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Commonwealth v. Berardi

Appeals Court of Massachusetts, Essex

October 9, 2015

Commonwealth
v.
Antonio Berardi

Argued, February 3, 2015

 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.

Judgment affirmed. Order denying motion for new trial affirmed.

Elizabeth Dembitzer for the defendant.

Quentin Weld, Assistant District Attorney, for the Commonwealth.

Present: Kafker, Wolohojian, & Sullivan, JJ.

OPINION

Wolohojian, J.

[38 N.E.3d 767] The defendant, a registered sex offender, was indicted for knowingly providing false information on a registration form, in violation of G. L. c. 6, § 178H( a ), by failing to disclose that he was employed. He was charged as a subsequent

Page 467

offender and, as a result, faced imprisonment " for not less than five years." G. L. c. 6, § 178H( a )(2), as appearing in St. 1999, c. 74, § 2. In a bifurcated proceeding, a Superior Court jury convicted him of the underlying registration violation, after which he was convicted of the second and subsequent offense in a jury-waived trial. We consolidated his direct appeal with his appeal from the denial of his motion for new trial.

We agree with the defendant that, where thirteen jurors were seated, he was entitled, under Mass.R.Crim.P. 20(c)(1), 378 Mass. 890 (1979), to thirteen peremptory challenges because he was charged with a " crime punishable by imprisonment for life," and that it was error to allot him only five such challenges. We conclude with respect to his direct appeal, however, that the defendant has failed to show that the error resulted in any injury or deprived him of a fair and impartial jury. For similar reasons, although we conclude that, accepting as true the affidavits submitted with the defendant's motion for new trial, he has satisfied the first prong of Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), he has not satisfied the second. Accordingly, we affirm his conviction and the denial of his motion for new trial.

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

Page 468

at the parties' request: five jurors were excused by the defendant's exercise (through counsel) of his peremptory challenges, and the Commonwealth peremptorily challenged four others. Defense counsel challenged no jurors for cause.[3] Nor did he request additional questioning of any juror.

[38 N.E.3d 768] 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. ...


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