Opinion
19-P-1746
11-19-2020
COMMONWEALTH v. JORGE ADAMES-GARCIA.
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
Following a jury trial, the defendant, Jorge Adames-Garcia, was convicted of one count of kidnapping and two counts of aggravated rape, and was acquitted of two counts of aggravated rape, two counts of assault and battery, and one count each of unarmed robbery, assault with intent to rape, and malicious destruction of property. In this consolidated appeal from the judgments and from the order denying his motion for new trial, the defendant argues that (1) the jury were exposed to and improperly influenced by an extraneous matter, and (2) a change of venue should have been granted. We affirm.
At sentencing, the kidnapping charge was dismissed as duplicative.
Background. We briefly summarize the facts, reserving certain details for later discussion. At the defendant's trial, the victim, whom we shall refer to as K.T., testified that she was walking home alone on the early morning of July 5, 2013, and next recalled awakening while lying in a ditch. The defendant told her to get up, brought her into his vehicle, and drove to a nearby beach parking lot. There, he directed K.T. to get into the backseat of his vehicle, and ripped her pants off. He forced his penis into her vagina and anus. When the defendant was unable to ejaculate, he drove K.T. to another location, and again forced his penis into K.T.'s vagina and anus. He also attempted to force his penis into her mouth. The defendant ultimately made K.T. get out of the vehicle, and he strangled her until she lost consciousness. She awoke during daylight in a wet area of grass and brush and sought help from a nearby residence.
The defendant, however, testified that he and K.T. had consensual vaginal and anal sex on the early morning of July 5, 2013. He testified that he saw K.T. walking and offered her a ride home, which she accepted. They began talking in Spanish and parked at the beach parking lot. Eventually, they began to have sex with the defendant wearing a condom, but the condom broke. The defendant then asked K.T. if she had any diseases, and she got upset and left.
After the close of the evidence, jury deliberations began on May 10, 2017. On May 12, 2017, the jury notified the judge that they had reached a unanimous verdict on seven out of the ten indictments. The jury were urged to continue deliberating until they were unanimous on all ten indictments. On May 15, 2017, with agreement of counsel, the judge received the seven verdicts that the jury agreed on unanimously, all of which found the defendant not guilty.
May 12, 2017, was also the final day of the trial judge's assignment in Nantucket. After this date, the First Justice of the Nantucket District Court stepped in as the presiding judge for the remainder of the deliberations.
The following day, May 16, 2017, the court was not in session. On this date, a former Nantucket police officer, Steve Tornovish, posted on Facebook:
"Rape is a horrible crime. This current case is still going on. The trial is held in open court. Citizens may attend. I urge all interested parties to come to the Nantucket courtroom on Wednesday (tomorrow) at 9:15 a.m. Be orderly, be respectful and don't bring items that you wouldn't bring on an airplane. A show of support for the victim would sure be a good thing. Hope that you all can spare 1/2 hour to make our community stronger. Thanks."There were a number of comments to the Facebook post. A follow-up post by Tornovish described K.T. as a "bright and thoughtful person," while another comment described those prosecuted for rape as "scum," from which the community required protection. Additionally, in the comment section of the post, people agreed to wear teal sexual assault awareness ribbons to the court the next day in support of the victim.
On May 17, 2017, when the court reconvened, there were approximately ten demonstrators outside of the court house protesting the previously rendered not guilty verdicts, and the court room was visibly fuller than it had been on the other days of trial. Defense counsel brought the Facebook post to the presiding judge's attention, and filed a motion requesting an individual inquiry of each juror about the Facebook post. After a hearing, the motion was denied by the trial judge, who participated by telephone. However, at the direction of the trial judge, the presiding judge instructed the court room audience that they were not permitted to wear teal ribbons, or other visible symbols, in the court room. On this same date, the jury returned verdicts on the remaining three indictments finding the defendant guilty of each charge.
Discussion. We review the denial of the defendant's motion for a new trial to determine whether there has been a significant error of law or abuse of discretion. Commonwealth v. Watt, 484 Mass. 742, 757 (2020). In doing so, "we accord deference to the views of a motion judge who [as here,] was also the trial judge" (citation omitted). Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 777 (2016).
1. Extraneous influence. Following the defendant's trial, defense counsel sent written letters to the deliberating jurors, pursuant to Commonwealth v. Moore, 474 Mass. 541 (2016), to determine whether they were aware of (1) the Facebook post during deliberations, (2) the groups at the court house responding to the Facebook post, (3) people at the court house wearing teal ribbons, and (4) the significance of those ribbons. Two of the three jurors who responded stated that they were not aware of the Facebook post, but did notice that there were more people in the court room on the final day of deliberations. The third juror, juror no. 7, responded to the letter by calling defense counsel. She subsequently signed an affidavit stating that she saw the Facebook post during deliberations; the Facebook post was brought up during deliberations; and the community's reaction to their previously rendered not guilty verdicts played a role in the jury's decision on the last three indictments. Based on juror no. 7's affidavit, defense counsel moved for a new trial, and the judge conducted a hearing, pursuant to Commonwealth v. Fidler, 377 Mass. 192, 201 (1979), overruled in part on another ground by Moore, 474 Mass. at. 547-548, where she received testimony from each deliberating juror to determine whether extraneous information was introduced into the jury room.
One of the deliberating jurors died after the trial and prior to the hearing, and as such, did not participate in the hearing.
"When there is a claim of extraneous influence on a jury, a two-step procedure is to be followed." Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). "The first step of the Fidler inquiry requires the defendant to prove by a preponderance of the evidence that extraneous material was introduced to the jury." Commonwealth v. Miller, 475 Mass. 212, 221-222 (2016). Here, the judge, in her memorandum denying the defendant's motion for a new trial, found that the defendant had met his burden of showing that extraneous information was introduced into the jury room. At the hearing, at least two jurors reported seeing the Facebook post and its comments firsthand. In addition, several jurors learned of the Facebook post through discussion with other jurors, and most of the jurors either saw or heard that there were community members gathered at the court house to protest the previously rendered verdicts. We see no abuse of discretion or error of law in this determination, nor does the Commonwealth contend otherwise. Instead, we focus, as the motion judge did, on the second step of the Fidler inquiry.
The second step "requires that the Commonwealth prove beyond a reasonable doubt that the jury's review of the extraneous material did not prejudice the defendant." Miller, 475 Mass. at 222. In determining whether the Commonwealth has met its burden, "[t]he judge may not receive any evidence concerning the actual effect of the matter on the juror's decision." Fidler, 377 Mass. at 201. "Rather, the judge must focus on the probable effect of the extraneous facts on a hypothetical average jury." Id. The judge may consider "(1) the fact that the improper remark prompted an immediate reprimand from another juror; (2) whether there was overwhelming evidence of guilt; and (3) whether the extraneous matter produced such a high probability of prejudice that error must be inferred" (citations omitted). Id. at 201 n.8.
The judge, focusing on the probable impact that the extraneous matter would have had on a hypothetical average jury, concluded that the Commonwealth had met its burden of showing that the extraneous material did not prejudice the defendant. In making this determination, the judge considered the content of the Facebook post, the discussion surrounding it, the presence of the protestors, and the strength of the Commonwealth's case against the defendant. The judge found that the Facebook post did not contain any "invective or other strong, abusive, or intimidating language directed at the jurors." She found that the "the discussion [of the Facebook post] was very brief, and it was limited to the community's negative reaction to the not guilty verdicts and support for the victim." Further, the judge made a finding that no extraneous matter was actually discussed during jury deliberations. Instead, she found that the discussion occurred before deliberations began for the day, and was met with prompt reprimands from two jurors who recognized the impropriety of discussing the matter. The judge also considered that there were relatively few community members protesting, and the ones who were protesting were peaceful and did not attempt to speak to the jurors. Finally, the judge found that the evidence against the defendant was strong, despite the seven acquittals, because "K.T.'s testimony was detailed and specific, and it was corroborated in several material particulars, both by the results of the physical examination at the hospital, and by the testimony of witnesses who observed K.T.'s physical condition and injuries in the immediate aftermath of the incident."
While there was some reference to the personal characteristics of the victim and the defendant in the comment section of the Facebook post, the judge found that the discussion did not include this information, and neither of the jurors who actually saw the Facebook post recalled that information.
Based on these findings, which we accept unless clearly erroneous, see Kincaid, 444 Mass. at 383-384, we do not believe that the judge abused her discretion or made an error of law when she concluded that the average hypothetical jury would not have been influenced by the extraneous matter. However, as the judge recognized, this determination does not end the inquiry in this case. While judges are not permitted to inquire into the "subjective mental processes of jurors, such as the reasons for their decisions," and "may not receive any evidence concerning the actual effect of the matter on the juror's decision," Fidler, 377 Mass. at 198, 201, if this type of inappropriate information is revealed, it must not be ignored. See, e.g., Kincaid, 444 Mass. at 392, citing Commonwealth v. Cuffie, 414 Mass. 632, 638 (1993).
Although the judge properly tailored her questions to inquire only whether any extraneous information was brought up during deliberations, and instructed each juror not to reveal any aspects of the deliberative process, juror no. 7, both in her affidavit and in her testimony, stated that the last three verdicts were influenced by the community's response to the prior verdicts. See Kincaid, 444 Mass. at 391-392. The judge, as required, did not ignore this statement, but instead considered it in conjunction with the ten other jurors' testimony. First, the judge gave no weight to juror no. 7's statement that the other jurors were influenced. She found that because the discussion about the Facebook post and the community's reaction did not occur during deliberations, juror no. 7 would have no way of knowing whether it affected the other jurors' decisions. Furthermore, the other jurors who responded to defense counsel's letter unequivocally denied being influenced by the extraneous matter. The judge also explicitly discredited juror no. 7's statement that she was in fact influenced by the extraneous matter. The judge instead found that it appeared the juror "had either a change of heart, or a change of perception, after the trial." "[T]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court." Commonwealth v. Bresnahan, 462 Mass. 761, 775 (2012), quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980). We defer to the judge's conclusions because she was in the best position to assess the credibility and the weight of the testimony. See Kincaid, supra at 388. Accordingly, we cannot say that the judge committed an error of law, or abused her discretion, in finding that the defendant was not prejudiced by the jury's exposure to the extraneous matter.
Because the judge did not, and could not, elicit any information about the deliberative process during the Fidler hearing, the only evidence of actual influence, or lack thereof, came from the jurors who responded to defense counsel's initial letter.
2. Change of venue. The defendant next argues that he is entitled to a new trial because his motions for a change of venue should have been allowed. Whether to grant such a motion rests in the "substantial discretion" of the judge. Commonwealth v. Hoose, 467 Mass. 395, 405 (2014).
The defendant first argues that his motions for a change of venue should have been allowed because the publicity surrounding the case in the community of Nantucket was so pervasive that it tainted the jury pool in the community and deprived him of his right to an impartial jury. A motion for a change of venue may be granted if "there exists in the community where the prosecution is pending so great a prejudice against the defendant that he may not there obtain a fair and impartial trial." Commonwealth v. Toolan, 460 Mass. 452, 462 (2011), quoting Mass. R. Crim. P. 37 (b) (1), 378 Mass. 914 (1979). The defendant bears the burden of showing either presumptive or actual prejudice. Hoose, 467 Mass. at 405-406.
The defendant argues that the judge should have found that the jury were presumptively prejudiced against the defendant. However, presumptive prejudice "exists only in truly extraordinary circumstances" where "the entire jury pool is tainted by exposure to pretrial publicity." Toolan, 460 Mass. at 463. The two factors that "play a central role in creating the presumption of prejudice" are (1) "the nature of the pretrial publicity," and whether it is "both extensive and sensational," and (2) "whether the judge was in fact able to empanel jurors who appear impartial." Hoose, 467 Mass. at 406. The defendant has failed to establish that either factor weighs in favor of presuming prejudice. While the defendant points to the small nature of the island of Nantucket to show that publicity prejudiced the jury pool, this alone is insufficient to show that the publicity was "extensive and sensational" (emphasis and citation omitted). Toolan, supra at 464. Contrary to the defendant's contention, the publicity surrounding his case was primarily fact-based, which "is not the sort of sensational publicity that would give rise to a presumption of prejudice." Hoose, supra at 407. Further, where the judge found that only eight out of 105 jurors were excused for cause due to exposure to pretrial publicity, the defendant has not shown that empanelling an impartial jury was not practically possible. See id. at 407-408 (measuring "practical impossibility by looking to the percentage of the venire that was dismissed for cause as a result of prejudice from exposure to pretrial publicity").
Neither has the defendant shown that actual prejudice deprived him of his right to an impartial jury. A claim of actual prejudice is considered in the totality of the circumstances to determine whether the defendant was deprived of his right to a fair and impartial jury. Hoose, 467 Mass. at 408. The defendant again points to the "small, socially interconnected community of Nantucket," Toolan, 460 Mass. at 468, as well as "the events that unfolded during . . . trial" to show actual prejudice. This is insufficient. As the judge recognized in her order on the defendant's motion for a new trial, only half of the fourteen selected jurors were exposed to some sort of publicity about the case and none of them recalled any facts about the case beyond what was included in the case description provided to the prospective jurors. See Commonwealth v. Colon-Cruz, 408 Mass. 533, 551 (1990) ("A defendant's right to a fair and impartial jury does not require that jury members have no prior knowledge of the crime"). Also, the fact that defense counsel indicated to the judge that she was content with each seated juror and did not exhaust her peremptory challenges "belies any claim of partiality." Commonwealth v. Morales, 440 Mass. 536, 543 (2003). The judge found that all of the seated jurors credibly represented that they could be fair and impartial. A "judge is entitled to accept declarations of the jurors of their own disinterest." Colon-Cruz, supra.
The defendant finally claims that his motions for a change of venue should have been allowed because there was a limited number of eligible Hispanic jurors in the county of Nantucket, and as a result he was denied his right to a jury of his peers, and the "fair cross section" requirement was not met. The defendant relies on data from the United State Census Bureau indicating that there was "a total of only 411 eligible Hispanic jurors in the entire county." The defendant has not provided any information about the number of Hispanic jurors in his venire, or in past venires, and has therefore failed to meet his burden. Compare Commonwealth v. Arriaga, 438 Mass. 556, 564 (2003) (statistical data of single venire is insufficient "to show that the group allegedly discriminated against is not fairly and reasonably represented in the venires in relation to its proportion of the community"). Moreover, the judge who denied the defendant's initial motion for a change of venue looked at the Census Bureau data for the counties nearest to Nantucket, and discovered that the percent of Hispanic population in each was substantially smaller than in Nantucket. For these reasons, it was not an abuse of discretion to deny the defendant's motion for a change of venue, and the judge's denial of his motion for a new trial on this basis was thus proper.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Rubin, Desmond & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 19, 2020.