DRAYTON v. << (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal from a judgment, after a jury trial, that he remains a sexually dangerous person, the petitioner contends that it was error for the trial judge to excuse, for cause, a prospective juror who expressed dissatisfaction with “the way society treats people once they have been designated as a sexual offender.” We affirm.

The petitioner's claim is controlled by the recent decision by the Supreme Judicial Court in Commonwealth v. Williams, 481 Mass. 443, 454 (2019) (defendant could not show prejudice resulting from exclusion of juror for cause when “the Commonwealth completed jury selection with a peremptory challenge left available to use”). Here, if there was error (a question we need not decide), there was no prejudice to the petitioner because the Commonwealth did not use all its peremptory challenges.

Under G. L. c. 234A, § 67B, each party in a civil case is entitled to four peremptory challenges. However, each party is awarded an additional challenge under Mass. R. Civ. P. 47 (b), as amended, 450 Mass. 1402 (2008), when one or two alternate jurors are empanelled. In this case, a total of fourteen jurors were empanelled (two as alternates), meaning that each side would be allowed an additional peremptory challenge.² The Commonwealth used four of its challenges, leaving it with one challenge remaining at the end of jury selection. This additional challenge could have been used to strike the prospective juror if the judge had not excused him for cause. “[T]he defendant has not shown that the resulting dismissal of the prospective juror for cause resulted in prejudice. We therefore decline to set aside the verdict.” Williams, 481 Mass. at 457.

Judgment affirmed.

FOOTNOTES

2.   Before jury selection, the petitioner filed a motion asking for twenty-five peremptory challenges. After the Commonwealth argued that the custom in these cases is to allow five challenges, the judge denied the petitioner's motion.