9 Mass. App. Ct. 870

March 11, 1980

There was no error in denying the defendant's motion for a new trial, which was based on the fact that the jury was empanelled in the late afternoon in the absence of the defendant's counsel and over the defendant's objections.

The judge found that when the defendant appealed his conviction, see Commonwealth v. Hogg, 365 Mass. 290 (1974), he assigned as error the same issue he sought to raise by this motion; that that assignment was neither briefed nor argued before the court; and that it was, therefore, waived. The defendant's objections to the jury selection process could not

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be asserted as of right on a motion for a new trial, Commonwealth v. McLaughlin, 364 Mass. 211 , 229 (1973), and the judge was not in error in refusing to grant the defendant relief from his waiver of this claim because the defendant did not show that a miscarriage of justice would result if relief were not granted. Commonwealth v. Harrington, 379 Mass. 446 , 449 (1980). Although empanelment of the jury in this manner was a serious impropriety, there was no resulting prejudice to the defendant which requires interference with his conviction. The morning after empanelment, before argument or any evidence was presented to the jury, the judge cured the irregularity by extending ample opportunity to defense counsel to object to the selected jurors by exercising his peremptory challenges and challenges for cause. Counsel neither objected to this procedure nor protested its remedial sufficiency. After studying the list of jurors, viewing the jurors with the defendant and conferring with him, defense counsel advised the court that the jury was satisfactory to the defendant. He cannot now claim prejudice. See Commonwealth v. McKay, 363 Mass. 220 , 223-224 (1973); Commonwealth v. Montecalvo, 367 Mass. 46 , 51 (1975).

Order denying motion for new trial affirmed.