Opinion
15-P-1708
04-03-2017
COMMONWEALTH v. John W. COULTER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor, G. L. c. 90, § 24(1)(a )(1) (OUI), and he pleaded guilty to the same as a fourth offense. In this direct appeal, he argues that the judge abused his discretion when he did not remove a deliberating juror who stated she had read an article about the underlying driving incident approximately one year before trial. We affirm.
He was also found responsible for speeding in violation of G. L. c. 90, § 17.
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Background. Approximately one and one-half hours after the jury began their deliberations, the judge received a note from the foreperson stating that one of the jurors had previously read an article about the incident, and that she had not disclosed that fact during voir dire. In response to this revelation, the judge questioned the juror at sidebar in the presence of counsel. The juror stated that, approximately one year earlier (around the time the incident occurred), she had read an article about the incident on the Web site Boston.com. When questioned as to why she did not disclose this fact during voir dire, the juror stated that she had understood she needed only to disclose whether she personally was familiar with any of the facts, witnesses, or parties. She also stated that she had not forgotten about the article, and that its contents were nothing other than what had been contained in the judge's initial description of the case to the jury pool.
In response to the judge's request that she describe her recollection of the contents of the article, the juror stated that she remembered nothing more than that "[s]omebody was pulled over on 128 heading south in the Needham area. And when they were pulled over by the police, for whatever—I don't know why they were pulled over. And then the next thing you know, a cop—person pulled up behind them who said this person was hit by this car that had been pulled over by the police." We note that this recitation was consistent with the evidence at trial, and the judge found that "the article was innocuous in the sense that it revealed nothing whatsoever in the way of detail about the case, certainly nothing other than what the evidence has portrayed and what both [counsel] argued."
The juror stated that reading the article had not influenced her work as a juror "in any way, shape or form." As soon as she informed the other jurors she had read an article about the case, the conversation "died" and the foreperson sent the note we mentioned above.
The judge credited the juror, specifically citing her demeanor, and found that she remained fair. He rejected defense counsel's request that she be replaced with one of the available alternates, stating: "I think the problem with replacing her is that it sends a message that some grievous error occurred and that it makes it more ominous, and I frankly worry that doing that would not help the defense." The judge, however, gave an extensive cautionary instruction to the jury, specifically stressing that
"whatever, if anything, about this particular case may have appeared in a newspaper has absolutely nothing to do with the trial of this case. If it was the same case, fine. It's not evidence. You can only make your judgments here and your decisions about what the facts are based on the evidence that actually came forward in this courtroom and not based on anything else. You can make your decisions here about the facts based only on that evidence. Of course, you may consider the final closing statements of the attorneys; and, obviously, you will apply and consider carefully my instructions of law. But please have no further discussion about whatever, if anything, may have appeared in a newspaper article, online or in hard copy. It's completely and utterly irrelevant."
The jury resumed their deliberations and returned a guilty verdict approximately one hour later.
Discussion. We begin our discussion by noting that the defendant has not provided a copy of the article in question. Thus, the defendant's argument that the article must have reported his multiple former OUI convictions (and accordingly must have infected the juror), rests on speculation. What remains, therefore, is to decide whether the judge abused his discretion in not replacing the juror with an alternate once he had (1) materially followed the protocol of Commonwealth v. Jackson, 376 Mass. 790, 800 (1978), by conducting a detailed voir dire of the juror, (2) determined that the juror remained impartial, and (3) given a strong, clear, and direct cautionary instruction, see Commonwealth v. Kamara, 422 Mass. 614, 616 (1996).
The Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution guarantee criminal defendants trial by an impartial jury. See Parker v. Gladden, 385 U.S. 363, 364 (1966) ; Commonwealth v. Long, 419 Mass. 798, 802 (1995). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation and quotations omitted).
Here, the juror was exposed to a news article approximately one year before trial. The juror did not disclose this fact until she told her fellow jurors during their deliberations. At that point, the jurors did not discuss the article; instead, they stopped their deliberations, and immediately disclosed the revelation to the judge. There is no indication that the other jurors were in any way rendered impartial. The judge carefully questioned the juror, and explored all pertinent areas of inquiry. The judge was entitled to credit the juror's assertion that the article did not affect her ability to be fair and impartial. The judge protected against any contamination of the jury by giving a very strong curative instruction. Given all of this, we think the judge did not abuse his discretion by keeping the juror in place.
Judgment affirmed.