Ct. 806, 809 (2018), quoting Commonwealth v.

Andrade, 468 Mass. 543, 548 (2014).

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We discern no abuse of discretion or clear error here, as

the judge could have fairly interpreted the jurors' statements

as unequivocal expressions of impartiality. The judge

appropriately asked the jurors whether they could "set aside

their own opinions, properly weigh the evidence, and follow the

judge's instructions." Chambers, 93 Mass. App. Ct. at 809. It

was within the judge's discretion to view juror no. 1's answer,

"Yeah," as unequivocal, especially where the judge found that he

responded without any hesitation. Likewise, the judge could

have fairly viewed juror no. 7's answer, "Sure," and her follow-

up statement that she had no concerns with following the

instruction to be unequivocal. The judge did not abuse her

discretion in finding these jurors impartial. See Commonwealth

v. Colton, 477 Mass. 1, 16-17 (2017) (not abuse of discretion to

empanel juror who said "he had a 'hard time with [the] concept

of' the 'defense of a lack of criminal responsibility'" but,

when asked whether he could be fair, responded, "Yes, I think

so"); Jaime J., 56 Mass. App. Ct. at 273-275 (not abuse of

discretion to empanel jurors who, when asked whether they could

be impartial, said, "I probably could do that," "I think I

could," and "I imagine I could, yeah").

2. Ineffective assistance. At trial the arresting officer

testified that the defendant was "mostly argumentative" during

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the booking process and showed signs of intoxication. The

Commonwealth did not introduce a booking video into evidence.

The defendant argues that, as a result, he was entitled to an

instruction on lost or destroyed exculpatory evidence and that

his trial counsel was ineffective for failing to ask for such an

instruction. The defendant's argument finds no support on this

record.

"[O]ur courts strongly disfavor raising claims of

ineffective assistance on direct appeal." Commonwealth v.

Zinser, 446 Mass. 807, 811 (2006). Although a "narrow"

exception exists "when the factual basis of the claim appears

indisputably on the trial record," id., quoting Commonwealth v.

Adamides, 37 Mass. App. Ct. 339, 344 (1994), that is not the

case here. To prevail on his claim, the defendant would need to

show that he "would have been entitled to a jury instruction" on

lost or destroyed exculpatory evidence had counsel requested

one. Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). To

meet that burden, the defendant would need to show in turn that

there is "'a reasonable possibility, based on concrete

evidence,' that the evidence was exculpatory." Commonwealth v.

Seino, 479 Mass. 463, 477 (2018), quoting Commonwealth v.

Williams, 455 Mass. 706, 718 (2010).

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The factual basis of the defendant's claim does not appear

indisputably on this record. Most fundamentally, the record

does not demonstrate that a booking video even exists. Although

the arresting officer acknowledged on cross-examination that

"[t]here are cameras" in the booking area, he testified that

"[i]t's not audio recorded" and that he was not positive whether

it was video recorded. Later, when the judge asked the

prosecutor whether there was "any video in this case," the

prosecutor replied, "Not to the best of my knowledge" and "We

always request video from the departments." And defense counsel

himself acknowledged that "it's unclear as to whether or not

specifically in this case there was video."

Moreover, even assuming a booking video exists, the record

does not demonstrate that it is exculpatory. Without any

evidence of what the video would show, the defendant's assertion

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that it would impeach the arresting officer's testimony is

speculative. The defendant has therefore failed to establish

ineffective assistance of counsel on this record. See Zinser,

446 Mass. at 810-811.

Judgment affirmed.

By the Court (Henry, Shin &
Toone, JJ.5),

Clerk

Entered: May 14, 2026.

5 The panelists are listed in order of seniority.

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