Commonwealth v. Hinds

• Court: Massachusetts Supreme Judicial Court
• Decided: April 20, 2021
• Docket: SJC 12953
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-12953

COMMONWEALTH vs. ADRIAN HINDS.

Hampden. January 6, 2021. - April 20, 2021.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Assault and Battery by Means of a Dangerous Weapon. Evidence, Expert opinion, Motive, Hearsay. Witness, Expert. Jury and Jurors. Practice, Criminal, Jury and jurors, Examination of jurors, Challenge to jurors, Hearsay.

Indictments found and returned in the Superior Court Department on April 27, 2016.

The cases were tried before David Ricciardone, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Elaine Fronhofer for the defendant. Joseph G.A. Coliflores, Assistant District Attorney, for the Commonwealth. Rebecca Kiley, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. Michael Tumposky, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. 2

LOWY, J. In March 2016, the defendant, Adrian B. Hinds,

fought with Miranda Arthur-Smith and Nathaniel Cherniak. As a

result, the defendant was indicted on two counts of assault and

battery by means of a dangerous weapon resulting in serious

injury, G. L. c. 265, § 15A (c) (i).1 The defendant, who is

black, claimed that Cherniak, who is white, had initiated the

attack out of racial animus and that the defendant acted in

self-defense.

To support this argument, the defendant proposed having two

experts testify at trial about the cultural significance of a

symbol that Cherniak had tattooed on his arm. The defendant

alleged that the symbol -- which he claimed was the number 211 -

- was affiliated with groups that espoused white supremacist

ideology.2 After holding voir dire for each expert, the judge

excluded both experts on reliability grounds under the Daubert-

Lanigan standard. See Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 585-595 (1993). See also Commonwealth v. Lanigan, 419

1 The defendant also was indicted on two counts of armed assault with intent to murder, G. L. c. 265, § 18 (b), one count of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b), and one count of cruelty to an animal, G. L. c. 272, § 77. At trial, the judge dismissed for insufficient evidence so much of the G. L. c. 265, § 15A (b), charge as alleged that the assault and battery occurred by means of a dangerous weapon, and the jury found the defendant not guilty of the remaining charges.

2 Whether the symbol was the number 211 was disputed at voir dire by the Commonwealth. 3

Mass. 15, 25-26 (1994). At trial, the Commonwealth alleged that

the defendant attacked Arthur-Smith and Cherniak without

justification. The defendant subsequently was convicted on both

counts of assault and battery by means of a dangerous weapon

resulting in serious injury.

On appeal, we consider, among other issues, whether the

judge erred in excluding the defendant's experts. We conclude

that the judge abused his discretion in excluding one of the

experts. Because this error was prejudicial, we reverse and

remand for a new trial.3

Background. We summarize the evidence at trial, reserving

certain facts for our discussion of the issues. We start by

noting what was undisputed. The defendant and the victims knew

each other before the fight. At the time of the incident, the

defendant lived with his mother in the same Westfield apartment

building as Arthur-Smith and Cherniak, who lived together.

Indeed, the defendant and Cherniak were even friendly with one

another, but the friendship ended approximately six months

before the fight that gave rise to this case. As will become

apparent, the parties agreed on few other details.

3 We acknowledge the amicus briefs from the Committee for Public Counsel Services and Massachusetts Association of Criminal Defense Lawyers. 4

1. The Commonwealth's case. Cherniak testified that his

relationship with the defendant soured when the defendant

accused him of being with the Russian mafia, a Mexican cartel,

and the Bureau of Alcohol, Tobacco, Firearms, and Explosives,

and of being an undercover agent of the Drug Enforcement

Administration. Cherniak further testified that several days

before the altercation, the defendant confronted him in the

apartment building with a hammer and said that Cherniak was

going to be sent to a concentration camp.

Arthur-Smith testified that the altercation began when she

was pushed to the ground after leaving the apartment building to

head to her car. She felt something strike the back of her head

and, after turning over, recognized the defendant as the

attacker. She testified that the defendant struck her from four

to five times with a hammer. Arthur-Smith claimed that the

defendant smelled as if he had not bathed in some time and that

during the attack the defendant said to her: "That's for

messing with my mother." As the attack ensued, Arthur-Smith

yelled out Cherniak's name.

Cherniak testified that upon hearing Arthur-Smith yelling

his name, he left their apartment with a knife. When Cherniak

opened the front door of the building, he saw the defendant

standing over Arthur-Smith, who was bleeding. At that point,

Arthur-Smith's pet dog ran out of the building, causing Arthur- 5

Smith to stand up to chase the dog. The defendant went inside

the building. Cherniak, too, went inside, heading back to his

apartment to retrieve pepper spray; he then returned outside.

Thereafter, the defendant went back outside, hammer again in

hand. Cherniak sprayed the defendant with the pepper spray, and

the defendant struck Cherniak with the hammer several times.

After this, the defendant entered his car and drove away.

2. The defendant's case. The defendant offered a

different version of events. To begin, the defendant testified

that while living in the Westfield apartment building, both he

and his mother experienced several racially charged incidents

and that their cars' tires had been slashed while parked near

the apartment complex.4 The defendant did not testify that

Cherniak was behind these incidents. He did, however, testify

that his friendship with Cherniak ended when Cherniak repeatedly

asked the defendant to sell drugs for him, assuming that the

defendant was a drug dealer because, as the defendant testified

that Cherniak said, "You're black, you drive a Porsche, and

you're only twenty-something years old." Further, the defendant

4 The defendant testified that he contacted the police about the vandalism done to his car. An officer testified at trial that he had responded to a report of vandalism to the car but believed that the alleged slash marks on the tires were consistent with damage to the rim from driving over potholes. 6

testified that Cherniak told the defendant that he had been a

member of a "biker club" or "gang" in New York City.5

In contrast to Cherniak and Arthur-Smith's testimony, the

defendant testified that the altercation began when he heard a

loud bang outside his apartment, which the defendant believed

was the door to the building slamming shut. The defendant was

in the shower when he heard the noise.6 Because his car

previously had been vandalized, he looked out the window to

check on it. From his apartment window, the defendant saw

Arthur-Smith and Cherniak standing near his car and Cherniak

using a knife to slash his rear tire.7 Seeing that Cherniak had

a knife, the defendant grabbed a hammer before leaving his

apartment.

The defendant testified that he verbally confronted Arthur-

Smith and Cherniak when they returned inside the apartment

building. Standing in the building's hallway, Cherniak

5 Nathaniel Cherniak denied telling the defendant that he was in a gang.

6 When an officer investigated the defendant's apartment after the altercation, he found the shower was still running.

7 The size of the knife was disputed. After the fight, the police did not ask to see, collect, or photograph the knife. Instead, Miranda Arthur-Smith brought the knife into the police station two weeks before trial. The defendant alleged that the knife Arthur-Smith brought to the police station was not the one Cherniak had used. Instead, the defendant claimed it was smaller than the one used by Cherniak in the fight, which had approximately a sixteen-inch blade. 7

responded to the defendant by saying something to the effect of

"What are you going to do about it?" Arthur-Smith then sprayed

the defendant with pepper spray, making it difficult for the

defendant to keep his eyes open. The defendant saw Cherniak

pull out a knife. The defendant then went toward the door

leading outside, swinging his hammer as he went. Arthur-Smith

sprayed the defendant as she backed out through the exterior

door. As the defendant reached the steps that led down from the

building's exterior door, he heard what sounded like someone

falling. Cherniak then followed the defendant out of the

building and started to slash his knife at the defendant. In

return, the defendant swung his hammer at Cherniak, making

contact with him several times. When the defendant realized

that he could get by Cherniak and reenter the building, he did

so, returning to his apartment.8

Once inside, the defendant testified that he decided to try

to find his mother, who was not home at the time, and to warn

her about what had happened.9 The defendant brought his hammer

with him as he went back outside. When the defendant left the

8 Arthur-Smith denied spraying the defendant with pepper spray and claimed not to have seen any damage to the tires of the defendant's car. Cherniak likewise denied slashing the defendant's tires.

9 The defendant claims that he did not try to telephone his mother because she had not been answering her telephone that day. 8

building, Cherniak was standing near the defendant's car.

Cherniak sprayed the defendant with the pepper spray, and the

defendant responded by swinging the hammer towards Cherniak.

The defendant made contact with Cherniak, causing him to stop

spraying the pepper spray. The defendant then got into his car

and drove away, eventually pulling over due to the damage to one

of his tires.10

3. Percipient witnesses. Although there were three other

percipient witnesses who saw parts of the fight and testified at

trial, none of these witnesses saw who the initial aggressor

was. The first witness, who was located near the parking lot at

the time, testified that he saw the defendant standing over

Arthur-Smith outside the building and then Cherniak running

outside. That witness did not hear Arthur-Smith yell Cherniak's

name. The second witness, who was inside her apartment at the

time, testified to hearing a commotion outside and seeing a

black man and a white man fighting when she looked out her

window.

Finally, the third witness testified that from inside her

apartment she heard scuffling, grunting, and loud talking,

though not yelling. After looking out a window, which looked

directly out over the parking lot, she saw a black man and a

The officer who found the car confirmed that one of its 10

rear tires had "sustained some significant damage." 9

white man fighting and a woman running after a dog. She further

saw the black man go back into the apartment building, then

return outside with a hammer. At this point, the white man

sprayed the black man with something, and the black man hit the

white man in the head with the hammer. After fighting, the

black man got in his car and drove away.

4. Procedural history. The jury found the defendant

guilty on two indictments charging assault and battery by means

of a dangerous weapon resulting in serious bodily injury, G. L.

c. 265, § 15A (c) (i). The defendant appealed, and we

transferred the case to this court sua sponte.

Discussion. 1. Expert testimony. At trial, the defendant

argued that he acted in self-defense. The defendant's theory of

the case was that Cherniak and Arthur-Smith were motivated to

attack him by racial animus. Corroborating this theory was a

tattoo Cherniak had on his arm. The defendant argued that the

tattoo was of the number 211 and that this symbol was used by

both the 211 Crew -- a white supremacist prison gang -- and the

211 Bootboys -- a white supremacist group operating out of New

York City. According to the defendant, Cherniak's tattoo

signaled his affinity to beliefs espoused by these groups. To

support this theory, the defendant sought to introduce the

testimony of two experts: Dr. Sophie Bjork-James, who has a

doctorate in cultural anthropology and studies the white 10

nationalist movement, and Dr. Jesse De La Cruz, who has a

doctorate in educational leadership and is an expert on gangs.

Each would testify that Cherniak's tattoo was affiliated with a

group that espoused white supremacist beliefs.

The judge excluded both experts on reliability grounds. On

appeal, the defendant argues that the judge's decisions to

exclude De La Cruz and Bjork-James's expert testimony were

abuses of discretion. We agree as to Bjork-James's testimony

but not as to De La Cruz's testimony.

"The role of expert testimony is to assist jurors in

interpreting evidence that lies outside their common

experience." Commonwealth v. Shanley, 455 Mass. 752, 761

(2010). Admission of such testimony is "governed by what has

come to be known as the Daubert-Lanigan standard."11

Commonwealth v. Camblin, 478 Mass. 469, 475 (2017). See Mass.

G. Evid. § 702 & comments (2021). To satisfy this standard,

expert testimony must both "rest[] on a reliable foundation" and

11Expert testimony also may be admitted under the standard set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See Commonwealth v. Patterson, 445 Mass. 626, 640 (2005), overruled on other grounds by Commonwealth v. Britt, 465 Mass. 87 (2013) (Frye standard requires "theory and methodology in question to be generally accepted by a relevant scientific community"). See also Commonwealth v. Powell, 450 Mass. 229, 238 (2007) ("Where general acceptance is not established by the party offering the expert testimony, a full Daubert analysis provides an alternate method of establishing reliability" [citation omitted]). At oral argument, however, the defendant conceded that the Daubert-Lanigan standard applies in this case. 11

be "relevant to the task at hand." Daubert, 509 U.S. at 597.

See Commonwealth v. Polk, 462 Mass. 23, 32 (2012).

Within this framework, "[t]he judge is the gatekeeper of

the evidence" and must make a threshold determination that the

testimony is both relevant and "sufficiently reliable to go

before the jury." Commonwealth v. Hoose, 467 Mass. 395, 417

(2014). Whether the methodology applied by the expert satisfies

gatekeeper reliability is a preliminary question of fact upon

which admissibility depends on the judge to determine. Mass. G.

Evid. § 104(a) (2021). The judge does not, however, determine

whether to credit the expert's ultimate opinion; this is a

matter of weight for the jury to decide. See Commonwealth v.

Roberio, 428 Mass. 278, 281 (1998), S.C., 440 Mass. 245 (2003)

("Once the expert's qualifications were established and assuming

the expert's testimony met the standard of . . . Lanigan, . . .

the issue of credibility was for a jury, not the judge").

"We review a judge's determination to admit or exclude

expert testimony under Daubert-Lanigan for an abuse of

discretion." Commonwealth v. DiCicco, 470 Mass. 720, 729

(2015). See Canavan's Case, 432 Mass. 304, 312 (2000).

Although "our review under this standard is deferential and

limited, it is not perfunctory. A judge's findings must apply

the correct legal standard to the facts of the case and must be

supported by an examination of the record." Commonwealth v. 12

Patterson, 445 Mass. 626, 639 (2005), overruled on other grounds

by Commonwealth v. Britt, 465 Mass. 87 (2013). See Commonwealth

v. Crawford, 429 Mass. 60, 66 n.13 (1999). Our analysis begins

with the issue of relevance.

a. Relevance. We begin by recognizing that the judge did

not base his ruling as it relates to either defense expert on

relevance grounds. Nor did either the Commonwealth or the

defendant raise the issue of relevance at trial or on appeal.12

Nevertheless, a proper understanding of the relevance of the

expert testimony at issue here is crucial. See Kumho Tire Co.

v. Carmichael, 526 U.S. 137, 153-154 (1999) (judges must

determine whether expert's testimony reliably speaks to issue

for which it is offered to prove). Relevance is the first rule

of evidence; it is where our analysis must begin. See State v.

Goodson, 281 Kan. 913, 922 (2006) ("A determination of relevance

is the first step in analyzing if evidence is admissible").

Failure to grapple fully with the relevance of the defendant's

expert testimony may have led the parties and the judge astray.

Consequently, we start our inquiry here.

The judge appears to have assumed that at least Bjork-

James's opinion was relevant in part to show that Cherniak

belonged to a gang. This was not and is not the defendant's

12The defendant, however, was asked about the issue at oral argument. 13

theory. Instead, the defendant argued that Arthur-Smith and

Cherniak attacked him first, and that the incident was a "race-

based attack and that he acted in self-defense." To this end,

De La Cruz and Bjork-James's testimony was relevant not to show

that Cherniak belonged to a gang, but rather that he may have

had some affinity for white supremacist ideology, regardless of

whether he was actually a member of any gang or white

supremacist group. In short, De La Cruz and Bjork-James's

testimony went to whether Cherniak was motivated to attack the

defendant based on his alleged white supremacist beliefs.13

"The relevance threshold for the admission of evidence is

low." Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004). To be

relevant, the proposed evidence need only have a tendency to

make a material fact more or less probable that it would be

without the evidence. See Commonwealth v. Moore, 480 Mass. 799,

808 (2018); Mass. G. Evid. § 401 (2021).

In light of these considerations, "evidence of motive need

not be conclusive"; instead, "it need only provide a link in the

chain of proof." Commonwealth v. Watt, 484 Mass. 742, 748

(2020). Courts routinely have admitted evidence concerning

13At one point, the judge appeared to acknowledge this, noting that "the Defendant has a theory that the Complainant's a white supremacist and that this led to him being attacked." 14

tattoos to show motive.14 See, e.g., People v. Valdez, 55 Cal.

4th 82, 131 (2012), cert. denied, 569 U.S. 948 (2013) (evidence

of tattoo relevant to show motive); Wolfe v. State, 273 Ga. 670,

673-674 (2001) (same); State v. Tankovich, 155 Idaho 221, 225-

226 (2013) (tattoos relevant to racial motive of both defendant

bearing them and codefendant in malicious harassment case);

People v. James, 348 Ill. App. 3d 498, 509-510 (2004), cert.

denied, 544 U.S. 910 (2005) (evidence of tattoo relevant to show

motive). See also People v. Slavin, 1 N.Y.3d 392, 395, cert.

denied, 543 U.S. 818 (2004) ("tattoos may have reflected

defendant's inner thoughts"). Cf. Commonwealth v. Sylvia, 456

Mass. 182, 188-189 (2010) (that prosecutor reasonably expected

to elicit evidence supporting comment made during opening

statement about how tattoo of victim's name on defendant's neck

might provide possible motive for murder was supported by

record).

If credited, Bjork-James's or De La Cruz's testimony would

have provided evidence that Cherniak's tattoo was associated

with a group that espouses white supremacist beliefs. Combined

with the defendant's testimony about the racially charged

14Analogous reasoning also has supported entering in evidence gang-affiliated clothes and symbols in order to demonstrate motive. See, e.g., Commonwealth v. Lopes, 478 Mass. 593, 604 (2018) ("testimony that the defendant had been seen wearing clothing that bore an 'H' [signifying Homes Ave. gang membership] was relevant in proving the defendant's motive"). 15

statements that Cherniak made to him and which allegedly ended

their friendship, and presuming the jury found that the

Cherniak's tattoo was a "211," the expert testimony would have

provided the jury with a link between the tattoo and a motive

for Cherniak to attack the defendant.15 Thus, the proffered

testimony was relevant.

b. Reliability. Under the Daubert-Lanigan standard, "the

touchstone of admissibility is reliability." DiCicco, 470 Mass.

at 729, quoting Commonwealth v. Vao Sok, 425 Mass. 787, 796

(1997). See Lanigan, 419 Mass. at 26. To this end, the

proponent of the expert testimony must establish, among other

factors, that the testimony is "based on facts or data of a type

reasonably relied on by experts to form opinions in the relevant

field," that the testimony is based on a reliable methodology,

and that methodology "is applied to the particular facts of the

case in a reliable manner."16 Commonwealth v. Barbosa, 457 Mass.

15We previously have held "that evidence of a victim's prior violent conduct may be probative of whether the victim was the first aggressor where a claim of self-defense has been asserted and the identity of the first aggressor is in dispute." Commonwealth v. Adjutant, 443 Mass. 649, 650 (2005). Because the defendant offers the evidence for the nonpropensity purpose of motive, and because the Commonwealth did not object on the ground of impermissible character evidence, we need not examine any further implications that arise from Adjutant.

16The proponent of the expert testimony also must demonstrate that the witness is qualified as an expert and that the witness's testimony will assist the jury. Commonwealth v. 16

773, 783 (2010), cert. denied, 563 U.S. 990 (2011). See Mass.

G. Evid. § 702 (requirements for admission of expert testimony).

i. Soft sciences. Both of the defendant's proffered

experts are social scientists. Commentators often refer to

disciplines like these as "soft sciences." See, e.g., Goodman,

A Hedgehog on the Witness Stand -- What's the Big Idea?: The

Challenges of Using Daubert to Assess Social Sciences and

Nonscientific Testimony, 59 Am. U. L. Rev. 635, 641 (2010).

Before assessing either Bjork-James's or De La Cruz's testimony,

we take this opportunity to comment on the application of

Daubert-Lanigan to the soft sciences.

Whereas experts in the "hard sciences" primarily base their

findings on repeatable experiments conducted under controlled

conditions, experts in the "soft sciences" base their findings

largely on nonrepeatable observations. See generally Brodin,

Behavioral Science Evidence in the Age of Daubert: Reflections

of a Skeptic, 73 U. Cin. L. Rev. 867, 869 (2005). At times, we

have suggested that the Daubert-Lanigan standard differs when

applied to "soft" sciences as when compared to how it is applied

to "hard" sciences. See, e.g., Canavan's Case, 432 Mass. at

Barbosa, 457 Mass. 773, 783 (2010), cert. denied, 563 U.S. 990 (2011). Because the Commonwealth concedes that the testimony of De La Cruz and Bjork-James would have aided the jury, we do not discuss this factor further. Insofar as the qualifications of Bjork-James are at issue, we discuss that at note 23, infra. 17

311-312. See also Mass. G. Evid. § 702 & comments ("The

application of the Daubert-Lanigan factors in cases involving

the 'hard' sciences may not apply in the same way in cases

involving the 'soft' sciences"). This suggestion recognizes an

important truth. The soft sciences are not entitled to less

consideration than their hard science counterparts, but the

methodologies of each do differ. Our law of evidence reflects

this point.

The Daubert-Lanigan standard initially was developed to

assure the reliability of expert testimony based on hard

sciences like pharmacology and deoxyribonucleic acid (DNA)

testing. See Daubert, 509 U.S. at 583. See also Lanigan, 419

Mass. at 16. These origins guided the United States Supreme

Court in Daubert to identify what factors courts should consider

when determining whether an expert's methodology is reliable.

See generally Brodin, 73 U. Cin. L. Rev. at 871-873.

Specifically, courts should consider (1) whether the method "can

be (and has been) tested," (2) whether it "has been subjected to

peer review and publication," (3) its "known or potential rate

of error," (4) "the existence and maintenance of standards

controlling the technique's operation," and (5) whether the

method has achieved "general acceptance" within the relevant

community. Daubert, supra at 593-594. 18

These nonexclusive factors, however, are not easily imposed

on the methodologies used by the soft sciences. Because

different subject matters allow for varying degrees of

certainty, the metrics used to assess reliability understandably

vary across areas of expertise. See Reinhard, "Sociological

Gobbledygook": Gill v. Whitford, Wal-Mart v. Dukes, and the

Court's Selective Distrust of "Soft Science," 67 U.C.L.A. L.

Rev. 700, 747 (2020) ("Soft sciences[, unlike hard sciences,]

are stuck in an unending state of 'maybe,' or 'yes, but only in

the event that --' or 'it depends'"). See also Commonwealth v.

Pytou Heang, 458 Mass. 827, 847-849 (2011) (different levels of

certainty where expert's discipline "is clearly as much an art

as a science"). For this reason, different "types of

methodology may require judges to apply differing evaluative

criteria to determine whether scientific methodology is

reliable."17 Canavan's Case, 432 Mass. at 314 n.5. See Kumho

Tire Co., 526 U.S. at 150 ("[W]e can neither rule out, nor rule

in, for all cases and for all time the applicability of the

factors mentioned in Daubert, nor can we now do so for subsets

17Conversely, once an expert's testimony based on soft science is admitted, it also is important for jurors to understand that it is not hard science. See Commonwealth v. Torres, 469 Mass. 398, 407 (2014) ("Of particular concern is the danger that the jury is misled into an understanding that the 'science' at hand is 'hard' science, when in fact it is 'soft' science"). 19

of cases categorized by category of expert or by kind of

evidence. Too much depends upon the particular circumstances of

the particular case at issue"); Ernest E. v. Commonwealth, 486

Mass. 183, 190-191 (2020) (application of Daubert-Lanigan to

soft sciences).

In other words, "[n]ot all of the factors identified in

Daubert[-Lanigan] will be applicable in every case." Palandijan

v. Foster, 446 Mass. 100, 111 (2006). Consequently, while

Daubert-Lanigan establishes "various guideposts for determining

admissibility including general acceptance, peer review, and

testing," we have also stressed that "[e]stablishing the

reliability of personal observations may in some circumstances

require examining other criteria." Canavan's Case, 432 Mass. at

314 n.5. Therefore, in order to respect the methodological

distinctions that divide soft from hard sciences, application of

the Daubert-Lanigan standard to soft sciences requires

flexibility with special attention being paid to the criteria of

reliability that different disciplines develop.18 Id. See

Goodman, 59 Am. U. L. Rev. at 680 ("Ultimately, courts should

develop a suitable set of factors to test a particular social

18Assessing the reliability of the methodology employed by an expert's testimony in light of the standards developed within the relevant field also helps to avoid what some commentators have labeled as "selective distrust" of the soft sciences. See Reinhard, 67 U.C.L.A. L. Rev. at 708. 20

science methodology"). With these considerations in mind, we

turn to the case at hand.

ii. Defendant's experts. In excluding Bjork-James, the

judge found that the methodology employed by Bjork-James to

connect the number 211 to white supremacist gangs was

unreliable. In excluding De La Cruz's testimony connecting

Cherniak's tattoo to white supremacist gangs, the judge found

that the testimony was based on insufficient facts, that it was

not based on reliable methods, and that De La Cruz did not

reliably apply these methods to the facts of the case. We agree

with the defendant that the decision to exclude Bjork-James was

an abuse of discretion, but we disagree with the same argument

concerning De La Cruz.19

A. Bjork-James. During voir dire, Bjork-James testified

that her method of analysis was based on ethnography, which is

premised on observing people in their everyday locations in

order to understand society from their point of view, and media

studies, which focuses on the cultural significance people

19The Commonwealth does not challenge, and the judge did not rule on, the underlying basis of either De La Cruz or Bjork- James's testimony. See Mass. G. Evid. § 703 (2021). Consequently, we do not inquire further into whether the sources used by these experts pass muster under our law of evidence. Cf. Commonwealth v. Watt, 484 Mass. 742, 746 (2020) ("Expert testimony must be based on facts within the witness's direct personal knowledge, facts already introduced in evidence, or unadmitted but independently admissible evidence" [quotations and citation omitted]). 21

afford media.20 Bjork-James drew from these approaches in her

research into the white supremacist movement's development on

the Internet.21 To this end, she studied online postings on

known white supremacist websites. When she found a post that

users of the website commented on, or one that shared themes22

with other posts, she would keep track of the information

contained therein. When neither of these factors was present,

Bjork-James would disregard the post. In this way, Bjork-James

identified themes that emerged among various posts she studied.

One pattern that Bjork-James noticed as part of her

academic research was the use of numbers among white nationalist

groups to identify themselves. Among these numbers was the

number 211, which Bjork-James tracked as recurring among online

posts about a record label whose bands were affiliated with the

white supremacist movement and that had ties to the 211

20Although not dispositive of either term's meaning within the discipline of cultural anthropology, "ethnography" is also defined as "[t]he scientific description of the customs of individual peoples and cultures," Lexico, https://www.lexico.com /en/definition/ethnography [https://perma.cc/H28R-4FYH], whereas "media studies" is defined as "[t]he study of the mass media as an academic subject," Lexico, https://www.lexico.com/en /definition/media_studies [https://perma.cc/V5SP-L8ND].

21Bjork-James had been studying the white supremacist movement since 2004. During that time, she had published her findings in several academic journals as well as in a peer- reviewed manuscript.

22"Themes" is an academic term in this context and signifies a focus on recurring information and patterns. 22

Bootboys, a group harboring white supremacist beliefs. Bjork-

James used reports authored by the Southern Poverty Law Center

and the Anti-Defamation League to confirm the connection between

bands and the white supremacist movement. When asked by defense

counsel during voir dire whether she knew of any other cultural

significance of the number "211" outside of the white

supremacist movement, Bjork-James responded that she did not.

The judge credited Bjork-James's testimony concerning how

tattoos and symbols are used by individuals to signal affinities

with white supremacist groups.23 The judge even found that "as a

matter of cultural anthropology," Bjork-James knew of "no other

use of the number '211,' except in reference to 211 Crew or 211

Bootboys." Despite that, the judge concluded that the defendant

presented "no reliable methodology to support alleged expert

testimony that the Complainant's tattoo is connected to a white

supremacist group or ideology."

23Despite basing his ruling on methodology rather than qualifications, the judge also found that Bjork-James was not an expert in tattoos, noting that "[s]he does claim some expertise in symbols, but only in a broad sense as they pertain to white supremacist and similar groups." However, Bjork-James was being offered as an expert on symbols, an area in which the judge found she was qualified. Insofar as the judge factored Bjork- James's lack of expertise in tattoos into his analysis, this was error. See Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990) ("There is no requirement that testimony on a question of discrete knowledge come from an expert qualified in that subspecialty rather than from an expert more generally qualified"). 23

Although "conclusions and methodology are not entirely

distinct from one another," General Elec. Co. v. Joiner, 522

U.S. 136, 146 (1997), a judge acting as gatekeeper must limit

his or her analysis to the reliability of an expert's

methodology, not the persuasiveness of the conclusion. See

Daubert, 509 U.S. at 595 ("The focus, of course, must be solely

on principles and methodology, not on the conclusions that they

generate"). "Of course, if the judge rules the opinion evidence

admissible, that ruling is not final on the reliability of the

opinion evidence." Lanigan, 419 Mass. at 26. "Vigorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence."

Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 n.40 (2010),

quoting Daubert, supra at 596. See Commonwealth v. Torres, 469

Mass. 398, 407 (2014) ("How the expert proceeds with the

application of [a method] is usually fertile ground for cross-

examination"). In other words, an expert may have a reliable

method and still fail to persuade a jury of his or her

conclusions. But acting as gatekeeper, the judge must leave the

determination of the credibility of the expert and the weight to

be attributed to the expert's testimony to the trier of fact.

Here, the judge incorrectly focused on the persuasiveness

of Bjork-James's conclusions, not the reliability of her 24

methodology. Furthermore, the judge appears to have focused on

the wrong conclusions. When evaluating Bjork-James's analysis

of the number 211 and its use by white supremacist groups, the

judge found that the examples used by Bjork-James to draw this

link "do not match the distinctive font of the Complainant's

tattoo." For this reason, the judge found that "the alleged

connection between the Complainant's tattoo and him espousing

any racist ideology is too specious to pass muster under" the

Daubert-Lanigan standard.24 Yet the defendant offered Bjork-

James not to tie Cherniak or his tattoo specifically to the

white supremacist movement, but rather to provide testimony on

the significance of the number 211 to the principles of white

supremacy more generally.25 Assuming the jury found that

Cherniak's tattoo was of the number 211, Bjork-James's testimony

would have been relevant as to whether the tattoo indicated any

affinity of his with the white supremacist movement. Jurors

24During its closing at Bjork-James's voir dire, the Commonwealth also emphasized that the link between the cultural anthropologist's testimony and Cherniak's tattoo was absent. To this end, the Commonwealth argued that Bjork-James could not "definitively" say that Cherniak's tattoo was a 211 symbol.

25Defense counsel stressed this point during Bjork-James's voir dire, arguing that although the jury could believe that Cherniak's tattoo was something other than a 211, if the jury thought it was that number then the cultural anthropologist's testimony was "relevant because [Cherniak] has a symbol on his body that [Bjork-James] says is one of the symbols that circulates among [white supremacist] groups." 25

reasonably could have inferred either that Cherniak did or did

not share the movement's insidious beliefs.

Put differently, Bjork-James's testimony was conditionally

relevant on the jury finding that Cherniak's tattoo was of the

number 211. See Mass. G. Evid. § 104(b). The judge's role in

this regard was to determine whether a jury could reasonably

find by a preponderance of the evidence that Cherniak's tattoo

was the number 211. See Commonwealth v. Ware, 482 Mass. 717,

729 n.16 (2019), quoting Commonwealth v. Meola, 95 Mass. App.

Ct. 303, 308 n.13 (2019) ("A judge, when addressing an issue of

conditional relevance, does not decide whether he or she

believes that the item being offered in evidence is what it is

purported to be. Rather, the judge decides whether a trier of

fact 'could reasonably find the conditional fact . . . by a

preponderance of the evidence'"). In determining that

Cherniak's tattoo did not match the font of the samples on which

Bjork-James's testimony relied and was thus not related to the

beliefs espoused by white supremacists, the judge intruded on

the role of the jury.26

26An analogous situation would be where an expert is analyzing whether DNA on a victim's shirt was that of a defendant. The judge's role there would be to assess the reliability of the science, not to determine whether the shirt was worn by the victim. Rather, the judge would determine whether a jury could reasonably decide by a preponderance of the evidence that the shirt was worn by the victim. See Mass. G. Evid. § 104(b). 26

"Numerous decisions in federal and other state cases also

have upheld the admission of expert testimony to explain the

culture and beliefs of White supremacy groups and gangs and to

interpret tattoos, symbols, and graffiti associated with these

groups when such evidence was relevant to the issues at trial."

People v. Lindberg, 45 Cal. 4th 1, 46-47 (2008), cert. denied,

557 U.S. 908 (2009). In testifying about this culture, Bjork-

James applied the sort of comparative methodology commonly used

by social scientists beyond the court room setting. See, e.g.,

United States v. Young, 916 F.3d 368, 380-381 (4th Cir.), cert.

denied, 140 S. Ct. 113 (2019) ("'collect[ing] as much

information as possible,' then balancing 'each new incoming

piece of information against the body of information you've

built to that point'" is method "generally employed in the

social sciences" [citation omitted]); United States vs. Paracha,

U.S. Dist. Ct., No. 03 CR. 1197(SHS), slip op. at 35 (S.D.N.Y.

Jan. 3. 2006) (determining as reliable methodology "gathering

multiple sources of information, including original and

secondary sources, cross-checking and juxtaposing new

information against existing information and evaluating new

information to determine whether his conclusions remain

consonant with the most reliable sources"). See also Goodman,

59 Am. U. L. Rev. at 681 ("Because so much of social science

. . . is based on document selection and interpretation, courts 27

should focus on this factor in assessing a social science

expert's methodology" [footnote omitted]).

Therefore, it was an abuse of discretion to exclude Bjork-

James's testimony concerning the cultural significance of the

number 211. The defendant offered the anthropologist's

testimony to provide the jury with the basis to infer that

Cherniak shared the white supremacist beliefs that Bjork-James's

research linked to the number 211, and that these beliefs in

turn motivated Cherniak to initiate the fight at issue.

Although the defendant certainly could have articulated this

theory more precisely to the judge, the judge imposed too high a

burden on the testimony's admissibility, asking that it persuade

him of factual conclusions rather than merely demonstrate a

reliable methodology. Cf. Salvas v. Wal-Mart Stores, Inc., 452

Mass. 337, 358 (2008) ("In excluding even the portion of

Shapiro's report and testimony that consisted of counting data

found in Wal–Mart's own business records, the motion judge acted

not on the basis of any challenge to Shapiro's methodology, but

essentially on his view that the records themselves were

insufficiently reliable"). This was error.

B. De La Cruz. The same is not true for De La Cruz.

Whereas Bjork-James outlined a reliable method for assessing

symbolism, De La Cruz did not. Although De La Cruz did discuss

the methods used by sociologists to understand how gangs 28

identify themselves at one point, he did so in general terms,

discussing the difference between quantitative and qualitative

analysis in a manner untied to a specific methodology. Even if

invoking these terms in the abstract would be sufficient to

identify a method at work here, De La Cruz did not discuss

specifically how these different approaches guided his own

research, instead giving the impression that these were

approaches in which he was trained. Such academic training

"might have taught him a methodology, [but] it is not itself a

methodology." Commonwealth v. Franceschi, 94 Mass. App. Ct.

602, 610 (2018).

Furthermore, when asked how he had researched the meaning

of the number 211, De La Cruz recalled having come across the

figure during his doctoral research.27 To refresh his memory, De

La Cruz read twenty to twenty-five articles on the Internet

about groups that used the number 211 to identify themselves.

De La Cruz did note that the number was associated with white

supremacist beliefs. At no point during his voir dire, however,

did De La Cruz indicate what guided his selection of the

particular articles he read or his research in general. Nor did

De La Cruz provide a reliable method for determining whether a

27De La Cruz's dissertation examined gang membership; it did not appear to examine how to determine whether a symbol is associated with a gang. The dissertation also did not appear to cover any gangs that used the number 211 to identify themselves. 29

symbol was affiliated with white supremacist groups.28 Although

Daubert-Lanigan must be flexibly applied to the soft sciences,

there is a breaking point. When an opinion "is connected to

existing data only by the ipse dixit of the expert," that point

has long since been passed. General Elec. Co. 522 U.S. at 146.

In sum, De La Cruz was qualified to testify about the

significance of the number 211 to white supremacist gangs. He

also may have had a methodology that he could have reliably

applied to uncover this significance. But he did not articulate

the foundation for such a method here. See Kumho Tire Co., 526

U.S. at 153 (although expert was qualified, he lacked reliable

methodology). "Because the admissibility of expert testimony is

a preliminary question of fact, the proponent's burden of proof

to demonstrate the reliability of the expert opinion is by a

preponderance of the evidence." Camblin, 478 Mass. at 476. See

28De La Cruz did reference a test that the United States Department of Justice uses to determine gang membership, which assign points to a subject based on how many of a set of criteria for gang membership the subject matches. Once the subject acquires ten points, then the test considers the subject a gang member. Based on these criteria, De La Cruz concluded that Cherniak was "definitely associated with" white supremacist groups. However, the criteria were not developed to determine whether a symbol was associated with the white supremacist movement and instead based some of the points allotted to whether a subject had a "[k]nown gang tattoo or marking." Whether the 211 tattoo was associated with white supremacists, however, was the reason why the defendant called De La Cruz to testify. Consequently, it appears De La Cruz used the criteria to confirm rather than investigate the issue. 30

Mass. G. Evid. § 104(a). Voir dire is the time to educate the

judge -- as well as create a record -- about the methods and

criteria of reliability used by the proponent's expert. The

defendant failed to do so for De La Cruz. Therefore, we discern

no abuse of discretion in the judge's decision to exclude De La

Cruz from testifying.

c. Prejudicial error. Regardless of the infirmities of De

La Cruz's testimony, the decision to exclude Bjork-James was

prejudicial error. See Crawford, 429 Mass. at 68. This is not

a case in which, despite the exclusion of the evidence, the

defendant was able to elicit "significant other testimony"

concerning a key pillar of the defense. Compare Commonwealth v.

German, 483 Mass. 553, 570 (2019) (exclusion of expert testimony

did not prevent defendant from eliciting other evidence on

witness identification); Commonwealth v. Snyder, 475 Mass. 445,

454-455 (2016) (same). Cherniak and Arthur-Smith both testified

that the defendant initiated the fight. Yet without Bjork-

James's testimony, the defendant's only evidence that Cherniak

initiated the attack due to racial animus was his own testimony.

When the credibility of the victim's testimony is so

central to the Commonwealth's case, the significance of expert

testimony concerning the victim's motives for starting the fight

is equally apparent. See Polk, 462 Mass. at 33. We cannot say

that the exclusion of Bjork-James's testimony "did not influence 31

the jury, or had but a slight effect." Commonwealth v.

Pfeiffer, 482 Mass. 110, 129, cert. denied, 140 S. Ct. 498

(2019), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994). A new trial is necessary.

2. Other issues. We turn now to other issues raised on

appeal that may recur on retrial.29

a. Jury selection. The defendant argues that he was

denied a fair trial because the judge failed to make the

requisite inquiry of prospective jurors and because the judge

improperly declined to allow him to exercise his final

peremptory challenge. We consider each argument in turn,

reviewing the judge's decisions for abuse of discretion. See

Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001).

i. Indifference inquiry. "A criminal defendant is

entitled to a trial by an impartial jury pursuant to the Sixth

Amendment to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights." Commonwealth v. Williams,

29The defendant also appeals the judge's decision to exclude another expert witness for the defense due to late notice. Because this issue is unlikely to recur, we note only that a finding of prejudice requires more than speculation about whether, if the Commonwealth wished to hire an expert in response to the defendant's expert, it would have time to do so. See generally Commonwealth v. Durning, 406 Mass. 485, 496 (1990). See also Commonwealth v. Dranka, 46 Mass. App. Ct. 38, 42 (1998), quoting Chappee v. Vose, 843 F.2d 25, 31 (1st Cir. 1988) ("the preclusive sanction should be reserved for 'hard core transgressions'"). 32

481 Mass. 443, 447 (2019). To ensure this impartiality, a judge

must hold individual voir dire if "it appears that a

[prospective] juror might not stand indifferent" in the case.

Id. See G. L. c. 234A, § 67A (detailing individual voir dire

requirement).

Although the judge enjoys broad discretion in determining

both the scope of this inquiry and whether a prospective juror

stands indifferent, see Commonwealth v. Perez, 460 Mass. 683,

688 (2011), citing Commonwealth v. Vann Long, 419 Mass. 798, 803

(1995), "this discretion is not unfettered." Williams, 481

Mass. at 447. Specifically, a "judge's conclusion must be

supported by a voir dire that sufficiently uncovers whether the

prospective juror can fairly evaluate the evidence and follow

the law." Id. Cf. Seabrooks, 433 Mass. at 443 (when "a judge

has explored the grounds for any possible claim that a juror

cannot be impartial, and has determined that a juror stands

indifferent, we will not conclude that the judge abused his

discretion by empanelling the juror unless juror prejudice is

manifest"). Such support for the judge's conclusions was

lacking here in regard to several jurors.

During attorney-conducted voir dire, defense counsel asked

the prospective jurors: "Does anyone here currently presume

[the defendant is] innocent?" Seven prospective jurors

indicated that they did not presume the defendant to be 33

innocent. On this basis, the defense counsel challenged those

seven jurors for cause. The judge inquired whether three of

these prospective jurors would be able to presume the defendant

to be innocent.30 The judge did not, however, conduct individual

voir dire with the other four because, he stated, defense

counsel had failed to raise any specific concerns about them.31

Regarding one of the four, the judge noted that this juror had

been a prosecutor and believed that for this reason, the juror

understood the presumption of innocence.

Once it had become apparent that some jurors might have

difficulty presuming the defendant to be innocent based on the

jurors' answer to a question directly focusing on this issue,

the judge had a duty to inquire further.32 See Williams, 481

Mass. at 447. "Although the judge may reasonably determine,

after a meaningful inquiry, that a juror's doubts about his or

her own impartiality are unfounded, that determination should be

30After conducting individual voir dire, the judge dismissed two of the jurors for cause while finding that there was no basis to challenge the third for cause.

31At this point, defense counsel reemphasized the basis of her challenge, noting: "What I would say for specifics are that they didn't have their hands up for 'Who thinks he's innocent right now?'"

32Because the jurors in question affirmatively indicated that they might have difficulties presuming the defendant to be innocent, the Commonwealth's invocation that jurors are presumed to follow a judge's instructions is unavailing. See Commonwealth v. Montez, 450 Mass. 736, 746 (2008). 34

made after the judge conducts an inquiry that could be

reasonably expected to determine impartiality." Commonwealth v.

Auguste, 414 Mass. 51, 57-58 (1992). The attorney voir dire

question was a reasonable one, and one that clearly required

further inquiry. Whatever else a meaningful inquiry may

include, it must include an actual inquiry. See id. at 57. The

judge's failure to conduct individual voir dire of four jurors

who indicated that they did not assume the defendant was

innocent was error.

Although we reverse on other grounds, we note why this

error did not prejudice the defendant in order to provide

further clarity to this area of law. When a defendant is forced

to use peremptory challenges because a judge fails to conduct an

adequate individual voir dire, this does not necessarily

constitute reversible error. See, e.g., Commonwealth v. Bryant,

447 Mass. 494, 499-500 (2006) (defendant could have challenged

peremptorily juror that judge declined to strike for cause);

Commonwealth v. Nelson, 91 Mass. App. Ct. 645, 647-648 (2017)

(same). Instead, "prejudice generally is shown by the use of a

peremptory challenge to remove the juror who allegedly should

have been excused for cause together with evidence that the

defendant later was forced to accept a juror he would have

challenged peremptorily but was unable to because his peremptory 35

challenges had been exhausted" (emphasis in original).

Commonwealth v. McCoy, 456 Mass. 838, 842 (2010).

In sum, if a defendant both still has remaining peremptory

challenges sufficient to cover the number of jurors that a judge

should have inquired into for cause, and is unable to show that

there were other deliberating jurors whom the defendant would

have challenged peremptorily but for the error, then there is no

prejudice. Compare Commonwealth v. Susi, 394 Mass. 784, 789

(1985) (reversal required where judge's erroneous refusal to

dismiss juror for cause led to defendant exhausting peremptory

challenges and being forced to accept juror he otherwise would

have challenged), with Commonwealth v. Amazeen, 375 Mass. 73,

83-84 (1978) (reversal not required where defendant had not

exhausted peremptory challenges).

Ultimately, defense counsel here exercised five of her six

peremptory challenges, using three against prospective jurors

with whom the judge had declined to conduct individual voir

dire. This left counsel with one final peremptory challenge.

Yet despite having the right to use it, counsel did not use the

peremptory for the fourth juror with whom the judge had declined

to conduct individual voir dire. Consequently, there is no

prejudicial error.

ii. Final peremptory challenge. After defense counsel

exercised her peremptory challenges against the jurors that the 36

judge failed to strike for cause, the Commonwealth

unsuccessfully raised a challenge based on Commonwealth v.

Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979). At

this point, the judge informed the parties that they had reached

the number needed to seat a jury. The clerk dismissed the

challenged jurors and subsequently began to announce the juror

numbers that would comprise the jury. Defense counsel then

informed the judge that she had miscounted the number of seated

jurors and had thought there would be more juror selection.

Because another panel was unnecessary, defense counsel wanted to

exercise the defendant's final peremptory against one of the

seated jurors. The judge declined.

At issue on appeal is whether the judge abused his

discretion by ruling that the time to exercise peremptory

challenges had passed. Neither peremptory challenges nor, more

importantly, the timing of when they should be used are mandated

by either the United States Constitution or the Massachusetts

Declaration of Rights. See Commonwealth v. Seng, 456 Mass. 490,

496 (2010), citing Commonwealth v. Freiberg, 405 Mass. 282, 292,

cert. denied, 493 U.S. 940 (1989). Instead, Mass. R. Crim. P.

20 (c) (2), 378 Mass. 889 (1979), establishes parameters for

when peremptory challenges may be used: parties may exercise

their peremptory challenges after a juror is found indifferent,

but must exercise them before the jurors are sworn. Within this 37

window, judges have discretion to further designate when parties

may exercise their peremptory challenges. See Rule 6(4)(i)(i)

of the Rules of the Superior Court.33

The defendant contends that the judge here failed to

articulate any additional timing requirements. The judge's

instructions -- which we set out in the margin -- say

otherwise.34 The judge first explained how jury empanelment

would work at the outset of the process. Then, after attorney-

33Rule 6(4)(i)(i) of the Rules of the Superior Court provides:

"After the trial judge finds that each juror stands indifferent, the parties shall exercise their peremptory challenges. The trial judge may require exercise of peremptory challenges after completion of side bar inquiry of an individual juror, after filling the jury box with jurors found to stand indifferent, or at some other time after the trial judge's finding of indifference."

34"[W]e'll seat the twenty-four or so people, the three rows of eight that we have. You'll both have, of course, because of the -- this case being what it is, six preemptory [sic] challenges. You'll both have [fifteen] minutes for the panel questions. Usually, we start with the Commonwealth and then go to the [d]efendant. After we go through the phases, then, -- that is, the group questioning, the individual questioning, and the attorney- conducted voir dire -- then I'll ask you if there are any cause requests. And then I'll ask you to use your preemptory [sic] challenges. And hopefully we'll get a jury impaneled with one panel.

"If we have to go to a second panel, however, I'll discuss with you the size of that second panel, depending on our needs, how many jurors we actually need, to fill out the jury. And then we'll adjust accordingly, depending on the number of preemptories [sic] left and things like that." 38

conducted voir dire had finished, the judge reminded the parties

of where they were in the process, stating that "starting with

the Commonwealth, I'll hear you on your challenges, either for

cause, first, if any, and then preemptory [sic]; and then turn

to the [d]efendant."

Perhaps the judge could have expressed more emphatically

his intent throughout.35 Nevertheless, the instructions are

reasonably clear when taken together: the parties had to

exercise their peremptory challenges then or never. Moreover,

the defendant sought to exercise the peremptory challenge after

the judge informed counsel that they had reached the number

needed to seat a jury, and after the remaining prospective

jurors were excused. Having set the parameters, it was within

the judge's discretion to deny defense counsel's request to

exercise her final peremptory challenge once the time do so had

passed.36 Thus, there was no error.

35For example, a better way to express the point would have been to say after informing the parties of when they would be able use their peremptory challenges the following sentence: "This will be the only time to use your peremptory challenges during the first panel."

36The defendant also argues that the judge's reference to a second panel made it appear that there would be two opportunities to use peremptory challenges. That it did -- but only if a second panel was necessary. As it turned out, one panel was sufficient. 39

b. Hearsay. At trial, the defendant testified that upon

seeing Cherniak slash his tires, the defendant confronted

Cherniak and Arthur-Smith. According to the defendant, Arthur-

Smith responded by disputing the account and then said, "Even if

you did, how the fuck can you prove that?" The judge excluded

the testimony on the ground of hearsay. Because the defendant

objected, we review for prejudicial error.37 See Commonwealth v.

Santos, 460 Mass. 128, 137 (2011).

"The rule against hearsay bars admission of out-of-court

statements offered for their truth." Commonwealth v. Mendes,

463 Mass. 353, 367-368 (2012). See Mass. G. Evid. § 801(c)

(2021). Statements offered to show the effect on the listener,

however, are not offered for their truth and therefore are not

hearsay. See, e.g., Commonwealth v. Spinucci, 472 Mass. 872,

37Additionally, the defendant claims that the judge erred in preventing him from testifying that Cherniak had tried to get the defendant to use cocaine. Specifically, the defendant appears to claim that the judge improperly excluded the testimony as hearsay, despite Cherniak's offers of cocaine allegedly striking fear in the defendant. The judge did not exclude the testimony because it was hearsay but on other grounds. (The judge did eventually allow the defendant to testify that Cherniak had asked him to sell drugs on numerous occasions.) Because the defendant does not address the grounds on which the judge excluded the testimony, we do not address the issue. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief"). The evidence may well be admissible at retrial if it is relevant to demonstrate the defendant's fear of the victim or some other relevant nonhearsay purpose that is not substantially outweighed by the danger of undue prejudice. 40

883 (2015); Commonwealth v. Daley, 439 Mass. 558, 569 n.8

(2003). See also Mass. G. Evid. § 801(c) note.

Here, the defendant offered Arthur-Smith's statement to

show the effect it had on him: namely, how the statement

confirmed the defendant's belief that Cherniak had slashed his

tires. In particular, the statement went to the defendant's

fear of Cherniak and whether the defendant's resulting actions

were reasonable. Therefore, the statement was not hearsay, and

it was relevant for a nonhearsay purpose. The judge erred in

barring its admission.

Conclusion. The judgments against the defendant are

reversed, the verdicts are set aside, and the case is remanded

to the Superior Court for a new trial and further proceedings

consistent with this opinion.

So ordered.