MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was found guilty of indecent assault and battery on a child under fourteen years of age.
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On appeal, the defendant claims that the judge erred when he failed to exercise his discretion in response to the defendants request for an additional peremptory challenge during jury empanelment. We affirm.
Background. The defendants trial, which occurred in April 2021, was governed, in part, by the Supreme Judicial Courts fifth order regarding court operations during the COVID-19 pandemic (order). See Fifth Updated Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic, No. OE-144 (February 24, 2021), https://www.mass.gov/doc/repealed-sjc-fifth-updated-orderregarding-court-operations-under-the-exigent-circumstances-created-by-the-covid-19-coronavirus-pandemic/download. As relevant here, the order provided that jury trials would resume on March 1, 2021, but would “be limited to trials to juries of six (plus alternates).” The order further provided that each defendant was “limited to four peremptory challenges and the Commonwealth to as many challenges as equal the whole number to which all the defendants ․ are entitled.” The defendant waived his right to a jury of twelve and elected to proceed with a jury of six.
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Prior to trial, the Commonwealth filed a motion (motion) requesting that both parties “be permitted as many peremptory challenges as there are seated jurors,” because the charge of assault with intent to rape a child was a life felony. The judge denied the motion, ruling that “the SJC specifically limited the number of peremptory challenges to [four] each.”
During empanelment, the judge asked the venire a number of questions. Juror 21 raised her hand when the judge asked the venire if there was anything additional the court should know about their ability to be jurors in the case. As a result, the judge conducted an individual voir dire of juror 21. At this point in the empanelment process, the defendant had exercised four peremptory challenges.
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During the individual voir dire, juror 21 said that she was the victim of child sexual assault by her stepfather. The judge asked juror 21 if this experience would prevent her from weighing the evidence in the case in a manner fair to both sides, and she replied, “I dont think so.” Defense counsel asked her if she would be able to “impartially listen to the evidence,” and she replied, “[y]es.” The judge then declared juror 21 indifferent.
Defense counsel first challenged juror 21 for cause because of the similarities between the abuse juror 21 suffered as a child and the allegations here, that the defendant sexually assaulted his young daughter. The judge denied the for-cause challenge, noting that juror 21 raised the issue sua sponte and “answered unequivocally that she could weigh the testimony in a manner thats fair.” Defense counsel then requested an additional peremptory challenge to excuse juror 21. The judge denied the request and stated, “I cant. The way that I have viewed this is that -- the SJC ․ has ruled that each side ․ get[s] four [peremptory challenges].”
Discussion. The defendant claims that the judge erred when he ruled that he lacked discretion to allow more than four peremptory challenges, and that the denial deprived him of an impartial jury.
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This case is controlled in all material respects by Commonwealth v. Berardi, 88 Mass. App. Ct. 466 (2015). There, we concluded that although the judge erred in allotting five peremptory challenges in a case involving a life felony where thirteen jurors were seated, “the defendant ․ failed to show that the error resulted in any injury or deprived him of a fair and impartial jury.” Berardi, supra at 467.
Here, the record supports the defendants contention, to which the Commonwealth agrees, that the judge denied the request for an additional peremptory challenge because he believed he lacked the discretion to do so, and that defense counsel would have used the peremptory challenge to excuse juror 21. The defendant claims that the judge erred because he had the discretion to allow an additional peremptory challenge, and that the failure of the judge to grant it prejudiced him. The Commonwealth argues that the judges conclusion was correct, but that even if it was error, the defendant suffered no prejudice. We pass on the question of whether the judge erred when he ruled that he lacked discretion, because the defendant has failed to show that he suffered any injury or was deprived of a fair and impartial jury.
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See Berardi, 88 Mass. App. Ct. at 467.
A defendant does not have a Federal or State constitutional right to exercise peremptory challenges. See Commonwealth v. Mello, 420 Mass. 375, 396 (1995). Indeed, they are a “creature of statute.” Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 255 (2018) (citation omitted). As such, any error in the denial of a peremptory challenge only requires reversal when the defendant is deprived of his constitutional right to an impartial jury or does not receive what State law requires. See Berardi, 88 Mass. App. Ct. at 472. Pursuant to G. L. c. 234A, § 74, a verdict will not be set aside due to irregularity or defects in the jury empanelment unless the defendant objected to the defect and has shown that he has been specially injured or prejudiced by the irregularity or defect. Here, while the defendant timely objected to the judges denial of his peremptory challenge, he has failed to show that he was specially prejudiced or injured. See Crayton, supra at 255 n.11. See also G. L. c. 234A, § 74.
The sole factor that the defendant identifies to support his claim of prejudice is that “he was forced to accept a juror he sought to excuse.” This is nothing more than a restatement of the claimed error. Our case law requires more. See Commonwealth v. Pina, 481 Mass. 413, 428 (2019) (no injury by deprivation of two peremptory challenges); Commonwealth v. Hampton, 457 Mass. 152, 163 (2010) (defendant must show bias on claim that jury selection process was fundamentally unfair); Berardi, 88 Mass. App. Ct. at 473 (no evidence defendant “failed to receive a fair and impartial jury”).
The defendants reliance on Commonwealth v. Hinds, 487 Mass. 212 (2021) and Commonwealth v. McCoy, 456 Mass. 838 (2010) to support his claim of prejudice is misplaced. Both cases contemplate a situation where a defendant is forced to use peremptory challenges to excuse jurors that should have been excused for cause because the judge failed to conduct a proper voir dire -- a claim not made here. See Hinds, supra at 231; see also McCoy, supra at 842 (“generally [prejudice] 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”).
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Here, the defendant has not shown that he was deprived of a fair trial or that he suffered prejudice, as required under G. L. c. 234A, § 74.
Judgment affirmed.
FOOTNOTES
2
. The jury was unable to reach a unanimous verdict on the charge of assault with intent to commit rape on a child under sixteen years of age. The judge declared a mistrial on that charge and the Commonwealth filed a nolle prosequi.
3
. The selection of jurors in this case was controlled by the order, and not by Mass. R. Crim. P. 20 (c) (1), 378 Mass. 890 (1979), due to the then ongoing COVID-19 pandemic.
4
. The defendant exercised his peremptory challenges to excuse jurors 2, 3, 15, and 20.
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. The defendant does not challenge the denial of his for-cause challenge to juror 21.
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. We disagree with the defendants contention that any error was structural, requiring reversal without a showing of prejudice. See Berardi, 88 Mass. App. Ct. at 472 (mistaken denial of peremptory challenges not per se structural error).
7
. The defendants claim that the judge erred in choosing juror 21 as the jury foreperson is similarly unavailing, particularly where he has not shown prejudice and cites no authority supporting his contention that this was per se prejudicial. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See Commonwealth v. Campbell, 394 Mass. 77, 84 (1985) (“The selection of a foreperson in an irregular manner also must be shown to have prejudiced the defendant before reversal is required”). Moreover, the judge found juror 21 to be indifferent, a finding that the defendant does not challenge on appeal.