Opinion
20-P-868
05-10-2021
COMMONWEALTH v. Anilkumar KATTA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of assault and battery on a family or household member in violation of G. L. c. 265, § 13M (a ). On appeal, the defendant claims that (1) the judge's failure to ask prospective jurors about ethnic bias created a substantial risk of a miscarriage of justice, (2) a police officer's testimony that he placed the defendant under arrest was reversible error, (3) the prosecutor's closing argument was improper, and (4) the judge erroneously reversed the verdict announced by the jury. We affirm.
Background. The defendant was charged by complaint with two counts of assault and battery on a household or family member based on alleged physical attacks on his wife on February 4 and 11, 2018. At trial, the victim testified that, on February 4, 2018, the defendant forcefully grabbed the victim's hand, removed her from the marital bedroom, and closed the door on her arm, causing swelling and an abrasion. The victim further testified that on February 11, 2018, the defendant again grabbed the victim's arm and dragged her from the bedroom where she was sleeping with their two young children. The victim called the police on February 11, 2018, and reported both assaults.
Discussion. 1. Jury voir dire. Without identifying the parties' racial, ethnic, or cultural identities, the defendant requested that the judge ask prospective jurors whether they "believe that males from certain cultures are more prone to commit acts of violence against women?" The judge declined to ask the question of the venire but agreed to ask it "on an individual basis." Thereafter, the judge defined bias and instructed the venire "that a verdict must not be based on any such bias, including conscious or subconscious bias." The judge then asked whether anything about the allegations of domestic violence would affect the prospective jurors' ability to be fair and impartial. Jurors who answered in the affirmative were excused. The defendant did not request that his proposed question regarding cultural bias be put to any juror during individual voir dire and he stated he was satisfied with the chosen jurors.
For the first time on appeal, the defendant claims that the judge's failure to ask his proposed voir dire question created a substantial risk of a miscarriage of justice because the defendant and the victim "were from India, a country that American media often portrays as plagued by violence against women." A criminal defendant has a right to voir dire jurors if there is a substantial risk that an extraneous issue might affect the outcome of the case. See Commonwealth v. Mason, 485 Mass. 520, 524 (2020). However, it is the defendant that bears the burden of establishing the need for individual voir dire. Id. "Unless the defendant shows that that there is a substantial risk that the jury would be influenced by extraneous issues, the judge need not ask questions aimed at discovering the existence of those factors" (quotations and citation omitted). Commonwealth v. Morales, 440 Mass. 536, 549 (2003). The defendant failed to meet that burden here and the judge did not abuse his broad discretion in declining to ask the specific question posed by the defendant. See Commonwealth v. Espinal, 482 Mass. 190, 195 (2019).
Individual voir dire is mandatory if requested in certain kinds of cases -- interracial murder, rape, and sexual assaults against children. See Commonwealth v. Colon, 482 Mass. 162, 175-176 (2019). This was not such a case.
We note that the defendant has neither alleged nor shown "any actual prejudice." Commonwealth v. Mason, 485 Mass. at 525. The defendant does not claim that the jury were biased. See id. Further, the jury were clearly instructed not to "allow bias, conscious or subconscious to interfere with [their] ability to fairly evaluate the evidence, apply the law ... and render a fair and impartial verdict." The jury's not guilty verdict on one of the alleged assaults suggests they followed that instruction.
2. Testimony that the defendant was arrested. An officer who responded to the victim's February 11, 2018 call testified that both the victim and the defendant were interviewed that night. Thereafter, the officer called his supervisor and they "discussed the incident -- this incident and we ended up making the determination that [the defendant] would be placed under arrest for domestic assault and battery." We agree with the defendant that in the circumstances presented here, this testimony placed "the imprimatur of the State on the decision to arrest or the charge," and should not have come before the jury. Commonwealth v. DaSilva, 471 Mass. 71, 81 (2015). However, we see no prejudice where the judge immediately gave the jury the following curative instruction:
"The answer stands about the arrest, [however,] what the charge was and what their decisions were has no influence. It's up to you as jurors to decide eventually what events occurred and what the facts were, not the police and not to be influenced in any way by what decision the police made."
The judge repeated this instruction in his final charge, along with instructions that (1) the complaint against the defendant was only an accusation and not evidence, and (2) the Commonwealth had the burden of proof beyond a reasonable doubt. In light of these instructions, we are satisfied that the error "did not influence the jury, or had but very slight effect" (citation and quotation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
3. Closing argument. The prosecutor began his closing argument by telling the jury that domestic violence is "becoming more common these days," or "[p]erhaps that's just not an accurate statement. Perhaps it's just that more people are speaking out about it and saying something about it. Perhaps in the past, people would close their eyes, shut their ears, close their mouths." The defendant objected to this argument and moved for a mistrial, which was denied. Instead, the judge reminded the jury "not to decide this based on any appeal to emotion." The judge continued,
"so any comments in closing about what -- how things were done now and things were done before about issues concerning domestic violence is not to be considered at all. It is improper argument, and it is not to be considered by you."
The defendant claims that this curative instruction was inadequate and reversal is required. We disagree.
"When determining whether error in a prosecutor's closing argument requires reversal, we consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusion" (citation and quotations omitted). Commonwealth v. Lewis, 465 Mass. 119, 130-131 (2013). Here, the challenged portion of the argument went to the heart of the case and the defendant objected. However, the judge specifically instructed the jury that the argument was improper and that they should not consider it. He also repeatedly instructed the jury that it was their role to find the facts, that closing arguments are not evidence, and that bias or sympathy could play no role in their decision. When we view the isolated comment "in [the] context of the entire argument and in conjunction with the judge's effective curative instruction," which we presume the jury followed, Commonwealth v. Hammond, 477 Mass. 499, 507 (2017), we are satisfied that the improper comment did not affect the outcome.
4. Verdicts. For reasons that are not clear from the record, the two counts of the complaint were charged in reverse chronological order, with the assault on February 11 charged as count one and the assault on February 4 charged as count two. At the beginning of the trial, the clerk mistakenly told the jury that both counts alleged assaults on February 11. While it was clear from the evidence at trial and the judge's instructions that there were two separate alleged assaults, the jury were never informed which count of the complaint related to which alleged assault. Adding to the confusion, the prosecutor incorrectly argued in closing that the alleged assault on February 4 was count one. Thereafter, the judge proposed, and the lawyers approved, identical verdict slips which contained no reference to count numbers, dates, or the conduct alleged. Thus, the only information communicated to the jury with respect to counts and dates was wrong.
The complaint, which correctly identified each charge by count number and date, was not submitted to the jury.
Despite these errors, the jury clarified the issue in their split verdict by writing "FEB 11TH" on the verdict slip marked "guilty" and "FEB 4TH" on the slip marked "not guilty." However, when the jury were asked in open court for their verdicts, the foreperson responded "not guilty" on count one and "guilty" on count two. There was an element of logic to that announcement. It would have been reasonable for the jury to assume, absent any guidance from the judge regarding count numbers and dates, that count one related to the first event in time and count two to the second.
A second judge (verdict judge) took the verdict because the trial judge was unavailable.
After the verdict was announced, the defendant asked to poll the jury on the guilty verdict. The verdict judge said "you would like to poll the jury on count [two], which is 2/11." That statement was incorrect because the February 11 assault was charged in count one. No one corrected the verdict judge, before or after she asked the jurors "one by one [to] give their decision on the 2/11" and each juror responded "[g]uilty." The clerk then recorded the verdict, incorrectly, as "Not Guilty (2/4/18)" on count one and "Guilty (2/11/18)" on count two.
Ten minutes after the jury were excused, court reconvened and the parties were shown the verdict slips. The defendant requested that the verdict judge enter judgments of not guilty on both counts, claiming the jury were confused and "[w]e have no idea what he was convicted of." The verdict judge denied the request, reasoning that, "regardless of all the pleadings, they were quite clear in the dates on the verdict slip." The case was continued for sentencing before the trial judge.
Six days later, the defendant filed a motion to enter a judgment of acquittal on the jury verdict, arguing that the verdict judge had no authority to set aside the foreperson's initial announcement of a not guilty verdict on count one. After hearing, the trial judge denied the motion "[b]ased upon the jury's verdict concerning the charges for 2/11/18 when it was polled." The judge then entered a judgment of conviction on count one and a not guilty verdict on count two.
On appeal, the defendant claims that he is entitled to a finding of not guilty on count one because that was the verdict initially announced in open court. We disagree. The general rule is that "[t]he only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be rendered, is an open and public verdict, given in and assented to, in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction of the court." Commonwealth v. Harris, 23 Mass. App. Ct. 687, 692 (1987), quoting Lawrence v. Stearns, 11 Pick. 501, 502 (1831). Although this rule has been applied strictly, it is not without exception. See Commonwealth v. Brown, 367 Mass. 24, 27 (1975) (verdict announced in open court corrected by judge after discharged jurors report error in announced verdict); Commonwealth v. Judd, 2 Mass. 329, 334 (1807) (jury verdict announced in open court amended by judge to add technical words); Commonwealth v. Andino, 34 Mass. App. Ct. 423, 427 (1993) (verdict announced in open court corrected by judge where guilty verdict returned on charge incorrectly read to jury by clerk).
The unusual facts of this case also require an exception to the general rule. The jury made clear that it was their intention to find the defendant guilty of the offense charging an assault and battery on his wife on February 11. They added a handwritten date on the verdict slip to differentiate their guilty verdict on that charge from their not guilty verdict on the alleged assault on February 4. While "verdict slips are of no binding legal significance," Commonwealth v. Powers, 21 Mass. App. Ct. 570, 574 (1986), they are "at least evidence of the jury's intended verdict." Andino, 34 Mass. App. Ct. at 427. Most significantly, when the jury were polled in open court, they unequivocally affirmed their guilty verdict of the assault and battery on February 11, 2018. After reviewing a transcript of the hearing at which the verdict was taken and recorded, the trial judge concluded that the jury's statements when they were polled in open court were controlling. This was not a reversal of the verdict as the defendant suggests. Rather the judge "properly corrected the verdicts to reflect the agreed determination." Id.
Judgment affirmed.