COMMONWEALTH v. ELIJAH TRAVERS (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In February 2023, a Superior Court jury convicted the defendant of four counts of rape and abuse of a child, G. L. c. 265, § 23. The defendant appeals from his convictions and the denial of his second motion for a new trial, arguing that the judge's failure to give the parties the proper number of peremptory challenges prejudiced the defendant by undermining his jury selection strategy.¹ We affirm.

Background. In August 2021, a grand jury indicted the defendant on four counts of rape and abuse of a child in violation of G. L. c. 265, § 23. At two final pretrial hearings in January and February 2023, the judge informed the parties that a jury of fourteen would be empaneled and that each party would have sixteen peremptory challenges.² On the first day of jury selection, the court clerk told the parties that each side would receive six peremptory challenges, to which neither party objected. The judge also stated that each party would have six peremptory challenges, with no objection. During jury empanelment, the defendant exercised five of his six peremptory challenges. After the final juror had been seated, neither the Commonwealth nor the defendant objected to the empaneled jury.

The jury convicted the defendant of all four counts. Shortly thereafter, the defendant filed his first motion for a new trial “based on trial counsel's failure to object to the trial judge limiting him to six [peremptory] challenges during jury selection.” The motion judge, who was the same as the trial judge, denied the defendant's motion following a nonevidentiary hearing. While the judge acknowledged that his “failure to give each side 14 peremptory challenges was undeniable error,” the error did not prejudice the defendant or create a substantial risk of a miscarriage of justice because “[t]here was no contentious discussion during empanelment regarding any seated juror,” and the defendant did not exhaust his available six peremptory challenges.

In January 2025, the defendant filed his second motion for a new trial “due to the ineptitude of trial counsel in presenting the previous motion for new trial.” Specifically, the defendant stated that “[h]is trial selection strategy was prejudiced by the erroneous number of challenges given,” and he identified four jurors -- juror nos. 7, 13, 26, and 32 -- on whom he would have used a peremptory challenge had he been given the proper number. The motion judge, who was not the trial judge, denied the motion without an evidentiary hearing, concluding that the defendant “has not demonstrated that he was prejudiced by the lack of fourteen challenges or that he was deprived of a fair trial.”

Discussion. The defendant contends that the trial judge's failure to give each side the proper number of peremptory challenges prejudiced the defendant by undermining his jury selection strategy, thus entitling him to a new trial. We disagree.

A defendant does not have a Federal or State constitutional right to exercise peremptory challenges. See Commonwealth v. Mello, 420 Mass. 375, 396 (1995). Indeed, they are a “creature of statute” (citation omitted). Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 255 (2018). As such, error in the denial of a peremptory challenge only requires reversal when the defendant is deprived of his constitutional right to an impartial jury or does not receive what State law requires. See Commonwealth v. Berardi, 88 Mass. App. Ct. 466, 472 (2015). Pursuant to G. L. c. 234A, § 74, a verdict will not be set aside due to irregularity or defects in the jury empanelment unless the defendant objected to the defect as soon as possible after it was, or should have been, discovered or has shown that he has been specially injured or prejudiced by the irregularity or defect. See Berardi, supra. “[P]rejudice 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.” Commonwealth v. McCoy, 456 Mass. 838, 842 (2010).

Here, there is no dispute that the trial judge erred in not giving the defendant the fourteen peremptory challenges to which he was statutorily entitled. See Mass. R. Crim. P. 20 (c) (1), 378 Mass. 889 (1979). However, the defendant, who neither objected to the number of peremptory challenges given nor to the final empaneled jury, has failed to show that he was specially injured or prejudiced by the erroneous number of peremptory challenges. See Crayton, 93 Mass. App. Ct. at 255 n.11. See also G. L. c. 234A, § 74.

The record does not support the defendant's contention that the erroneous number of peremptory challenges prejudiced his jury selection strategy. In his second motion for a new trial, the defendant identified four jurors -- juror nos. 7, 13, 26, and 32 -- on whom he claims he would have exercised a peremptory challenge had he been given the proper number. The defendant does not challenge the judge's determination on each juror's impartiality but rather argues that the judge's error, and trial counsel's failure to timely object to it, prejudiced his trial strategy.

First, the defendant challenged neither juror no. 7 nor juror no. 13 for cause, and thus any question as to the impartiality of either juror is waived.³ See McCoy, 456 Mass. at 842. When jurors no. 7 and no. 13 were seated as the first and second jurors, respectively, the defendant had all six of his peremptory challenges available.

Juror no. 26 was the fifth juror seated, and the first juror the defendant challenged for cause due to a concern that the juror would “hurry a verdict” if she could not secure childcare.⁴ In response, the judge stated that he would excuse the juror if childcare became an issue and substitute an alternate; the defendant accepted this proposal. The defendant still had all six of his peremptory challenges available and nothing in the record suggests that juror no. 26 hurried deliberations or could not be impartial.

The last juror the defendant specifically identified in his second new trial motion was juror no. 32, a retired correctional officer who had a son then employed as a correctional officer in Massachusetts. The judge conducted a thorough examination of juror no. 32's impartiality, inquiring about the juror's ability to be completely fair and impartial based on his previous employment and his son's correctional job. At no point during voir dire did juror no. 32 state or imply that he could not be completely fair and impartial to both sides. See Commonwealth v. Williams, 481 Mass. 443, 452 (2019) (“an otherwise qualified prospective juror should be excused for cause only if, given his or her experiences and resulting beliefs, the judge concludes that the prospective juror is unable to fairly evaluate the evidence presented and properly apply the law”); Commonwealth v. Ascolillo, 405 Mass. 456, 460-461 (1989) (“mere fact that a prospective juror is a police officer, in the absence of a showing of prejudice or partiality,” does not serve as basis for sustaining challenge for cause). After the judge declined the defendant's request to remove juror no. 32 for cause, the defendant, who had five of his six peremptory challenges available, did not use one.

The defendant has not demonstrated that he was prejudiced or otherwise injured by the erroneous number of peremptory challenges. As the defendant did not peremptorily challenge any of the four jurors he now identifies -- and he did not even challenge two for cause -- and ultimately did not exhaust his peremptory challenges, “we are unable to conclude that the defendant ‘was forced to accept a juror whom he otherwise would have challenged peremptorily.’ ” Commonwealth v. Nelson, 91 Mass. App. Ct. 645, 648 (2017), quoting Commonwealth v. Susi, 394 Mass. 784, 789 (1985). Further, there is no indication in the record that the empaneled jury was not fair and impartial, and the defendant has not shown otherwise.

Where the defendant has not shown that he was deprived of a fair and impartial jury or otherwise injured or prejudiced as a result of the trial judge's error, the defendant also does not show that counsel's failure to object to the number of peremptory challenges created a substantial risk of a miscarriage of justice. See Berardi, 88 Mass. App. Ct. at 476. Accordingly, the defendant's second motion for a new trial was properly denied. See Commonwealth v. Ferreira, 481 Mass. 641, 648 (2019) (“In reviewing the denial of a motion for new trial, we examine the motion judge's conclusions only to determine whether there has been a significant error of law or other abuses of discretion” [quotation and citation omitted]).

Judgments affirmed.

Order dated April 7, 2025, denying second motion for new trial, affirmed.

FOOTNOTES

1.   This court granted the defendant's motion to consolidate the direct appeal of his convictions with the appeal of the postconviction denial of his second motion for a new trial.

2.   The parties were each entitled to fourteen peremptory challenges, pursuant to Mass. R. Crim. P. 20 (c) (1), 378 Mass. 889 (1979).

3.   Juror no. 13 was selected as an alternate and did not deliberate, further cutting against any potential prejudice.

4.   The defendant asserted in his affidavit supporting his second new trial motion that he was also concerned that juror no. 26's nephew was a police officer. The judge thoroughly examined juror no. 26's impartiality, and in challenging juror no. 26 for cause, the defendant raised only the juror's issue with childcare.