COMMONWEALTH vs. JUNIAS JEAN-LOUIS.

DREBEN, J. At the defendant's sentencing hearing, after his convictions of a number of serious offenses, [Note 1] the trial judge voiced concern that the jury empanelment procedure he had followed did not comply with Superior Court Rule 6 (1989). He informed the defendant that he could file a motion for a new trial and suggested that both parties brief the issue. Following

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briefing and argument, the judge, relying on Commonwealth v. Ptomey, 26 Mass. App. Ct. 491 , 494 (1988), and Commonwealth v. Johnson, 417 Mass. 498 , 507 (1994), determined that absent a finding on the record that special or exceptional circumstances existed, he could not require the parties to exercise their respective peremptory challenges after each prospective juror was individually questioned and before the jury box was filled with the requisite number of indifferent jurors. Accordingly, without sentencing the defendant, he allowed the defendant's motion for a new trial. The Commonwealth appeals from that determination and claims that Commonwealth v. Sires, 413 Mass. 292 , 308 n.19 (1992), is dispositive and requires reversal. [Note 2] We agree and reverse the allowance of the defendant's motion for a new trial.

Procedure followed. Prior to empanelment of the jury, the defendant filed a motion seeking individual voir dire of the venire. The motion was allowed, and the judge, after posing general voir dire questions to the jury pool, asked each prospective juror individually at sidebar the questions requested by the defendant and those requested by the Commonwealth. Subsequent to finding a juror indifferent, the judge required the Commonwealth, and then the defendant, to decide whether to exercise a peremptory challenge after each individual voir dire. Neither party objected to this procedure at this time, although the defendant had previously objected before the empanelment of the jury. [Note 3]

Before discussing Commonwealth v. Sires, 413 Mass. at 308 n.19, it is helpful to review the prior cases and the 1974 and

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1989 versions of the rule. Rule 6 of the Superior Court (1989), set forth in the margin, [Note 4] prescribes the general procedure in the Superior Court "for the exercise of peremptory challenges to prospective jurors. It provides that the box be filled with the requisite number of indifferent jurors before any peremptory challenges are exercised, and that the defendant is not required to exercise any of his peremptory challenges until the prosecutor has made his challenges." Commonwealth v. Ptomey, 26 Mass. App. Ct. at 494. There are, however, exceptions contained in the first sentence of the rule. When Ptomey was decided in 1988, Rule 6 of the Superior Court (1974) allowed "an exception only in a trial of an indictment for a capital crime or in [a] case in which a judge 'specially otherwise ordered.' " Commonwealth

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v. Barry, 397 Mass. 718 , 724 (1986), quoting from Commonwealth v. Barrows, 391 Mass. 781 , 784 (1984). [Note 5] Thus in Commonwealth v. Ptomey, 26 Mass. App. Ct. at 494, at a time when the rule provided no exception for cases where an individual voir dire was conducted, the failure of the trial judge to follow the general rule was held to be reversible error. [Note 6] Writing for the court, then Chief Justice Greaney noted that the rule is to be strictly enforced, and pointed out that the rule "is designed to protect the parties' right to full comparative choice in the selection of a jury by allowing them to exercise their peremptory challenges against the prospective jury viewed and evaluated as a whole." Ibid.

In Commonwealth v. Barry, 397 Mass. at 725-726, the Supreme Judicial Court explained the reason for the exception in rule 6 for death penalty cases. See note 5, supra. After pointing out that it had previously construed special procedures and protections applicable in death penalty cases to apply to cases of murder in the first degree despite the elimination of the death penalty, the Supreme Judicial Court held that the exception in rule 6 for trials on indictments punishable by death governs trials for murder in the first degree. The court noted:

"Because of the many more peremptory challenges in a capital case, seating the jury will be a lengthier process. To help streamline the process, the juror-by-juror method of challenge may be adopted."

Ibid. This rationale was reiterated and used to counter an equal protection challenge to the death penalty exception in rule 6 in Commonwealth v. Freiberg, 405 Mass. 282 , 292-293, cert. denied, 493 U.S. 940 (1989). The justification for the exception constituted

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a rational basis for upholding the disparate treatment between capital defendants and other defendants.

In March, 1989, a few months after the decision in Commonwealth v. Ptomey, supra, rule 6 was amended, effective April 1, 1989, by eliminating the exception for indictments for a crime punishable by death, and inserting a new exception, namely, "when an individual voir dire is conducted." See note 4, supra. The drafters of the new exception no doubt considered the explanation for the previous exception set forth in the Barry and Freiberg cases applicable because the added protection of individual voir dire results in a "lengthier process," and amended the rule so that, in his or her discretion, the judge could adopt the juror-by-juror method of challenge "[t]o help streamline the process." See Commonwealth v. Barry, 397 Mass. at 725-726.

We now turn to footnote 19 of Commonwealth v. Sires, 413 Mass. at 308, [Note 7] which reads:

"The defendant argues that there was a substantial likelihood of a miscarriage of justice because the judge required the defendant to exercise his peremptory challenges after the individual voir dires of each juror. This practice is not in violation of Rule 6 of the Rules of Superior Court (amended, effective April 1, 1989). The subject was within the discretion of the judge, and he did not abuse that discretion."

We agree with the Commonwealth that the footnote is dispositive. We have reviewed the prior rule and the cases to give context to the footnote and arguments advanced in this case. [Note 8]

Order allowing motion for new trial reversed.