COMMONWEALTH v. COLLINS (2025)

In 2023, a jury convicted the defendant, Boima Collins, of carrying a firearm without a license and other charges. To meet the Commonwealth's burden to prove that the defendant did not possess a license to carry a firearm, the Commonwealth moved to introduce evidence, in the form of a certified copy of a court record, that the defendant had been convicted in 1998 of a prior felony offense. Because a person previously convicted of a felony is barred from obtaining a license to carry, see G. L. c. 140, § 131 (d) (i) (A), evidence of a prior felony conviction would tend to prove that the defendant did not have a firearms license. Allowing the motion over the defendant's objection, the trial judge admitted the record with certain information redacted and repeatedly instructed the jury that they could consider this evidence only on the question whether the defendant possessed a license.

On appeal, the defendant argues that the judge abused her discretion by admitting the redacted court record. The defendant contends that the judge failed to apply the proper standard for admission of evidence of a defendant's prior bad act; that the risk of unfair prejudice from the evidence was greater than its probative value; and that the Commonwealth had an alternative, less prejudicial way of proving lack of licensure. The defendant also claims that the jury should have been instructed that they could consider this evidence of lack of licensure only if the Commonwealth proved beyond a reasonable doubt that the defendant was the same person named in the record. He further contends that the evidence was in any event insufficient to prove he lacked a license, because the Commonwealth failed to prove that he was the same person named in the record.

There was no prejudicial error in the admission of the evidence of the defendant's prior conviction. While the judge's written order did not apply the more exacting standard for admission of evidence of a defendant's prior bad act, the judge correctly determined in weighing the evidence's probative value against the risk of unfair prejudice that the evidence was highly probative of a central issue at trial; she took appropriate steps to mitigate the risk of unfair prejudice, including giving the jury robust limiting instructions; and the decades-old prior conviction was for an offense not similar to the charged conduct, thus reducing the likelihood of improper propensity reasoning by the jury. We also conclude that the judge's instructions to the jury were not erroneous in the respect claimed by the defendant, and that the evidence on the element of lack of licensure was sufficient. We therefore affirm the defendant's convictions.

Background. 1. Facts. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

On July 10, 2021, at around 11:30 a.m., police responded to a report of a shooting at an apartment building in the Dorchester section of Boston. The victim had dialed 911 and told the emergency telephone operator that he had been shot by a person called “Craze.” The victim reported that the shooter was a “heavyset” male wearing tan work boots who had fled on a gray scooter toward another street.

Upon arriving, officers found the victim in an ambulance with a single bullet wound to his upper left leg. A resident of the building had witnessed the events leading up to the shooting. This witness was acquainted with both the victim and the defendant, whom she too knew as “Craze.” The witness testified that, immediately prior to the shooting, she and the defendant had been consuming cocaine in her apartment when the victim arrived unexpectedly. The two men began to “exchang[e] words” over the victim's tendency to abuse the witness. At that point, the witness exited the room. When she returned, she saw the victim limping away from the apartment.

Using the victim's descriptions of the shooter, his scooter, and the direction in which he fled, police traced the defendant's path in surveillance video footage. They located the defendant's scooter outside another apartment building, and the defendant emerged from the building shortly thereafter. Police handcuffed him and read him his Miranda rights. The defendant thereafter mentioned to police that his birthday was the following day, thus implying that his birthday was July 11.

At the building where the defendant was located, residents of one of the apartments consented to a search of the apartment. There, police found a small black bag that appeared similar to one worn by the operator of the scooter in the surveillance video. Inside the bag, police found a loaded revolver with one empty chamber. Police had searched for, but not found, spent shell casings at the scene of the shooting; this absence suggested that the shooter used a revolver, because revolvers do not eject spent shell casings.

2. Procedural history. The defendant was indicted for assault and battery by discharge of a firearm, G. L. c. 265, § 15E; carrying a firearm without a license, fourth offense, G. L. c. 269, § 10 (a); carrying a loaded firearm without a license, G. L. c. 269, § 10 (n); and possession of ammunition without a license, G. L. c. 269, § 10 (h). He pleaded not guilty to all charges.

The defendant's trial was scheduled for July 2023, approximately three months after this court first held that, in every prosecution for unlawful possession of a firearm, the Commonwealth bears the burden to prove beyond a reasonable doubt that the defendant did not have a firearms license, regardless of whether the defendant raises a defense that he was licensed. See Commonwealth v. Guardado, 491 Mass. 666, 690, 206 N.E.3d 512 (Guardado I), S.C., 493 Mass. 1, 220 N.E.3d 102 (2023), cert. denied, ––– U.S. ––––, 144 S. Ct. 2683, 219 L.Ed.2d 1299 (2024). To satisfy this element in the defendant's case, the Commonwealth moved to admit evidence that the defendant had been convicted in 1998 of a felony offense under G. L. c. 266, § 28, and thus was ineligible for a firearms license, see G. L. c. 140, § 131 (d) (i) (A).

At a hearing on the motion, the defendant opposed admission of this evidence on the ground that it was more prejudicial than probative. He further argued that the Commonwealth could prove lack of licensure through less prejudicial means, such as offering testimony from a representative of the Department of Criminal Justice Information Services (CJIS) that the defendant's name is absent from a database of firearms license holders.¹ The Commonwealth disputed that calling a witness from CJIS was feasible at the defendant's trial ² and further argued that, in any case, the Commonwealth could not be precluded from offering what was, in the Commonwealth's view, its “best evidence” that the defendant lacked a license.

After taking the motion under advisement, the judge issued a written order concluding that this evidence of a prior felony conviction would be admitted, with the name of the crime redacted. The judge further noted that she would instruct the jury that State law prohibits a person who has committed a felony from obtaining a firearms license, and that the prior conviction could be considered only in connection with the issue of whether the defendant held a firearms license at the time of the alleged offense.

At trial, the Commonwealth introduced a redacted copy of a docket sheet showing that a person named Boima Collins, born on July 11, 1978, was convicted in 1998 for an offense under G. L. c. 266, § 28. The docket sheet also stated that the defendant's hair color and race were, respectively, “brown” and “B,” and listed his height and weight. The name of the offense was redacted, and a portion of the record was blocked out entirely to conceal three other convictions. A detective testified that the offense was a felony.

As prefigured by her pretrial order, the judge twice instructed the jury -- both at the time the evidence was introduced and again following the closing arguments -- on the limited purpose for which they could consider this evidence. She instructed the jury that they could consider the evidence of the conviction “for one specific limited purpose, and that is to evaluate whether the Commonwealth has met its burden of proving that [the defendant] did not hold a firearms license at the time of the alleged offenses ․ in this case.” She emphasized that they were not to consider the evidence for any other purpose, including that they could not use the evidence “to conclude that, since [the defendant] has a prior conviction, he must have committed the offenses of which he is charged here.” And, echoing an instruction she gave the jury at the outset of the trial, the judge reminded the jury with respect to this evidence in particular that it was their role as fact finders to determine whether they believed the evidence and, if they did, “what weight to give it.”

After a six-day trial, the jury found the defendant guilty of the firearms charges and not guilty of assault and battery.³ At a bench trial on the sentence enhancement for a fourth firearms offense, the judge found the defendant guilty and sentenced him to the mandatory minimum term of ten years on his conviction of unlawful possession of a firearm, see G. L. c. 269, § 10 (d), to be followed by six months of probation for carrying a loaded firearm. We granted the defendant's application for direct appellate review.

Discussion. The defendant presses three claims of error on appeal relating to the Commonwealth's evidence that he lacked a firearms license. We address each in turn.

1. Prior bad act evidence. The defendant argues that the trial judge erred in allowing the Commonwealth to introduce evidence that he was previously convicted of a felony to prove that he lacked a firearms license. This evidence, he contends, posed a risk of unfair prejudice greater than the evidence's probative value; incurring this risk of unfair prejudice was unnecessary, because other evidence was “readily available” to prove the same element; and the judge did not apply the correct standard in considering whether the risk of unfair prejudice outweighed the evidence's probative value.

“It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose” (citation omitted). Commonwealth v. Bryant, 482 Mass. 731, 734, 128 N.E.3d 40 (2019). To introduce evidence of a defendant's prior bad act for a permissible purpose, “[t]he Commonwealth is required to demonstrate that the probative value of the evidence is not outweighed by the risk of unfair prejudice to the defendant.” Commonwealth v. Howard, 479 Mass. 52, 67, 91 N.E.3d 1108 (2018), citing Commonwealth v. Crayton, 470 Mass. 228, 249, 21 N.E.3d 157 (2014). See Mass. G. Evid. § 404(b) (2025). When reviewing a judge's decision to admit such evidence, this court considers “(1) whether the trial judge carefully weighed the probative value and prejudicial effect of the evidence introduced at trial; (2) whether the judge mitigated the prejudicial effect through proper limiting instructions; (3) whether the challenged evidence was cumulative of other admissible evidence, thereby reducing the risk of any additional prejudicial effect; and (4) whether the challenged evidence was so similar to the charged offense as to increase the risk of propensity reasoning by the jury” (citation omitted). Commonwealth v. Steeves, 490 Mass. 270, 287, 189 N.E.3d 1235 (2022).

“We review a judge's decision to allow the introduction of prior bad act evidence for abuse of discretion.” Commonwealth v. Peno, 485 Mass. 378, 386, 150 N.E.3d 314 (2020). The judge's ruling “is owed ‘great deference’ and will amount to an abuse of discretion only where we conclude that the judge ‘made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.’ ” Commonwealth v. Hinds, 494 Mass. 681, 689, 241 N.E.3d 721 (2024), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). Where, as here, the defendant timely objected, we consider whether any error prejudiced the defendant. See Commonwealth v. Correia, 492 Mass. 220, 232, 210 N.E.3d 407 (2023).

Here, the record shows that the judge closely considered both the probative value of the disputed evidence and the risk of unfair prejudice. See Steeves, 490 Mass. at 287, 189 N.E.3d 1235. The judge duly acknowledged “the danger of unfair prejudice ․ pose[d]” by admission of evidence that the defendant was convicted of a felony. She also recognized, however, that the evidence was “highly probative” of whether he possessed a firearms license at the time of the alleged offense, because such a prior conviction would make him ineligible to obtain a license to carry. See G. L. c. 140, § 131 (d) (i) (A) (convicted felons among “prohibited person[s]” to whom firearms license may not be issued). And, in weighing the evidence's probative value against the risk of unfair prejudice, the judge appropriately considered that evidence of lack of licensure pertained to an “essential element” of the Commonwealth's affirmative case for unlawful possession of a firearm, see Guardado I, 491 Mass. at 688, 206 N.E.3d 512. See Commonwealth v. Jaime, 433 Mass. 575, 579, 745 N.E.2d 320 (2001) (“in balancing the probative value against the risk of prejudice, the fact that evidence goes to a central issue in the case tips the balance in favor of admission”).

Moreover, the judge took appropriate measures to mitigate the evidence's prejudicial effect. She gave the jury a robust contemporaneous limiting instruction, which she repeated following the closing arguments.⁴ See Steeves, 490 Mass. at 287, 189 N.E.3d 1235. “Jurors are presumed to follow such instructions.” Commonwealth v. Gonzalez, 473 Mass. 415, 427, 42 N.E.3d 1078 (2015). The judge also admitted the evidence of the conviction in redacted form to reduce the risk of unfair prejudice. See Commonwealth v. Copney, 468 Mass. 405, 414, 11 N.E.3d 77 (2014) (“significant[ ]” to prejudice analysis that trial judge allowed Commonwealth “to use only a highly abridged version of the prior bad act evidence”).

And the nature of the prior bad act here was not similar to the charged offenses. See Steeves, 490 Mass. at 288, 189 N.E.3d 1235. The offense statute listed on the docket sheet, G. L. c. 266, § 28, sets forth various offenses related to motor vehicle theft. While these motor vehicle theft offenses are felonies, they otherwise are not similar to the alleged firearms offenses, thus reducing the possibility that the jury would engage in impermissible propensity reasoning. See Steeves, supra.

For these reasons, we conclude that admitting the redacted record of conviction did not “fall[ ] outside the range of reasonable alternatives.” See L.L., 470 Mass. at 185 n.27, 20 N.E.3d 930. The defendant is correct that the judge's written order misstated the standard for admission of the evidence in concluding that its probative value was not “substantially outweighed by the danger of unfair prejudice”; as discussed, evidence of a defendant's prior bad act is admissible only if it meets the more “exacting” standard that its probative value is not “outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk.” Crayton, 470 Mass. at 249 n.27, 21 N.E.3d 157. See Mass. G. Evid. §§ 403, 404(b)(2). We discern no prejudice to the defendant from this error of law in the circumstances here, however, where under the correct standard the evidence was admissible for the reasons we have described, and, consistent with best practices when admitting evidence of prior bad acts, see Bryant, 482 Mass. at 737-738, 128 N.E.3d 40, the judge took appropriate steps at every stage to mitigate any unfair prejudice that might arise notwithstanding that the prior conviction was more than twenty years old and for a dissimilar offense.

There is no merit to the defendant's further contention that this evidence should not have been admitted because the Commonwealth had alternative means of proving lack of licensure -- in the form of testimony from a CJIS witness -- that did not risk unfair prejudice to him. “The only requirements” for admission of evidence of a defendant's prior bad acts are “relevance” for a permissible purpose and “a showing that the probative value of the evidence outweighs its prejudicial impact.” Copney, 468 Mass. at 413, 11 N.E.3d 77, citing Commonwealth v. Helfant, 398 Mass. 214, 224-225, 496 N.E.2d 433 (1986). Accord Mass. G. Evid. § 404(b). As discussed, the evidence here met this standard. The judge therefore “was not obligated to consider ․ whether there was some alternative means by which the Commonwealth could prove its case,” Copney, supra -- in particular, whether, contrary to the Commonwealth's representation, see note 2, supra, testimony from a CJIS witness was in fact readily available to prove lack of licensure. Rather, the Commonwealth was entitled to introduce this admissible evidence to prove the element. See Commonwealth v. Ortiz, 466 Mass. 475, 482 n.9, 995 N.E.2d 1100 (2013) (Commonwealth “has a right to try its case in its own way so long as it engages in no calculated impropriety” [citation omitted]).⁵

In sum, there was no prejudicial error in the admission of evidence that the defendant had a 1998 felony conviction for a motor vehicle theft offense, accompanied by appropriate limiting instructions to the jury, to prove the element that the defendant lacked a firearms license at the time of the 2021 offenses.

2. Instruction on common identity. The defendant's second claim of error is that the judge should have instructed the jury that, in order to consider the evidence that the defendant had a prior felony conviction, the jury first must find beyond a reasonable doubt that the defendant was the person named in the court record.

While the judge instructed the jury that the Commonwealth bore the burden of proving beyond a reasonable doubt the element that the defendant did not have a firearms license, she did not instruct the jury that the Commonwealth bore the burden of proving beyond a reasonable doubt the subsidiary fact that the defendant was the same person as the person named in the court record. She instead instructed the jury more generally:

“You may recall there was evidence in this case that [the defendant] was previously convicted of a crime that is a felony, and I instructed you that under our state laws, a person who has been convicted of a felony may not obtain or retain a license to carry a firearm. Again, you are the factfinders in this case, and as with all evidence in this case, it is up to you whether you believe this evidence or not, and if you believe it, what weight to give it.”

The defendant claims this instruction was erroneous, citing cases requiring the Commonwealth to prove the fact of a prior conviction beyond a reasonable doubt in order to obtain a sentencing enhancement for a subsequent offense. See, e.g., Commonwealth v. Maloney, 447 Mass. 577, 581-582, 855 N.E.2d 765 (2006); Commonwealth v. Koney, 421 Mass. 295, 301-302, 657 N.E.2d 210 (1995).

The defendant's argument is unavailing. While the Commonwealth must prove all “essential elements of a crime beyond a reasonable doubt, preliminary questions of fact and subsidiary facts need only be proved by a preponderance of the evidence” (citation omitted). Commonwealth v. Edwards, 444 Mass. 526, 543, 830 N.E.2d 158 (2005), citing Commonwealth v. Rosenthal, 432 Mass. 124, 127 n.4, 732 N.E.2d 278 (2000). A felony conviction is not, of course, an element of the offense of unlawful possession of a firearm. See Commonwealth v. Marrero, 484 Mass. 341, 345-346, 141 N.E.3d 420 (2020) (discussing proof required); Superior Court Model Criminal Jury Instructions, Unlawful Possession of a Firearm (May 2024) (violation of G. L. c. 269, § 10 (a), requires proof that defendant [1] knowingly [2] possessed object [3] that meets legal definition of firearm [4] without valid license to carry). Accordingly, evidence tending to show that a defendant has a prior felony conviction, while probative of whether the defendant thereafter lacked a firearms license, is only a subsidiary fact that may permit an inference that the defendant was not licensed. The evidence of the prior conviction therefore did not need to meet the highest standard of proof in a criminal case. See Edwards, supra; Rosenthal, supra.

The cases the defendant cites regarding sentencing enhancements are distinguishable. They concern proceedings governed by a statute not applicable in this case, G. L. c. 278, § 11A, in which the Legislature has “set forth the proof necessary” for sentencing enhancements for subsequent convictions of operating while under the influence. Commonwealth v. Bowden, 447 Mass. 593, 595, 597, 855 N.E.2d 758 (2006). We have interpreted that statute to require proof of prior convictions beyond a reasonable doubt. See id. at 601 n.11, 855 N.E.2d 758. See also, e.g., Maloney, 447 Mass. at 589, 855 N.E.2d 765; Koney, 421 Mass. at 301-302, 657 N.E.2d 210. Here, by contrast, no statute compels the instruction sought by the defendant, nor was the prior conviction an “essential element[ ]” of the offense. Edwards, 444 Mass. at 543, 830 N.E.2d 158. There was no error in the instruction given by the judge.⁶

3. Sufficiency of the evidence. The defendant further argues that the evidence at trial was not sufficient to prove beyond a reasonable doubt that he lacked a firearms license, because the Commonwealth did not introduce sufficient evidence that the conviction record was his. The defendant accordingly contends the judge erred in denying his motion for a required finding of not guilty with respect to the firearm charges. In reviewing a sufficiency claim, we consider whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Latimore, 378 Mass. at 677, 393 N.E.2d 370. “Proof of an essential element of a crime may be based on reasonable inferences drawn from the evidence, but it may not be based on conjecture.” Commonwealth v. Combs, 480 Mass. 55, 61–62, 100 N.E.3d 730 (2018).

We conclude that a rational jury could find beyond a reasonable doubt that the evidence at trial proved the defendant lacked a firearms license. The record included the certified record of conviction for Boima Collins. The jury heard testimony from a detective that he had “research[ed]” whether “Boima Collins” had a prior conviction; that the redacted record of conviction entered in evidence was the result of his research; that the redacted record, with a checkmark next to “guilty plea or admission to sufficient facts” and a citation to G. L. c. 266, § 28, reflected a felony conviction; and that, based on this record, the detective understood that Boima Collins had been convicted of a felony. The conviction record was dated 1998, well before the alleged 2021 firearm offenses, thus supporting a reasonable inference under the law as instructed by the judge that the person convicted of this felony would not have had a firearms license at the time of the offenses.

The Commonwealth also played an audiovisual recording of an interview in which the defendant, in response to questions from officers, answered that his name was “Boima Collins,” and that his birthday was “tomorrow,” which the jury could reasonably infer from other evidence referred to July 11. This full name and July 11 birthday matched the conviction record. While no direct evidence corroborated that the defendant was born in 1978 as listed on the record, the jury could view the defendant in person and assess whether he appeared to be approximately forty-five years old at the time of trial. See Commonwealth v. Emmons, 98 Mass. 6, 8 (1867) (jury not “incompetent” to take witness's “appearance into consideration in passing on the question of his age”); Commonwealth v. Pittman, 25 Mass. App. Ct. 25, 27, 514 N.E.2d 857 (1987) (defendant's physical appearance may be considered as factor in discerning age); 2 Wigmore, Evidence § 222 (Chadbourn rev. ed. 1979), and cases cited. The jury also could compare the defendant's appearance with additional demographic details included in the record of conviction, including his race (listed as “B,” which the jury could reasonably infer meant “Black”) and hair color (“brown”). While the defendant's appearance during the trial is not part of the record on appeal, this court has reviewed the audiovisual recording of the defendant's police interview. A rational fact finder could conclude that the defendant's appearance in the recording corresponded with the information in the court record regarding age, race, and hair color.

The trial judge properly concluded that this evidence, taken together, was sufficient for a rational jury to conclude that the defendant had been convicted of a felony in 1998 and therefore, by reasonable inference based on the law on which she instructed them, lacked a firearms license at the time of the alleged offenses. She therefore did not err in denying his motion for a required finding.⁷

Conclusion. There was no prejudicial error in the admission in evidence, accompanied by appropriate limiting instructions, of the redacted court record of a 1998 felony conviction for a motor vehicle theft offense to prove that the defendant did not have a firearms license at the time of the 2021 offenses. The trial judge was not required to instruct the jury that, in order to consider this evidence in determining whether the Commonwealth had proven the element of lack of licensure, the jury first had to conclude that the Commonwealth proved the subsidiary fact of the prior conviction beyond a reasonable doubt. And the Commonwealth's evidence on this element was sufficient. Discerning no merit in the defendant's other arguments, we therefore affirm his convictions.

Judgments affirmed.

FOOTNOTES

1.   Massachusetts police departments are required to forward copies of applications, issued licenses, and notices of revocation and suspension to CJIS, see Commonwealth v. Gouse, 461 Mass. 787, 805-806, 965 N.E.2d 774 (2012), overruled on other grounds by Guardado I, 491 Mass. at 690, 206 N.E.3d 512, citing G. L. c. 140, § 122A, where those records are collected by the firearms records bureau, see Firearms Records Bur. v. Simkin, 466 Mass. 168, 168 n.2, 993 N.E.2d 672 (2013).

2.   The prosecutor represented that, at the time of the defendant's trial shortly after the Guardado I decision, there were only “two witnesses from CJIS in the entire [S]tate,” depriving the Commonwealth of “the capacity to bring in CJIS to the literally hundreds of firearm cases that are pending in the Commonwealth at any given time.”

3.   The judge vacated the conviction of possession of ammunition as duplicative of the conviction of carrying a loaded firearm without a license. See Commonwealth v. Johnson, 461 Mass. 44, 51-52, 958 N.E.2d 25 (2011).

4.   We note that, in giving the jury a contemporaneous limiting instruction, the judge rebuffed the prosecutor's suggestion that such an instruction would be redundant of instructions typically given at the end of trial. The judge chose the better course. See Bryant, 482 Mass. at 737-738, 128 N.E.3d 40 (best practice to give limiting instruction “at the time” evidence of defendant's prior bad acts admitted).

5.   The defendant's reliance on the United States Supreme Court's ruling under the Federal Rules of Evidence in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), is misplaced. There, the Court found an abuse of discretion in the admission in evidence of a conviction record detailing the name and nature of a prior offense, where the prosecution had refused to join in the defendant's proposed stipulation that he had a prior felony conviction. Id. at 175-176, 191-192, 117 S.Ct. 644. Here, by contrast, the Commonwealth offered to stipulate to the element of lack of licensure at the hearing on the Commonwealth's motion to admit the evidence of the defendant's prior felony conviction. The defendant rejected that offer and instead chose, as was his right, to put the Commonwealth to its proof. We therefore are not presented with the question and express no view on whether, in some circumstances, “the refusal to accept a defendant's proffered stipulation to an element of an offense being tried might constitute an abuse of discretion or other error” under our common law. Ortiz, 466 Mass. at 482 n.9, 995 N.E.2d 1100 (reserving question).

6.   Thus discerning no error, we need not resolve the parties’ dispute over whether the defendant preserved this objection.

7.   We discern no merit in the further argument advanced by the defendant that the trial judge abused her discretion in empanelling juror no. 245, who was an administrator at a law school at which the judge served as a trustee. The juror confirmed that, notwithstanding this connection, he could be fair to both parties and apply the law as the judge explained it. Neither party objected to seating the juror. The defendant now contends that the judge's inquiry was inadequate and that seating this juror “affected the power balance of the jury” in violation of his rights to a fair trial by an impartial jury under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. This claim finds no support in the record and presents no substantial risk of a miscarriage of justice. See Commonwealth v. Perez, 460 Mass. 683, 688-689, 954 N.E.2d 1 (2011), quoting Commonwealth v. Bryant, 447 Mass. 494, 501, 852 N.E.2d 1072 (2006) (“In deciding juror impartiality, it is sufficient for the judge to ‘determine whether jurors [can] set aside their own opinions, [properly] weigh the evidence[,] ․ and follow the instructions of the judge’ ”).

DEWAR, J.