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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 

 

3 The 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.

10 Berardi 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 

 

11 General 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, 

 

12 We 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. 

 

13 The 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"). 

 

14 The 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.