Opinion
13-P-1041
12-08-2014
COMMONWEALTH v. ROBERTO CRUZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of three counts of forcible rape of a child and two counts of indecent assault and battery on a child. On appeal, he argues that: (1)the judge improperly instructed a reportedly deadlocked jury, (2) trial counsel was ineffective, and (3) the prosecutor's closing argument was improper. We affirm.
1. Deadlocked jury. After the jurors had deliberated for six and one-half hours over the course of two days (a Thursday afternoon, and the following morning), they sent a note to the judge stating: "The jury is unable to reach a unanimous decision." After conferring with counsel, the judge determined that deliberations had not been due and thorough, and elected not to give the Tuey-Rodriguez instruction. Rather, she told the jurors that their deliberations could not have been due and thorough, as only six and one-half hours had passed. She further added that due and thorough deliberations should roughly equate the number of hours the case took to try, in this instance twenty-five hours. She thus instructed the jurors to resume their deliberations, keeping in mind "the number of hours the case took to be presented to you," and that they were not there "by a long shot." Later that Friday afternoon, the jury sent a note informing the judge that two jurors had conflicts the following week. The judge told the jury that "we don't need to deal with either of these issues at this time, so we won't." When the jury reconvened at 9:00 A.M. Tuesday morning, the judge repeated her hours-of-trial to hours-of-deliberation rule of thumb before the jury continued their deliberations. Shortly after noon on that day, the jury asked a substantive question about the victim's testimony. After consultation with counsel, the judge answered the jurors' question by telling them to depend on their collective memory. Approximately twenty minutes later, the jury returned guilty verdicts on all counts charged.
See Commonwealth v. Rodriguez, 364 Mass. 87, 98-101 (1973), modifying Commonwealth v. Tuey, 8 Cush. 1, 2-4 (1851).
The Tuesday was following a long holiday weekend.
On appeal, the defendant claims that the effect of the judge's comments was a coerced verdict in violation of G. L. c. 234, § 34. Although both the prosecutor and defense counsel initially expressed reservations about communicating to the jury the judge's presumption that deliberations must roughly approximate the length of the trial in order to be considered "due and thorough," neither lodged objections to the judge's supplemental comments and instructions once given. We accordingly review for a substantial risk of a miscarriage of justice.
General Laws c. 234, § 34, provides: "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." See Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982) ("General Laws c. 234, § 34, stands guard to prevent jurors, after 'due and thorough' deliberations, from being coerced into reaching a verdict in the face of views conscientiously reached and held").
During her conference with counsel prior to the initial supplemental instruction, defense counsel expressed his concern that the jurors would be overwhelmed upon hearing that they had to deliberate for at least twenty-five hours. In response, the judge stated that she "might not say that." Upon hearing the judge's actual instruction, which included the twenty-five hour estimate, defense counsel did not raise the issue again.
As the Commonwealth concedes, the judge's comments and instructions about the minimum duration of a jury's deliberation were ill-advised. Nevertheless, on the record here, there is no indication that this jury felt pressured. Following the initial supplemental instruction, rather than immediately returning guilty verdicts, the jurors continued deliberating for at least six additional hours over the course of two days, and, near the end of that process, asked a substantive question related to the evidence. That timeline reflects a thoughtful, considered deliberation and does not evidence haste or pressure. Cf. Pina v. McGill Dev. Corp., 388 Mass. 159, 170 (1983) (no coercion where jury deliberated for eight hours prior to, and five hours following supplemental instruction); Commonwealth v. Martins, 38 Mass. App. Ct. 636, 641 (1995) (where judge told jury in supplemental charge that "some jury" would eventually decide the case, no coercion due to length of time of deliberation after charge [five hours], coupled with jury question during that time). Moreover, the judge initially instructed the jury that "[i]f you have a strong view about any aspect of this case, no one suggests you surrender it. A unanimous verdict means a unanimous verdict of each [] juror independently agreeing." In sum, having failed to show a material influence on the guilty verdicts, the defendant's claim fails. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
2. Ineffective assistance of counsel. A claim of ineffective assistance of counsel should usually be raised in a motion for new trial, which allows (among other things) the development of an evidentiary record concerning the claimed ineffective assistance. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). When such a claim is raised instead on direct appeal, as here, we consider solely on the basis of the trial record whether the defendant has satisfied the familiar two-prong test articulated in Saferian, namely deficient performance and resulting prejudice. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Chleikh, 82 Mass. App. Ct. 718, 722 (2012).
The defendant challenges two lines of inquiry pursued by trial counsel: (i) testimony by the victim that the defendant showed pornography to her, and (ii) testimony regarding the defendant's prior conviction for operating a motor vehicle under the influence of alcohol. He argues prejudice, particularly as the Commonwealth had not introduced either subject. We disagree.
While perhaps ill-considered in hindsight, it appears on the record that counsel likely proceeded in a strategic effort to aid her client by attacking the credibility of the victim and the defendant's opportunity to have committed the crime.
In any event, even setting aside the first prong of Saferian, there is little question of prejudice as the testimony was of peripheral relevance.
The defendant also complains that trial counsel's actions cost him an additional cautionary instruction on outside influence that would have been appropriate in light of news events occurring at the time of trial. The judge adequately instructed the jury that "[y]ou must determine the facts solely and entirely on the evidence as you heard it and saw it in this courtroom and on nothing else." Thus, even if counsel's actions thwarted a further reminder on the point, none was required.
3. Prosecutor's closing. The defendant argues that the prosecutor improperly argued to the jurors that the Commonwealth was limited in its presentation of first complaint evidence and that "when you find sworn testimony credible, that is evidence beyond a reasonable doubt." As the defendant did not object, we review for a substantial risk of a miscarriage of justice.
In context, the prosecutor's statements were a fair attempt to offset defense counsel's remarks attacking the Commonwealth's evidence and the victim's credibility. See Commonwealth v. Bourgeois, 391 Mass. 869, 885 (1984). As for the reasonable doubt comment, a prosecutor may properly remind the jury that a victim's testimony, if believed, can, on its own, constitute sufficient evidence to convict beyond a reasonable doubt. See Commonwealth v. Peters, 429 Mass. 22, 23-24 (1999). Even if improper, however, there was no substantial risk of a miscarriage of justice in light of the evidence at trial, the prosecutor's entire argument, and the judge's instructions to the jury on credibility, reasonable doubt, and that counsel's arguments are not evidence. Commonwealth v. Bourgeois, supra.
Judgments affirmed.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: December 8, 2014.