COMMONWEALTH v. WOLFGANG (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the juvenile was found delinquent on two counts, carrying a firearm without a license, G. L. c. 269, § 10 (a), and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a). On appeal, the juvenile raises a single claim: that a single potential juror was struck improperly and discriminatorily for cause, due solely to his religion.

The parties agree that it is unlawful for a judge to strike a juror for cause solely on the basis of his or her membership in a group against whom discrimination is unlawful, including on the basis of his or her religion. See Commonwealth v. Williams, 481 Mass. 443, 457 (2019). We review a judge's exercise of his authority to strike a juror for cause for abuse of discretion, Commonwealth v. Jeune, 494 Mass. 808, 817 (2024); however, an error of law, for example, striking a juror discriminatorily on the basis of his or her religion, is always an abuse of discretion, see M.S.C. v. Garland, 85 F.4th 582, 592 (1st Cir. 2023).

In this case, at the outset of juror voir dire, the judge asked jurors to raise their hands if they had an affirmative response to any of a number of questions. When the judge asked, “Is there any other reason, such as physical problems, language difficulties, religious or ethical beliefs, hearing impairment, medical problems or the like that might make it difficult for you to sit as a juror in this case?,” juror number 33, the juror at issue here, raised his hand.

Later, at individual voir dire at sidebar, the judge asked the juror about a number of matters. The judge said, “And then I believe you raised your hand again when I asked about are there any reasons, physical problems, language difficulties, religious or ethical beliefs,” at which point the juror interjected, “Oh, religion, religion.” The judge asked, “And what's that?” The juror said, “Jehovah[’s] Witness.” The judge asked, “And can you tell me what's the belief that would affect ․” The juror said, “We're not supposed to like judge on other people. That's just our religion.”

The judge then asked, “Would you tend to weigh the testimony of a police officer differently from a civilian simply because the person was a police officer?” The juror answered, “Yes.” The juror indicated that he would be less inclined to believe a police officer. He said, “Most of the time, if it's a good answer, yeah, I believe it, but sometimes it could go either way.” The judge asked, “And your belief about that, would that affect your ability to be fair and impartial in this case?” The juror answered, “Yeah.”

The Commonwealth moved to strike the prospective juror for cause. The prosecutor said, “The Commonwealth would move to strike for cause. He stated that as a Jehovah[’s] Witness he's not allowed to judge, and I mean that's something ․ looked at is the credibility of witnesses when they testify․ And that's an aspect of it.”

Defense counsel objected, but solely on grounds of racial discrimination, though defense counsel also said, “I think I certainly would just ask our objection be noted. I understand that for multiple reasons he will be excused for cause.” Nonetheless, the judge asked the assistant district attorney for a neutral, adequate, and genuine basis for the for-cause motion.

The assistant district attorney said:

“[T]he Commonwealth's request to strike this juror for cause is not based on his race, but based on the answer to those questions. He did state that, one, his religion and belief is -- would make it hard for him to judge. It's something jurors have to do. They have to make a judgment of guilty or not guilty.

“He also stated that he -- even though he has an individual [in his family] that works for law enforcement[,] he stated that his -- testimony of a police officer will be [viewed] disfavorably at times.”

The judge said he found this to be a good, neutral explanation, and that he was “going to excuse [the juror], that the challenge is appropriate and is, again, not a pretense, and the dismissal or the excusal of the juror is lawful and not based on race. So that juror's excused for cause.”

As described, the juvenile argues that the cause for the excusal was, improperly, simply the prospective juror's membership in Jehovah's Witnesses; that the juror did not say that he himself would be unable to be impartial as a result of the tenets of his religion; and that the judge should have inquired more deeply of the juror before making that determination.

Ultimately, we disagree with this assessment. Although not crystally clear, we think that while the prospective juror's first sentence, “We're not supposed to like judge on other people,” might well be nothing more than a description of a tenet of the prospective juror's faith, his second sentence, “That's just our religion,” indicates that he personally felt that he was bound by that tenet. Not only did he use the first person plural, referring to Jehovah's Witnesses as “our religion,” which at least suggests that he was expressing what was not merely the view of the religion, but his own view, his use of the word “just” in this context indicates that he was expressing that he is bound by the tenet, and that the issue is, in his view, out of his hands. Consequently, we also conclude that no further inquiry at voir dire was required.

Even if we were wrong about the basis of the judge's action, although the Commonwealth does not note this, the claim that the juror was struck because of his religion is an unpreserved claim of error. The only objection below was that the prospective juror was being dismissed on the basis of his race. Discrimination in the use of a juror strike is a structural error, but where a claim of such error is not preserved, it is subject to analysis only to determine whether there is a substantial risk of a miscarriage of justice. See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 434-435 (2016), citing Batson v. Kentucky, 476 U.S. 79 (1986) (unpreserved claim of Batson error in a peremptory strike). “There is no evidence that the jury seated were unrepresentative, unfair, or biased in any way. The defendant has not shown that there is a ‘serious doubt’ as to the impartiality of the jury, and has therefore not demonstrated a substantial risk of miscarriage of justice.” Lacoy, supra at 435, quoting Commonwealth v. Millien, 474 Mass. 417, 432 (2016).

Adjudications of delinquency affirmed.