Heard: December 13, 2017.
found and returned in the Superior Court Department on
September 10, 2009.
review by the Supreme Judicial Court, 470 Mass. 228 (2014),
the cases were tried before Elizabeth M. Fahey, J.
B. Hirsch for the defendant.
Timothy Ferriter, Assistant District Attorney, for the
Present: Vuono, Sullivan, & Massing, JJ.
Middlesex County grand jury returned two indictments charging
the defendant, Walter Crayton, with possession of child
pornography in violation of G. L. c. 272, § 29C. He was
charged as a subsequent offender and, therefore, he faced
imprisonment for "not less than five years." G. L.
c. 272, § 29C(vii). The charges stemmed from the
defendant's viewing of child pornography on a computer at
the Central Square branch of the Cambridge Public Library on
January 21, 2009. He was convicted on both indictments and
the subsequent offender portion of the first indictment
following a bifurcated trial.See G. L. c. 278, § 11A. The
convictions were vacated and a new trial ordered by the
Supreme Judicial Court because, among other reasons, the
admission of two in-court showup identifications resulted in
unfair prejudice. See Commonwealth v.
Crayton, 470 Mass. 228 (2014) (Crayton I).
A new trial was conducted in 2015. The defendant was again
convicted of the underlying offenses by a jury, after which a
separate jury convicted him of the second and subsequent
offense portion of the first indictment.
appeal, the defendant claims that he is entitled to a new
trial because the trial judge erred in (1) allotting to each
side six peremptory challenges instead of fourteen in
connection with the first phase of the trial; (2) admitting
in evidence an in-court identification of him by a library
employee; and (3) imposing an allegedly harsher sentence than
the one imposed following his first trial, in violation of
his right not to be placed in double jeopardy.
agree with the defendant that he was deprived of eight
peremptory challenges to which he was entitled during the
first phase of the trial. Because fourteen jurors were seated
pursuant to Mass.R.Crim.P. 20(d)(1), 378 Mass. 889 (1979)
(rule 20), and the defendant was charged with a "crime
punishable by imprisonment for life, " rule 20(c)(1), he
was entitled to fourteen peremptory challenges.
Commonwealth v. Berardi, 88
Mass.App.Ct. 466, 469-470 (2015) (Berardi). Where,
as here, the error was preserved, a new trial is required. In
light of our conclusion, we briefly address the
defendant's remaining claims, as those issues may arise
in any retrial.
factual basis for the indictment is described in detail in
Crayton I, 470 Mass. at 230-233, and need not be
repeated here. What follows are the facts surrounding the
defendant's exercise of peremptory challenges at his
retrial. At the beginning of the first phase of the trial,
the defendant requested twelve peremptory challenges, or
more, depending on the number of jurors seated. Although the
Commonwealth agreed that the defendant was entitled to
additional peremptory challenges, the judge nonetheless
denied the request and allotted each side six peremptory
challenges for a jury of fourteen (twelve plus two
alternates). The defendant objected and renewed his objection
during the empanelment process when, after having exercised
five peremptory challenges, he sought additional challenges
to exclude Jurors 50, 61, and 48. Trial counsel's reasons
for wanting to exclude these three jurors were as follows.
50, a Baptist minister, hesitated when asked whether he would
be willing to look at the evidence in order to decide whether
it constituted pornography. When trial counsel asked the
judge to inquire further, she refused to do so. Trial counsel
objected to the denial of her request, but she did not
request that Juror 50 be excused for cause. Juror 61 worked
at a university and was employed as a librarian. As she had
with Juror 50, trial counsel asked the judge to inquire
further, specifically indicating her concern that the
juror's "role as a librarian" would affect her
ability to be fair and impartial in light of the fact that
the offenses allegedly occurred in a library. This request was
similarly rebuffed. Lastly, as to Juror 48, trial counsel
observed that the juror's brother was a law enforcement
officer and, although Juror 48 ultimately stated that he
would not believe a police officer over another witness, he
also stated that he trusted his brother. Trial counsel
expressed her concern over Juror 48's ability to remain
impartial and reiterated her position that she would exclude
all three jurors if she could. The defendant then used his
sixth and last peremptory challenge to remove Juror 50, the
Baptist minister. Jurors 61 and 48 remained seated. When the
judge asked the parties whether they were content with the
jury, the prosecutor responded affirmatively, but trial
counsel stated, "I don't have any more
challenges." When pressed by the judge ("So
you're content?"), trial counsel stated twice more
that she was out of challenges, requested extra challenges,
and explained her reasons.
the verdict was returned, a second jury was empanelled for
the second phase of the trial and the judge allotted ...