Heard- January 4, 2019
Indictments found and returned in the Superior Court
Department on September 27, 2013. The cases were tried before
Brian A. Davis, J.
Patrick A. Michaud for the defendant.
Yeshulas, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Vuono, Meade, Rubin, & Wolohojian,
a jury trial in the Superior Court, the defendant, Dominick
R. Alves, who is African-American, was convicted in this
racially charged criminal case of aggravated assault and
battery by means of a dangerous weapon (knife), G. L. c. 265,
§ 15A (c) (i); two counts of assault and battery by
means of a dangerous weapon, G. L. c. 2 65, § 15A (b);
and possession of a class B controlled substance (cocaine),
G. L. c. 94C, § 34. He now appeals.
defendant's principal argument is that he was denied a
fair trial before a jury of his peers because the trial judge
improperly struck certain prospective jurors for cause. We
agree; the judge's voir dire questions improperly
excluded jurors holding a specific belief with respect to
racial discrimination "born of the prospective
juror's life experiences," and who, as a
consequence, might have been particularly attentive to the
racial dynamics of the case. Commonwealth v.
Williams, 481 Mass. 443, 449 (2019). The consequence was
that the defendant was tried by an all-white jury that did
not contain a representative cross-section of the community,
and whose selection denied his right to an impartial jury, in
violation of art. 12 of the Massachusetts Declaration of
Rights. We therefore conclude that his convictions must be
reversed and the case remanded so that he may have a new
trial before a properly constituted jury.
events that led to the defendant's arrest were as
follows. Based on the testimony at trial, the jury could have
found that the violence on the night in question began at
about 1 A.M., when someone from among a group of white people
who had been attending a graduation party, and who were
escorting Timothy Rounds, a friend of the defendant, away
from their party, punched Rounds in the mouth. The defendant,
who is African-American, approached Rounds, who told the
defendant he was afraid of the group of white men. The
defendant took a few steps toward the group and told them to
leave Rounds alone.
or four of the group, whom Rounds did not know, responded by
shouting racial epithets at the defendant, calling him
"nigger" and "nigger boy." The defendant
told Rounds to run, which he did.
later, someone who was identified as the defendant punched
one of the white men in the back of the head, and ran into a
crowd of over thirty people, many African-American. The adult
son of the man who had been punched testified that he, the
son, ran into the crowd yelling, "Which one of you
fucking niggers hit my father?"
grabbed an individual identified as the defendant and they
began fighting. The son was stabbed. A friend of the son, the
stabbing victim, testified that, after he watched the
stabbing, he yelled, "Which one of you niggers just
stabbed my friend." The friend also admitted that he
might have posted on the website Facebook the day after the
incident, "Bet that nigger is regretting it, too."
And, at the very end of his testimony, he volunteered,
completely unsolicited, the following: "Want to hear an
old saying? . . . They say, 'Niggers come in . . . all
the stabbing, the stabbing victim's brother called 911 to
report the altercation. The brother testified that he
described the black individuals in the area, including both
the defendant and some who were helping his brother, the
stabbing victim, as "fucking niggers."
fourth witness, the initial punching victim, the father of
the stabbing victim, testified that he "could
[have]" used the word "nigger" during the
altercation but did not think he did. Furthermore, another
friend of the stabbing victim who was a percipient witness
testified that he "might [have]" used the word
"nigger" on the night in question, and had used it
on other occasions, "but not like in a racist way."
two out of seven percipient witnesses (apart from Rounds) did
not make statements either suggesting that they had, or
explicitly admitting to having, used the word
"nigger" to refer to members of the defendant's
to jury empanelment the judge informed counsel that he
intended to ask, inter alia, the following three questions of
each juror in individual voir dire, in the following order:
(1) "One or more of the persons who are allegedly
assaulted in this case are white, and the defendant is black.
Do these facts in any way affect or impair your ability to
render a fair and just verdict with respect to some, or all
of the charges against the defendant?"; (2) "Would
you be influenced in any way by the defendant's race in
reaching a verdict in this case?"; and (3) "Would
you be able to fairly and impartially weigh the credibility
of a witness who has shown to have used a derogator[y] racial
term?" The judge, however, ultimately did not ask most
of the prospective jurors the third question as he had
framed. He began questioning the prospective jurors by asking
them the questions as he had proposed, and three jurors were
seated. When he asked the third question of prospective juror
no. 17, she responded, "What was the last part?"
When the judge repeated the question, the juror paused, and
the judge sua sponte rephrased the question. The following
The court: "I will rephrase it. Would the fact that a
witness used a derogatory racial term -- is shown to have
used a derogatory racial term, would that fact affect in any
way how you would view the credibility or the testimony of
Juror 17: "Yes."
The court: "You think it would?"
Juror 17: "Yes."
The court: "You think it would impair? How would it
affect how you would view that witness?"
Juror 17: "It would just prove to me that they thought,
like, if it's a white person saying something against a
black person, that ...