Opinion
16-P-438
04-06-2017
COMMONWEALTH v. Julio CRUZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted after a jury trial of indecent assault and battery on a child under fourteen. He argues on appeal that the judge erred in refusing to excuse three prospective jurors for cause, thereby depriving him of his right to a fair trial. We affirm.
The judge relied on the following procedure to empanel the jury, which had six members and one alternate. First, the judge asked the venire a series of standard questions as a group, noting their responses. After this initial questioning, the judge brought the prospective jurors in one at a time for individual voir dire, after which he entertained challenges for cause. The process continued in this manner until the judge selected eleven jurors whom he found indifferent. Next, the judge sat the first seven of those eleven jurors in numerical order and permitted the parties two peremptory challenges each. If a party exercised a peremptory challenge, the next juror in numerical order was seated. Either party was then entitled to use any remaining peremptory challenge on the newly seated juror.
During the individual voir dire, the defendant challenged for cause jurors 90, 99, and 111, but the judge did not excuse them. Although these three jurors were not among the first seven seated for peremptory challenges, juror 90 was brought in after the Commonwealth exercised a peremptory challenge on juror 71. The defendant used one of his peremptory challenges on juror 90, who was then replaced by juror 91. At that point, although he had a remaining challenge, the defendant stated that he was satisfied, and the jurors were sworn.
The defendant now contends that the judge committed reversible error by not excluding jurors 90, 99, and 111 for cause. We disagree. To succeed on such a challenge, a defendant must show that the judge wrongly refused to excuse a juror for cause and "as a result the defendant exhaust[ed] all peremptory challenges and [was] forced to accept a juror whom he otherwise would properly have challenged." Commonwealth v. Leahy, 445 Mass. 481, 497 (2005), quoting from Commonwealth v. Seabrooks, 433 Mass. 439, 445 (2001). Here, the defendant used only one of his two peremptory challenges, and none of the three jurors who he says were excludible for cause were ultimately seated on the jury. His argument fails for this reason alone. See Commonwealth v. Tropeano, 364 Mass. 566, 567–568 (1974) (defendant could not show he was "forced to accept a juror he would have otherwise challenged peremptorily," where he "still had a sufficient number of peremptory challenges available for use with respect to other jurors if they had been needed"); Leahy, 445 Mass. at 497 (defendant failed to demonstrate reversible error where he "did not use his last peremptory challenge until the final seat on the jury was being filled, and made no showing that he was thereby forced to accept a juror he would have peremptorily challenged").
For completeness, we add that we have reviewed the defendant's claims of errors and find none meritorious. It is apparent from the transcript that the judge conducted an appropriate inquiry into each of the three jurors' potential biases. Although the defendant asserts, with no elaboration, that "further inquiry was required to meet the requirements of a fair and impartial jury," this conclusory statement is insufficient to demonstrate that the judge abused his discretion in declining to excuse the jurors for cause. See Commonwealth v. Lattimore, 396 Mass. 446, 449 (1985) (quotation omitted) ("There are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empanelling of a jury").
Judgment affirmed.