Commonwealth v. BartieCommonwealth v. Bartie
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- Before:
- Dreben
The defendant’s appeal from his convictions of armed robbery is based on Commonwealth v. Brown, 395 Mass. 604 (1985). That case held that if the procedure for the exercise of peremptory challenges to jurors set forth in Rule 6 of the Superior Court (1974) is not followed, over timely objection, there is reversible error. The defendant is not required to prove prejudice. Id. at 607. See Commonwealth v. Barry, 397 Mass. 718, 724 (1986).
In the case at bar, the Commonwealth, contrary to the procedure provided in rule 61 was permitted to exercise a peremptory *480challenge against a juror whom the Commonwealth had “already had opportunity to challenge.” See Smith, Criminal Practice and Procedure § 1720 (2d ed. 1983). Relying on Commonwealth v. Brown, supra, the defendant claims this failure to follow rule 6 entitles him to a reversal.
The first hurdle the defendant must face is that while he objected to the prosecutor’s challenge, the record suggests that his objection was on entirely different grounds and that he did not clearly make known to the judge the grounds now asserted in his appeal. See Commonwealth v. Barrows, 391 Mass. 781, 783 (1984). The procedure prescribed by rule 6 was followed until the prosecutor voiced an objection to a juror whom he had not challenged at a prior bench conference. The prosecutor was concerned whether a fatal automobile accident mentioned in the juror’s response to the usual questionnaire had involved a court case. When the judge suggested that all such accidents involve court cases, the prosecutor challenged the juror. Defense counsel objected, saying, “Again, looking at the jury, it would appear that there are now two black males now on the jury. One of those black males is the person sitting in Seat No. 1, Juror 06-6. If the District Attorney had concerns about what was written down on his questionnaire, they were available to us prior and it could have been brought up earlier.”
*481The judge responded that the “first opportunity a lawyer has ... to look at those questionnaires and really read what is contained on the questionnaire is when that person is actually called from the venire and seated in the jury.” Defense counsel then said, “I would object to this juror being excused, and I do so because of racial problems involved.” After the judge allowed the challenge “based upon the reason stated by the Commonwealth,” defense counsel asked that his “objections‘” be noted (emphasis supplied).2
Despite the use of the plural of the word “objection,” heavily relied upon by the defendant, it does not appear that the violation of rule 6 was made evident to the judge. See
Even if the defendant’s objection had been properly taken, his claim must be rejected. Unlike Commonwealth v. Brown, where the trial took place in the County of Dukes County and jury selection was governed by
The statute in Commonwealth v. Brown,
Judgments affirmed.
Notes
Rule 6 provides: “The procedure in the matter of peremptory challenges of jurors, except in an indictment for a crime punishable by death, shall be *480as follows, unless specially otherwise ordered in a particular case. The jurors shall first be called until the full number is obtained. If any examination on oath of the jurors is required, it shall be made, and any challenge for cause shall be acted on, and if any jurors shall be excused others shall be called to take their places. When it has been determined that all the jurors stand indifferent in the case, each plaintiff shall at one time exercise his right of peremptory challenge as to such jurors, and after others have been called to take the places of those challenged, and it has been determined that they stand indifferent in the case, shall at one time exercise his right of challenge of such others, and so on until he has exhausted his right of peremptory challenge or has ceased to challenge. Each defendant shall then exercise his right in the same manner. Each plaintiff, if his right of peremptory challenge has not been exhausted, shall then again exercise his right in the same manner, but only as to jurors whom he has not already had opportunity to challenge, and the parties shall likewise exercise the right in turn, until the right of peremptory challenge shall be exhausted or the parties shall cease to challenge. No other challenging, except for cause shown, shall be allowed.”
The defendant in this court makes no claim of an improper use of peremptory challenges based on racial grounds, and we do not consider such a claim. See Commonwealth v. Soares, 377 Mass. 461, cert, denied, 444 U.S. 881 (1979). Apparently some accommodation was made to seat another black juror.
Our reliance on