391 Mass. 781

Commonwealth vs. Michael Barrows.

Suffolk.

January 9, 1984.

May 10, 1984.

Present: Hennessey, C.J., Abrams, Nolan, Lynch, & O’Connor, JJ.

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 rela*782tionship, interest, opinion, and bias to which the statute speaks. G. L. c. 234, § 28.1 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.2 These additional questions derive from the second paragraph of G. L. c. 234, § 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 *783to 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,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 *784Mass. 657, 664 (1983). 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 empanel-ling 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.

Commonwealth v. Barrows
391 Mass. 781

Case Details

Name
Commonwealth v. Barrows
Decision Date
May 10, 1984
Citations

391 Mass. 781

Jurisdiction
Massachusetts

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