Opinion
13-P-941
05-04-2015
COMMONWEALTH v. JAVIN BELL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant was convicted of assault and battery. The defendant's sole contention on appeal is that the trial judge coerced a verdict in violation of G. L. c. 234, § 34, by sending the jury out twice to deliberate after they reported they were at an impasse without obtaining the jury's consent. We affirm.
The defendant was found not guilty on charges of unarmed robbery, G. L. c. 265, § 19(b), and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A.
General Laws c. 234, § 34, provides that:
"If a jury, after due and thorough deliberation, return to court without having agreed on a verdict, the court may state anew the evidence or any part thereof, explain to them anew the law applicable to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law."
1. Jury deliberations. After a four-day trial, jury deliberations commenced at 3:27 P.M., on Friday, September 21, 2012, and ended for the day at 4:06 P.M. The jury resumed deliberations the following Monday, September 24, 2012. At 9:20 A.M., the judge received a note (note 1) from the jury asking to replay the testimony of two witnesses. The jury returned to the courtroom at 10:52 A.M. to hear the recorded testimony. The audio concluded at 11:36 A.M., and the jury were sent out again to continue deliberations.
A little less than two hours later, at 1:05 P.M., the judge received a second note (note 2) from the jury asking, "What do we do if we cannot all agree on the charges?" The judge conferred with the prosecutor and defense counsel, and, without objection, concluded that the jury had only been deliberating for a few hours, and that he did not find the deliberations to be due and thorough within the meaning of the statute. The judge told the prosecutor and defense counsel that, despite the short deliberations, it was his "sense" to give the jury the Tuey-Rodriquez charge. See Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851); Commonwealth v. Rodriquez, 364 Mass. 87, 98-102 (1973). The prosecutor indicated that she thought it was early to give Tuey-Rodriquez, but that she would leave it to the judge's discretion. The judge agreed that "[i]t is a little early, but I'm not sure how else to answer their question." The judge explained to the attorneys that, "I mean, I can say to them simply keep deliberating, but that doesn't seem to be a particularly helpful response to the jury. That's why I want to be clear. I'm not finding the deliberations due and thorough." Defense counsel agreed it was an appropriate charge. The jury returned at 2:17 P.M., and, without objection, the judge gave the Tuey-Rodriquez charge and the American Bar Association charge (ABA charge). See Commonwealth v. Rodriguez, 364 Mass. at 102-103 (Appendix B). At 2:25 P.M., the jury returned to their deliberations.
For reasons that do not appear in the record, although the judge received the second note at 1:05 P.M., the note was not addressed until 2:01 P.M.
Less than an hour later, at 3:17 P.M., the judge received a third note (note 3) from the jury, stating, "Still can't agree and doesn't look like it's going to change." The judge indicated that he still was not persuaded that the deliberations, which had encompassed less than five hours, had reached the point of being "due and thorough." The judge told the attorneys that it was his "inclination" to have the jury adjourn for the day at 4:00 P.M., and instruct the jury further in the morning. Both defense counsel and the prosecutor agreed with the judge as to what he planned to tell the jury. When the jury returned to the courtroom, a juror expressed visible frustration. The judge responded by telling the jury that deliberations often last considerably longer than the present deliberation, that disagreement was normal, and he would offer further instruction in the morning. The judge then excused the jury for the day.
Specifically, the judge instructed the jury as follows:
"Jury deliberations often last considerably longer than this deliberation. This deliberation has been less than a full day of deliberations to this point. It is not at all an unusually long deliberation. In fact, it's a very short one at this juncture. I know that there can be disagreement among jurors and that disagreement can be difficult, but it's to be expected. It is normal. As I have indicated, I will give you further instruction in the morning, but I don't think it's productive to press you into further work this afternoon."
The next morning, Tuesday September 25, 2012, without further instructions, the judge directed the jury to return to their deliberations. The jury began deliberating at approximately 9:24 A.M. At about 11:02 A.M., the jury returned with the verdicts.
2. Discussion. "If, after due and thorough deliberation, the jury twice advise the judge that they are unable to reach a verdict, the judge may not properly send the jury out again without their consent, unless the jury ask for some further explanation of the law." Commonwealth v. Jenkins, 416 Mass. 736, 737 (1994) (Jenkins), citing G. L. c. 234, § 34. "The statute 'stands guard to prevent jurors . . . from being coerced into reaching a verdict in the face of views conscientiously reached and held.'" Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 636 (2000), quoting from Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982) (Winbush). The statutory consent requirement, however, is not triggered until first the jury have engaged in due and thorough deliberations, and then reached impasse on two occasions. See, e.g., Commonwealth v. Keane, 41 Mass. App. Ct. 656, 658-659 (1996). "The decision as to when a jury's deliberations have been 'due and thorough' lies within the discretion of the judge . . . ." Commonwealth v. Carnes, 457 Mass. 812, 826 (2010).
The defendant argues that the jury's first return (which would count towards triggering G. L. c. 234, § 34) occurred when on September 24, the jury sent the second note asking, "What do we do if we cannot all agree on the charges?" According to the defendant, the judge's decision to use the Tuey-Rodriquez charge after that second note necessarily carried with it the implication that the jury's deliberations had been "due and thorough" under the statute; the defendant cites the language in Jenkins, 416 Mass. at 738, that states that "the giving of a Rodriquez charge . . . implie[s] that the judge ha[s] concluded that the jury's deliberations were due and thorough . . . . " But the defendant, in asserting this argument, ignores the counterbalance set up in Jenkins, which is that, "where there is nothing to indicate the contrary" (emphasis supplied) the giving of a Rodriquez charge on the first return of the jury is significant in determining whether the jury's deliberations have been "due and thorough." Ibid.
Here, the record clearly demonstrates that the judge did not believe, at the time he received the jury's second note, that the jury had engaged in "due and thorough" deliberations. Rather, the judge, twice, made explicit findings that the brief deliberations had not reached the point of being "due and thorough" within the meaning of the statute before he gave the Tuey-Rodriquez charge. Contrast Commonwealth v. Jenkins, 34 Mass. App. Ct. 135, 141-142 (1993), S.C., 416 Mass. at 738. More to the point, here, the judge clearly explained his reasoning for giving the charge, i.e., because, in the judge's discretion, it was the best response to the jury's question. See Commonwealth v. Wilson, 443 Mass. 122, 143 (2004) (Wilson) ("Notification that the jury are deadlocked is not a prerequisite for the [Tuey-Rodriquez] charge; rather, it is within the judge's discretion to give it"). We note that the defendant explicitly agreed with the judge's "sense" to give the charge.
At the outset, it is clear on its face, that Jenkins is factually distinguishable from this case. To provide further detail: In Jenkins, 34 Mass. App. Ct. at 138, the judge allowed the jury to adjourn on the first day of deliberations after two hours. After almost seven hours of deliberations on the second day, the judge received a note from the jury which read: "The jury has voted three times. The jury has not reached a verdict. No one on the jury is prepared to change their vote at this time. The jury would like instructions at this time for a continued course of action." Commonwealth v. Jenkins, 34 Mass. App. Ct. at 138-140. In contrast, here, the jury deliberated for less than four hours before sending the judge the first notice of impasse; defense counsel raised no objection to the judge's "sense" to give the Tuey-Rodriquez charge; and, importantly, the judge twice, before giving the charge, expressly stated that he did not believe deliberations had reached the point of being "due and thorough" within the meaning of the statute. Indeed, in Jenkins, 34 Mass. App. Ct. at 141-142, this court reasoned, "We think it implicit in the fact that the judge gave the [Tuey-Rodriquez] charge that he had concluded that the deliberations had been 'due and thorough'" (emphasis supplied). See Jenkins, 416 Mass. at 738 ("We accept the Appeals Court's view that, where there is nothing to indicate the contrary, the giving of a Rodriquez charge on the first return of the jury that is significant for our purposes . . . implied that the judge had concluded that the jury's deliberations were 'due and thorough,' in the words of § 34)." Here, there is no need for inference, as the judge's reasoning behind giving the charge was clear -- he first made a distinct finding that deliberations had not been "due and thorough," and then, rather than free-lance at a critical stage at trial, he answered the jury's question with the accepted language of Tuey-Rodriqeuz.
The defendant also takes issue with the judge's decision to give both the Tuey-Rodriquez charge and the ABA charge together. We see no error. See Commonwealth v. Bacigalupo, 49 Mass. App. Ct. at 638 n.10.
Moreover, the overarching consideration which tips the balance against the defendant's argument carrying the day is that the determination as to when the jury's deliberations have been "due and thorough" is left within the sound discretion of the trial judge, and requires an evaluation of the "complexity of the case, the extent of evidentiary conflict on material issues, and the total length of time the jury [have] spent attempting to resolve those conflicts." Winbush, 14 Mass. App. Ct. at 682. Here, given the brief time in deliberations before the second note, the judge did not abuse his discretion in deciding that the approximately four hours of deliberation after a four-day trial, involving testimony from eleven witnesses, including expert testimony, and ten exhibits, did not constitute due and thorough deliberation. See Commonwealth v. Mayne, 38 Mass. App. Ct. 282, 289 (1995) (judge did not abuse his discretion in deciding that approximately four hours of deliberation after a five-day trial did not constitute due and thorough deliberation). Nor did the third note, arising less than an hour later, serve to trigger the statute. As such, we see no error in the judge's conclusion that § 34 was never implicated. "[W]e think it was open to the judge to determine . . . that deliberation had not yet been 'due and thorough' . . . ." Commonwealth v. Valliere, 366 Mass. 479, 496 (1974). Therefore, we conclude that the judge did not coerce a verdict in violation of G. L. c. 234, § 34.
Nor are we convinced that the jury's second note on September 24, asking, "What do we do if we cannot all agree on the charges," necessarily signaled a deadlock. See Veiga v. Schochet, 62 Mass. App. Ct. 440, 443-444 (2004).
Equally unpersuasive is the defendant's alternative argument that, "assuming arguendo," that the judge was correct in finding the jury's deliberations had not reached the point of becoming "due and thorough," then the judge erred in giving the Tuey-Rodriquez charge after receiving the second note. As noted above, the timing of a Tuey-Rodriquez charge is committed to the discretion of the trial judge, and a finding that the jury is deadlocked is not a prerequisite. See Wilson, 443 Mass. at 143. There was no error.
Judgment affirmed.
By the Court (Berry, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 4, 2015.