Commonwealth v. Chambers

93 Mass.App.Ct. 806

109 N.E.3d 1069

COMMONWEALTH

v.Njisane CHAMBERS.

No. 17-P-441.

Appeals Court of Massachusetts, Suffolk..

Argued March 7, 2018

Decided August 29, 2018

Rebecca Rose, for the defendant.

Kathryn E. Leary, Assistant District Attorney, for the Commonwealth.

Present: Meade, Rubin, & Neyman, JJ.

MEADE, J.

After a jury trial, the defendant was convicted of three counts of assault and battery by means of a dangerous weapon and carrying a dangerous weapon. After a separate jury trial, he was convicted of carrying a dangerous weapon as a second and subsequent offense. On appeal, he claims that the judge abused his discretion by not dismissing a juror and by denying a motion for a mistrial. The defendant also claims that the prosecutor's opening statement and closing argument were errors that created a substantial risk of a miscarriage of justice. We affirm.

1. Background. On the night of June 6, 2014, off-duty State Police Trooper Peter Bien-Aime; his wife, Leslie Bien-Aime;¹ and another couple, David Lebrun and Elizabeth Almeida, went out for the night in Boston. Sometime after midnight, the group went to Venu (hereinafter, club), a night club located on Warrenton Street.

After getting drinks, Peter and Lebrun were making their way back to Leslie and Almeida, who were conversing when the defendant approached the women. The defendant, a short, skinny, black male with very short hair, wished to dance with Almeida; she had no interest.² Upon seeing the two women upset, Lebrun and Peter approached the defendant, who greeted them by throwing a drink at them; the cup hit Peter in his face. Pushing ensued, which resulted in intervention by Mercelino Amaro, the club manager. The defendant was escorted out of the club.

Outside the club, Boston police Officer Stephen Fabiano and Detective Kevin Guy, who were working a detail in the theater district, saw the defendant being removed from the club.³ They saw him yell at someone in the doorway and try to reenter the club a few times before he and his friend walked away on Warrenton Street in the direction of Stuart Street.

Approximately thirty minutes later, the two couples left the club and began walking up Warrenton Street towards a parking lot where their car was parked. While they walked, the group was approached by the defendant and the other man Peter had seen earlier in the club.⁴ They asked the group in a sarcastic manner if they were "the guys that were fighting, beating up those two people in [the club]." The defendant began "violently" waving his hands around and stabbed Lebrun in his lower back. When Almeida screamed "what are you doing," the defendant grabbed her arm, spun her around, and stabbed her in the upper left back, next to her lungs, ribs, and spine. Almeida immediately fell to the ground, and Leslie began screaming. The defendant then swung at Peter and stabbed him just below his belt, piercing his clothing. When the defendant attempted to flee, Peter tackled him.

Officer Fabiano and Detective Guy saw the fight occurring from their position up the street. They recognized both Peter and the defendant, who was one of the men who had been removed from the club. The officers separated Peter and the defendant, who had been rolling on the ground and fighting. The defendant struggled to get away, but Guy pinned him against a nearby parked bus. Amaro, who followed the police down the street, also recognized the group from the earlier drink-throwing incident. As the defendant was pinned against the bus, Amaro saw a knife fall to the ground between Guy and the defendant, and Amaro secured it by stepping over it (to block its use).

After the fight, Lebrun identified the defendant as the person who stabbed them, and the defendant was arrested. Peter also was arrested and transported to the police station where he was later released.

2. Discussion. a. Jury selection. Juror number (no.) twelve's fears and concerns. The defendant claims that he was denied his right to an impartial jury because the judge abused his discretion when he declined to dismiss juror no. twelve, who expressed a concern about his ability to be impartial due to the stress of missing college classes. We disagree.

The Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution guarantee criminal defendants trial by an impartial jury. See Skilling v. United States, 561 U.S. 358, 377, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) ; Commonwealth v. McCowen, 458 Mass. 461, 494, 939 N.E.2d 735 (2010). "We afford a trial judge a large degree of discretion in the jury selection process."

Commonwealth v. Vann Long, 419 Mass. 798, 803, 647 N.E.2d 1162 (1995). See G. L. c. 234A, § 39. The judge is duty bound to question potential jurors to ferret out any possible bias, prejudice, partiality, or whether there exists a substantial risk that the potential juror may be influenced by factors extraneous to the evidence at trial. Commonwealth v. Andrade, 468 Mass. 543, 547, 11 N.E.3d 597 (2014). When evaluating juror impartiality, it is sufficient for the judge to inquire whether potential jurors can set aside their own opinions, properly weigh the evidence, and follow the judge's instructions. Id. at 547-548, 11 N.E.3d 597. See Commonwealth v. Perez, 460 Mass. 683, 688-689, 954 N.E.2d 1 (2011). "[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. Andrade, supra at 548, 11 N.E.3d 597, quoting from Commonwealth v. Lopes, 440 Mass. 731, 736, 802 N.E.2d 97 (2004). See Commonwealth v. Ferguson, 425 Mass. 349, 352-353, 680 N.E.2d 1166 (1997) (determination of juror impartiality "is essentially one of credibility"); Commonwealth v. Emerson, 430 Mass. 378, 384, 719 N.E.2d 494 (1999) ("A finding that a juror is impartial will not be overturned on appeal unless the defendant makes a clear showing of abuse of discretion or that the finding was clearly erroneous").

The judge conducted the empanelment process and asked the prospective jurors questions along the lines prescribed by G. L. c. 234, § 28.⁵ During this process, the judge inquired whether juror no. twelve had raised his hand to any of the questions. The juror indicated that he had done so in response to the judge's question regarding whether the length of the trial would be a burden. The juror explained that he was a student at Northeastern University (university) and that serving as a juror would "significantly impact" his course work. The judge informed the juror that he would not excuse him for that reason, and that the university would support his service as a juror. Juror no. twelve agreed and had no other questions. Neither party exercised any form of challenge to the juror.

At the end of the first day of trial, juror no. twelve sent the judge a note stating, "I believe that the stress of missing school will result in an impartial [sic ] decision on my part. I am terrified that I will fail my classes and do not know if I can make a fair decision in the near future." The judge was understandably troubled by the note and questioned juror no. twelve at sidebar. The judge explained that jury service by college students in the Boston area was in no way unique and that it was a great opportunity to be given such a responsibility as a young adult. He told the juror that many other students have had the same concerns and that the universities are required to make accommodations for jury service. The juror understood, but he remained concerned about missing classes and having to make up the work. The judge understood the juror's concerns, wanted him to be "comfortable" with his jury service, and instructed him to speak to university officials about what accommodations they would make for him and to report back to the judge the next day. The juror agreed, noted that he had already contacted the registrar's office, and told the judge that he "definitely want[ed] to participate in [his] civic duty," but remained concerned. After reassuring the juror that the university would permit him to make up the work he missed, the juror agreed to do as the judge requested.

The next morning, after the judge confirmed with juror no. twelve that the university would make accommodations for his jury service, the judge nevertheless inquired whether the juror could be fair to the defendant and give his attention to the judge's instructions and the evidence. The juror responded, "I would definitely do my best, but I can't promise anything." On further inquiry, the juror explained that he feared falling behind in his class work, but then indicated that he would "man up" and do his best.

At the conclusion of the colloquy, the judge told the juror he was "a perfect candidate" to make sure the right result was reached, to which the juror responded, "I simply don't know." The judge decided to continue with the trial and to keep the juror seated. Defense counsel requested that the juror be struck for cause. The judge explained that he would "keep [him] as a work in progress, and assured counsel that he would not keep the juror for deliberation if "he's impaired."

"As a general principle, it is an abuse of discretion to empanel a juror who will not state unequivocally that he or she will be impartial." Commonwealth v. Colton, 477 Mass. 1, 17, 73 N.E.3d 783 (2017). However, evaluating a juror's use of seemingly equivocal language to make that determination lies within the judge's discretion. Here, in response to the judge's questions, the juror said he would do his "best" but could not "promise anything." The judge reasonably could have concluded that these responses merely reflected the juror's habits of speech, contrast Commonwealth v. Vann Long, 419 Mass. at 804 & n.5, 647 N.E.2d 1162 ("statements that [the juror] ‘would hope’ he could be fair to the Cambodian defendant were not...