COMMONWEALTH vs. ALLEN YOUNG.

LIACOS, J. On May 23, 1984, a Suffolk County grand jury indicted the defendant, Allen Young, a black man, for the murder in the first degree of Angel Luis Ortiz, a person of Hispanic origin. Prior to trial, the defendant filed a motion for the individual voir dire of the venire. The trial judge, after hearing argument, denied the motion. Later, during the course of the jury selection process, the defendant made two motions challenging the prosecutor's use of peremptory challenges. The motions were denied. The trial commenced on March 20, 1985. On April 5, 1985, the jury found the defendant guilty of murder in the first degree on the theory of deliberately premeditated malice aforethought and also on the theory of felony-murder.

In this appeal, the defendant argues that (1) the judge's denial of his motion for individual voir dire violated G. L. c. 234, Section 28, and the defendant's State and Federal constitutional right to be tried by an impartial jury, (2) the judge's denial of the defendant's motion for a hearing on the prosecutor's use of peremptory challenges to exclude black persons from the jury violated his State and Federal constitutional rights, (3) the judge's admission in evidence of hearsay statements violated the defendant's State and Federal constitutional rights to confront the witnesses against him, (4) the evidence

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was insufficient as matter of law to prove beyond a reasonable doubt that the defendant committed murder in the first degree under either the theory of felony-murder or of deliberately premeditated malice aforethought, [Note 1] (5) the judge's failure to discharge a deliberating juror and to declare a mistrial violated the defendant's constitutional right to a trial before an impartial jury, and (6) a miscarriage of justice would occur if the verdict of guilty were allowed to stand.

We summarize the evidence put before the jury. On the evening of November 25, 1983, the defendant went to the home of a friend, Rick Johnson, and watched a boxing match on television. After the boxing match, the defendant and Johnson drove to the George Washington Carver Grand Lodge (Lodge), a black social and community organization of which both the defendant and Johnson were members. The defendant was employed at Boston City Hospital as a security guard and had been at work prior to leaving to watch the boxing match. He was dressed in his security uniform consisting of dark trousers with a stripe down each pant leg, an outer jacket, and a police-style cap with a badge on it.

Johnson and the defendant arrived at the Lodge around 10:30 P.M., but they remained in the automobile in the parking lot for approximately twenty minutes. Thereafter, the defendant entered the den portion of the Lodge, a part of the Lodge reserved for members and their guests. Johnson, who was the head of security for the Lodge, remained in the automobile, watching the parking lot. Later, Johnson also entered the den area. The other portion of the Lodge building was rented for a dance that evening to an Hispanic group.

During most of the evening, the defendant sat at the bar in the den and talked with friends. Some time around 2 A.M. on November 26, 1983, Willie Young, a female acquaintance of the defendant, asked him to escort her to her automobile. The

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defendant followed her to her automobile shortly thereafter, and the two sat in the vehicle listening to music. About this same time, the dance in the Lodge ended.

While sitting in her automobile, Willie Young noticed a young man walking across the street toward the Lodge, carrying a case of beer. She asked the defendant to inquire of the man carrying the case of beer how much he wanted for it. The man responded, "$15." She told the defendant that was too much, and that she knew where she could get it for $12.99. The defendant and Willie Young remained in the automobile for a few more minutes, and then the defendant left the automobile and walked toward the Lodge.

At approximately this time Jose F. Liriano, a musician who had been playing at the dance, was in the unlit parking lot of the Lodge loading his equipment in his automobile. Liriano saw three people. Angel Luiz Ortiz (the victim) and another person (who has not been identified) were struggling with a security guard over a case of beer. Liriano heard Ortiz say, "[H]e took my box of beer which is mine." Liriano then heard the security guard say, "[T]ake it," as he let Ortiz have the beer. Immediately thereafter, Liriano saw the security guard pull a gun from his left side and shoot Ortiz. [Note 2] Liriano did not see the security guard's face. He testified, however, that "someone said, `look, that guard shot at him, killed him,' " and that "[t]hey were saying, `that security guard, that security guard killed Angel.'" [Note 3] After the shooting, Liriano saw the security guard walk toward the street in front of the Lodge.

Victor Vazquez was at the Lodge helping to manage the dance. Hearing a shot, Vazquez left the Lodge and went out to the parking lot. Vazquez saw ten to twelve people standing around the victim and asked the people "what happened." Vazquez testified that Liriano said, "That security guard killed that boy." [Note 4] Someone in the group surrounding Ortiz pointed at

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the security guard. Vazquez followed the security guard out of the parking lot and watched him get in the passenger seat of an automobile. He, too, never saw the face of the security guard, but, as the automobile drove by him, he saw the security guard in the automobile. He wrote the registration number of the automobile in the palm of his hand. The registration number which Vazquez recorded was that of an automobile registered to Willie Young.

Willie Young testified that, after the defendant left her automobile, he returned about five minutes later and asked her to drive him home. She dropped the defendant off at the corner of Seaver Street and Blue Hill Avenue in Boston. The defendant walked the rest of the way home and got his van. He returned to the Lodge and spoke to one of the police officers at the scene of the shooting.

The remainder of the Commonwealth's case consisted of testimony by several police officers of statements made to them by the defendant. Sergeant Vincent Donohoe of the Boston police department testified that the defendant said that he had heard about the shooting when someone from the Lodge had called him at his home. Detective Edward Doyle of the Boston police department testified that the defendant said that Willie Young was "lying" when told that Willie Young said she drove him away from the Lodge. Detective Peter J. O'Malley of the Boston police department testified that the defendant told him three stories. First, the defendant said that he went to the Lodge and left alone before it closed. Next, the defendant admitted being in Willie Young's automobile and leaving with her. Third, the defendant said he was in Willie Young's automobile when he heard a gunshot. The defendant said that he went to investigate and saw two men get in a Thunderbird automobile and "take off."

The defendant took the stand on his own behalf. His testimony largely parallels that of the Commonwealth's witnesses to the point where the defendant and Willie Young were sitting in her automobile. He testified, however, that no one came by carrying a case of beer, and no inquiry as to the price of a case of beer was made. The defendant said he heard a gunshot

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while he was sitting in Willie Young's automobile and proceeded to investigate. He went to the parking lot and asked the people standing around the victim what was happening. People responded, "Me no savy. Me no speak English." The defendant saw two automobiles, one a Thunderbird, leaving the parking lot. The defendant observed the last four digits of the registration number of a third automobile as it left the parking lot. He got into Willie Young's automobile and asked her to follow the third automobile. By the time the defendant got to Willie Young's automobile, the third automobile was out of sight. The defendant denied making many of the statements attributed to him by the police officers.

The victim died of a gunshot wound to the head. A .32 caliber bullet was retrieved from the victim's body. The defendant had a license for, and owned, a .38 caliber handgun. Johnson, Willie Young, and other witnesses testified that throughout the entire evening they never observed the defendant with a gun or a holster.

1. Individual voir dire. The defendant contends that the judge's denial of his motion to examine individually each prospective juror for possible racial bias and prejudice violated G. L. c. 234, Section 28, and the defendant's constitutional right to be tried by an impartial jury. [Note 5] The defendant claims that, because this was a violent crime and the defendant and the victim were of different racial groups, there was a significant possibility that the jurors would be biased. Although the judge denied the defendant's motion for an individual voir dire, she told the prospective jurors that there would be some Hispanic and black witnesses, and some black witnesses who were members of the Masonic Lodge. Three prospective jurors indicated that they would be prejudiced against Hispanics or blacks, and they were excused.

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The second paragraph of G. L. c. 234, Section 28, [Note 6] on which the defendant relies, requires a judge to examine a juror individually and outside the presence of the other members of the venire, if it appears to the judge that the juror may be affected by an extraneous issue, such as race. The judge's actions will be upheld unless she has abused her discretion. Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982). Commonwealth v. Shelley, 381 Mass. 340, 352-353 (1980). However, a refusal by a judge to examine a juror in the face of a "substantial risk" of bias is an abuse of discretion. Commonwealth v. Hobbs, supra. Commonwealth v. Shelley, supra at 352.

In cases involving racial prejudice, more specific limits have been imposed on the judge's discretion. In Commonwealth v. Sanders, 383 Mass. 637 (1981), a black defendant was being

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tried for the rape of a white woman, and in Commonwealth v. Hobbs, supra, a black defendant was accused of assaulting and sexually abusing two white children. In both cases, we stated that, in such circumstances, a trial judge must question each juror individually, and out of the hearing of the venire, about the possibility of racial bias and prejudice. Sanders, supra at 640-641. Hobbs, supra. [Note 7]

The defendant argues that, as a matter of essential fairness, the rule should be applied in this case, a case involving interracial murder. He claims that the circumstances present in Sanders, supra, and Hobbs, supra, are also present here, a violent crime, and the defendant and the victim of different races. Thus, he claims that the case was as likely to involve racial bias and prejudice as Sanders and Hobbs.

We have rejected such claims in the past, absent some special showing of potential bias. See, e.g., Commonwealth v. Moffett, 383 Mass. 201, 214 (1981) (armed robbery and assault by means of a dangerous weapon; mere fact that victim and defendant are of different races or bald assertion of racial tension does not raise issue of racial bias); Commonwealth v. Campbell, 378 Mass. 680, 695-696 (1979) (murder; individual voir dire not required in absence of demonstrated risk of decision on extraneous grounds); Commonwealth v. Lumley, 367 Mass. 213, 216-217 (1975) (no constitutional requirement of individual voir dire absent factors showing defendant a special target for racial prejudice). In Lumley, however, we stated that "as a practical matter, when a motion that prospective jurors be interrogated as to possible prejudice is presented, we believe the trial judge should grant that motion." Id. at 216. Later, in Sanders and Hobbs, we extended that suggestion to a mandate

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in interracial cases of sexual violence. We believe it time to adopt, as a matter of our supervisory power, the essence of the rule, stated by the plurality, in Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981), "that questions directed to the discovery of racial prejudice be asked in certain circumstances in which such an inquiry is not constitutionally mandated." Thus, for the future, we expand the principle we stated in Sanders and Hobbs and shall require that a trial judge "must make such an inquiry when requested by a defendant accused of [murder] and where the defendant and the victim are members of different racial . . . groups." Rosales-Lopez, supra at 192. We reach this posture because our observation informs us that in such instances there is a " `reasonable possibility' that racial prejudice would influence the jury," id., and because we believe such a stance to be in furtherance of the statutory policy expressed in G. L. c. 234, Section 28, second par. [Note 8] Further, we consider this step to be a logical extension of the principles expressed in Sanders and Hobbs. In future murder trials involving a defendant and a victim of different races, the procedure outlined in Sanders, and reaffirmed in Hobbs, must be applied.

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The defendant claims, however, that he is entitled to the benefit of such a rule, based on, he says, a constitutional requirement of individual voir dire of prospective jurors. We disagree. The Supreme Court of the United States has addressed the issue of constitutionally mandated voir dire in three major cases. Ham v. South Carolina, 409 U.S. 524 (1973). Ristaino v. Ross, 424 U.S. 589 (1976). Rosales-Lopez v. United States, supra. In only one of those cases has the Court held that the Fourteenth Amendment's requirement for fairness mandated that the trial judge question prospective jurors as to racial prejudice. That case was Ham v. South Carolina, supra. [Note 9]

Since Ham, the Supreme Court of the United States has stated that "[t]he Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him." Ristaino v. Ross, supra at 594. Rather than being a rule of universal applicability, constitutionally mandated voir dire is required only where racial issues are "inextricably bound up with the conduct of the trial." Ristaino v. Ross, supra at 597. Thus, in both Ristaino v. Ross, supra (black defendant charged with armed robbery and assault and battery of a white security guard), and Rosales-Lopez v. United States, supra (Hispanic defendant who lived with white woman tried for his participation in smuggling Mexican aliens into the country), the Court found none of the "special circumstances" that elevated the Ham case to one of constitutional dimension. The defendants in Ristaino and Rosales-Lopez were not special targets of racial prejudice. See Commonwealth v. Sowers, 388 Mass. 207, 213 (1983); Commonwealth v. Ross, 363 Mass. 665, 672, cert. denied, 414 U.S. 1080 (1973), habeas corpus

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granted sub nom. Ross v. Ristaino, 388 F. Supp. 99 (D. Mass.), aff'd, 508 F.2d 754 (1st Cir. 1974), rev'd 424 U.S. 589 (1976); Commonwealth v. Core, 370 Mass. 369 (1976); Commonwealth v. Lumley, supra. Turning to the case at bar, the mere fact that the defendant and the victim are of different races does not impose constitutionally mandated voir dire on the issue of race. Commonwealth v. Hobbs, 385 Mass. 863, 874 (1982). Nothing in the record indicates that the defendant was a special target of racial bias, and the subject of racial prejudice was not at issue in the trial. There was no constitutional requirement for voir dire on the issue of racial or ethnic bias. Therefore, we conclude that the judge, acting under the law extant at the time of trial, committed no error by denying the defendant's motion for individual voir dire.

2. Peremptory challenges. The defendant contends that the prosecutor's use of peremptory challenges violated art. 12 of the Massachusetts Declaration of Rights and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

After the judge declared the venire to be indifferent, the first sixteen jurors were seated. Four of the sixteen jurors were black, and three of those four were black males. Two of the three peremptory challenges used by the Commonwealth in the first round of challenges were against two black males. The defendant raised a challenge under the rule set forth in Commonwealth v. Soares, 377 Mass. 461, 488, cert. denied, 444 U.S. 881 (1979). On the record, the judge expressed concern that one of the challenged black male jurors had listed his age as thirty-eight on the juror questionnaire, but appeared to be in his early twenties. The prosecutor stated that he challenged the other black male because the man had the same name and came from the same locale as defense witnesses in an infamous case which the prosecutor had tried. The prosecutor also noted that there remained three young black males in the venire. The judge denied the defendant's motion, noting that two of the jurors who were not challenged in the first round were black.

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Later, during the second round of challenges, the defendant used his peremptory challenges to exclude white and Hispanic jurors. The defendant then moved that the entire panel be struck because it did not represent the Boston area in terms of minority percentages. The judge denied the defendant's motion.

The defendant challenged five more jurors and then indicated that he was content with the jury. The Commonwealth then challenged one more black male juror. The defendant again raised a Soares motion, and the judge denied the motion. The prosecutor noted for the record that there were seven members of the venire remaining, two of whom were black males. In the end, the Commonwealth used five peremptory challenges, three of which were used to exclude blacks from the jury. The empanelled jury included two black members. [Note 10]

The defendant argues that he was denied trial by an impartial jury because the prosecutor systematically excluded black jurors. The record shows that the prosecutor did not systematically exclude blacks from the jury. The prosecutor used three peremptory challenges against blacks. Two of the members of the jury who were seated and sworn were black, and two more black persons were in the venire. Thus, out of the seven blacks eligible to be seated, the prosecutor challenged three, a far cry from the twelve out of thirteen in the Soares case.

Furthermore, in Commonwealth v. Soares, supra, we said that there was no misuse of peremptory challenges if the prosecutor's reasons for excluding a juror were personal to the juror and not based on the juror's group affiliation. "[The prosecutor must] demonstrate, if possible, that the group members disproportionately excluded were not struck on account of their group affiliation. While [the prosecutor] need not approximate

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the grounds required by a challenge for cause, his reason must pertain to the individual qualities of the prospective juror and not to that juror's group association." Soares, supra at 491. The prosecutor's explanation and the trial judge's comments support the conclusion that the prosecutor did not improperly exclude blacks from the jury.

The defendant's Fourteenth Amendment argument fails for similar reasons, see Batson v. Kentucky, 476 U.S. 79 (1986), applied retroactively to cases pending on direct review, Griffith v. Kentucky, 479 U.S. 314 (1987). [Note 11]

3. Hearsay statements. The defendant contends that out-of-court statements made by nonwitnesses were erroneously allowed as evidence. On direct examination by the prosecutor, Vazquez was asked about what had happened after he heard the gunshot and went out to the parking lot to the victim. The colloquy was as follows:

THE PROSECUTOR: "How much time passed from the time you heard the shot to the point in time when you stepped through that door out into the parking lot?"

THE WITNESS: "Just seconds."

THE PROSECUTOR: "When you stepped out into that parking lot, you asked that question, `What happened?' Is that correct?"

THE WITNESS: "Yes."

THE PROSECUTOR: "When you asked that question, you heard more than one voice, is that correct?"

THE WITNESS: "Yes."

THE PROSECUTOR: "At that point, did you see Jose Liriano?"

THE WITNESS: "Yes."

THE PROSECUTOR: "Did Jose Liriano, at that time, did he say anything?"

THE WITNESS: "When I asked the question, Jose was one of the ones who told me what happened, I know that."

THE PROSECUTOR: "What did he say?"

DEFENSE COUNSEL: "I object, Your Honor."

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THE JUDGE: "No, the objection's overruled. Go ahead."

THE PROSECUTOR: "What did Jose Liriano say?"

THE WITNESS: " `That security guard killed that boy.' It was him and a couple of voices --."

The defendant argues that this statement, "That security guard killed that boy," was inadmissible hearsay. That the statement is hearsay is not contested by the Commonwealth. Rather, the Commonwealth asserts that the statement falls within the spontaneous utterance (res gestae) exception to the hearsay rule. "The [spontaneous utterance] rule now is that a statement is admissible if its utterance was spontaneous to a degree that reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize, and relate to the underlying event." P.J. Liacos, Massachusetts Evidence 351 (5th ed. 1981 and Supp. 1985). See Commonwealth v. Clary, 388 Mass. 583, 589 (1983); Commonwealth v. McLaughlin, 364 Mass. 211, 222-225 (1973).

The statement was made within seconds of the shooting by a person (Liriano) who saw the shooting, and the statement relates to the shooting. The record shows no indication that the statement was premeditated or fabricated. In making determinations as to spontaneous utterances a judge is given broad discretion. See P.J. Liacos, supra, and Commonwealth v. McLaughlin, supra at 223. The judge did not abuse her discretion in admitting this statement.

The statements to which the defendant next objects occurred while Liriano was testifying during the prosecutor's case-in-chief. After Liriano related that he saw the security guard pull out a gun and shoot the victim, the following colloquy took place:

THE PROSECUTOR: "After the security guard shot [Ortiz], and while he was moving, did you hear anybody saying anything?"

THE WITNESS: "At that moment, [Vazquez] came and when he came, then someone said, `look, that guard shot at him,' `killed him, killed him.' The security guard."

Later, during Liriano's testimony he was asked:

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THE PROSECUTOR: "Was -- were they, the people gathering around [Ortiz], were they saying anything in Spanish?"

THE WITNESS: "Yes. They were saying, `that security guard,' `that security guard killed [Ortiz].'"

Defense counsel did not object to either statement. Generally, we do not consider issues which were not preserved at trial. Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982). Commonwealth v. Haywood, 377 Mass. 755, 766 n.13 (1979). Absent objection, we review only to determine whether a substantial likelihood of a miscarriage of justice exists. G. L. c. 278, Section 33E (1986 ed.). Commonwealth v. Lennon, 399 Mass. 443, 448 n.6 (1987). The hearsay evidence was consistent with the eyewitness account given by Liriano and the testimony of Vazquez, given without objection. Thus, the hearsay statements elicited during Liriano's testimony, to which there was no objection, were cumulative. The error, if any, created no likelihood of a miscarriage of justice.

4. Sufficiency of the evidence. The Commonwealth proceeded on two theories of murder in the first degree: deliberate premeditation and felony-murder. At the close of the Commonwealth's case, and again at the close of all evidence, the defense moved for a required finding of not guilty. The judge denied both motions. The defendant argues now that the Commonwealth did not sustain its burden of proof on either theory of murder in the first degree.

The standard we use in reviewing the propriety of a judge's denial of a motion for a required finding of not guilty is: "[W]hether the evidence, read in a light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt." Commonwealth v. Amado, 387 Mass. 179, 186 (1982), quoting Commonwealth v. Basch, 386 Mass. 620, 622 (1982). Commonwealth v. Toney, 385 Mass. 575, 582 (1982).

Reviewing the evidence set out in the beginning of this opinion in a light most favorable to the Commonwealth, we conclude that the evidence was sufficient to prove that a homicide was committed in the course of an attempted armed robbery, the felony-murder theory. The evidence warrants a

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finding that, at approximately 2:30 A.M., the defendant, dressed in a security guard uniform, left Willie Young's automobile and walked toward the Lodge. Liriano saw a struggle over a case of beer between the victim and an English-speaking security guard. Liriano heard the victim say that the security guard was taking his (the victim's) beer. The security guard took out a gun and shot the victim and then walked to Willie Young's automobile. Shortly thereafter, the defendant left the Lodge in Willie Young's automobile.

A defendant who kills a victim in the commission, or attempted commission, of a robbery while the defendant is armed with a gun is guilty of felony-murder. G. L. c. 265, Section 1 (1986 ed.). Commonwealth v. Evans, 390 Mass. 144, 151 (1983). The evidence was sufficient to sustain the Commonwealth's burden of proving that the homicide occurred in the course of robbery or attempted robbery.

The judge submitted special questions to the jury on the murder indictment. See Commonwealth v. Licciardi, 387 Mass. 670, 675-677 (1982). The jury found the defendant guilty of murder in the first degree on both the deliberate premeditation and felony-murder theories. Because of our conclusion that there was sufficient evidence for the jury to find the defendant guilty of felony-murder, we need not address whether the evidence was sufficient as to the deliberate premeditation theory. Commonwealth v. Shine, 398 Mass. 641, 653-654 (1986).

5. Discharge of deliberating juror. The final issue raised by the defendant challenges the judge's decision not to discharge a deliberating juror. On the second day of deliberations, one juror notified a court officer that he (the juror) was concerned about being a juror and indicated that he had walked by the defendant at Boston City Hospital on a number of different occasions. Upon being informed of this, the judge told the jury to stop deliberating, and she separated this juror from the others. The judge then held a lobby conference, attended by the attorneys and the juror, and questioned the juror. The juror stated that he remembered seeing the defendant and a

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couple of the witnesses when the juror worked at the hospital. He also said that having seen the defendant "would make me think different towards him." The judge closely questioned the juror on this, and he responded, "I'd rather not know him at all, like, never seen him before in my life." The judge took the matter under consideration and then, in another lobby conference, stated: "I've considered his demeanor as well as the way he presented himself to me, and nothing has changed my thoughts that he is simply a reluctant juror -- not for the reason that he's not impartial. I find that he is impartial, but I think that he just doesn't want to do his job as a juror." The judge talked to the juror and, telling him that she thought he could be impartial, had him continue deliberating. [Note 12]

General Laws c. 234, Section 26B (1986 ed.), provides in pertinent part: "If, at any time after the final submission of the case by the court to the jury and before the jury has agreed on a verdict, a juror dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court, the court may order him to be discharged . . ." (emphasis supplied). The discharge of a deliberating juror is a sensitive undertaking and is fraught with potential for error. It is done only in special circumstances and with special precautions. Commonwealth v. Connor, 392 Mass. 838, 843 (1984). The judge followed our instructions in Commonwealth v. Haywood, 377 Mass. 755, 769-770 (1979): "[B]efore a juror is excused from deliberations and replaced by an alternate juror, the judge should hold a hearing and be fully satisfied that there is a meritorious reason why a particular juror should not continue to serve. . . . The judge then should consider whether, in view of all the circumstances, an alternate juror should be substituted." See Commonwealth v. Connor, supra at 844. The judge determined that no good cause was shown necessitating the discharge of the juror; there was no abuse of her discretion in retaining the juror.

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6. Review pursuant to G. L. c. 278, Section 33E. General Laws c. 278, Section 33E, confers upon this court the power to order a new trial or to direct entry of a verdict of a lesser degree of guilt where such action is warranted. We find nothing in the record indicating that an error of law was made, see, e.g., Commonwealth v. Cole, 380 Mass. 30, 39 (1980), or that the verdict was against the weight of the evidence, see, e.g., Commonwealth v. Jones, 366 Mass. 805, 809 (1975), and thus we affirm the judgment.

Judgment affirmed.