Commonwealth v. Nelson, AC 16-P-808

Defendant Richard S. Nelson convicted by jury of operating a motor vehicle under the influence (third offense). Appeal challenges jury empanelment, not sufficiency of evidence.
During voir dire the judge asked if any prospective juror would be more inclined to believe a police officer over a lay witness; juror no. 14 said he would "by a little" and later explained he would give police testimony about 51% weight but could keep an open mind and listen to evidence.
The judge individually questioned juror no. 14, who said he could listen to all facts and render a fair verdict; the judge seated him and declined defendant’s challenge for cause.
Defense had two peremptory challenges, used them on other jurors (nos. 2 and 11), did not use one on juror no. 14, did not request additional peremptories, and affirmatively accepted the seated jury.
On appeal defendant argued the judge should have excused juror no. 14 for cause because of a stated inclination to favor police testimony; defendant also challenged the jury credibility instruction.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Nelson)	Held
Whether judge erred by not excusing juror who said he would "by a little" more likely believe a police officer	Juror’s statements did not show disqualifying bias; juror affirmed ability to be fair and open-minded	Juror’s 51% predisposition toward police testimony showed bias requiring dismissal for cause; seating him forced defendant to accept a biased juror after exhausting peremptories	Affirmed — no abuse of discretion. Juror’s assurances and demeanor supported impartiality; defendant did not use a peremptory on him or seek more peremptories, so not forced to accept a juror he would otherwise have challenged
Whether jury instruction on witness credibility was improper	Model instruction was proper and accurate	Instruction allegedly improper	Affirmed — judge gave model credibility instruction nearly verbatim; no error

Commonwealth v. Andrade, 468 Mass. 543 (discusses right to impartial jury)
Commonwealth v. Clark, 446 Mass. 620 (trial judge has broad discretion in determining juror indifference)
Commonwealth v. Leahy, 445 Mass. 481 (reversal warranted if defendant forced to accept juror he would have peremptorily challenged)
Commonwealth v. Seabrooks, 433 Mass. 439 (same principle regarding exhaustion of peremptories)
Commonwealth v. McCoy, 456 Mass. 838 (prejudice usually shown by using a peremptory to remove the juror who should have been excused)
Commonwealth v. Susi, 394 Mass. 784 (defendant showed prejudice where he used peremptory on a juror erroneously not excused and then exhausted challenges)
Commonwealth v. Bryant, 447 Mass. 494 (judge entitled to rely on juror’s demeanor and assurances; focus on whether juror can follow instructions)
Commonwealth v. Vann Long, 419 Mass. 798 (judge must be zealous to ferret out juror bias)
Commonwealth v. Jackson, 391 Mass. 749 (tendency to favor police testimony does not necessarily disqualify a juror)
Commonwealth v. Ayoub, 77 Mass. App. Ct. 563 (juror who states ability to be fair may be properly seated)