COMMONWEALTH v. FISETTE (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Dennis Fisette, appeals from his convictions of operating under the influence, fifth offense, and operating under the influence while his license was suspended because of operating under the influence. Fisette claims that the trial judge's failure to dismiss certain jurors for cause forced him to use his peremptory challenges on those jurors and thereby deprived him of an impartial jury, in violation of his rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We affirm.

Background. On November 27, 2019, Fisette was stopped by a State police trooper while driving south on Route 3 in Billerica. During the stop, Fisette admitted to having a few drinks before driving. He was arrested at the scene after failing three sobriety tests and admitting to operating with a suspended license. Fisette was later indicted on two counts under G. L. c. 90, § 23 (operating under the influence while his license was suspended because of operating under the influence, and operating with a suspended license, subsequent offense) and one count under G. L. c. 90, § 24 (operating under the influence, fifth offense).²

At trial, Fisette's strategy was to concede that he had consumed some alcohol before driving, but to foster reasonable doubt about whether his driving was thereby impaired. He sought to do so by questioning the reliability of the field sobriety tests and the testimony of the arresting officer. Accordingly, Fisette asked each potential juror during voir dire a question along the lines of whether he or she believed that “it's wrong to consume alcohol in any amount and get behind the wheel of a car.” Fisette moved to excuse two jurors for cause after they answered “yes” to this and a similarly-worded question. Both motions were denied because the jurors stated, and the judge was satisfied, that they would be able to follow his instructions to the effect that “it's not automatically a crime to drive after ingesting alcohol, [but] it is a crime to ․ drive if you've ingested alcohol and it impairs your ability to drive.” Fisette then used his peremptory challenges to exclude these jurors, as well as two others with similar answers.

Having exhausted his peremptory challenges after the first day of voir dire, Fisette moved for additional peremptory challenges on day two. This motion was also denied. In total, the judge seated twelve jurors and two alternates; of those, thirteen essentially answered “no” to Fisette's voir dire question, and one juror originally answered “yes,” before clarifying that his answer was “maybe not an absolute yes, but [it would be wrong to drive after drinking enough] to impair your ability to operate a motor vehicle.”

Discussion. Fisette raises only one claim on appeal: that he was denied an impartial jury because the judge incorrectly denied his motions to excuse for cause the jurors who answered “yes” to his voir dire question about alcohol. We review a judge's refusal to excuse a juror for cause for abuse of discretion. Commonwealth v. Moore, 489 Mass. 735, 755 (2022).

“[When] a prospective juror states an opinion or belief, whether it is specific to the case or not, the judge must satisfy himself or herself that the prospective juror will be able to fairly evaluate the evidence and apply the judge's instructions on the law.” Commonwealth v. Williams, 481 Mass. 443, 453 (2019). “A ‘juror[’s] assertions of impartiality should be accepted by the judge unless extraordinary circumstances give some reason to question such assertions.’ ” Moore, 489 Mass. at 756, quoting Commonwealth v. Leahy, 445 Mass. 481, 494 (2005).

Here, in every instance where a prospective juror answered “yes” to Fisette's voir dire question, the judge followed up by asking that juror whether he or she would have any trouble following a jury instruction to the effect that it is not necessarily or automatically a crime to drive a vehicle after ingesting alcohol. When it was evident that a juror could not impartially apply the law as instructed (as was the case with several jurors), the judge excused that juror on his own initiative.³ With respect to the jurors who indicated that they could apply the law impartially, Fisette does not point to, nor do we see, any extraordinary circumstances that would lead a reasonable judge to question those jurors’ impartiality. See Moore, 489 Mass. at 756.

We are unpersuaded by Fisette's argument that such jurors “could not possibly be impartial.” That is, we do not believe that the jurors’ responses indicated anything approaching the order of “racial bias or any similarly indurated and pervasive prejudice” against Fisette because he drove after having a few drinks. Commonwealth v. Estremera, 383 Mass. 382, 387-388 (1981), quoting Commonwealth v. Rhoades, 379 Mass 810, 821 (1980). Instead, the belief expressed by the potential jurors was, at best, a “subtle bias[ ] ․ which [did] not establish legal cause for challenge,” but which did provide an appropriate basis for using the allotted peremptory challenges. Commonwealth v. Bockman, 442 Mass. 757, 762 (2004), quoting Commonwealth v. Soares, 377 Mass. 461, 483–484, cert. denied, 444 U.S. 881 (1979). That there were more jurors who answered “yes” to Fisette's voir dire question than there were available peremptory challenges does not establish prejudicial error where Fisette did not demonstrate “a concrete need” for additional challenges in order to obtain an impartial jury. Commonwealth v. McCoy, 456 Mass. 838, 841 (2010). See Commonwealth v. Burden, 15 Mass. App. Ct. 666, 674-675 (1983).

Because we conclude that the judge did not abuse his discretion by denying Fisette's challenges for cause (or, for that matter, his motion for additional peremptory challenges), Fisette is not entitled to relief.

Judgments affirmed.

FOOTNOTES

2.   After Fisette was found guilty of both charges under G. L. c. 90, § 23, the judge dismissed the second offense with prejudice as a lesser included offense of the first.

3.   We recognize that potential juror number nineteen, from the first day of voir dire, initially answered “yes” when asked whether her belief that it is wrong to drive after a few drinks would affect her ability to remain fair and impartial. However, her answer to the judge's follow-up question indicates that she would not have trouble following the judge's instructions. Thus, even if Fisette had unsuccessfully challenged this juror for cause (before exercising a peremptory challenge) and had raised the issue in his appellate brief, we would see no abuse of discretion.