Commonwealth v. Berardi (Lawyers Weekly No. 11-157-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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. Background. The defendant was indicted for providing false information, second or […]