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14-P-482                                                 Appeals Court

                    COMMONWEALTH   vs.   ANTONIO BERARDI.


                               No. 14-P-482.

           Essex.       February 3, 2015. - October 9, 2015.

            Present:    Kafker, Wolohojian, & Sullivan, JJ.


Sex Offender. Sex Offender Registration and Community
     Notification Act. Practice, Criminal, Bifurcated trial,
     Empanelment of jury, Trial jury-waived, Assistance of
     counsel. Jury and Jurors. Constitutional Law, Jury, Trial
     jury-waived, Assistance of counsel. Due Process of Law,
     Assistance of counsel.



     Indictment found and returned in the Superior Court
Department on April 11, 2008.

     The case was tried before Garry V. Inge, J.; the subsequent
offense portion of the indictment was heard by Richard E. Welch,
III, J., and a motion for a new trial was considered by him.


     Elizabeth Dembitzer for the defendant.
     Quentin Weld, Assistant District Attorney, for the
Commonwealth.


    WOLOHOJIAN, J.        The defendant, a registered sex offender,

was indicted for knowingly providing false information on a

registration form, in violation of G. L. c. 6, § 178H(a), by
                                                                    2


failing to disclose that he was employed.     He was charged as a

subsequent offender and, as a result, faced imprisonment "for

not less than five years."     G. L. c. 6, § 178H(a)(2), as

appearing in St. 1999, c. 74, § 2.    In a bifurcated proceeding,

a Superior Court jury convicted him of the underlying

registration violation, after which he was convicted of the

second and subsequent offense in a jury-waived trial.     We

consolidated his direct appeal with his appeal from the denial

of his motion for new trial.

    We agree with the defendant that, where thirteen jurors

were seated, he was entitled, under Mass.R.Crim.P. 20(c)(1), 378

Mass. 890 (1979), to thirteen peremptory challenges because he

was charged with a "crime punishable by imprisonment for life,"

and that it was error to allot him only five such challenges.

We conclude with respect to his direct appeal, however, that the

defendant has failed to show that the error resulted in any

injury or deprived him of a fair and impartial jury.     For

similar reasons, although we conclude that, accepting as true

the affidavits submitted with the defendant's motion for new

trial, he has satisfied the first prong of Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974), he has not satisfied the

second.   Accordingly, we affirm his conviction and the denial of

his motion for new trial.
                                                                    3


     Background.   The defendant was indicted for providing false

information, second or subsequent offense, in violation of his

reporting obligations as a registered sex offender.    More

specifically, he was charged with falsely reporting that he was

unemployed.1   A first trial ended in a mistrial when one of the

jurors, upon being polled after the verdict, stated that the

defendant was not guilty.

     At the second trial, the judge allotted to each side five

peremptory challenges for a jury of thirteen (twelve plus one

alternate).2   The defendant did not object.   The judge then

conducted voir dire in two stages.   First, he questioned the

venire as a whole.   Next, the jurors were individually

questioned at sidebar.   Depending on a particular juror's

responses, the judge then either excused the juror or found the

juror indifferent.   If the latter, the parties were asked

whether they wished to challenge that juror.

     As a result of this process, the judge excused nine

potential jurors on his own initiative.   Nine additional jurors

     1
       The defendant was employed at a debt collection agency.
His first day of employment was the same day he completed the
registration form at issue. He had been offered the job either
that morning, or the day before. In any event, the defendant
contended that he did not know he was, or consider himself to
be, in fact employed on that first day, which consisted of
training.
     2
       The defendant had been allotted six peremptory challenges
for the first trial.
                                                                    4


were excused at the parties' request:    five jurors were excused

by the defendant's exercise (through counsel) of his peremptory

challenges, and the Commonwealth peremptorily challenged four

others.    Defense counsel challenged no jurors for cause.3   Nor

did he request additional questioning of any juror.

     The defendant's last peremptory challenge was used to

eliminate Juror 42 for the thirteenth seat.    Juror 43 filled

that final seat without challenge from either side.    Juror 43

had not raised her hand in response to any of the questions

posed to the venire as a whole.    Nor did the individual

questioning at sidebar reveal her to be anything other than

indifferent.4   Indeed, the defendant does not contend the judge

erred in finding Juror 43 indifferent.    Both the prosecutor and



     3
       The Commonwealth made one challenge for cause, which was
denied.
     4
       The judge found Juror 43 indifferent after the following
exchange at sidebar:

     The judge: "I just have a couple of questions to ask you,
     given the nature of this case. First, have you or any
     member of your family ever been either accused of or been
     the victim or -- either one -- any type of sexual assault,
     whether or not reported to law enforcement?"

     A.:    "No."

     Q.: "Second question -- do you know anyone who has been or
     currently is required to register as a sex offender?"

     A.:    "No."
                                                                      5


defense counsel indicated they were content with Juror 43 and

with each of the other seated jurors.

     As we have noted, the trial was bifurcated.     The only issue

during the first phase of the trial was whether the defendant's

statement that he was unemployed was false.     The defendant

stipulated to the remaining elements of the crime.5    The jury-

waived second phase was limited to determining whether the

defendant had previously been convicted of failing to register

as required.    After the conclusion of phase two, the defendant

was sentenced to State prison for five years to five years and a

day, and to community parole supervision for life.

     The defendant raised no issue about the number of

peremptory challenges until his motion for new trial, filed some

two and one-half years after the verdict, when he argued that he

was entitled to thirteen such challenges.     The motion judge (who

had been the judge at the second trial) denied the motion

     5
         The judge read the following stipulation to the jury:

     "First, that the defendant . . . is the same Antonio
     Berardi who, in 1995, was adjudicated a delinquent juvenile
     by reason of the offense of rape of a child. Second, that,
     by such adjudication, Antonio Berardi was required, under
     the laws of Massachusetts, to register as a sex offender
     whenever he moved into a location. And, three, that the
     defendant, Antonio Berardi, knew he was obligated to
     register by providing true information to the Sex Offender
     Registry Board or a representative of the Sex Offender
     Registry Board regarding his employment status. He knew he
     had to give true information regarding his employment
     status."
                                                                    6


without a hearing, reasoning that the defendant was entitled to

only five peremptory challenges for the first phase of the trial

and that it was immaterial whether the defendant was entitled to

thirteen peremptory challenges for the second phase, because he

had waived his right to trial by jury.

     Discussion.   Peremptory challenges.    1.   Direct appeal.

Rule 20(c)(1) of the Massachusetts Rules of Criminal Procedure

provides:

     "Upon the trial of an indictment for a crime
     punishable by imprisonment for life, each defendant
     shall be entitled to twelve peremptory challenges of
     the jurors called to try the case[.] . . . Each
     defendant in a trial of [such a crime] in which
     additional jurors are impaneled . . . shall be
     entitled to one additional peremptory challenge for
     each additional juror."

Our initial focus is on the phrase "trial of an indictment for a

crime punishable by imprisonment for life," with respect to

which we must answer two questions.     First, we must consider

whether the crime with which the defendant was charged is

punishable by life imprisonment.   Second, we must assess whether

"trial" means the whole trial, or only the second (subsequent

offender) phase of the trial, which is the phase that carries

the potential for life imprisonment.6


     6
       A first conviction carries a potential sentence of six
months to two and one-half years in the house of correction or
not more than five years in State prison. G. L. c. 6,
§ 178H(a)(1).
                                                                    7


     The statutory penalty for violating G. L. c. 6,

§ 178H(a)(2), by committing a second and subsequent offense of

providing false information as a registered sex offender, is

imprisonment "for not less than five years."   No maximum penalty

is specified.   Hence, as the Commonwealth acknowledges, the

statute is presumed to carry a life term.   Commonwealth v.

Logan, 367 Mass. 655, 657 (1975).   Accordingly, the defendant

was entitled to the benefit of rule 20 and, because the judge

empanelled a jury of twelve plus one alternate, the defendant

should have been allotted thirteen peremptory challenges.7

     Although bifurcation of the trial was required by G. L.

c. 278, § 11A, inserted by St. 1967, c. 213 (as it is in other

cases charging a second and subsequent offense),8 that fact makes


     7
       Instead he received five, which would have been the
correct number had the defendant not faced a potential maximum
penalty of life in prison. The judge apparently did not realize
at the time of empanelment that, as a subsequent offender, the
defendant faced a potential life sentence, and neither party
brought this important information to the judge's attention.
     8
       We believe that this is the first appellate case to state
that G. L. c. 278, § 11A, applies to second and subsequent
offenses under G. L. c. 6, § 178H(a)(2). We see no reason to
think § 11A would not apply to § 178H offenses both because
§ 11A has been applied across a variety of contexts, regardless
of the substantive nature of the underlying offense, see, e.g.,
Commonwealth v. Thompson, 427 Mass. 729 (1998) (unarmed
robbery); Commonwealth v. Pelletier, 449 Mass. 392 (2007)
(operating a motor vehicle while under the influence);
Commonwealth v. Kulesa, 455 Mass. 447 (2009) (criminal
harassment); Commonwealth v. Eberhart, 461 Mass. 809 (2012)
(armed career criminal statute), and because the purpose of
§ 11A is to ensure that proof of the substantive offense will
                                                                   8


no difference for purposes of rule 20(c)(1).   Rule 20 does not

operate differently in bifurcated trials nor does it apply only

to the subsequent offender phase of a bifurcated trial.     The

subsequent offender phase is not a separate trial nor does it

entail proof of a separate crime.   Repeat offender statutes "do

not identify freestanding crimes, but concern 'solely the

sentence of a person convicted of a [current] violation . . .

who has previously been convicted of at least one similar . . .

offense.   The prior offense is not an element of the crime for

which a defendant is charged but concerns the punishment to be

imposed if he is convicted [of the current offense] and the

prior offense is proved'" beyond a reasonable doubt.

Commonwealth v. Miranda, 441 Mass. 783, 788 (2004), quoting from

Bynum v. Commonwealth, 429 Mass. 705, 708-709 (1999).

Commonwealth v. Richardson, 469 Mass. 248, 252 (2014).    See

Commonwealth v. Bowden, 447 Mass. 593, 601 n.11 (2006) ("[p]rior

convictions must be proved beyond a reasonable doubt . . . even

though a prior conviction is not formally an element of the

crime").

    It is true that G. L. c. 278, § 11A, allows a defendant to

waive his right to a jury for either, neither, or both phases of

a bifurcated trial, and that the election may be made with


not be prejudicially infected by evidence that it is a
subsequent offense.
                                                                      9


respect to the second phase after the first phase of the trial

has been completed.     Commonwealth v. Thompson, 427 Mass. 729,

737-738 (1998).     It is also true that the defendant would not be

exposed to a life sentence if the Commonwealth succeeded only in

proving the substantive crime, while failing to prove that it

was a second and subsequent offense.     However, it does not

follow that rule 20 applies only to the second phase of the

trial.   To conclude otherwise would be unworkable as a practical

matter because the same jury will usually hear both phases of a

bifurcated trial.

     Indeed, the judge intended to use the same jury for the

second phase of the trial at issue here, and he so informed the

defendant during the jury-waiver colloquy.     It was within the

judge's discretion to decide whether the same jury would

consider both phases of the bifurcated trial or whether a new

jury would be empanelled for the second phase, see G. L. c. 278,

§ 11A; Commonwealth v. Pelletier, 449 Mass. 392, 396 (2007), and

neither party contends that the judge abused his discretion

here.    Clearly, if a new jury is to hear the second phase, the

members of that second jury must be empanelled in the same

manner as any other jury, see G. L. c. 278, § 11A (second phase

of the trial is "subject to all of the provisions of law

governing criminal trials"), including allowing the full number

of peremptory challenges required by rule 20.     However, where
                                                                  10


(as here) the same jury is to be used for both phases, absent

some reason to think the jury will not be fair and impartial for

the second phase, neither our cases nor § 11A appears to require

that additional voir dire be conducted before the second phase.

See, e.g., Commonwealth v. Thompson, 427 Mass. at 736-737;

Commonwealth v. Means, 71 Mass. App. Ct. 788, 797-798 (2008),

reversed on other grounds, 454 Mass. 81 (2009).    In other words,

the full number of peremptory challenges required by rule 20

must be allotted ab initio because, in the ordinary course,

there will be no additional voir dire before the second phase.

    In sum, it was error to allow the defendant only five

peremptory challenges rather than thirteen.    The defendant

argues that a deprivation of this magnitude is a form of

structural error requiring reversal without a showing of

prejudice.   For the reasons that follow, we disagree.

    "Although the Sixth Amendment to the United States

Constitution and art. 12 of the Declaration of Rights of the

Massachusetts Constitution guarantee the right to be tried by an

impartial jury, there is no Federal or State constitutional

right to exercise peremptory challenges."     Commonwealth v.

Mello, 420 Mass. 375, 396 (1995).   Commonwealth v. Bockman, 442

Mass. 757, 762 (2004).   "Because peremptory challenges are a

creature of statute and are not required by the Constitution, it

is for the State to determine the number of peremptory
                                                                  11


challenges allowed and to define their purpose and the manner of

their exercise."9,10   Ross v. Oklahoma, 487 U.S. 81, 89 (1988)

(citations omitted).    The mistaken denial of peremptory

challenges is not per se structural error under the Federal

Constitution.   Rivera v. Illinois, 556 U.S. 148, 158 (2009).

Nor have we held that it is structural error under art. 12.

Indeed, to the contrary, as explained further below, we require

a showing of prejudice or injury resulting from the erroneous

reduction in the number of peremptory challenges, except where

the error is preserved.

     Even though the error is not structural per se, it can

nonetheless result in reversal either where the defendant is

deprived of his constitutional right to an impartial jury or he


     9
       "When States provide peremptory challenges (as all do in
some form), they confer a benefit 'beyond the minimum
requirements of fair [jury] selection,' Frazier v. United
States, 335 U.S. 497, 506 (1948), and thus retain discretion to
design and implement their own systems." Rivera v. Illinois,
556 U.S. 148, 157-158 (2009).
     10
       Our Supreme Judicial Court has stated that "[t]he purpose
of the properly exercised peremptory challenge is to aid the
constitutional right to a fair and impartial jury."
Commonwealth v. Wood, 389 Mass. 552, 560 (1983). "[Peremptory
challenges] are afforded to a defendant to enable him to
eliminate from the jury that will decide his case jurors whom he
perceives to be prejudiced against him or who may be 'harboring
subtle biases with regard to the case, which were not elicited
on voir dire or which do not establish legal cause for
challenge.'" Commonwealth v. Bockman, 442 Mass. at 762, quoting
from Commonwealth v. Soares, 377 Mass. 461, 483-484, cert.
denied, 444 U.S. 881 (1979).
                                                                   12


"does not receive that which state law provides."     Ross v.

Oklahoma, 487 U.S. at 89.   The defendant has not shown either.

He does not challenge the judge's determination that each seated

juror was indifferent.   He challenged no juror for cause,

including (perhaps most importantly) the last juror, who was

seated after the defendant had used all his peremptory

challenges.   Nor does he contend that his lawyer should have

challenged any particular juror for cause.    Although the

defendant's affidavit submitted in connection with his motion

for new trial states that he "did not want the last juror who

was seated on my jury to be on my jury," it does not state why.

This is not, therefore, a situation where the defendant was

forced to accept a juror who could or should have been

challenged for cause.    Nor has the defendant otherwise shown

that he was deprived of his constitutional right to a fair and

impartial jury.

    Turning to what "state law provides," the analysis is

slightly different, but the defendant fares no better.       "No

irregularity in . . . [the] impanelling of jurors shall be

sufficient to set aside a verdict, unless the objecting party

has been injured thereby or unless the objection was made before

the verdict" (emphasis added).   G. L. c. 234, § 32.   See

Commonwealth v. Montecalvo, 367 Mass. 46, 51 (1975)

(irregularity in empanelment insufficient to reverse conviction
                                                                    13


unless defendant is harmed by it).    No prejudice need be shown

if the defendant timely objects before the verdict or if the

defendant's "exercise of a peremptory challenge is erroneously

denied and the challenged juror is seated on the panel and

participates in deciding the case" (emphasis added).

Commonwealth v. Bockman, 442 Mass. at 763.    See Commonwealth v.

Smith, 461 Mass. 438, 443 (2012).    Here, no objection was made

before the verdict, and no juror was seated over an exercised

challenge.   At no time did the defendant object to the reduced

number of peremptory challenges or ask for additional ones.      Nor

did he preserve his rights by challenging the last juror for

cause.   See Commonwealth v. McCoy, 456 Mass. 838, 842 (2010)

(question of the impartiality of a juror is waived if no

challenge for cause).   Therefore, the verdict need not be set

aside unless the defendant can show injury.

    The defendant has not shown injury in the sense our cases

have required.   Nor has he shown that his failure to object to

the number of peremptory challenges resulted in a substantial

risk of a miscarriage of justice.    See Commonwealth v. Beldotti,

409 Mass. 553, 560-561 (1991) (applying miscarriage of justice

analysis to unpreserved assertion of error in empanelling jury).

As discussed above, the defendant has not shown that he failed

to receive a fair and impartial jury.    He has not satisfied the

test articulated in Commonwealth v. McCoy, supra ("prejudice
                                                                     14


generally 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").   See Commonwealth v. Clark, 446 Mass. 620, 629

(2006); Commonwealth v. Somers, 44 Mass. App. Ct. 920, 922

(1998).   Nor is this a situation where the judge's exclusion of

a particular class of persons from the venire resulted in making

one side's peremptory challenges relatively more valuable.     See

Commonwealth v. McKay, 363 Mass. 220, 223 (1973) (no general

disqualification of a class of people from the jury, therefore

defendant not deprived of fair jury).   Contrast Searle v. Roman

Catholic Bishop of Springfield, 203 Mass. 493, 500 (1909) (order

excluding Roman Catholics from jury made one party's

peremptories impermissibly more valuable).

    In short, although depriving the defendant of eight

peremptory challenges was a serious error, it was not preserved,

it was not structural, he has not shown that he was deprived of

a fair and impartial jury, and he has not shown any of the other

types of injury our cases have recognized or a substantial risk

of a miscarriage of justice.   We conclude, therefore, that we
                                                                     15


cannot set aside the verdict on direct appeal despite the

magnitude of the error.11

     2.    Motion for new trial; ineffective assistance of

counsel.   As noted above, the judge denied the motion for new

trial without conducting a hearing, erroneously reasoning that

the defendant was not entitled to the full complement of

peremptories until the second phase of the trial.    Deciding as

he did, the judge did not address the averments of the

affidavits submitted with the motion.     We begin our analysis by

setting them out here.

     Trial counsel's affidavit stated that he did not know that

his client was entitled to at least twelve peremptory

challenges, and that he believed five peremptories was the

maximum number allowed.     He did not explain on what basis this

belief rested, but it is a fair inference from the trial

     11
       Also in his direct appeal, the defendant argues that
counsel's failure to object to multiple references to his
underlying offense created a substantial risk of a miscarriage
of justice where the offense had been stipulated to. It was
permissible to read the stipulation to the jury. As read, it
informed the jury that the defendant had been "adjudicated a
delinquent juvenile by reason of the offense of rape of a
child." As to the other references, even were we to assume
error, we discern no substantial risk of prejudice. The
additional references to "rape of a child" during trial were
sparse, and were sometimes elicited by defense counsel in an
apparent effort to diffuse the impact of the underlying offense
and to keep the jury focused on the limited question of the
defendant's failure to properly register. Moreover, the
prosecutor made no reference to the underlying offense in
closing.
                                                                    16


transcript that neither the parties nor the judge realized until

sentencing that the offense was a felony punishable by

imprisonment for life.   In any event, counsel acknowledged that

he failed to object to receiving only five peremptories and that

he did not request any additional challenges.    Finally, counsel

averred that if he had "believed [he] was entitled to 12 or more

peremptory challenges [he] would have used more peremptory

challenges during jury selection."   He does not, however, give

any further detail and, significantly, he does not state that he

would have exercised a peremptory challenge with respect to

Juror 43.

    The defendant's affidavit states that he consulted with

trial counsel throughout jury selection, read the completed jury

questionnaires with his counsel, looked at the venire, and

reached his own conclusions as to whom he would like to have on

his jury and whom he would like to exclude.     The defendant

states that he conferred with his attorney after each potential

juror was questioned at sidebar and that they discussed "whether

we would want to have this person as a juror based on their

answers, their attitude, the way they looked at me, their

answers on the questionnaire, or just the way I felt about

them."   Further, the defendant averred:

    "10. There were some potential jurors that I did not want
    on the jury for my trial. There were some potential jurors
    that I felt would be biased against me even though that did
                                                                  17


    not explicitly come out during the judge's questioning.
    However, we did not use peremptory challenges on some of
    these individuals because we believed we were limited to
    five challenges and there were other potential jurors that
    I was even more concerned with.

    "11. I particularly remember that I did not want the last
    juror who was seated on my jury to be on my jury. However,
    because we had used up all of our peremptory challenges I
    believed that there was nothing we could do about it.

    "12. Had I known I was entitled to 13 peremptory
    challenges, I would have used more of them."

    For purposes of our discussion, we accept these affidavits

as true.   On that basis, they can be read together to state that

the defendant informed trial counsel that he did not want Juror

43 on his jury but that, because of counsel's legal error, Juror

43 was not challenged.   In addition, other jurors were also

seated without challenge because of counsel's error.   On these

facts, counsel's failure to assert his client's objection to one

or more jurors because of counsel's ignorance of the law

satisfies the first prong of Commonwealth v. Saferian, 366 Mass.

at 96, that counsel's "behavior . . . [fell] measurably below

that which might be expected from an ordinary fallible lawyer,"

particularly considering the magnitude of the error (five

peremptories rather than thirteen) and the absence of any

tactical advantage.

    That said, the affidavits -- even accepted in their

entirety -- do not establish the second prong of Saferian, that

defense counsel's performance "has likely deprived the defendant
                                                                       18


of an otherwise available, substantial ground of defence."12

Ibid.     See Commonwealth v. Torres, 453 Mass. 722, 731 (2009)

(failure to exercise peremptory challenge not ineffective

assistance of counsel where no prejudice results).     See also

Commonwealth v. Daye, 435 Mass. 463, 478 (2001) (same);

Commonwealth v. Fudge, 20 Mass. App. Ct. 382, 390-391 (1985)

(without showing of prejudice, counsel's inaction regarding

questioning of jurors did not constitute ineffective assistance

of counsel).     As set out above, the defendant has not suggested

or shown that any seated juror could have been challenged for

cause.     Nor does he challenge the judge's finding that each

juror was indifferent.    The defendant has given no reason for

his assertion that he would have challenged Juror 43, nor is any

reason apparent on the record.     And, as to the other jurors he

claims he would have challenged, he has failed even to identify

them, let alone given any basis for his objection to them.        He

has not shown that he was deprived of a fair and impartial jury.

     12
       We recognize that the credibility of the affidavits is
not ours to assess, but lies within the discretion of the judge,
who "may evaluate them in light of factors pertinent to
credibility, including bias, self-interest, and delay."
Commonwealth v. Torres, 469 Mass. 398, 403 (2014). Although in
other situations we would remand for an evidentiary hearing,
particularly given that the motion raised a substantial issue,
see Commonwealth v. Licata, 412 Mass. 654, 660-662 (1992);
Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001),
remand is not necessary here because even accepting the
affidavits as true, they do not satisfy the second prong of
Commonwealth v. Saferian, 366 Mass. at 96.
                                                                 19


    For the reasons set out above, we decline to disturb the

judgment.
                                  Judgment affirmed.

                                  Order denying motion for new
                                    trial affirmed.
