MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, Jesus Quintana (petitioner) appeals from the denial of his petition under G. L. c. 123A, § 9, for discharge from civil commitment as a sexually dangerous person (SDP).
2
Discerning neither an abuse of discretion nor other error in the trial judges denial of the petitioners challenges for cause to jurors 124, 220, and 225, we affirm.
1. Background. The petitioners criminal history includes 1981 convictions of two counts of aggravated rape, and 2001 convictions of assault with intent to rape and indecent assault and battery on a person over the age of fourteen. He was civilly committed as an SDP in 2009 for a term of one day to life. See G. L. c. 123A, §§ 12, 14. His petition for examination and discharge under G. L. c. 123A, § 9, was tried to a Superior Court jury in June 2018. The jury found the petitioner remains an SDP; the court ordered his continued commitment. This appeal followed.
2. Discussion. On appeal, the petitioner argues that voir dire of three of the jurors seated on his case -- jurors 124, 220, and 225 -- failed to establish that the jurors were impartial, and that the trial judge therefore improperly denied his challenges for cause to each of those jurors.
3
In determining a jurors impartiality, a judge is required to make a factual determination of whether the juror is “capable of setting aside their own opinions, weighing the evidence without considering extraneous issues, and following his legal instructions.” Commonwealth v. Kennedy, 478 Mass. 804, 818 (2018). See Commonwealth v. Rios, 96 Mass. App. Ct. 463, 469 (2019). We review for abuse of the “considerable discretion [afforded to the trial judge] in conducting the process of jury selection,” and will not disturb the judges rulings on forcause challenges absent an abuse of that discretion or other clear error. Kennedy, supra. See Rios, supra at 469–470. See also Commonwealth v. Lattimore, 396 Mass. 446, 449 (1985), quoting United States v. Gullion, 575 F.2d 26, 29 (1st Cir. 1978) (“The defendant undertakes a heavy burden in attempting to persuade an appellate court that there was error in a denial of a challenge for cause”). Assuming without deciding that the petitioner adequately preserved the question, see Kennedy, supra at 815-816, we discern no error in the judges determination that jurors 124, 220, and 225 were impartial.
Juror 124. In her verbal responses to certain questions submitted to each of the prospective jurors on a one-page questionnaire,
4
juror 124 told the judge that she had worked for twelve years at a “womens lunch place” where “many of [the facilities’] guests have [been victims of] sexual assault.” In response to voir dire by the judge and defense counsel, the juror indicated three separate times that she “think[s she] could be” fair and impartial if seated on the jury.
5
The jurors candid recognition that she would bring her life experience into “how [she] process[ed] the information” presented at trial did not preclude the judge from finding that juror 124 was impartial. A determination that a given juror is impartial, and thus qualified to hear the case, does not mean that the individual has no opinions or views about any matter directly or indirectly related to the case. “No human being is wholly free of the interests and preferences which are the product of his cultural, family, and community experience. Nowhere is the dynamic commingling of the ideas and biases of such individuals more essential than inside the jury room.” Rios, 96 Mass. App. Ct. at 469, quoting Commonwealth v. Soares, 377 Mass. 461, 487, cert. denied, 444 U.S. 881 (1979).
The jurors phrasing of her answer -- “I think that I could be fair and impartial” -- likewise did not disqualify her from consideration. “A potential jurors use of seemingly equivocal language, such as the word ‘probably,’ is not determinative of the jurors ability to be impartial.” Commonwealth v. Jaime J., 56 Mass. App. Ct. 268, 274 (2002). Here, the judge, who saw and assessed the jurors credibility, found that she was impartial; we see no reason to disturb that conclusion. See Rios, 96 Mass. App. Ct. at 470, quoting Commonwealth v. Leahy, 445 Mass. 481, 497 (2005) (“the question whether a juror stands indifferent ‘turns on credibility and is the province of the trial judge’ ”).
Juror 220. Juror 220 told the judge and counsel that some fifteen years before trial, he had caught his stepfather molesting a cousin who was then “a minor.” The juror said that he had made an anonymous report of the conduct, and that although the incident had been investigated, “[i]t didnt [go] further”; his stepfather appears not to have been prosecuted in connection with the incident the juror observed. The juror indicated that he was “kind of shocked” by the experience.
6
The juror was questioned further by both the judge and counsel for the parties; he indicated that despite this experience, he remained “an open person,” he harbored no feelings of anger or bias as a result of what he had witnessed, and the events that he had described would not affect his ability to be fair and impartial to either side in the instant case. The judge, who implicitly credited juror 220s account, was well within his discretion in declining to excuse the juror for cause. See Rios, 96 Mass. App. Ct. at 470.
Juror 225. Juror 225 answered affirmatively to one of the questions in the written jury questionnaire. Although without a copy of the questionnaire, we are unable precisely to discern the nature of that question, the juror in any event said that the experience that triggered his affirmative answer to that question would not “affect [his] ability to be fair and impartial in this case.” After the juror gave this answer to the judges inquiry, petitioners counsel asked the juror a follow-up question that elicited an answer that the petitioner suggests indicated the jurors bias against him.
7
When, however, the judge asked the juror for clarification of whether, notwithstanding the response the juror provided to petitioners counsel, the juror still felt that he could be fair and impartial in the petitioners case, the juror responded unequivocally that the experience “wouldnt” impact his impartiality, and indicated that he had misunderstood petitioners counsels question. After additional conversation with counsel, the judge called juror 225 back to sidebar where he had the following exchange with the juror:
Judge: “Sir, I may have misunderstood so I just want to be clear in my own mind. You have certain experiences that cause you to answer the question affirmatively on the questionnaire. So my question is would those experiences impact your ability to be fair and impartial in this case?”
Juror 225: “No.”
The judge credited the jurors response, and we discern neither abuse of discretion nor other error in the judges conclusion that the juror was impartial.
3. Conclusion. The judgment of the Superior Court is affirmed.
So ordered.
affirmed
FOOTNOTES
2
. Counsel for the petitioner filed a brief and appendix on behalf of the petitioner, including a “Moffett preface and certification,” and, with the petitioners assent, waived oral argument. See Commonwealth v. Moffett, 383 Mass. 201, 216–217 (1981). Assuming without deciding that the Moffett procedures apply to SDP proceedings, we consider the issues raised in the petitioners brief.
3
. As to juror 124, the petitioner exercised a peremptory challenge, and has not shown prejudice because he later exhausted his peremptory challenges and never asked for additional challenges. See Commonwealth v. McCoy, 456 Mass. 838, 842 (2010). Jurors 220 and 225 were on the jury that decided the petitioners case.
4
. The questionnaire is not included in the record, but the record makes clear that the prospective jurors gave their answers verbally, and not in writing. We therefore rely on the sidebar conversations about the subject matter of the questions.
5
. Although the juror told the judge that “if [she] knew one of the victims,” she might have doubts about her impartiality, there was no indication in the record that she knew anyone associated with the case.
6
. Although it is not clear from the transcript whether the juror meant that he was “shocked” by his stepfathers conduct, or by the fact that the stepfather was not prosecuted, nothing in our analysis turns on the resolution of that question.
7
. The exchange is not a model of clarity:Petitioners Counsel: “But just briefly, [questionnaire question] number 2, why is it that ([i]naudible) circumstances it did not affect your ability to be impartial in cases like this?”Juror 225: “Why did it not?”Petitioners Counsel: “Why did it not? Tough one, right?”Juror 225: “In relation to me having done this before?”Petitioners Counsel: “Well, youve done this before and youre about to ([i]naudible), right? And so my question is, of those circumstances, why is it, what is it about those circumstances or your ability to process those circumstances in the past --”Juror 225: “My emotional connection to those people, just sort of makes it emotional, it makes it hard for me to just ([i]naudible) the crime itself without -- Ive had two people that have been part of ([i]naudible) incidents so it just, it gets me in that place in my mind where Im just very emotional about the matter and I think of them and Im just continually drawn to them when Im thinking about the subject.”