Opinion
10-P-1292
08-04-2011
COMMONWEALTH v. EDWARD J. CAMERON.
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
A District Court six-person jury found the defendant, Edward J. Cameron, guilty of operating a motor vehicle while under the influence of intoxicating liquor (OUI), see G. L. c. 90, § 24(1)(a)(1). During jury deliberations, the trial judge dismissed a juror because of a communication problem raised by other jurors. The defendant has appealed upon two grounds: (1) that the judge discharged the juror without good cause in violation of the defendant's due process rights; and (2) that the judge's failure to instruct the remaining jurors on the reason for the discharge prejudiced the defendant. For the following reasons, we affirm.
Background. The evidence permitted the jury to find the following facts. On July 3, 2009, Holyoke police Officer Michael Hoar pulled over the defendant for operating his vehicle without its headlights turned on. When Officer Hoar approached the vehicle, he noticed that the defendant's eyes were red and glassy. Through his interaction with the defendant, Officer Hoar detected a strong odor of alcohol and noticed that the defendant slurred his speech. Officer Hoar asked the defendant to exit the vehicle. While standing outside the vehicle, the defendant swayed noticeably. Sergeant Richard Stuart arrived shortly after Officer Hoar to provide backup. Sergeant Stuart also observed the odor of alcohol, bloodshot eyes, and slurred speech patterns from the defendant. Additionally, he observed the defendant sway back and forth while the defendant stood outside his vehicle. Both officers concluded that the defendant was intoxicated, and Officer Hoar arrested the defendant. At trial, the Commonwealth's case consisted only of the testimony of Officer Hoar and Sergeant Stuart.
After approximately one hour of deliberations, one or more of the jurors indicated to the court officers that there was a communication problem with one of the jurors, i.e., Mr. B. The judge called Mr. B into the courtroom and asked him whether he was 'having difficulty understanding some of [the] deliberations.' Mr. B responded, 'Yeah.' Then the judge inquired, 'You don't feel quite fluent enough.' Mr. B responded, 'To make a decide this case.' The judge then questioned each of the five remaining jurors individually. All of the remaining jurors acknowledged the communication problem with Mr. B and stated that replacing Mr. B with the alternate juror would not affect their ability to reach a verdict. Additionally, the judge informed them that they would have to undertake deliberations from the beginning. In the foreperson's interview, she added that Mr. B 'wasn't able to undertand all the concepts.' The judge replaced Mr. B with the alternate juror over the objection of defense counsel. After deliberating for less than one hour, the reconstituted jury found the defendant guilty of OUI.
A pseudonym.
1. Dismissal of Mr. B. The defendant argues that the trial judge dismissed Mr. B without good cause and in violation of the defendant's due process rights. Two statutes govern the dismissal of a juror during deliberations, G. L. c. 234, § 26B, inserted by St. 1979, c. 255, § 2 (court may discharge if 'a juror dies, or becomes ill, or is unable to perform his duty for any other good cause shown to the court'), and G. L. c. 234A, § 39, inserted by St. 1982, c. 298, § 1 (court may discharge 'only upon a finding of an emergency or other compelling reason'). Despite the difference in language, the standards 'have been considered interchangeable or synonymous.' Commonwealth v. Olavarria, 71 Mass. App. Ct. 612, 619 (2008). Additionally, the Massachusetts Rules of Criminal Procedure allow a judge to discharge a juror if the juror 'dies, becomes ill, or is unable to perform his duty for any other cause.' Mass.R.Crim.P. 20(d)(3), 378 Mass. 889 (1979). The 'good cause' standard 'includes only reasons personal to a juror, having nothing whatever to do with the issues of the case or with the juror's relationship with his fellow jurors.' Commonwealth v. Connor, 392 Mass. 838, 844-845 (1984). We defer to the trial judge's factual findings unless they are clearly erroneous. See Commonwealth v. Swafford, 441 Mass. 329, 337 (2004). We review the decision to remove a juror under the abuse of discretion standard. See Commonwealth v. Torres, 453 Mass. 722, 732 (2009).
The trial judge did not abuse his discretion when he removed Mr. B because he had language problems. Mr. B admitted that he was having difficulty understanding the deliberations. When the judge asked Mr. B whether he did not feel fluent enough, Mr. B's response -- 'To make a decide this case' -- permitted the trial judge to find that Mr. B had problems with the English language. See Commonwealth v. Leftwich, 430 Mass. 865, 873 (2000) (noting that inability to perform functions of juror must be supported by record). An inability to speak and understand the English language disqualifies a person from jury service; thus it is good cause for discharge. See G. L. c. 234A, § 4; Commonwealth v. Acen, 396 Mass. 472, 479 (1986) ('It is unquestionable that an ability to speak English is a relevant and important qualification for jurors'). Additionally, the language problem was obviously personal to Mr. B and unrelated to the issues of the case.
While the trial judge's interrogation of Mr. B and the other jurors was short, it was sufficient to permit Mr. B's replacement by an alternate juror. The trial judge is 'in a superior position to observe and assess [a] juror's demeanor.' Commonwealth v. Francis, 432 Mass. 353, 369 (2000). The trial judge also has the advantage of face-to-face evaluation. Commonwealth v. Peppicelli, 70 Mass. App. Ct. 87, 93 (2007). Additionally, nothing in the record suggests that Mr. B was a holdout. Therefore, we will not disturb the trial judge's decision to discharge Mr. B.
2. Failure to instruct remaining jurors. The defendant argues that the judge's failure to instruct the jurors that the discharge was purely personal prejudiced the defendant. Because the defendant did not object to the instruction at trial, we review whether the error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. Zimmerman, 441 Mass. 146, 150 (2004). 'If a juror is discharged and an alternate substituted, the jury should be instructed not only to begin deliberations anew . . . but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.' Commonwealth v. Connor, 392 Mass. at 845-846. However, '[a] judge is not required in every case to adhere to the precise language . . . used in Commonwealth v. Connor.' Commonwealth v. Zimmerman, supra at 151. Some circumstances that surround the discharge of a deliberating juror 'will leave no room for speculation as to the reason for the discharge, such that the failure to give a Connor instruction is not error.' Ibid.
This case presents the circumstances which do not require the Connor instruction. The reason for the discharge was obvious to all the jurors. The judge was informed that 'several' jurors were having difficulty communicating with Mr. B. In each individual colloquy, the judge confirmed the issue by referencing a difficulty in communicating with Mr. B. The defendant argues that this case is factually analogous to Zimmerman. In Zimmerman, the trial judge dismissed a juror, who was a neighbor of the mother of one of the defendants, but did not give a Connor instruction. Id. at 149. Those circumstances required a Connor instruction because the connection of the juror to a defendant left the remaining jury to speculate whether the juror was dismissed 'to protect her from feared retaliation by the defendants or because she supported the defendants.' Id. at 152. No such room for speculation existed in this case. The only plausible reason for Mr. B's discharge was his personal language problem and the resulting communication difficulties with the other jurors.
Judgment affirmed.
By the Court (Berry, Meade & Sikora, JJ.), August 4, 2011