Opinion
10-P-1529
10-11-2011
COMMONWEALTH v. ANTHONY FRANCHITTO.
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
The defendant appeals from his conviction of indecent assault and battery on a child, arguing that the trial judge improperly sent the jury back for deliberation without their consent in violation of G. L. c. 234, § 34. We affirm.
1 In his brief, the defendant also argued that he was prejudiced by the prosecutor's improper remarks during closing argument. At oral argument, however, counsel for the defendant rightfully conceded that the closing argument was proper.
Background. On April 1, 2008, the defendant was indicted on charges of rape of a child by force and indecent assault and battery on a child under fourteen. The defendant was tried before a jury and evidence was received over the course of two days. On the second day of deliberations, the jury foreperson sent the judge a note stating,
'There has been a concern brought to my attention. A juror does not seem to think there is a crime or anything wrong with touching a child. The thought is that considering all that the defendant did for the Family would make it okay and can be overlooked. Is this okay and how do I answer the concerned juror.'
The judge responded to the jury in writing: '[t]he jury must apply the law I have given the jury and follow that law, whether or not you agree with the law.' Later that day, the jury sent the judge a second note, stating,
'We have come to our Final conclusion and we have not reached a unanimous decision on either count. We think it would help if we could review two terms. (1) Reasonable doubt (2) Circumstantial evidence.'
The defendant requested a Tuey-Rodriquez charge, which the judge declined to give. She instead instructed the jury on reasonable doubt and circumstantial evidence.
2 See Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851); Commonwealth v. Rodriquez, 364 Mass. 87, 97 (1973).
3 The judge stated, 'I am not inclined to give Tuey-Rodri[q]uez. They have not told me that they are deadlocked. They've asked for more information. When they say 'we have come to our final conclusion and we have not reached a unanimous decision on either count.' And then, 'We think it would help if you could review two terms.' So that's what I'm intending to do in the context -- I do not consider that they have told me in any fashion that they are deadlocked, and so I am not giving them Tuey-Rodri[q]uez. Okay.'
The next day, the jury continued deliberations and sent the judge a third note, stating,
'We have again not reached a[] unanimous decision on either charge. The majority of the jury Feels there is an issue with juror Fitness and ability to remember pertinent facts of case and Following jury instructions.'
Although she found that the jury had not specifically told her that they were deadlocked, the judge nevertheless gave a Tuey-Rodriquez instruction. In response to the defendant's request that she obtain the jury's consent before ordering them to return to deliberations, the judge stated,
'[N]otwithstanding that first sentence in their [second note,] indicating they have not reached a unanimous decision, they were asking for further advice. They were not telling me that they are deadlocked.'
The judge sent the jury back to continue deliberations, and they returned with the verdicts.
Discussion. Under G. L. c. 234, § 34, a jury that returns 'a second time without having agreed on a verdict . . . shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law.' The statute serves '[a]s a guard against the coercion of a jury to reach a verdict.' Commonwealth v. Jenkins, 416 Mass. 736, 737 (1994). The statute 'is only operative after a jury has engaged in 'due and thorough' deliberations,' and '[w]hether a jury has engaged in 'due and thorough deliberation' within the meaning of the statute is a matter of discretion for the trial judge.' Veiga v. Schochet, 62 Mass. App. Ct. 440, 443 (2004), quoting from G. L. c. 234, § 34.
In this case, the first note did not trigger the statute because 'a return to court to receive answers to questions asked by the jury does not bring the statute into operation.' Commonwealth v. Valliere, 366 Mass. 479, 496 (1974). While the second note stated that the jury had come to its 'Final conclusion' and could not agree on a verdict, they also asked for further instruction on the law. Thus, '[t]he [second] note explicitly state[d] that the jury felt they might be able to continue deliberating if their questions were answered.' Veiga, supra at 444. See Valliere, supra (noting that the fact that jurors 'asked from the judge a further explanation of the law was a very strong indication that they thought their deliberation was not yet 'due and thorough'').
4 The defendant emphasizes the foreperson's use of a capital 'F' in 'Final conclusion.' We find this of little significance given the foreperson's frequent use of upper case 'F's in her handwritten notes.
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In short, it was the jury's third note, in which they did not seek further guidance on the law, that triggered the statute. Accordingly the trial judge, after receiving the third note, did not err in failing to obtain the jury's consent before ordering them to return to deliberations.
Judgment affirmed.
By the Court (Trainor, Brown & Carhart, JJ.),