Opinion
20-P-254
12-04-2020
COMMONWEALTH v. CARLOS MUNIZ RODRIGUEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a jury trial in Superior Court, the defendant, Carlos Muniz Rodriguez, was found guilty of two counts of indecent assault and battery on a child under fourteen years of age. On appeal, the defendant contends that (1) the judge coerced the jury into reaching a verdict in violation of G. L. c. 234A, § 68C; (2) the judge abused his discretion by admitting in evidence two childhood photographs of the victim; and (3) the prosecutor's closing argument contained improper statements. We affirm.
The defendant was found not guilty on one count of rape of a child with force, and the judge declared a mistrial on the two remaining counts of rape of a child with force.
Background. We summarize the facts from the evidence presented to the jury. The victim is the defendant's granddaughter. When the victim was around three years old, the defendant assisted her parents in taking care of her by watching her after school and having her sleep over. The victim testified that, from the ages of three until seven, the defendant sexually abused her while she was in his care. Around age seven, following a conversation with her mother about sexual assault, the victim realized "what was happening with [the defendant] wasn't normal or okay" and she began to distance herself from him. At trial, the victim was the sole witness.
The victim was twenty-two years old at the time of trial.
The jury began deliberations on the morning of April 5, 2018. At 3:10 P.M., approximately four hours after the jury began deliberating, the jury sent a note (note C), stating as follows:
"In our discussions we've reached a consensus that something happened. However, we're concerned that if we took a formal vote at this point we would be deadlocked. Is there any guidance you can offer us?"Defense counsel, the prosecutor, and the judge agreed that a Tuey-Rodriguez instruction was premature, and further agreed that the judge should provide a "pre-Tuey-Rodriguez" instruction in response to the jury's question. The jury continued to deliberate until 6:13 P.M., when they submitted another note (note D): "We have a unanimous vote on two counts so far. Can we continue deliberations tomorrow?"
See Commonwealth v. Tuey, 62 Mass. 1, 2-3 (1851); Commonwealth v. Rodriguez, 364 Mass. 87, 101-102 (1973).
The judge instructed as follows: "I further instruct you that when you have all fully and carefully discussed the evidence and the law, you may proceed with a vote. With that, the Court requests that you keep working towards a verdict on each indictment."
The next day, April 6, 2018, at 9:37 A.M., the jury submitted a third note (note E), which read, in relevant part, "The instructions appear clear in regard to what needs to happen when a unanimous vote is reached. What happens if a unanimous vote can't be reached?" Defense counsel argued that the jury appeared to be deadlocked and requested that a Tuey-Rodriguez instruction be given. The judge declined to give such an instruction. At 1:26 P.M., the jury sent a fourth note (note F):
The second day of jury deliberations was presided over by a different judge, as the trial judge was unavailable; however, the trial judge continued to speak with counsel and make rulings by telephone.
The judge instead instructed as follows:
"If you, the jury, have fully and carefully discussed and considered the evidence and the law and concluded that further discussions and consideration would not be productive at this time, you should report in writing to the court . . . the status of your deliberations, including the extent to which you have reached a unanimous verdict or verdicts, and the extent to which you have not been able to do so."
"We have concluded our deliberations, and we cannot and will not be able to come to a unanimous decision on counts numbered 14-420-001, 14-420-002, and 14-420-003. We have reached a unanimous decision on counts numbered 14-420-005 and 14-420-006."The prosecutor argued that the jury were now deadlocked and requested a Tuey-Rodriguez instruction be given. The defendant requested a mistrial on the remaining counts and argued that this would be the third time the jury would be sent back to deliberate, thereby violating G. L. c. 234A, § 68C. The judge determined that the jury had met "the need to have due and thorough deliberations" requirement under G. L. c. 234A, § 68C, and that "a Tuey-Rodriguez charge is in order." Following the Tuey-Rodriguez instruction, the jury again deliberated. The jury returned with verdicts on three of the counts and indicated that it was deadlocked on the remaining two counts around 4:00 P.M.
Discussion. 1. Jury deliberations. The defendant argues that the judge coerced the jurors into reaching a verdict by directing them to continue deliberating after receiving note F without first obtaining their consent, as required by G. L. c. 234A, § 68C.
General Laws c. 234A, § 68C, provides as follows:
"If a jury, after due and thorough deliberation, returns to court without having agreed on a verdict, the court may state anew the evidence or any part of the evidence, 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."
General Laws c. 234A, § 68C, "stands guard to prevent jurors, after 'due and thorough' deliberations, from being coerced into reaching a verdict." Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982) (construing substantially identical precursor statute, G. L. c. 234, § 34). It is within a judge's discretion to determine whether the jury has completed due and thorough deliberations. Id. See Commonwealth v. Keane, 41 Mass. App. Ct. 656, 657-658 (1996) (statute is not triggered until judge has determined that jury completed due and thorough deliberations). A determination of "due and thorough" deliberations requires the judge to evaluate "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, supra.
General Laws c. 234A, § 68C, includes "[t]he same language, with minor variations," as G. L. c. 234, § 34, which was repealed in 2016. Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 171 n.7 (2017).
Here, the defendant contends that the due and thorough deliberations requirement was satisfied at the time the jury sent note E on the second day of deliberations. The judge, however, determined that, because note E used the word "if," it was equivocal and he could not conclude that the jury was in fact deadlocked. Furthermore, he was not prepared to find that there had been due and thorough deliberations. We discern no abuse of discretion. At the close of the first day of deliberations, the jury communicated through note D that they had reached a verdict on two counts and requested to continue deliberations the next day. The following morning, the jury sent note E after they had deliberated for approximately twenty minutes. In note E, the jury asked a question to the judge -- "[w]hat happens if a unanimous vote can't be reached?" -- to which the judge provided an answer. Given the context and content of note E, it was reasonable for the judge to determine (1) that the jury may not be deadlocked, and (2) that they had not yet completed due and thorough deliberations. See, e.g., Veiga v. Schochet, 62 Mass. App. Ct. 440, 444 (2004) (each note sent by jury raising issue of deadlock "suggested that the process of deliberating was ongoing rather than over"); Winbush, 14 Mass. App. Ct. at 683 (after receipt of ambiguous note, it was within judge's discretion to determine there had not been deadlock and to send jury home for day).
Note F, by contrast, contained a report from the jury on the status of their deliberations, including a statement that they were deadlocked on three counts, but had reached a unanimous decision on two counts. At that time, the judge determined that the jury had completed due and thorough deliberations and gave a Tuey-Rodriguez instruction. Because this was the first time the judge found that there had been due and thorough deliberations, the judge was not required to ask for the jury's consent under G. L. c. 234A, § 68C. Finally, the Tuey-Rodriguez instruction itself was not coercive where the judge did not depart from the approved language of the instruction or provide the instruction prematurely. See Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 295 (2005).
At oral argument, defense counsel stated that the defendant was not challenging the content of the Tuey Rodriguez instruction.
The defendant also asserts that the judge erred in responding to note C. First, the defendant argues for the first time on appeal that note C revealed "a significant, though indefinite, aspect of the jurors' thought processes" and that the judge erred by not advising the jury to keep their deliberations secret. There is no question that "[t]he secrecy of jury deliberations . . . serve[s] as a bedrock of our judicial system." Commonwealth v. Moore, 474 Mass. 541, 548 (2016). Here, the sentence at issue -- "[i]n our discussions we've reached a consensus that something happened" -- is an ambiguous statement on the status of deliberations, which the judge made no inquiry into or reference to when he addressed the substance of note C. Furthermore, after the receipt of note E, the judge reminded the jury to keep the details of deliberations private. There was no error.
Second, the defendant asserts that the judge interfered with the jury's deliberations by instructing in part, in response to note C, that they "may proceed with a vote." Because the defendant did not object to this instruction, we review to determine "whether, if error, [the instruction] created a substantial risk of a miscarriage of justice." Commonwealth v. Rios, 96 Mass. App. Ct. 463, 474 (2019). "When instructing the jury, a judge must avoid language that may coerce the jury into reaching a verdict." O'Brien, 65 Mass. App. Ct. at 294. The judge's response to note C was to remind the jury that they had been instructed to vote only after full and careful consideration of the evidence and the law. He then echoed this instruction, using the permissive language "may," to ask them to continue deliberating and only then proceed to a vote. The judge concluded the instruction by asking that the jury "keep working towards a verdict on each indictment." See note 4, supra. This instruction reiterated and emphasized that the jury should complete careful and full deliberations before voting, and, if they believed they had completed such deliberations, then they "may proceed" to a vote. See, e.g., O'Brien, supra at 296 (supplemental instructions were not coercive when they "served to remind the jury that, absent unanimity, a verdict could not be returned"). There was no error in the judge's response to note C.
Far from objecting to the instruction, the record reflects, at a minimum, tacit approval of the instruction by the defendant.
2. Childhood photographs. The defendant argues that the judge abused his discretion by admitting in evidence two childhood photographs of the victim that lacked relevance and were intended to evoke the jury's sympathy. Because the defendant objected to the admission of this evidence, we review for prejudicial error. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016); Commonwealth v. Amran, 471 Mass. 354, 358 (2015).
"Whether evidence is relevant in any particular instance, and whether the probative value of the relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge." Commonwealth v. Tarjick, 87 Mass. App. Ct. 374, 379 (2015), quoting Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). Here, the judge admitted two photographs depicting the victim at the ages the assaults took place. Even assuming there was error, no prejudice has been shown. The jury does not appear to have been swayed by sympathy where they returned a not guilty verdict on one count of rape of a child with force and were unable to reach a verdict on the remaining two counts of rape of a child with a force. See Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997) ("it is difficult to find that the admission of the evidence caused prejudice where the jury returned not guilty verdicts on two of the three indictments").
Neither party requested a limiting instruction regarding the admission of the photographs, nor did the judge provide one, sua sponte. While a limiting instruction was not required, without such a request, it would be better practice for a judge to offer to provide such an instruction. See Commonwealth v. Alleyne, 474 Mass. 771, 781 (2016) (judge did not abuse his discretion in handling photographs, but "it may have been better practice to give a limiting instruction before the photographs were introduced"); Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992) ("law does not require a judge to give limiting jury instructions regarding the purpose for which evidence is offered unless so requested").
3. Prosecutor's closing argument. The defendant asserts that the prosecutor's closing argument contained statements that improperly vouched for the witness's credibility, and shifted the burden of proof to the defendant. Because the defendant did not object, we review "to determine if the statements were error, and, if so, whether they created a substantial risk of a miscarriage of justice." Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9 (2019).
A prosecutor may not "explicitly or implicitly" vouch for a witness's credibility. Commonwealth v. Silvelo, 486 Mass. 13, 20 (2020), quoting Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989). However, "[a] prosecutor is entitled to respond to an argument made by the defense at closing." Commonwealth v. Mason, 485 Mass. 520, 539 (2020). Here, the defendant's closing argument sought to demonstrate that the victim was not credible. The prosecutor asked the jury to consider the following: "[W]hat motive to lie does [the victim] have? Why would she make this up about her grandfather? Why would she accuse him of rape?" The prosecutor's statement was made in response to the defendant's attack on the victim's credibility and "did not state or imply that [she] had knowledge independent of the jury, or assert any personal beliefs about the victim's credibility." Sanchez, 96 Mass. App. Ct. at 10. Furthermore, the prosecutor's remarks did not constitute burden shifting. The prosecutor did not signal to the jury that the defendant had an affirmative duty to present evidence of innocence or call witnesses nor did she comment on the defendant's decision not to testify. See Commonwealth v. Johnson, 463 Mass. 95, 112-113 (2012).
Finally, the judge instructed the jury, both before and after the trial, that the Commonwealth had the burden of proof, that closing statements were not evidence, and that the jury was the exclusive judge of the facts and the credibility of witnesses. "The jury are presumed to have followed these instructions." Commonwealth v. Fernandes, 478 Mass. 725, 743 (2018). Accordingly, the claim is unavailing.
Judgments affirmed.
By the Court (Rubin, Neyman & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 4, 2020.