Opinion
No. 12–P–300.
2013-05-10
Kaleigh HALLORAN & others v. Thomas BUSSONE, Third.
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment for the defendant asserting jury misconduct. We affirm.
The plaintiffs brought claims resulting from personal injury sustained by their minor daughter when she was struck by the defendant while he was driving his automobile. After hearing the evidence, the jury found the defendant forty-nine percent comparatively negligent. One juror was observed to be crying while the verdict was delivered. Two weeks after the verdict was recorded, a juror, number 105, left a voice mail message on the phone of the assistant clerk assigned to the session. The material part of the transcribed message, taken from the judge's memorandum and decision denying the plaintiffs' motion to conduct a posttrial interview, is set forth in the margin. The plaintiffs' claims of juror misconduct are based on the voice mail message and consist of (1) vote tampering, (2) partial deliberations, and (3) introduction of “extraneous materials.” The judge conducted a nonevidentiary hearing and considered each claim in a careful and detailed memorandum of decision. For the same reasons enunciated by the judge below, we conclude that there was no error.
“I was horrified during that case, I actually didn't want to be it. I was bullied. I was harassed. I was—felt threatened. It was horrible. I was in tears most of the time. Our clerk has a—well, the bailiff guy, he was awesome. He had to come in two times to break up, like, fighting. People who shouldn't have been on that jury, shouldn't have been there. One lady left. She was African American. And she went down to the judge crying, because it was—it was really threatening. I don't think it was fair. I was bullied into my questions. They altered my vote. I changed my vote five times back. They were harassing me. They wanted out of there. They didn't want to be staying on the case. They wanted out. They didn't want to stay any longer than they had to. It was—it's been almost two weeks, and I can't think—I can't even think straight. I was harassed. I was bullied. I was threatened. I felt terrified. And the outcome of that was a complete false (sic). It should have not gone that way. And I—unfortunately, the system the way it is, it should be a little bit more fair.... I was hysterical when I left. I was crying my eyes out. I couldn't even believe my ears. I—this one wiley-headed (sic) kid was horrible. This other—oh, you have no idea what I went through, and I'm still going through it.... I hemmed and hawed about calling you guys. I didn't know what I should do. But I really want to call and tell you that I was bullied into my answers. And I think that this should be brought back into the court system because it wasn't fair. People wanted out. They didn't want to sit on the jury any longer. And not only I felt that way, but another woman left crying her eyes out, as well, halfway through it.... And they were talking, you know, amongst themselves, you know, during lunches, prior, before. I was in the bathroom. They were chit-chatting.”
Vote tampering. The judge found that the behavior described in the voice mail message was analogous to the facts recited in Commonwealth v. Pytou Heang, 458 Mass. 827 (2011): “According to the juror, other jurors ‘lean[ed] across the table into our faces and insist[ed] on yelling at us, screaming, swearing, and throwing books and pens just because we [saw] some things differently.’ After the other two holdouts changed their minds, the juror claimed that she was subjected to ‘8 hours of constant interrogation,’ with jurors ‘constantly yelling at me and swearing and pointing finger[s] in my face across the table and telling me that I am crazy.’ “ Id. at 857.
The communication in Pytou Heang, as here, “detailed stresses that sometimes surface in the deliberative process required to get twelve individuals with differing views of the evidence to reach a unanimous verdict. ‘Tension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations.’ “ Id. at 858, quoting from Commonwealth v. Semedo, 456 Mass. 1, 23 (2010). The court concluded there, as we do here, that these allegations did not indicate irregularities in the deliberative process.
Absent evidence of improper discriminatory animus or improper extraneous material (considered below) it was not an abuse of discretion for the judge to decline to make further inquiry.
Partial deliberations. The plaintiffs complain of misconduct, alleging that jurors discussed the case prior to the completion of the evidence, prior to the judge's delivery of instructions, and prior to the formal commencement of deliberations. Again, our standard of review is informed by the judge's broad discretion in considering whether postverdict inquiry is warranted. See Commonwealth v. Dixon, 395 Mass. 149, 151 (1985), and cases cited therein. Even if the jury disregarded the instructions not to discuss the case prior to deliberations, that “would not provide a basis to conclude that the verdicts were tainted” in the absence of a showing that the discussions involved facts not in evidence. Commonwealth v. Mahoney, supra at 856.
Juror testimony concerning mental processes, or testimony that jurors did not follow the judge's instructions, is not permitted to impeach a verdict. Commonwealth v. Fidler, 377 Mass. 192, 197–198 (1979) (juror testimony is allowed to demonstrate certain improprieties such as an unauthorized view, consideration of documents not in evidence, or improper communications with outside parties, but not to show effect on jury deliberations). We discern no error.
Extraneous materials. This claim fails as well; the plaintiffs have not alleged the introduction of extraneous material. Their claim in this regard is based on the allegation that two jurors recounted their personal experiences when they had been involved in pedestrian/motor vehicle accidents. This was no more than the introduction of life experience brought to bear on a consideration of the evidence. Jurors may rely on “common sense, experience, and any expertise they may have on a given subject.” Blank v. Hubbuch, 36 Mass.App. Ct 955, 958 (1994). There is no claim here that jurors were introduced to material concerning the events of this case not in evidence.
Judgment affirmed.