391 Mass. 781

January 9, 1984 - May 10, 1984

Suffolk County


Failure of the defendant, during jury selection in a criminal case, to object to the judge's requiring that the right of peremptory challenge be exercised at the time each juror was declared indifferent precluded appellate review of the propriety of the judge's following this procedure, rather than that described in Rule 6 of the Superior Court (1974) which would have permitted the exercise of peremptory challenges at one time after all jurors had been seated. [783-784]

INDICTMENT found and returned in the Superior Court Department on August 14, 1981.

The case was tried before Griffin, J.

After review was sought in the Appeals Court, the Supreme Judicial Court ordered direct appellate review on its own initiative.

Robert I. Warner for the defendant.

Ellen M. Donahue, Assistant District Attorney, for the Commonwealth.

NOLAN, J. The sole issue in this case is the propriety of the trial judge's decision to require the Commonwealth and the defendant to exercise their peremptory challenges after each juror was declared indifferent. The defendant contends that he had a right to an empanelling process by which he could exercise all his peremptory challenges at one time after the fourteen jurors had been seated. There was no reversible error.

The defendant, while a prisoner, was found guilty of assault and battery on a correction officer and sentenced. Prior to trial, the defendant asked the judge to propound special questions to the prospective jurors in addition to those concerning relationship,

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interest, opinion, and bias to which the statute speaks. G. L. c. 234, Section 28. [Note 1] The judge allowed in part the defendant's request and after a communal interrogation as to relationship, interest, opinion, and bias, she called the prospective jurors one by one and asked three additional questions to uncover any bias or prejudice that might have remained hidden after the initial interrogation. [Note 2] These additional questions derive from the second paragraph of G. L. c. 234, Section 28.

On the first day, three members of the jury panel were examined individually. The first was accepted, the second was excused by the judge, and the third was challenged by the defendant. At the close of the first day, the defendant asked the judge to change the system of empanelling to permit all prospective jurors who had been declared indifferent to be seated and then, when all fourteen were selected, to permit the exercise of peremptory challenges. The judge indicated that she would probably continue to use the method which she had adopted during the first day, although she said that she might change her mind overnight. On the following morning, the defendant did not renew his request, nor object to the continuation of the practice of asserting the challenge at the moment when the judge declared the juror indifferent. The judge continued the system of the previous day until fourteen unchallenged jurors were seated. The defendant had exercised his entire quota of challenges (in this case he was permitted

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to challenge six because of the two additional jurors, though he was not entitled to this number of challenges as of right, see Commonwealth v. McColl, 375 Mass. 316, 322 [1978]) and only one prospective juror was called after the defendant had used his sixth challenge. In all, the judge queried twenty-four prospective jurors.

The defendant points to Rule 6 of the Superior Court (1974), set forth in the margin, [Note 3] and insists that a trial judge is required under pain of reversal to use that method. We agree with the defendant that rule 6 requires an empanelling procedure consistent with his request. However, on the second morning when the judge resumed the empanelling process in the manner in which she had started on the previous day, the defendant did not object. The defendant will not be heard to argue futility in raising anew the issue or in objecting because the judge left the question open on the previous afternoon when she said, "I will leave it that way, unless overnight I should change my mind. I reserve the right to change my mind, but as of the moment, I like our system better." It is elementary that an objection is required to preserve appellate rights absent a showing of a miscarriage of justice. Commonwealth v. Pires, 389 Mass. 657, 664 (1983).

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There has been no miscarriage of justice. Accordingly, we leave the result undisturbed.

We hasten to add, however, that the result which we reach should not be deemed to be approval of the method of empanelling used here. Rule 6 is unambiguous in its direction and it allows an exception only in a trial of an indictment for a capital crime or in case in which a judge "specially otherwise ordered." Neither exception is present here. The language of rule 6 is obligatory and, therefore, must be followed.

Judgment affirmed.


[Note 1] General Laws c. 234, Section 28, as amended by St. 1975, c. 335, provides in part: "Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein; and the objecting party may introduce other competent evidence in support of the objection. If the court finds that the juror does not stand indifferent in the case, another shall be called in his stead."

[Note 2] The questions in substance were: (1) Would the fact that the defendant was an inmate at the time of the alleged offense affect the juror's ability to decide the case fairly and impartially? (2) Whether the juror or any member of the juror's family or a person close to the juror was employed by any police, law enforcement or correction agency? (3) Would the fact that the defendant is black and the correction officers involved are white affect his ability to decide the case fairly and impartially?

[Note 3] Rule 6 of the Superior Court provides: "The procedure in the matter of peremptory challenges of jurors, except in an indictment for a crime punishable by death, shall be as follows, unless specially otherwise ordered in a particular case. The jurors shall first be called until the full number is obtained. If any examination on oath of the jurors is required, it shall be made, and any challenge for cause shall be acted on, and if any jurors shall be excused others shall be called to take their places. When it has been determined that all the jurors stand indifferent in the case, each plaintiff shall at one time exercise his right of peremptory challenge as to such jurors, and after others have been called to take the places of those challenged, and it has been determined that they stand indifferent in the case, shall at one time exercise his right of challenge of such others, and so on until he has exhausted his right of peremptory challenge or has ceased to challenge. Each defendant shall then exercise his right in the same manner. Each plaintiff, if his right of peremptory challenge has not been exhausted, shall then again exercise his right in the same manner, but only as to jurors whom he has not already had opportunity to challenge; and the parties shall likewise exercise the right in turn, until the right of peremptory challenge shall be exhausted or the parties shall cease to challenge. No other challenging, except for cause shown, shall be allowed."