Opinion
20-P-965
05-26-2021
COMMONWEALTH v. Joseph SANCHES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was committed to the Massachusetts Treatment Center after a Superior Court jury found him to be a sexually dangerous person (SDP). See G. L. c. 123A, § 14. On appeal, the defendant claims that errors in the dismissal of two deliberating jurors deprived him of a fair trial. We affirm.
Background. Fourteen jurors were empaneled for the defendant's trial. Prospective jurors who disclosed travel plans that would interfere with their jury service were excused. One juror was dismissed during the trial due to a family emergency. On the seventh day of trial the jury were reduced to twelve and began their deliberations. The following day, the juror in seat thirteen (juror 13) failed to appear. After a hearing that defense counsel attended by teleconference with the defendant's consent, the judge discharged juror 13 and replaced that juror with the remaining alternate. Later that day, the judge informed counsel that the juror in seat four (juror 4) was scheduled to depart for a vacation. The parties agreed to discharge juror 4 and proceed with eleven jurors. The next day, the jury of eleven returned a unanimous verdict that the defendant was a sexually dangerous person.
Defense counsel was scheduled to appear in the Appeals Court on Wednesday. Rather than delay the jury, defense counsel suggested, and the defendant agreed, that deliberations should continue in counsel's absence, and that any issue (other than a verdict) could be addressed by telephone.
Discussion. The discharge of a deliberating juror is governed by G. L. c. 234A, § 39, which states in pertinent part:
"The court shall have the discretionary authority to dismiss a juror at any time in the best interests of justice.... The court shall have authority to excuse and discharge a juror participating in jury deliberations after a hearing only upon a finding of an emergency or other compelling reason. The court shall have authority to dismiss an impanelled juror who has not appeared for juror service upon a finding that there is a strong likelihood that an unreasonable delay in the trial would occur if the court were to await the appearance of the juror."
A "compelling reason" is one "personal to a juror, having nothing whatever to do with the issues of the case or with the juror's relationship with [their] fellow jurors." Commonwealth v. Connor, 392 Mass. 838, 844-845 (1984) (interpreting G. L. c. 234, § 26B ). "Although judges must exercise caution in discharging a deliberating juror, ... the judge has discretion to decide whether a juror is unable to perform his or her functions, ... and whether good cause, personal to the juror, exists for dismissal." Commonwealth v. Sanders, 451 Mass. 290, 306 (2008).
"Compelling reason" under G. L. c. 234A, § 39 is synonymous with the "good cause" standard of G. L. c. 234, § 26B, which was repealed in 2016. See Commonwealth v. Tiscione, 482 Mass. 485, 489 n.5 (2019).
1. Juror 13. Juror 13 disclosed no travel plans during voir dire and simply failed to appear for the second day of deliberations. After contacting defense counsel by telephone and obtaining a waiver of the defendant's presence, the judge explained that "juror no. 13 is not going to be here and he cannot be here ... [b]ecause apparently he had a plane ticket to fly out of town." Defense counsel then agreed to juror 13's discharge. When court reconvened, the judge explained the situation to the defendant, excused juror 13, seated the alternate, and instructed the jury to begin their deliberations anew.
The judge stated, "The law gives a judge the discretion to dismiss an absent juror after gathering enough information from available sources to make a finding that there's a strong likelihood of unreasonable delay from waiting for the juror. And based upon information obtained from the court officers as to travel plans of the juror, the Court finds that there's a strong likelihood of unreasonable delay from waiting for the juror." When the defendant tried to ask a question, the judge directed him to wait for his attorney.
The defendant claims on appeal that the judge was required to make a finding of emergency or other compelling reason before dismissing juror 13. He further claims that juror 13's discharge violated due process because he did not have an opportunity to confer with his attorney and was denied the right to be heard. We are not persuaded.
The emergency or other compelling reason standard for dismissing a deliberating juror does not apply "to those cases, such as the present, in which a juror fails to appear." Commonwealth v. Robinson, 449 Mass. 1, 10 (2007). "In that situation, the statute vests in the judge discretion to dismiss a juror on a finding that there is ‘a strong likelihood [of] unreasonable delay’ from waiting for the juror." Id., quoting G. L. c. 234A, § 39. The judge has discretion to determine that the facts show a strong likelihood of unreasonable delay, see Commonwealth v. Leftwich, 430 Mass. 865, 873 (2000), and "need only gather such information from available sources as is necessary" to satisfy and enable the judge to "arrive at a reasoned decision." Robinson, supra at 10, quoting Commonwealth v. Taylor, 33 Mass. App. Ct. 655, 657 (1992).
The judge found that there was a likelihood of unreasonable delay after hearing from court officers that juror 13 would not appear because he "had a plane ticket to fly out of town." This was not an abuse of discretion. See Commonwealth v. Colton, 477 Mass. 1, 16 (2017) (no abuse of discretion by judge who empaneled and later dismissed juror "due to juror's impending flight"); Sanders, 451 Mass. at 306-307 (no abuse of discretion in dismissing deliberating juror who had nonrefundable plane tickets). The defendant did not request a discussion with juror 13, before or after counsel arrived, and one was not required where the juror was absent. See Robinson, 449 Mass. at 10 (statutory hearing requirement "assumes the availability of the juror for the hearing"). Nor has the defendant established the prejudice required by G. L. c. 234A, § 74, where "the alternates selected were jurors whom the defendant had agreed could be seated; they had heard all the evidence; and the judge carefully instructed the newly constituted jury to begin their deliberations anew." Sanders, 451 Mass. at 307.
We are not persuaded by the defendant's argument that his right to due process was violated because he was not present during his attorney's teleconference with the judge. First, due process in these circumstances "is flexible, and no specific type of hearing is mandated in all situations." Robinson, 449 Mass. at 11 n.13. Second, this was not a criminal trial where the discharge of a deliberating juror was a critical stage of the proceeding requiring the defendant's presence. See Commonwealth v. Perez, 30 Mass. App. Ct. 934, 935-936 (1991) ; Mass. R. Crim. P. 18 (a), 378 Mass. 887 (1979). SDP proceedings under G. L. c. 123A are civil, not criminal. See Sheridan, petitioner, 422 Mass. 776, 778-779 (1996). Thus, "many constitutional protections associated with criminal sanctions do not apply." Commonwealth v. Blake, 454 Mass. 267, 276 n.10 (2009) (Ireland, J., concurring). However, due process rights "are fully respected in 123A hearings where the Commonwealth bears the burden of proof beyond a reasonable doubt, and the subject has the right to the assistance of counsel and ample rights of confrontation." Hill, petitioner, 422 Mass. 146, 152 (1996). See Commonwealth v. Barboza, 387 Mass. 105, 113, cert. denied, 459 U.S. 1020 (1982). Here, defense counsel was present and there is no claim that he was ineffective. We are satisfied that the defendant was afforded due process.
2. Juror 4. Juror 4 did not disclose travel plans to the judge during voir dire but shared them with two court officers. After learning of the juror's travel plans during deliberations, the judge asked the attorneys "whether there's any willingness to proceed with fewer than 12 [jurors]." Defense counsel agreed without consulting with the defendant, who was present. The Commonwealth also agreed and the judge made "clear on the record [that] ... there's agreement to proceeding on with 11 jurors." The jury of eleven deliberated the entire day Thursday and for forty minutes on Friday before delivering its verdict.
Relying on Commonwealth v. Bennefield, 482 Mass. 250, (2019), the defendant claims that the judge was required to conduct a colloquy with him before discharging juror 4, to determine whether his consent to a verdict by eleven jurors was knowing and voluntary. Bennefield, however, addressed a criminal defendant's constitutional right to a jury trial. See id. at 256. The right to a trial before twelve jurors in a proceeding under G. L. c. 123A is statutory, not constitutional. See Sheridan, petitioner, 422 Mass. at 779 ; Barboza, 387 Mass. at 112-113. See also G. L. c. 123A, § 14 (a ) ; G. L. c. 234A, § 68. The right may be waived "where all parties have by stipulation agreed." G. L. c. 234A, § 68. See Mass. R. Civ. P. 48, 450 Mass. 1404 (2008) ("The parties may stipulate that the jury shall consist of any number less than twelve"). Neither the statute, the rule, nor any case we have found, requires a colloquy with the defendant. Here, the parties twice agreed to waive the statutory requirements and proceed with eleven jurors. Nothing more was required.
The constitutional right to a jury trial in civil cases applies "[i]n all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised." Terrio v. McDonough, 16 Mass. App. Ct. 163, 170 & n.4 (1983), quoting art. 15 of the Massachusetts Declaration of Rights.
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Moreover, even were we to assume a statutory violation, the defendant has neither claimed nor shown prejudice. See Commonwealth v. Levy, 29 Mass. App. Ct. 279, 286-287 (1990), quoting Commonwealth v. A Juvenile (No. 2), 396 Mass. 215, 224 (1985) ("the deprivation of a statutory right is not grounds for reversal unless the defendant can demonstrate resulting prejudice"). The defendant was present when counsel stipulated to proceeding with eleven jurors -- on the following day when the reduced jury deliberated and on the day the verdict was delivered. He did not object. See Bennefield, 482 Mass. at 257 n.6 ("the fact that the trial went forward without objection demonstrates on the record the parties’ apparent agreement to do so"). Where the defendant agreed upon the alternates selected, the alternates heard all the evidence, and the jury deliberated anew as reconstituted, there was no prejudice. See Sanders, 451 Mass. at 307.
Judgment affirmed.