Opinion
No. 11–P–1137.
2012-10-3
COMMONWEALTH v. Anthony FLYE.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions on charges of rape of a child, G.L. c. 265, § 23, and incest, G.L. c. 272, § 17, the defendant claims error in the judge's failure to declare a mistrial on the second occasion the jury proclaimed itself to be deadlocked,
and in allowing two witnesses other than the designated first complaint witness to relate out-of-court statements by the child victim, implicating the defendant. We discern no cause to disturb the judgments, and affirm. We address the defendant's claims in turn.
The defendant also relatedly claims that his trial counsel was ineffective by reason of his failure to request a mistrial on that basis.
1. Jury deadlock. Based on the provisions of G.L. c. 234, § 34, the defendant contends the judge erred when she sent the jurors to continue deliberating following the second occasion on which they proclaimed themselves deadlocked.
The defendant did not object to the judge's actions, and did not request a mistrial (indeed, counsel expressed his agreement with the course proposed by the judge). We accordingly consider whether the judge erred and, if so, whether any error gave rise to a substantial risk of a miscarriage of justice. “The determination as to when the jury's deliberations have been ‘due and thorough’ lies within the discretion of the judge, ... and requires evaluation of the ‘complexity of the case, the extent of evidentiary conflict on material issues and the total length of time the jury [have] spent attempting to resolve those conflicts.’ “ Commonwealth v. Semedo, 456 Mass. 1, 19 (2010), quoting from Commonwealth v. Winbush, 14 Mass.App.Ct. 680, 682 (1982). In the present case, the jury had deliberated for slightly less than six and one-half hours at the time of the first report of deadlock. Compare id. at 20–21 (nine hours at time of first report of deadlock); Commonwealth v. Valliere, 366 Mass. 479, 496 (1974) (thirteen hours). Moreover, counsel for both parties agreed with the judge that further deliberations were appropriate. See Commonwealth v. Winbush, 14 Mass.App.Ct. 680, 683 (1982). Transparently implicit in the judge's comment that she considered it “early” to administer a so-called Tuey–Rodriguez charge was her assessment that the jurors' deliberations were not yet “due and thorough” at the time of their first report of deadlock. That assessment was squarely within the broad discretion afforded her in such matters. There was no error, and accordingly no substantial risk of a miscarriage of justice.
The statute states:
“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.”
Because the judge did not err, counsel was not ineffective for his failure to request a mistrial.
2. First complaint. There was likewise no error, and hence no substantial risk of a miscarriage of justice, in the admission of testimony by the victim's mother and grandmother relating statements by the victim implicating the defendant. The first complaint doctrine does not establish a firm evidentiary rule, but instead erects “a body of governing principles to guide a trial judge on the admissibility of first complaint evidence.” Commonwealth v. Aviles, 461 Mass. 60, 73 (2011). Accordingly, we review a defendant's claim that such evidence was improperly admitted for an abuse of discretion. Ibid. In the particular circumstances of the present case, in which the defendant's alleged assaults of the victim and her grandmother were tried together at the defendant's request, and the grandmother's first accusation against the defendant was framed in terms incorporating the victim's accusations by reference, we discern no such abuse of discretion. Moreover, as the Commonwealth observes in its brief at pages 14–15, the defendant fully exploited the testimony to impeach the credibility of the grandmother's accusations, and achieved success in that regard; the defendant was acquitted of the charges involving the grandmother. The trial judge crafted careful limiting instructions to the jury, further mitigating any potential for improper consideration of the testimony to bolster the credibility of the victim's complaint. The judge did not abuse her discretion in allowing the jury to hear the testimony.
Judgments affirmed.