COMMONWEALTH vs. ANTONIO BERARDI.
No. 14-P-482.
Appellate Court of Massachusetts
October 9, 2015.
88 Mass. App. Ct. 466 (2015)
KAFKER, WOLOHOJIAN, & SULLIVAN, JJ.
Essex. February 3, 2015. - October 9, 2015.
This court concluded that a criminal defendant was not entitled to have the verdict set aside on his direct appeal, where, despite the serious error depriving him of eight peremptory challenges, the error was not preserved and was not structural, the defendant did not show that he was deprived of a fair and impartial jury, and he did not show any of the other types of injury recognized in case law, and where he did not show that a substantial risk of a miscarriage of justice had occurred. [469-474]
A criminal defendant was not entitled to the allowance of his motion for a new trial in circumstances in which he was erroneously deprived of eight peremptory challenges, where, even accepting as true the affidavits submitted in support of his motion that established that his counsel‘s behavior (i.e., failing to object to one or more jurors because of counsel‘s ignorance of the law) fell measurably below that which might be expected from an ordinary fallible lawyer, the affidavits nonetheless failed to establish that counsel‘s performance constituted ineffective assistance, i.e., he did not show that he was deprived of a fair and impartial jury. [474-476]
INDICTMENT found and returned in the Superior Court Department on April 11, 2008.
The case was tried before Garry V. Inge, J.; the subsequent offense portion of the indictment was heard by Richard E. Welch, III, J., and a motion for a new trial was considered by him.
Elizabeth Dembitzer for the defendant.
Quentin Weld, Assistant District Attorney, for the Commonwealth.
WOLOHOJIAN, J. The defendant, a registered sex offender, was indicted for knowingly providing false information on a registration form, in violation of
We agree with the defendant that, where thirteen jurors were seated, he was entitled, under
Background. The defendant was indicted for providing false information, second or subsequent offense, in violation of his reporting obligations as a registered sex offender. More specifically, he was charged with falsely reporting that he was unemployed.1 A first trial ended in a mistrial when one of the jurors, upon being polled after the verdict, stated that the defendant was not guilty.
At the second trial, the judge allotted to each side five peremptory challenges for a jury of thirteen (twelve plus one alternate).2 The defendant did not object. The judge then conducted voir dire in two stages. First, he questioned the venire as a whole. Next, the jurors were individually questioned at sidebar. Depending on a particular juror‘s responses, the judge then either excused the juror or found the juror indifferent. If the latter, the parties were asked whether they wished to challenge that juror.
As a result of this process, the judge excused nine potential jurors on his own initiative. Nine additional jurors were excused
The defendant‘s last peremptory challenge was used to eliminate Juror 42 for the thirteenth seat. Juror 43 filled that final seat without challenge from either side. Juror 43 had not raised her hand in response to any of the questions posed to the venire as a whole. Nor did the individual questioning at sidebar reveal her to be anything other than indifferent.4 Indeed, the defendant does not contend the judge erred in finding Juror 43 indifferent. Both the prosecutor and defense counsel indicated they were content with Juror 43 and with each of the other seated jurors.
As we have noted, the trial was bifurcated. The only issue during the first phase of the trial was whether the defendant‘s statement that he was unemployed was false. The defendant stipulated to the remaining elements of the crime.5 The jury-waived second phase was limited to determining whether the defendant had previously been convicted of failing to register as required. After the conclusion of phase two, the defendant was
The defendant raised no issue about the number of peremptory challenges until his motion for new trial, filed some two and one-half years after the verdict, when he argued that he was entitled to thirteen such challenges. The motion judge (who had been the judge at the second trial) denied the motion without a hearing, reasoning that the defendant was entitled to only five peremptory challenges for the first phase of the trial and that it was immaterial whether the defendant was entitled to thirteen peremptory challenges for the second phase, because he had waived his right to trial by jury.
Discussion. Peremptory challenges. 1. Direct appeal.
“Upon the trial of an indictment for a crime punishable by imprisonment for life, each defendant shall be entitled to twelve peremptory challenges of the jurors called to try the case[.] . . . Each defendant in a trial of [such a crime] in which additional jurors are impaneled . . . shall be entitled to one additional peremptory challenge for each additional juror.”
Our initial focus is on the phrase “trial of an indictment for a crime punishable by imprisonment for life,” with respect to which we must answer two questions. First, we must consider whether the crime with which the defendant was charged is punishable by life imprisonment. Second, we must assess whether “trial” means the whole trial, or only the second (subsequent offender) phase of the trial, which is the phase that carries the potential for life imprisonment.6
The statutory penalty for violating
Although bifurcation of the trial was required by
It is true that
Indeed, the judge intended to use the same jury for the second phase of the trial at issue here, and he so informed the defendant during the jury-waiver colloquy. It was within the judge‘s discretion to decide whether the same jury would consider both phases of the bifurcated trial or whether a new jury would be empanelled for the second phase, see
In sum, it was error to allow the defendant only five peremptory challenges rather than thirteen. The defendant argues that a deprivation of this magnitude is a form of structural error requiring reversal without a showing of prejudice. For the reasons that follow, we disagree.
“Although the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution guarantee the right to be tried by an impartial jury, there is no Federal or State constitutional right to exercise peremptory challenges.” Commonwealth v. Mello, 420 Mass. 375, 396 (1995). Commonwealth v. Bookman, 442 Mass. 757, 762 (2004). “Because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise.”910 Ross v. Oklahoma, 487 U.S. 81, 89 (1988) (citations omitted). The mistaken denial of peremptory challenges is not per se structural error under the Federal Constitution. Rivera v. Illinois, 556 U.S. 148, 158 (2009). Nor have we held that it is structural error under art. 12. Indeed, to the contrary, as explained further below, we require a showing of prejudice or injury resulting from the erroneous reduction in the number of peremptory challenges, except where the error is preserved.
Even though the error is not structural per se, it can nonetheless result in reversal either where the defendant is deprived of his constitutional right to an impartial jury or he “does not receive that which state law provides.” Ross v. Oklahoma, 487 U.S. at 89. The defendant has not shown either. He does not challenge the judge‘s determination that each seated juror was indifferent. He challenged no juror for cause, including (perhaps most importantly) the last juror, who was seated after the defendant had used all his peremptory challenges. Nor does he contend that his lawyer should have challenged any particular juror for cause. Although the defendant‘s affidavit submitted in connection with his motion for new trial states that he “did not want the last juror who was seated on my jury to be on my jury,” it does not state why. This is not, therefore, a situation where the defendant was forced to accept a juror who could or should have been challenged for cause. Nor has the defendant otherwise shown that he was deprived of his constitutional right to a fair and impartial
Turning to what “state law provides,” the analysis is slightly different, but the defendant fares no better. “No irregularity in . . . [the] impanelling of jurors shall be sufficient to set aside a verdict, unless the objecting party has been injured thereby or unless the objection was made before the verdict” (emphasis added).
The defendant has not shown injury in the sense our cases have required. Nor has he shown that his failure to object to the number of peremptory challenges resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Beldotti, 409 Mass. 553, 560-561 (1991) (applying miscarriage of justice analysis to unpreserved assertion of error in empanelling jury). As discussed above, the defendant has not shown that he failed to receive a fair and impartial jury. He has not satisfied the test articulated in Commonwealth v. McCoy, supra (“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 challenges had been exhausted“). See Commonwealth v. Clark, 446 Mass. 620, 629 (2006); Commonwealth v. Somers, 44 Mass. App. Ct. 920, 922 (1998). Nor is this a situation where the judge‘s exclusion of a particular class of persons from the venire resulted in making one side‘s peremptory challenges relatively more valuable. See Com-monwealth v. McKay, 363 Mass. 220, 223 (1973) (no general disqualification of a class of people from the jury, therefore defendant not deprived of fair jury). Contrast Searle v. Roman Catholic Bishop of Springfield, 203 Mass. 493, 500 (1909) (order excluding Roman Catholics from jury made one party‘s peremptories impermissibly more valuable).
In short, although depriving the defendant of eight peremptory challenges was a serious error, it was not preserved, it was not structural, he has not shown that he was deprived of a fair and impartial jury, and he has not shown any of the other types of injury our cases have recognized or a substantial risk of a miscarriage of justice. We conclude, therefore, that we cannot set aside the verdict on direct appeal despite the magnitude of the error.11
2. Motion for new trial; ineffective assistance of counsel. As noted above, the judge denied the motion for new trial without conducting a hearing, erroneously reasoning that the defendant was not entitled to the full complement of peremptories until the second phase of the trial. Deciding as he did, the judge did not address the averments of the affidavits submitted with the motion. We begin our analysis by setting them out here.
Trial counsel‘s affidavit stated that he did not know that his client was entitled to at least twelve peremptory challenges, and that he believed five peremptories was the maximum number allowed. He did not explain on what basis this belief rested, but it is a fair inference from the trial transcript that neither the parties nor the judge realized until sentencing that the offense was a felony punishable by imprisonment for life. In any event, counsel acknowledged that he failed to object to receiving only five peremptories and that he did not request any additional challenges. Finally, counsel averred that if he had “believed [he] was
The defendant‘s affidavit states that he consulted with trial counsel throughout jury selection, read the completed jury questionnaires with his counsel, looked at the venire, and reached his own conclusions as to whom he would like to have on his jury and whom he would like to exclude. The defendant states that he conferred with his attorney after each potential juror was questioned at sidebar and that they discussed “whether we would want to have this person as a juror based on their answers, their attitude, the way they looked at me, their answers on the questionnaire, or just the way I felt about them.” Further, the defendant averred:
“10. There were some potential jurors that I did not want on the jury for my trial. There were some potential jurors that I felt would be biased against me even though that did not explicitly come out during the judge‘s questioning. However, we did not use peremptory challenges on some of these individuals because we believed we were limited to five challenges and there were other potential jurors that I was even more concerned with.
“11. I particularly remember that I did not want the last juror who was seated on my jury to be on my jury. However, because we had used up all of our peremptory challenges I believed that there was nothing we could do about it.
“12. Had I known I was entitled to 13 peremptory challenges, I would have used more of them.”
For purposes of our discussion, we accept these affidavits as true. On that basis, they can be read together to state that the defendant informed trial counsel that he did not want Juror 43 on his jury but that, because of counsel‘s legal error, Juror 43 was not challenged. In addition, other jurors also were seated without challenge because of counsel‘s error. On these facts, counsel‘s failure to assert his client‘s objection to one or more jurors because of counsel‘s ignorance of the law satisfies the first prong of Commonwealth v. Saferian, 366 Mass. at 96, that counsel‘s “behavior . . . [fell] measurably below that which might be
That said, the affidavits — even accepted in their entirety — do not establish the second prong of Saferian, that defense counsel‘s performance “has likely deprived the defendant of an otherwise available, substantial ground of defence.”12 Ibid. See Commonwealth v. Torres, 453 Mass. 722, 731 (2009) (failure to exercise peremptory challenge not ineffective assistance of counsel where no prejudice results). See also Commonwealth v. Daye, 435 Mass. 463, 478 (2001) (same); Commonwealth v. Fudge, 20 Mass. App. Ct. 382, 390-391 (1985) (without showing of prejudice, counsel‘s inaction regarding questioning of jurors did not constitute ineffective assistance of counsel). As set out above, the defendant has not suggested or shown that any seated juror could have been challenged for cause. Nor does he challenge the judge‘s finding that each juror was indifferent. The defendant has given no reason for his assertion that he would have challenged Juror 43, nor is any reason apparent on the record. And, as to the other jurors he claims he would have challenged, he has failed even to identify them, let alone given any basis for his objection to them. He has not shown that he was deprived of a fair and impartial jury.
For the reasons set out above, we decline to disturb the judgment.
Judgment affirmed.
Order denying motion for new trial affirmed.
Notes
THE JUDGE: “I just have a couple of questions to ask you, given the nature of this case. First, have you or any member of your family ever been either accused of or been the victim or — either one — any type of sexual assault, whether or not reported to law enforcement?”
A.: “No.”
Q.: “Second question — do you know anyone who has been or currently is required to register as a sex offender?”
A.: “No.”
“First, that the defendant . . . is the same Antonio Berardi who, in 1995, was adjudicated a delinquent juvenile by reason of the offense of rape of a child. Second, that, by such adjudication, Antonio Berardi was required, under the laws of Massachusetts, to register as a sex offender whenever he moved into a location. And, three, that the defendant, Antonio Berardi, knew he was obligated to register by providing true information to the Sex Offender Registry Board or a representative of the Sex Offender Registry Board regarding his employment status. He knew he had to give true information regarding his employment status.”