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17-P-431                                               Appeals Court

                COMMONWEALTH   vs.   WALTER CRAYTON.


                           No. 17-P-431.

         Middlesex.     December 13, 2017. - May 23, 2018.

            Present:   Vuono, Sullivan, & Massing, JJ.


Obscenity, Child pornography. Constitutional Law, Jury,
     Identification, Sentence. Due Process of Law,
     Identification, Sentence. Jury and Jurors. Practice,
     Criminal, Challenge to jurors, Empanelment of jury,
     Bifurcated trial, Sentence. Evidence, Identification.



     Indictments found and returned in the Superior Court
Department on September 10, 2009.

     Following review by the Supreme Judicial Court, 470 Mass.
228 (2014), the cases were tried before Elizabeth M. Fahey, J.


     David B. Hirsch for the defendant.
     Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.


    VUONO, J.   A Middlesex County grand jury returned two

indictments charging the defendant, Walter Crayton, with

possession of child pornography in violation of G. L. c. 272,

§ 29C.   He was charged as a subsequent offender and, therefore,
                                                                       2


he faced imprisonment for "not less than five years."    G. L.

c. 272, § 29C(vii).    The charges stemmed from the defendant's

viewing of child pornography on a computer at the Central Square

branch of the Cambridge Public Library on January 21, 2009.       He

was convicted on both indictments and the subsequent offender

portion of the first indictment following a bifurcated trial.1

See G. L. c. 278, § 11A.    The convictions were vacated and a new

trial ordered by the Supreme Judicial Court because, among other

reasons, the admission of two in-court showup identifications

resulted in unfair prejudice.    See Commonwealth v. Crayton, 470

Mass. 228 (2014) (Crayton I).    A new trial was conducted in

2015.    The defendant was again convicted of the underlying

offenses by a jury, after which a separate jury convicted him of

the second and subsequent offense portion of the first

indictment.2

     In this appeal, the defendant claims that he is entitled to

a new trial because the trial judge erred in (1) allotting to

each side six peremptory challenges instead of fourteen in




     1 The Commonwealth filed a notice of nolle prosequi in
relation to the subsequent offender portion of the second
indictment following the return of the jury's verdict at the
conclusion of the first phase of the trial.

     2 At sentencing, upon the Commonwealth's request, the second
indictment was dismissed as duplicative, and the defendant was
sentenced to five to eight years in State prison.
                                                                    3


connection with the first phase of the trial; (2) admitting in

evidence an in-court identification of him by a library

employee; and (3) imposing an allegedly harsher sentence than

the one imposed following his first trial, in violation of his

right not to be placed in double jeopardy.

    We agree with the defendant that he was deprived of eight

peremptory challenges to which he was entitled during the first

phase of the trial.     Because fourteen jurors were seated

pursuant to Mass.R.Crim.P. 20(d)(1), 378 Mass. 889 (1979) (rule

20), and the defendant was charged with a "crime punishable by

imprisonment for life," rule 20(c)(1), he was entitled to

fourteen peremptory challenges.    Commonwealth v. Berardi, 88

Mass. App. Ct. 466, 469-470 (2015) (Berardi).     Where, as here,

the error was preserved, a new trial is required.     In light of

our conclusion, we briefly address the defendant's remaining

claims, as those issues may arise in any retrial.

    Background.    The factual basis for the indictment is

described in detail in Crayton I, 470 Mass. at 230-233, and need

not be repeated here.    What follows are the facts surrounding

the defendant's exercise of peremptory challenges at his

retrial.   At the beginning of the first phase of the trial, the

defendant requested twelve peremptory challenges, or more,

depending on the number of jurors seated.     Although the

Commonwealth agreed that the defendant was entitled to
                                                                   4


additional peremptory challenges, the judge nonetheless denied

the request and allotted each side six peremptory challenges for

a jury of fourteen (twelve plus two alternates).   The defendant

objected and renewed his objection during the empanelment

process when, after having exercised five peremptory challenges,

he sought additional challenges to exclude Jurors 50, 61, and

48.   Trial counsel's reasons for wanting to exclude these three

jurors were as follows.

      Juror 50, a Baptist minister, hesitated when asked whether

he would be willing to look at the evidence in order to decide

whether it constituted pornography.3   When trial counsel asked

the judge to inquire further, she refused to do so.   Trial

counsel objected to the denial of her request, but she did not

request that Juror 50 be excused for cause.   Juror 61 worked at




      3The judge asked Juror 50 whether he would be "willing to
look at and to discuss with . . . fellow jurors the trial
exhibits, [which included] images of a sexually explicit nature
involving children." Juror 50 responded, "That's a hard
question, your Honor. I find it hard in that, you know, as a
minister, as well, and having worked with children, I'm torn in
that. I'm not sure if I can or not." Juror 50 continued,
"Well, I'm physically capable of looking at them; how they would
affect -- you know, how -- what my reaction would be, I don't,
you know -- or whether it would -- " The judge interjected,
"I'm not looking for what your reaction is. If you're willing
to . . . look at them and discuss them with your fellow jurors,
that's what's necessary. Is that something you're willing to
do?" Juror 50 stated, "I suppose I could do that, yes." The
judge then asked, "You're willing to?" and Juror 50 responded,
"I am willing to."
                                                                     5


a university and was employed as a librarian.      As she had with

Juror 50, trial counsel asked the judge to inquire further,

specifically indicating her concern that the juror's "role as a

librarian" would affect her ability to be fair and impartial in

light of the fact that the offenses allegedly occurred in a

library.4   This request was similarly rebuffed.    Lastly, as to

Juror 48, trial counsel observed that the juror's brother was a

law enforcement officer and, although Juror 48 ultimately stated

that he would not believe a police officer over another witness,

he also stated that he trusted his brother.5    Trial counsel

expressed her concern over Juror 48's ability to remain

impartial and reiterated her position that she would exclude all

three jurors if she could.   The defendant then used his sixth

and last peremptory challenge to remove Juror 50, the Baptist

minister.   Jurors 61 and 48 remained seated.   When the judge

asked the parties whether they were content with the jury, the




     4 Counsel expressed concern that Juror 61 was "going to see
herself in that role when she's deliberating."

     5 When asked by the judge whether he would "use whatever
factors you use in evaluating every witness's credibility" when
evaluating the testimony of a police officer, Juror 48
responded, "Again, my brother's a cop; I trust him. I know that
there are good, bad, everything. So I really -- I'd have to see
each person, individual. I can't really answer that now and say
I'm not going to trust someone just because they're a police
officer. I'm also not going to trust someone just because they
claim to be telling the truth."
                                                                      6


prosecutor responded affirmatively, but trial counsel stated, "I

don't have any more challenges."      When pressed by the judge ("So

you're content?"), trial counsel stated twice more that she was

out of challenges, requested extra challenges, and explained her

reasons.6

     After the verdict was returned, a second jury was

empanelled for the second phase of the trial and the judge

allotted each side fourteen peremptory challenges.

         Discussion.   1.   Peremptory challenges.   The outcome of

this case is controlled in all material respects by our decision

in Berardi.7    In Berardi, we held that a defendant who faced a

mandatory minimum sentence of five years, with no specified

maximum sentence because he was charged as a subsequent




     6 Counsel stated: "Your Honor, I have three people I want to
challenge. I'd ask for an opportunity to have extra challenges.
And I can give you the reasons for each challenge." The judge
stated, "I don't get to do that. You get six." Trial counsel
objected and put on the record the following reasons for the
challenges: "I would challenge Juror 50 in Seat No. 8. He's a
Baptist minister who was very, very hesitant in whether he could
view these. I would also -- I would challenge . . . Juror 61 in
Seat No. 13, who is a librarian. I think, given the nature of
this case and that it takes place in a library, that she would
be challengeable. And I would challenge No. 48 in Seat No. 7,
who has a brother who is a police officer and said he had a hard
-- he couldn't decide whether he could be impartial . . . those
would be the three that I would challenge if I were given three
challenges."

     7 Berardi was decided approximately one month after the
conclusion of the defendant's retrial.
                                                                     7


offender, is presumed to face "imprisonment for life" and was

entitled under rule 20 to "twelve peremptory challenges of the

jurors called to try the case . . . [plus] one additional

peremptory challenge for each additional juror" for the first

phase of the trial.8   88 Mass. App. Ct. at 469-470.   Berardi, a

registered sex offender, was indicted for knowingly providing

false information on a registration form, in violation of G. L.

c. 6, § 178H(a).   He was allotted only five peremptory

challenges for the trial on the underlying offense, even though

thirteen jurors were empanelled and the judge intended to use

the same jury for both phases of the bifurcated trial.9    Despite

the "magnitude of th[is] error," we did not reverse the

conviction because Berardi (1) had not preserved the error,10 and

(2) failed to show that he did not receive a fair and impartial


     8 Rule 20 provides, in pertinent part, that each defendant
shall be entitled to twelve peremptory challenges upon the trial
of an indictment for a crime punishable by imprisonment for
life. In a trial of an indictment for a crime punishable by
imprisonment for life in which additional jurors are empanelled
pursuant to rule 20(d)(1), the defendant "shall be entitled to
one additional peremptory challenge for each additional juror."
Rule 20(c)(1).

     9 The judge so informed the defendant at the jury-waiver
colloquy, and the defendant elected to proceed with a bench
trial on the subsequent offense charge. Berardi, 88 Mass. App.
Ct. at 468, 471.

     10Berardi did not object to the number of peremptory
challenges until he filed a motion for a new trial some two and
one-half years after he was convicted. 88 Mass. App. Ct. at
469.
                                                                      8


jury.     Berardi, supra at 474.   Berardi used all of his

peremptory challenges, but he did not challenge the judge's

determination that each seated juror was indifferent.        Id. at

472-473.

     "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).     Rather, "peremptory

challenges are a creature of statute," and, thus, a defendant is

deprived of his constitutional right to an impartial jury "only

if [he] does not receive that which state law provides."       Ross

v. Oklahoma, 487 U.S. 81, 89 (1988).

     Here, at the time of the defendant's retrial, State law

provided that "[n]o 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."      Berardi, 88 Mass. App. Ct. at

473, quoting from G. L. c. 234, § 32.11     As we explained in




     11General Laws c. 234 was in full force and effect at all
times pertinent to this appeal; the statute was subsequently
repealed by St. 2016, c. 36, § 1. After the effective date of
the repeal, May 10, 2016, a defendant seeking to overturn his
conviction on the basis of defects in the empanelment process
                                                                    9


Berardi, "[n]o prejudice need be shown if the defendant timely

objects before the verdict or if [his] 'exercise of a peremptory

challenge is erroneously denied and the challenged juror is

seated on the panel and participates in deciding the case.'"

Ibid., quoting from Commonwealth v. Bockman, 442 Mass. 757, 763

(2004).

    The defendant in the present case objected multiple times

to the reduced number of peremptory challenges and asked for

additional ones.   When his requests were denied and he had only

one remaining challenge, he set forth his reasons for

eliminating three potential jurors.   Two of these jurors then

were seated after he had exhausted his peremptory challenges.

These factors mandate a result different from the one we reached

in Berardi.

    The Commonwealth seeks to distinguish Berardi on the ground

that, whereas only one jury was empanelled in that case, here it

was clear from the outset that the judge intended to empanel two

separate juries.   This argument is unavailing.   Our decision in

Berardi unequivocally requires that a defendant facing

"imprisonment for life" as a subsequent offender be allotted an



must both timely object and show that he was prejudiced by the
procedure. See G. L. c. 234A, § 74; Commonwealth v. Sheehy, 412
Mass. 235, 237-238 (1992); Commonwealth v. Vuthy Seng, 456 Mass.
490, 495 n.7 (2010); Commonwealth v. Jackson, 471 Mass. 262, 271
(2015).
                                                                     10


increased number of peremptory challenges at the first phase of

the bifurcated proceeding.     See Berardi, 88 Mass. App. Ct. at

470 ("Rule 20 does not operate differently in bifurcated trials

nor does it apply only to the subsequent offender phase of a

bifurcated trial").   The defendant faced the possibility of life

imprisonment when he was placed at bar during the first phase of

the trial, and he was entitled under rule 20 to additional

peremptory challenges.     Id. at 469-470.    To hold otherwise would

force a defendant to choose one jury for both phases of a

bifurcated trial in order to receive the increased number of

peremptory challenges.     We agree with the defendant that such a

result would be impracticable, potentially unfair, and

inconsistent with rule 20 and G. L. c. 278, § 11A.

    2.   Issues for retrial.    We briefly comment on the

defendant's remaining claims.

    a.   Identification.     In Crayton I, 470 Mass. at 241-242,

the Supreme Judicial Court announced a new rule governing the

admissibility of in-court identifications of a defendant by

eyewitnesses who were present during the commission of the crime

but had not participated before trial in an identification

procedure.   The rule states that such in-court identifications

will be treated as an "in-court showup," admissible "only where

there is 'good reason.'"     Id. at 241.     The defendant argues that

the judge abused her discretion and ignored the new rule
                                                                    11


announced in Crayton I by allowing Ricardo Ricard, an eyewitness

who was not present during the commission of the crime, and did

not participate in any out-of-court identification procedure, to

make an in-court identification of the defendant.    We disagree.

     Ricard was employed as a senior technician at the library

where the offenses occurred.   He testified that the defendant

came to the library once or twice a week to use the computers.

At times when there was a wait list, the defendant used the

initial "W" to sign up to use a computer.   Ricard did not see

the defendant using a computer on January 21, 2009, but, after

he was informed of an "incident" relating to the use of a

certain computer, Ricard disabled the software on that computer

and observed a folder on the computer labeled "W."   That folder

contained the child pornography the defendant was accused of

possessing.   Ricard made an in-court identification of the

defendant as the same person who used the initial "W."

     We agree with the Commonwealth that the new rule announced

in Crayton I does not bar Ricard's in-court identification.12

The court explicitly stated that the new rule "shall apply only

to in-court identifications of the defendant by eyewitnesses who

were present during the commission of the crime."    Crayton I,


     12We note that in Crayton I, no issue was raised as to any
identification of the defendant by Ricard. See Crayton I, 470
Mass. at 229, 245.
                                                                   12


470 Mass. at 242.   The court did not address whether the new

rule "should apply to in-court identifications of the defendant

by eyewitnesses [like Ricard] who were not present during the

commission of the crime but who may have observed the defendant

before or after the commission of the crime."    Id. at 242 n.17.

In any event, the judge did not abuse her discretion in allowing

Ricard's in-court identification.   Although not required, see

Commonwealth v. Galipeau, 93 Mass. App. Ct. 225, 232 (2018), the

judge conducted a voir dire of Ricard, after which she properly

determined there was "good reason" to allow an in-court

identification because, based on his interactions with the

defendant at the library, Ricard was "familiar with the

defendant before the commission of the crime."    Crayton I, supra

at 242.

     b.   Sentencing.   Following his first trial, the defendant

was sentenced on the first indictment to serve from five years

to five years and one day in State prison.13    On the second

indictment, he was sentenced to from three years of probation to

be served on and after the prison sentence imposed on the first

indictment.   As we have noted, following his convictions at the

retrial, the second indictment was dismissed as duplicative.




     13The sentence was later revised to four and one-half to
five years. Crayton I, 470 Mass. at 229 n.1.
                                                                  13


See Commonwealth v. Rollins, 470 Mass. 66, 70-75 (2014).     Thus,

in determining the appropriate sentence after the retrial, the

second judge no longer had the option of imposing a term of

probation.   The judge imposed a sentence of from five to eight

years in State prison, so that the defendant would receive

supervision in the event he was paroled.14   As the judge

explained, although the sentence "may be stricter," it provided

the opportunity for supervision in the future.   The sentence was

affirmed by the Appellate Division of the Superior Court.

Compare id. at 75 (appropriate remedy for duplicative

convictions is to "vacate the duplicative convictions and remand

for resentencing").




     14The judge stated that she was imposing the Commonwealth's
recommended sentence "because it seems to me that the -- well,
first, the defendant wants Gardner. He wants the treatment
center, to the extent there's a program there. And I want the
mittimus to include my recommendation that [the Department of
Correction], if any way possible, put him there. He's willing
to deal with this issue that he has. It's replete in his
criminal record. And I don't have any way now of giving him the
probationary term of three years that the previous judge gave.
I'm imposing five to eight. He will get credit for already
serving almost six years. So I want him to be able to take
advantage and for the parole board to be able to, if they
release him, have some -- parole is the equivalent of probation.
So if they release him, it really would be the equivalent of
probation. It may be stricter, but that's what I want him to
have, some kind of supervision when he's out on the street, so -
- to be sure that he can learn to deal with, either at Gardner
or in a program while on parole, that can help him deal with his
sex offender past."
                                                                     14


    The defendant claims that he was subjected to double

jeopardy because the sentence imposed after retrial was more

severe than the one originally imposed.    Assuming without

deciding that the defendant received a harsher sentence after

his retrial, the principle of double jeopardy is not implicated

because the prior sentence did not come about as a "result of

acquittal with respect to an essential element required for

imposition of the harsher sentence."    Commonwealth v. Jarvis, 68

Mass. App. Ct. 538, 541 (2007), citing Sattazahn v.

Pennsylvania, 537 U.S. 101, 111-112 (2003).     The issue is more

properly framed as one concerning the question of judicial

vindictiveness.   See Commonwealth v. Hyatt, 419 Mass. 815, 823

(1995) (the issue of judicial vindictiveness arises from a

judge's imposition on reconviction of a sentence more severe

than that imposed after the first trial).      Under our common law,

"when a defendant is again convicted of a crime or crimes, the

second sentencing judge may impose a harsher sentence or

sentences only if the judge's reason or reasons for doing so

appear on the record and are based on information that was not

before the first sentencing judge."    Ibid.   Although we discern

no vindictiveness in the judge's decision to impose a five to

eight year State prison sentence, we need not reach the merits

of the defendant's claim.   Even if we were to agree with the

defendant, the proper remedy would be to vacate the sentence.
                                                          15


Given our conclusion that a new trial is required, this

effectively has already taken place.

                                   Judgment reversed.

                                   Verdict set aside.
