Opinion
23-P-671
07-12-2024
COMMONWEALTH v. TYLER JACKSON.
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, the defendant, Tyler Jackson, was convicted of assault and battery on an elder causing bodily injury, see G. L. c. 265, § 13K (b), and witness intimidation, see G. L. c. 268, § 13B (b). On appeal, the defendant argues that allowing the victim to identify him in court without having previously identified him in an out-of-court procedure constituted prejudicial error. He further argues that, in the circumstances of his case, the judge erred by giving the Tuey-Rodriquez charge, see Commonwealth v. Rodriquez, 364 Mass. 87 (1973); Commonwealth v. Tuey, 62 Mass. 1 (1851), and that the error created a substantial risk of a miscarriage of justice. We affirm.
The jury acquitted the defendant of assault and battery causing serious bodily injury. See G. L. c. 265, § 13A (b).
1. In-court identification.
The Commonwealth filed a motion in limine to allow the victim to identify the defendant in court, and the defendant filed a motion to preclude the identification. The judge allowed the Commonwealth's motion, agreeing with the Commonwealth that the victim's prior familiarity with the defendant provided "good reason" to allow the in-court identification. See Commonwealth v. Crayton, 470 Mass. 228, 241-243 (2014).
We need not determine whether the victim's interactions with the defendant in her apartment prior to the assault were sufficient to supply good reason for the in-court identification under Crayton, 470 Mass. at 242; Commonwealth v. Gil, 104 Mass.App.Ct. 124, 128-130 (2024); or Commonwealth v. Fielding, 94 Mass.App.Ct. 718, 723 (2019). Nor do we address whether the victim's identification of the defendant to the police officers who responded to her apartment amounted to a prior out-of-court identification. See Commonwealth v. Stewart, 94 Mass.App.Ct. 485, 488 (2018). Assuming without deciding that permitting the victim to identify the defendant in court was an abuse of discretion, the question becomes whether the defendant suffered prejudice from the admission of the victim's in-court identification. See Commonwealth v. Denson, 489 Mass. 138, 147 (2022); Commonwealth v. Ortiz, 487 Mass. 602, 608 (2021); Stewart, supra. He did not.
The evidence at trial established conclusively that one of two men -- either the defendant or the victim's close friend, Efrain Quinones -- attacked the victim. The sixty-three year old victim testified that she invited Quinones to her apartment, but to her surprise, Quinones brought another man with him. The man walked his bicycle into her apartment, leaned it against the wall, and sat on the living room floor. The man then started playing loud music from a "big boom box" and smoking marijuana. The victim asked him to turn the music down and stop smoking. After an argument, the man started punching the victim in the face with both fists. He landed at least ten blows before Quinones managed to shield the victim with his body.
Lowell police officers Nicholas Laganas and Jeffrey Pelton were dispatched to the victim's apartment in response to a report of a fight. From outside the apartment they heard a man yelling. After they knocked on the front door for three or four minutes, Quinones answered. He was bleeding from a cut under his eye. The defendant was sitting on the couch with a "very casual, nonchalant attitude" and "like there wasn't a fight that just happened." He appeared unscathed. The victim was in the bathroom and had "very brutal facial injuries." The officers detained both Quinones and the defendant as they spoke with the victim. The victim told the officers that the person who attacked her "wasn't Efrain," but was "the guy with the bike with the dread locks," the defendant. The officers took the defendant into custody.
Thus, the choice before the jury was which of the defendant or Quinones was responsible for the victim's injuries. The defendant could not plausibly claim, and did not claim, that he was not present when the victim was injured or that an unknown third party attacked the victim and fled before the police arrived. Rather, he suggested at trial, through cross-examination and argument, that Quinones was the attacker and that, by blaming the defendant, the victim was covering up for her friend and helper, whose imprisonment would be a burden to her. As the Commonwealth aptly puts it, "The case was one of credibility, not identification." In light of the victim's and the officer's testimony about the circumstances of the crime and the defendant's arrest, "we are convinced that the [in-court] identification here 'did not influence the jury, or had but very slight effect.'" Ortiz, 487 Mass. at 608, quoting Commonwealth v. Chalue, 486 Mass. 847, 858 (2021).
2. Tuey-Rodriquez charge.
The defendant argues for the first time on appeal that giving the Tuey-Rodriquez charge under "the unusual circumstances of this case" coerced the one undecided juror to vote guilty.
The jury began deliberations just before 11 A.M. on the second day of trial. About an hour later, the jury submitted two questions to the trial judge. After lunch, just before 2:30 P.M., they submitted two more questions. After answering the questions, the trial judge left for a medical procedure and was replaced by a substitute judge; the original judge remained available to assist with any substantive jury questions. Near the end of the day, the jurors sent the substitute judge a note stating, "A juror is not comfortable with the highest degree of certainty possible. They cannot get over that there is only one witness. This is a position that do not believe [sic] will change with more time."
One of these two question forms stated, "These are from [one] juror."
The substitute judge consulted the original judge, who asked him to give the Tuey-Rodriquez charge. The substitute judge then conferred with counsel and separately asked each attorney if they had "any issues with that plan or course of action." Defense counsel did not object or suggest an alternative, and the judge gave the model Tuey-Rodriquez charge verbatim. See Rodriquez, 364 Mass. at 101-102; Criminal Model Jury Instructions for Use in the District Court 2.460 (2009). Approximately thirty minutes later, the substitute judge suspended deliberations for the day. The jury deliberated for about one hour the following morning and returned a guilty verdict.
The Tuey-Rodriquez charge is "designed to urge the jury to reach a verdict by giving more serious consideration to opposing points of view." Commonwealth v. Semedo, 456 Mass. 1, 20 (2010). "The trial judge is ordinarily in the best position to determine whether giving such a charge is appropriate, and thus '[t]he decision whether to provide the Tuey-Rodriquez charge is . . . committed to [his or her] sound discretion.'" Chalue, 486 Mass. at 860, quoting Ray v. Commonwealth, 463 Mass. 1, 6 (2012).
The original Tuey charge, adopted by the Supreme Court of the United States in Allen v. United States, 164 U.S. 492, 501-502 (1896), is notorious for "its ability to 'blast a verdict out of a jury otherwise unable to agree that a person is guilty.'" Chalue, 486 Mass. at 860-861, quoting United States v. Bailey, 468 F.2d 652, 666 (5th Cir. 1972). Multiple State and Federal courts have replaced the Tuey and Allen charges with an alternate charge endorsed by the American Bar Association (ABA) in 1968 (ABA charge). Rather than adopting the ABA charge, the Supreme Judicial Court in Rodriquez modified the Tuey charge and recommended the "less emphatic" ABA charge as an alternate instruction "for use either as part of the original instructions to the jury or as a supplemental instruction when the jurors appear to be running into difficulty reaching a verdict." Rodriquez, 364 Mass. at 98, 100-101. See Commonwealth v. O'Brien, 65 Mass.App.Ct. 291, 296-297 (2005); Criminal Model Jury Instructions for Use in the District Court 2.460 (2009).
For the purposes of this case, the most pertinent alteration of the Tuey charge in Rodriquez addressed the fact that the Tuey charge invited members of the minority to reconsider their position, but did not ask members of the majority to do the same. See Rodriquez, 364 Mass. at 99; Commonwealth v. Abdul-Alim, 91 Mass.App.Ct. 165, 173 (2017). Thus, the Tuey-Rodriquez charge asks all jurors to be willing to reconsider their positions, without referring to minorities or majorities. While even the modernized Tuey-Rodriquez charge still "has a sting" and "is not to be . . . used prematurely or without evident cause," Rodriquez, 364 Mass. at 100, it is carefully crafted to avoid coercion. See id. at 98-100; O'Brien, 65 Mass.App.Ct. at 295. See also Commonwealth v. Connors, 13 Mass.App.Ct. 1005, 1006 (1982) (Tuey-Rodriquez charge "does not suffer from those impediments which some Federal courts have viewed as one-sided and unduly coercive"). Hence, trial judges are urged not to stray from its language. See Commonwealth v. Witkowski, 487 Mass. 675, 688-689 (2021); Commonwealth v. Sosnowski, 43 Mass.App.Ct. 367, 374 (1997).
The defendant argues that the Tuey-Rodriquez charge was coercive here because the lone hold-out for acquittal may have "interpret[ed] the instruction as being leveled directly at him or her." Chalue, 486 Mass. at 861. He contends that the charge's coercive effect was enhanced because the jury, and especially the hold-out juror, "were aware that the judge knew both the extent and the nature of the jury's division," and that the fact that the judge had no idea which juror was the hold-out "should not be dispositive." We are not persuaded.
The error in Chalue, and the cases on which the Chalue decision relied, was precisely that the judge knew the identity of the hold-out juror and singled out that juror for a Tuey-Rodriquez or modified Allen charge. See Chalue, 486 Mass. at 862-863 ("improper for the judge to give the lone juror this instruction in isolation"); United States v. Zabriskie, 415 F.3d 1139, 1148 (10th Cir. 2005) ("impermissibly coercive to selectively and privately give what amounts to an Allen instruction to a hold out juror"); United States v. Sae-Chua, 725 F.2d 530, 532 (9th Cir. 1994) (judge was aware not only of eleven to one numerical division, but also "of the identity of the sole dissenter," and "dissenting juror was aware of the fact that the judge possessed this knowledge").
Here, the fact that the judge did not know the identity of the hold-out juror -- in fact, as the substitute judge, he had no personal experience with any of the jurors or with the history of the deliberations -- is a critical distinction. Even where the judge knows the numerical division of the jury, the lone dissenting juror is less likely to feel singled out for coercion by the Tuey-Rodriquez charge when the judge does not know the juror's identity. This situation is far less coercive than when the judge gives the instruction to the lone juror at sidebar, as in Chalue, 486 Mass. at 863, which is still less coercive than giving the instruction "ex parte and in camera," id., citing Zabriskie, 415 F.3d at 1142. See Chalue, supra at 861 & n.14 (collecting Federal cases holding it to be reversible error to give modified Allen charge "to a lone juror -- or to the full jury when the judge knows the identity of a small number of hold-out jurors" [emphasis added]).
The fact that the jury communicated their five-to-one split to the judge in this case did not make the instruction especially coercive. While the jurors certainly knew who the hold-out juror was, and the lone juror could have interpreted the charge personally, the same would be true if the jury was split five to one and had not told the judge. The logical extension of the defendant's argument is that the Tuey-Rodriquez instruction would be unduly coercive whenever a jury is deadlocked. Such a radical departure from established precedent is beyond the power of this court. See Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486 (2003).
In addition, despite the judge's explicit invitation to the parties to raise any issues they had with his giving a Tuey-Rodriquez charge, defense counsel did not object. "[S]uch an omission indicates that the potential for coercion argued now was not apparent to one on the spot." Lowenfield v. Phelps, 484 U.S. 231, 240 (1988).
Finally, the defendant asks us to infer that the lone hold-out juror was coerced into voting guilty because the jury deliberated for only about ninety minutes (over two days) after the charge was given. Although "[t]he amount of time the jury continue to deliberate is probative of how coercive the instruction was," Chalue, 486 Mass. at 864, it is not dispositive. "The fact that the jury returned a verdict a short time after receiving the Rodriquez charge does not warrant the conclusion that the verdict was coerced." Commonwealth v. Bacigalupo, 49 Mass.App.Ct. 629, 639 (2000). See Commonwealth v. Smith, 427 Mass. 245, 257 (1998) (rejecting claim that Tuey-Rodriquez charge was coercive in first-degree murder trial where jury returned guilty verdict twelve minutes later).
Where, as here, the judge "urges further deliberation in an effort to agree upon a verdict" by issuing a Tuey-Rodriquez charge, "and in doing so [the judge's] comments are balanced and not slanted toward conviction, we are unable to perceive harm to the defendant." Abdul-Alim, 91 Mass.App.Ct. at 173, quoting United States v. Sawyers, 423 F.2d 1335, 1342 (4th Cir. 1970).
Judgments affirmed.
The panelists are listed in order of seniority.