Opinion
19-P-688
07-20-2020
COMMONWEALTH v. MILTON GARTEH.
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
On May 21, 2017, the defendant's girlfriend, whom we shall call Diane, sustained a broken neck and a spinal cord injury that required emergency surgery. Diane's cousin had called 911 when he observed Diane laying on the landing at the bottom of a flight of between ten and fifteen stairs. The cousin told the 911 dispatcher that "some guy" had beaten Diane and kicked her down the stairs. Diane did not cooperate with the first responders and told them that she fell. She later made inconsistent statements to the police and at the hospital as to how the injuries had occurred. The defendant was indicted for assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury (shod foot and/or stairway), three counts of assault and battery by means of a dangerous weapon, and assault and battery on a family or household member.
Diane was missing a fingernail and had a large lump on her head, blood around her ears, scratches on her arms, a fresh bite mark on her left forearm, and several fractured neck bones.
Before trial, the Commonwealth filed a notice of nolle prosequi of the assault with intent to murder charge. At trial, Diane's cousin testified on behalf of the Commonwealth that he witnessed the defendant beat Diane with a pot, beer bottles, and a broken wooden spindle before kicking Diane down the stairs so hard that she fell onto the landing below without touching any stairs along the way. Police officers who responded to the cousin's 911 call observed broken glass and pieces of wood in the apartment, which Diane shared with the defendant's mother, as well as a pot and knife on the floor in the kitchen.
At the time of trial, Diane was still in a relationship with the defendant, and still resided with the defendant's mother. She testified on behalf of the defendant and asserted that her cousin was lying, the defendant never hit her on May 21, and she fell down the stairs that day because she was drunk. Diane's neighbor, both at the time of the incident and at the time of trial, testified that he was in Diane's apartment on May 21 when he heard a "funny sound" and saw Diane at the bottom of the stairs. Diane and the neighbor denied that the defendant was present when Diane fell.
After deliberating over the course of two days, sending the judge several notes, and being instructed in accordance with Commonwealth v. Tuey, 62 Mass. 1, 8 Cush. 1, 2-3 (1851), as modified by Commonwealth v. Rodriquez, 364 Mass. 87, 98-101, 101-102 (1973), a Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon causing serious bodily injury, two counts of assault and battery by means of a dangerous weapon, and assault and battery on a family or household member. The defendant was acquitted of committing an assault and battery on Diane by means of a dangerous weapon (wooden spindle). On appeal, the defendant claims that his convictions must be reversed because the judge coerced the guilty verdicts. We affirm.
Background. Fourteen jurors were empaneled for trial, although two were excused before the jury began deliberating. The remaining twelve jurors retired to deliberate at 1:14 P.M. on the fifth day of trial. Two hours later, the jury sent the judge a note asking for a compact disc player. At 4:57 P.M. the judge received another note, which read, "[w]e were unable to come to a verdict today and will need additional time." The judge suspended deliberations for the day. The judge observed: "I can tell by looking at your faces that you've all been working very hard on this."
After the jury was discharged for the day, the judge spoke with juror no. 6, who expressed concern about her availability to deliberate on the following day. The juror's partner, an attorney, would not be available for child care as planned because he had been called to appear before a judge in a different court. The judge asked in which court juror no. 6's partner was scheduled to appear, because, she stated, "I can manage to get him released." The judge continued,
"I think that's probably the best thing. And here's why I'm serious about this. We don't have any alternates, so if you were to not be able to deliberate to a verdict, I would have to declare a mistrial. And so I think, in the interest of justice, it is a better idea for me to try to get your husband released from whatever he's doing than it is for us to have a mistrial."Observing that "any judge would be very concerned at the concept of a mistrial and would be very cooperative to continue, postpone, or whatever," the judge decided to contact the judge before whom juror no. 6's partner was scheduled to appear to request that the appearance be rescheduled. The defendant did not object.
The next morning, the jury deliberated for about ten minutes before sending the judge a note asking for "a written copy of the criteria for the charges, including reasonable doubt," "the Grand Jury testimony, and the police reports." The judge provided the jury with the requested instructions and explained that she could not provide the other information because none of it was in evidence. The jury continued to deliberate until 1:05 P.M., when they sent the judge a note stating, "[t]he jury has reached a consensus on some of the charges and not on others. How do we proceed?" The judge called in the attorneys who were discussing the note when the judge interjected, "I have just received a note . . . which says, 'Please disregard previous note. We are deliberating.'" The judge decided to take no action, but about ten minutes later, at 1:17 P.M., the judge received another note from the jury stating, "[w]e are deadlocked on some of the charges. How do we proceed[?]" The Commonwealth proposed that the judge take a partial verdict pursuant to Mass. R. Crim. P. 27 (b), 378 Mass. 897 (1979), and suggested that the judge give a Tuey-Rodriquez instruction. Defense counsel opposed taking a partial verdict and asked that the Tuey-Rodriquez charge be given. Ultimately, the judge found that this was the jury's first note reporting deadlock and that the jury had not "had enough time to continue their deliberations." Accordingly, she declined to give a Tuey-Rodriquez instruction. Over the defendant's objection, the judge accepted but did not read aloud the three verdicts and instructed the jury to "go back and . . . continue your deliberations on the remainder of the charges about which you have not reached a verdict." The judge stated, "The reason I'm sending you back is because you are the best jury equipped to reach a verdict, if you can, on the other charges. So I'm going to ask you to exercise your due diligence and your wisdom and your continuing patience and try to achieve a unanimous verdict on the remainder of these charges." Court recessed at 1:39 P.M.
Rule 27 (b) provides, "If there are two or more offenses or defendants tried together, the jury may, with the consent of the judge at any time during its deliberations return or be required by the judge to return a verdict or verdicts with respect to the defendants or charges as to which a verdict has been reached; and thereafter the jury may in the discretion of the judge resume deliberation. The judge may declare a mistrial as to any charges upon which the jury cannot agree upon a verdict; provided, however, that the judge may first require the jury to return verdicts on those charges upon which the jury can agree and direct that such verdicts be received and recorded."
Three minutes later, the jury sent a note which read, "[w]e have repeatedly reviewed the evidence and discussed and firmly believe that we will not be able to come to a unanimous verdict on the remaining two counts." Viewing this note "in the context of the repeated notes from this jury, as well as the time that they have been deliberating," the judge found "that this constitutes due consideration and thorough deliberations." The defendant requested a mistrial, which the judge declined to declare. Over the defendant's objection, the judge gave, nearly verbatim, the version of the Tuey-Rodriquez charge set forth in the Superior Court Criminal Model Jury Instructions. Her only deviation came when she instructed that "[i]t is also unlikely that there will be an opportunity for more evidence or clearer evidence should another jury hear this trial." The judge asked the jury "to return to your deliberations with these instructions in mind," and further "instruct[ed] the foreperson to ascertain within the next brief period of time whether this instruction will be of assistance in reaching unanimous verdicts on the remaining two counts," stating, "I am not asking you to stay in a position of deadlock for an extended period of time, so you should let the [c]ourt know if you cannot move beyond the position you're in now." The jury then resumed their deliberations at 2:52 P.M. At 4:18 P.M., the jury returned guilty verdicts on the remaining counts.
The Model Instruction reads, "[t]here is no reason to suppose . . . that more or clearer evidence will be produced" at another trial. Superior Court Criminal Model Jury Instructions § 6.1.
Discussion. Judges "must be careful to avoid invading the province of the jury or any conduct which has a tendency toward jury coercion." Commonwealth v. Foster, 411 Mass. 762, 765 (1992). Coercion occurs when a judge overcomes the jury's will "by the weight of [their] authority." Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 34 (1984), quoting Horning v. District of Columbia, 254 U.S. 135, 139 (1920) (Brandeis, J., dissenting). The defendant claims that the judge coerced the verdicts by (1) referring to the possibility of a mistrial in her sidebar discussion with juror no. 6, (2) taking a partial verdict pursuant to rule 27 (b), (3) sending the jury back to deliberate after they had reported deadlock, in violation of G. L. c. 234A, § 68C, and (4) straying from the precise language of the Model Tuey-Rodriquez Instruction.
1. Juror no. 6. Unlike the situation in Commonwealth v. Firmin, 89 Mass. App. Ct. 62 (2016), upon which the defendant relies, here the judge did not discuss the logistical implications of a mistrial or state that she would "really appreciate it" if the jury returned a verdict. Id. at 65. Instead, the judge stated that "any judge would be very concerned at the concept of a mistrial." We agree with the Commonwealth that this comment did not convey a strong desire to avoid a mistrial, but was meant to assure juror no. 6 that her ability to continue deliberating would likely take priority over the matter at issue in the court where her partner was appearing. The comments were not coercive, and did not by any measure constitute "insistence by the judge that a verdict be reached." Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 295 (2005).
2. The taking of a partial verdict. A judge's decision to take a partial jury verdict is discretionary. Foster, 411 Mass. at 763. So too is a finding that the jury's deliberations have been "due and thorough," G. L. c. 234A, § 68C. Commonwealth v. Jenkins, 34 Mass. App. Ct. 135, 141 (1993), S.C., 416 Mass. 736 (1994). "Whether the jury are deadlocked, and whether the Tuey-Rodriquez charge should be given at a particular time, are [also] matters that are addressed to the discretion of the trial judge." O'Brien, 65 Mass. App. Ct. at 295. We will find an abuse of discretion only where we conclude that "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), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
Here, the judge's decision to take a partial verdict and encourage the jury to agree on the remaining charges was sound where the jury indicated they were able to reach a consensus on some charges but not others. To the extent the defendant wishes us to narrow the scope of rule 27 (b), we decline the invitation. By the time the jury sent the judge their final note, the judge had observed the jury during empanelment, trial, deliberations, and while taking the partial verdict. She was in the best position to assess the jurors' demeanor and decide whether, after "due and thorough deliberation," the jury were now deadlocked within the meaning of G. L. c. 234A, § 68C. See Commonwealth v. Torres, 453 Mass. 722, 736-737 (2009). Cf. Commonwealth v. Floyd P., 415 Mass 826, 829 n.5 (1993) (noting, in case where partial verdict was taken under rule 27, that "[a] judge should observe the jury while they affirm their verdict in open court" to determine whether "it appears that a juror does not agree"). We defer to the judge's conclusion in this regard. See Torres, supra.
3. The Tuey-Rodriquez instruction. The judge correctly declined to consider the jury's second note to her on the second day of deliberations as a report of deadlock where the note did not indicate deadlock ("[t]he jury has reached a consensus on some of the charges and not on others"), and where the judge received a follow-up note while the parties were still discussing the previous note, asking that it be disregarded because the jury were still deliberating. The judge's finding that the next note constituted the first report of deadlock is supported by the jury's words: "We are deadlocked."
It was not an abuse of discretion for the judge to find at this point that the jury's deliberations had not yet been "due and thorough," G. L. c. 234A, § 68C, such that a Tuey-Rodriquez instruction would be inappropriate. The jury reported deadlock only "on some of the charges," and the case was a difficult one given the conflicting testimony. The jury were required to decide who was telling the truth -- Diane's cousin, whose eyewitness testimony was corroborated by the testimony of first responders, investigating officers, and medical professionals -- or Diane, who denied being a victim of anything but her own decision to drink alcohol. The Tuey-Rodriquez instruction "has a sting," and "should not be employed prematurely or indiscriminately" lest the jury feel coerced into reaching "a verdict with which they are not fully comfortable" (quotations and citations omitted). Firmin, 89 Mass. App. Ct. at 65. It should not be given where, as here, the jury had not engaged in "due and thorough" deliberations. Id. See O'Brien, 65 Mass. App. Ct. at 296 ("instructions given to a jury that have not reached the point of deadlock may have an impermissibly coercive effect").
Finally, we are not persuaded by the defendant's claim that the judge's slight deviation from the Superior Court Model Jury Instructions "conveyed that the judge had factual information that the case would likely not be retried." Although "[j]udges are advised not to stray from the express language of the Tuey-Rodriquez charge," Firmin, supra at 66, "[a] judge need not use any particular words in instructing the jury as long as the legal concepts are properly described." Commonwealth v. Robinson, 449 Mass. 1, 8 (2007). The judge's deviation from the instruction did not affect the substance of the instruction, which properly conveyed the applicable legal concepts. The jury's decision to acquit the defendant of one of the counts of assault and battery by means of a dangerous weapon demonstrates that none of the errors claimed by the defendant coerced the jury into reaching a particular verdict, whether taken individually or cumulatively.
Judgments affirmed.
By the Court (Vuono, Lemire & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 20, 2020.