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Commonwealth v. Crayton

Appeals Court of Massachusetts, Middlesex

May 23, 2018


          Heard: December 13, 2017.

         Indictments found and returned in the Superior Court Department on September 10, 2009.

         Following review by the Supreme Judicial Court, 470 Mass. 228 (2014), the cases were tried before Elizabeth M. Fahey, J.

          David B. Hirsch for the defendant.

          Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

          Present: Vuono, Sullivan, & Massing, JJ.

          VUONO, J.

         A 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.[1]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.[2]

         In this 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.

         We 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.


         The 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.

         Juror 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.[3] 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.[4] 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.[5] 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.[6]

         After the verdict was returned, a second jury was empanelled for the second phase of the trial and the judge allotted ...

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