Commonwealth v. DiBenedetto , 94 Mass. App. Ct. 682 ( 2019 )

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17-P-1012 Appeals Court
COMMONWEALTH vs. SHEENA R. DiBENEDETTO.
No. 17-P-1012.
Worcester. October 5, 2018. - January 11, 2019.
Present: Massing, Ditkoff, & Englander, JJ.
Assault and Battery. Practice, Criminal, Verdict, Instructions
to jury, Deliberation of jury, Question by jury. Jury and
Jurors.
Complaint received and sworn to in the Worcester Division
of the District Court Department on July 5, 2016.
The case was tried before Paul F. LoConto, J.
Mathew B. Zindroski for the defendant.
Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.
MASSING, J. As a general rule, evidence of a jury's
internal thought processes cannot be used to impeach a verdict.
In this appeal, we consider whether this rule applies when the
judge learns, after a guilty verdict has been affirmed and
recorded, that the jurors misunderstood the unanimity
instruction and convicted the defendant by a vote of four to
2
two. Concluding that the rule does apply -- and that the judge
should have accepted the original verdict instead of sending the
jurors out to continue deliberations, resulting in a second
guilty verdict -- we affirm the defendant's conviction in the
District Court of assault and battery of a family or household
member, in violation of G. L. c. 265, § 13M (a).
Background. We briefly summarize the trial testimony, then
discuss in greater detail the circumstances surrounding the
taking of the verdict. The defendant arrived at the home of the
father of her two children to pick them up for a scheduled trip
to Niagara Falls. The father expected the defendant at 8 A.M.,
but she arrived at 4:30 A.M. and banged on the front door.
After an unfriendly exchange of words, the defendant punched the
father in the face. She claimed that she struck him in self-
defense.
In the final charge, the judge instructed the jury that the
defendant is presumed innocent "unless and until the evidence
convinces you unanimously as a jury that the defendant is guilty
beyond a reasonable doubt." The judge reiterated, "And, again,
your verdict whether it is guilty or not guilty must be
unanimous." After selecting the foreperson, the judge explained
to her, "Once your jury has reached a unanimous verdict, that is
all six of you agree, it's your obligation to mark the verdict
slip."
3
Following the judge's charge, the jury deliberated for
approximately forty minutes and reached a verdict. Before
taking the verdict, the judge informed the jury that they would
be free to talk about the case after they were discharged, and
"although I'm going to discharge you . . . I do want to see you
ever so briefly in the deliberation room before you leave the
building."
The clerk then asked if the jury had reached "a unanimous
verdict." The foreperson answered, "Yes, we have," and that the
verdict was guilty. After recording the verdict, the clerk
asked the foreperson to confirm that the verdict of guilty was
accurate. She responded, "That is correct." The clerk then
asked the entire jury if the guilty verdict was correct, and
they affirmed that it was. The judge then excused the jury,
stating, "I'm going to now formally discharge you. I'm going to
see you momentarily in the jury deliberation room." The judge
told the parties, "I'm just going to say goodbye to the jurors
and give them an opportunity if they want to present any
questions or criticisms. I'm not going to discuss with them
potential penalties or their deliberation obviously."
After a brief recess, the judge returned to the court room
and explained that after thanking the jurors for their service,
he had solicited feedback about their experience, emphasizing
that he did not want to hear about their deliberative process.
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A juror asked, "[W]hat would happen" if the result was four to
two. The judge responded, "[Y]our decision has to be
unanimous." Another juror then offered, "[W]ell, that should be
made more plain, more clear." The first juror added, "[B]ecause
it wasn't unanimous." At this point, the judge ended the
conversation, told the jury, "I can't discharge you right now,"
and returned to the court room.
The judge informed the parties that he intended to bring
the first juror into the court room to see if he had correctly
understood her comments. Without objection, the judge described
his recollection of the conversation to the juror and asked what
she had meant when she said the verdict was not unanimous. The
juror responded, "[T]wo of us, we didn't find the defendant
guilty and four did." The juror said that she had voted not
guilty and identified the foreperson as the other not guilty
vote. She had "kept quiet" during the affirmation because the
foreperson had said that only a majority was needed to reach a
verdict.
The judge sent the juror back to the deliberation room with
instructions to not speak with anyone and called the foreperson
into the court room. When asked if she understood whether the
verdict had to be unanimous, she replied, "All six of us thought
it was the majority," and, "I guess nobody paid attention to the
word unanimous." The judge sent the foreperson back to the
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deliberation room with instructions to have no discussion with
anyone.
The judge suggested, and the parties agreed, that the jury
should continue deliberations after being reinstructed on
unanimity. The judge brought the jury back to the court room,
instructed them that "all six of you would have to agree that
the defendant is guilty or the defendant is not guilty," and
ordered them to resume deliberations. Later that day, after
asking to be reinstructed on self-defense, the jury again
reported that they had reached a verdict. The foreperson
announced the verdict of guilty; the judge polled the jury, and
all affirmed that they had voted guilty. The judge thanked the
jury and dismissed them, stating, "You are discharged and free
to leave."
Discussion. Although at trial she agreed with how the
judge handled the issue, the defendant now contends that by the
time the judge learned that the original verdict was not
unanimous he had already discharged the jurors and could not
validly order them to continue deliberations. Accordingly, she
asks that we set aside the second verdict and order a new trial.
The Commonwealth responds that the original verdict was valid
and, in the alternative, that the second verdict was valid as
well. We conclude that the jury's original guilty verdict was
final when the foreperson announced it in open court, the rest
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of the jury affirmed it, and the clerk recorded it. None of the
jurors publicly voiced or otherwise indicated disagreement, nor
did any of them come forward to state that the verdict was not
accurate. Only when the judge later invited the jury to express
their criticisms and suggestions did the jurors communicate the
content of their deliberations. The original verdict should not
have been disturbed.1
"Before a verdict has been affirmed and recorded, the judge
may set it aside or instruct the jury and send them out for
further deliberation." Commonwealth v. Brown, 367 Mass. 24, 28
(1975). The announcement and affirmation of the verdict
provides "each juror . . . an opportunity to express his dissent
to the court, in case his decision has been mistaken or
misrepresented by the foreman or his fellows, or in case he has
been forced into acquiescence by improper means." Commonwealth
v. Lawson, 425 Mass. 528, 530 (1997), quoting Lawrence v.
Stearns, 11 Pick. 501, 502 (1831). See Commonwealth v. Nettis,
418 Mass. 715, 718 (1994) (verdict not final where juror
publicly indicated dissent during affirmation).
1 We recognize that the judge endeavored not to intrude into
the jury's deliberative process, and that his subsequent actions
were taken solely "out of concern for an accurate verdict and
fair treatment of the defendant. The judge was correct to place
[his] concerns on the record in the presence of all counsel."
Commonwealth v. Lassiter, 80 Mass. App. Ct. 125, 130 n.8 (2011).
7
After being affirmed by the jury and recorded by the clerk,
however, the verdict is final. See Commonwealth v. Martell, 407
Mass. 288, 292, 294 (1990); Lawrence, 11 Pick. at 502. Once the
verdict is affirmed and recorded, "a judge is generally
precluded from inquiring into alleged improprieties in the
jury's deliberations or decision-making." Commonwealth v.
Lassiter, 80 Mass. App. Ct. 125, 130 (2011).2 A judge cannot
vacate a verdict based on "a juror's change of heart nor a
juror's subsequent disclosure of a subjective disagreement with
her apparent vote." Commonwealth v. Dias, 419 Mass. 698, 703
(1995). "Whatever disagreement that a juror may have secretly
entertained but did not indicate in open court may not be the
basis for reversal." Lawson, 425 Mass. at 532.
Impeaching a duly recorded verdict by subsequent inquiry
into the jurors' deliberations has long been prohibited. See
Tanner v. United States, 483 U.S. 107, 117 (1987); McDonald v.
Pless, 238 U.S. 264, 267-268 (1915); Commonwealth v. Moore, 474
Mass. 541, 544-545 (2016). See also Commonwealth v. Fidler, 377
Mass. 192, 195 (1979) (tracing "rule against juror impeachment
of a verdict" to Vaise v. Delaval, 99 Eng. Rep. 944 [K.B.
2 A judge does not violate this rule by allowing jurors "to
correct formal and clerical errors in the recording of verdicts
to which they had properly agreed." Brown, 367 Mass. at 28.
See Latino v. Crane Rental Co., 417 Mass. 426, 430 (1994) ("When
a jury reached a verdict but it was improperly reported, we have
allowed a correction to be made").
8
1785]). "The proper evidence of the decision of the jury is the
verdict returned by them upon oath and affirmed in open court;
it is essential to the freedom and independence of their
deliberations that their discussions in the jury room should be
kept secret and inviolable; and to admit the testimony of jurors
to what took place there would create distrust, embarrassment
and uncertainty." Fidler, 377 Mass. at 196, quoting Woodward v.
Leavitt, 107 Mass. 453, 460 (1871).
Thus, juror testimony concerning the jurors' internal
deliberations cannot be used to impeach a verdict. See
Commonwealth v. Hebert, 379 Mass. 752, 755 (1980), quoting
Fidler, 377 Mass. at 198 ("our law does not permit inquiry into
'the subjective mental processes of jurors, such as the reasons
for their decisions'"). "The judge is precluded from inquiring
into the internal decision making process of the jury as a whole
or of the individual juror being questioned." Martell, 407
Mass. at 294-295. Accordingly, evidence that jurors
"misunderstood the instructions of the presiding judge, or that
they were induced by misapprehension to assent to the
affirmation of the verdict," Bridgewater v. Plymouth, 97 Mass.
382, 390 (1867), "testimony that the jurors did not follow the
judge's instructions," Cassamasse v. J.G. Lamotte & Son, Inc.,
391 Mass. 315, 317-318 (1984), or that a juror "felt pressured
9
by her fellow jurors to vote guilty," Martell, 407 Mass. at 295,
cannot be considered.
The prohibition against juror testimony to impeach a
verdict is not absolute. Fidler, 377 Mass. at 196. Juror
testimony may be used to show the existence of extraneous
influences on the verdict, such as unauthorized site visits,
improper communications with third parties, or consideration of
facts not in evidence. See Martell, 407 Mass. at 294-295;
Cassamasse, 391 Mass. at 317-318; Fidler, 377 Mass. at 197.
"[I]nquiry into extraneous influences does not probe into
'subjective mental processes.'" Matter of the Enforcement of a
Subpoena, 463 Mass. 162, 175 (2012), quoting Fidler, 377 Mass.
at 198.3
3 The proper parameters of juror testimony are succinctly
summarized in Mass. G. Evid. § 606(b) (2018), as follows:
"(1) Prohibited Testimony or Other Evidence. During an
inquiry into the validity of a verdict or indictment, a
juror may not testify about any statement made or incident
that occurred during the jury's deliberations, the effect
of anything on that juror's or another juror's vote, or any
juror's mental processes concerning the verdict or
indictment. The court may not receive a juror's affidavit
or evidence of a juror's statement on these matters.
"(2) Exceptions. A juror may testify about whether
(A) extraneous prejudicial information was improperly
brought to the jury's attention or
(B) an outside influence was improperly brought to
bear on any juror."
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Judges are also permitted to inquire whether a verdict was
infected by racial or ethnic bias, even though such questioning
straddles the line between the jurors' subjective mental
processes and extraneous influences. See Pena-Rodriguez v.
Colorado, 137 S. Ct. 855, 869 (2017); Commonwealth v. McCowen,
458 Mass. 461, 497 (2010). "[W]here a juror makes a clear
statement that indicates he or she relied on racial stereotypes
or animus to convict a criminal defendant, the Sixth Amendment
[to the United States Constitution] requires that the no-
impeachment rule give way in order to permit the trial court to
consider the evidence of the juror's statement and any resulting
denial of the jury trial guarantee." Pena-Rodriguez, 137 S. Ct.
at 869.
An argument might be made that this exception to the
general rule should be extended to protect the right to a
unanimous jury. See Burch v. Louisiana, 441 U.S. 130, 134
(1979) (Sixth and Fourteenth Amendments to United States
Constitution require juries of six to be unanimous);
Commonwealth v. Conefrey, 420 Mass. 508, 511-512 & n.7 (1995)
(although not specifically guaranteed under Massachusetts
Declaration of Rights, common law requires unanimous jury
verdicts in criminal trials in Commonwealth). However, the same
logic would apply with even more force to permit inquiry into
whether the jury understood and properly applied the judge's
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instructions on the government's burden of proof (including its
obligation to prove the absence of self-defense), or on the
standard of proof beyond a reasonable doubt, which implicate
bedrock constitutional rights. See Commonwealth v. Shanahan,
422 Mass. 631, 632 (1996); Commonwealth v. Stokes, 374 Mass.
583, 589 (1978). We decline to start down this slippery slope,
lest the exceptions swallow the rule. The infection of the
criminal justice system with racial or ethnic bias is a unique
type of constitutional deprivation that requires a vigilant
response not warranted in the circumstances presented here.
Applying the general rule, we have held that a judge erred
by striking a recorded verdict after learning in a posttrial
conversation with the jurors that one or two of them disagreed
with the guilty verdict. Lassiter, 80 Mass. App. Ct. at 127,
130-131. The defendant argues that Lassiter is distinguishable
because it involved only subjective disagreement with the
verdict -- the foreperson stated "that they all voted and that
they unanimously agreed," id. at 127 -- whereas here the jurors'
testimony provided objective evidence that the verdict was not
unanimous. The distinction is irrelevant. The error in
Lassiter and the error here were the same -- juror testimony
concerning internal deliberations, in this case, that they
misunderstood the unanimity instruction, is incompetent to
impeach a duly recorded and binding verdict. See United States
12
v. Homer, 411 F. Supp. 972, 976-979 (W.D. Pa.), aff'd, 545 F.2d
864 (3d Cir. 1976), cert. denied, 431 U.S. 954 (1977) (jurors'
testimony that they did not understand judge's unanimity
instructions incompetent to impeach verdict); Hall v. Levine,
104 P.3d 222, 225 (Colo. 2005) (error to set aside verdict based
on jurors' disclosures in postverdict conversation with trial
judge that they had "failed to follow instructions requiring the
verdict to be unanimous").
We find further support for our decision in Commonwealth v.
Reaves, 434 Mass. 383 (2001). After a verdict of guilty had
been recorded on a charge of murder in the first degree had been
recorded, the judge polled the jury and learned that the vote
was eleven to one. Id. at 395. The judge then ordered the jury
to resume deliberations; forty-five minutes later they
unanimously agreed to the verdict. Id. at 396. The court held
that the judge erred by polling the jury after the verdict had
been recorded, and that the original verdict was valid. Id.
The jurors' testimony here did not relate to "overt
factors" that a judge may properly assess in deciding the
verdict's validity. Latino v. Crane Rental Co., 417 Mass. 426,
431 (1994). Fidler, 377 Mass. at 198. In Latino, 417 Mass. at
428, a number of jurors complained to the judge and to defense
counsel that their votes were ignored. The court found the
presence of overt factors in that the jurors "made relatively
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prompt, unsolicited complaints to the judge," and "most
significantly, 'no' answers were audible on the court reporter's
tape." Id. at 431. Similarly, this was not a case in which the
jurors spontaneously and promptly informed the judge that the
verdicts were erroneous because they were the result of clerical
error. See Brown, 367 Mass. at 28-29 ("the jury, by their own
action and without any suggestion from the judge or any one
else, immediately indicated that the verdicts reported did not
state what they had agreed to"). Here, by contrast, the record
reflects that no juror expressed any public disagreement with
the original verdict when it was announced. See Dias, 419 Mass.
at 703; Nettis, 418 Mass. at 718. The original verdict was not
ambiguous, contrast Commonwealth v. Zekirias, 443 Mass. 27, 31-
32 (2004), but accurately reflected the result of the
deliberations, contrast Brown, 367 Mass. at 28-29.
A judge's power to set aside a verdict and send the jury
out for further deliberations "terminates when the verdict is
affirmed and recorded." Brown, 367 Mass. at 28.4 The original
guilty verdict was valid, and the judge erred by setting it
4 We need not address whether the judge effectively
discharged the jury after he accepted the original verdict,
rendering any further deliberations void. In any event, the
judge's error in setting aside the original verdict "clearly
inured to the defendant's benefit, giving him a second chance to
be acquitted. . . . No harm flowed thereafter, not least
because the defendant was ultimately no worse off than if the
error had never occurred." Lassiter, 80 Mass. App. Ct. at 131.
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aside based on impermissible evidence of the jury's internal
deliberations.
Judgment affirmed.