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12-P-1634                                                Appeals Court

                 COMMONWEALTH     vs.   THOMAS MURPHY.


                             No. 12-P-1634.

      Middlesex.         October 9, 2013.   -   August 12, 2014.

            Present:    Cypher, Katzmann, & Maldonado, JJ.


Practice, Criminal, Jury and jurors, Voir dire, Required
     finding. Constitutional Law, Impartial tribunal, Jury.
     Jury and Jurors. Breaking and Entering.



     Indictments found and returned in the Superior Court
Department on June 30, 2009.

     The cases were tried before S. Jane Haggerty, J.


     Kenneth I. Seiger for the defendant.
     Kimberly Rugo, Assistant District Attorney, for the
Commonwealth.


     KATZMANN, J.      The primary issue in this appeal arises from

the denial of the defendant's request for a postverdict hearing

regarding the potential partiality of a juror.       The defendant

was convicted by a jury of four counts of breaking and entering,

three counts of larceny, and three counts of malicious
                                                                       2


destruction of property emerging from incidents at four gas

stations.   Shortly after the jury trial, the prosecutor reported

to the Superior Court judge that, after the verdict, a juror

spoke to the proprietor of one of those gas stations -- Welch's

Automotive in Littleton –- who was also a witness at trial.      The

trial judge denied the defendant's request for a postverdict

evidentiary inquiry.     The defendant appeals, seeking such a

hearing on remand, and further claiming that there was

insufficient evidence to support the conviction of breaking and

entering at Welch's Automotive.     We affirm.

     Background.     Between September, 2007, and May, 2008, a

spate of break-ins occurred at gas stations in the adjacent

towns of Littleton, Boxborough, and Westford, and the nearby

town of Concord. 1   On September 18, 2007, the incident that is

the heart of this case occurred.     An alarm at Welch's Automotive

Services (Welch's), a gas station and garage in Littleton,

automatically notified the Littleton Police Department.     When

Sergeant Robert Raffalo arrived at Welch's, he investigated

together with the owner of the gas station, Mark Shapiro, who

was notified as well.     They discovered that a ground-level panel

     1
       The defendant was indicted for six counts of breaking and
entering: at Welch's Automotive Gulf Station in Littleton, on
September 18, 2007; Pump and Pantry Sunoco in Concord, on
September 18, 2007; Burke Exxon in Boxborough, on September 20,
2007 and April 10, 2008; at Concord Gas in Concord, on April 10,
2008; at Rapid Refill in Westford, on May 25, 2008.
                                                                     3


from one of the garage doors appeared to have been kicked in and

was lying on the ground.    There was a footprint on the panel

with a distinctive pattern on it, which investigators later

matched to the sneakers of the defendant.    No other property was

taken or damaged. 2   A jury convicted the defendant of breaking

and entering. 3

     We briefly summarize the facts of the additional incidents

because of their relevance to the defendant's sufficiency of the

evidence claim with respect to the Welch's conviction.     Later

that same evening, a break-in occurred at Concord Pump and

Pantry, a gas station and convenience store in Concord, and

money and cigarettes were stolen.    The incident was captured on

a surveillance video, through which the defendant was

identified.    Approximately twenty-four hours later, the pattern

continued at Burke Exxon in Boxborough; this incident was also

captured on video.    On April 10, 2008, the incidents resumed,

with evidence of a second incident at Burke Exxon in Boxborough

and an incident at Concord Gas in Concord.    At Concord Gas, a

lower panel of a garage door was kicked in -- as at Welch's --

with a similar footprint on the panel.    Finally, on May 25,

2008, at Rapid Refill in Westford, a video surveillance system

     2
         No money was in the cash register that evening.
     3
       The jury acquitted the defendant of malicious destruction
of property over $250.
                                                                   4


captured two people throwing a rock through the front door,

entering the building, and taking cash and other items.

     On October 21, 2010, the jury returned its verdicts with

respect to each gas station incident. 4   A jury-waived trial on

the sentencing enhancement portions of each indictment was

scheduled for the following Wednesday, October 27. Immediately

before the trial was scheduled to begin, the prosecutor reported

that she had spoken to the owners of the businesses that were

the victims of the break-ins, as well as witnesses that

testified at trial, to inform them of the outcome of the trial.

The following exchange between the prosecutor and the court

ensued:

     The prosecutor:    "[Shapiro, the owner of Welch's and the
                        first witness] also told me that a juror
                        had come to Welch's Automotive on Friday
                        after the trial; that the trial had ended
                        and that this juror had told him the
                        outcome of the trial and that the juror
                        apparently disclosed to him that he had
                        in the past been a customer of Welch's
                        Automotive. This juror was from
                        Westford."[5]

     The court:         "The juror said?"

     The prosecutor:    "That he in the past had been a customer
                        of Welch's Automotive."

     4
       The defendant was convicted on all indictments with
respect to these additional incidents, except for the April 10,
2008, incidents in Boxborough and Concord.
     5
       We take judicial notice of the fact that the town of
Westford is adjacent to the town of Littleton.
                                                                   5



     The court:          "Okay."

     The prosecutor:     "Mr. Shapiro did not recognize this juror
                         in any way. Mr. Shapiro just expressed
                         to me surprise because he thought anyone
                         who knew anybody or was familiar with any
                         location in the trial was automatically
                         excused. I explained to him the
                         impanelment process, that people are
                         questioned about whether or not their
                         impartiality is affected by any such
                         means."

     The court:          "Did Mr. Shapiro even recognize the
                         juror?"

     The prosecutor:     "He did not at all."

     The court:          "Oh, okay."

     The prosecutor:     "He did not at all. He did not recognize
                         him as a previous customer at all."

The encounter between Shapiro and the juror had occurred October

22, the Friday before it was reported to the court by the

prosecutor and the day after the conclusion of the jury trial.

The prosecutor said that she reported the encounter "[i]n an

abundance of caution," but argued that no further inquiry was

necessary.   Defense counsel argued to the contrary that, "in an

abundance of caution, it would probably be wise for the [c]ourt

to have Mr. Shapiro and the juror come in and to question them

to flesh this out."    Defense counsel questioned the candor of

the juror in answering voir dire questions.     The court noted

that the names of the particular businesses were not mentioned
                                                                    6


during the voir dire.   Over defense counsel's objection, the

judge determined that no additional inquiry was necessary.

     Discussion.   On appeal, the defendant contends that the

trial judge erred in not conducting a postverdict evidentiary

hearing regarding improper extraneous influence and juror bias. 6

We disagree.

     This appeal implicates two principles.    On the one hand,

the Sixth Amendment to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights guarantee criminal

defendants the right to a trial by an impartial jury.    See

Commonwealth v. Bresnahan, 462 Mass. 761, 770 (2012).    See also

Commonwealth v. Guisti, 434 Mass. 245, 251 (2001).    "[E]ven one

partial juror violates this right."   Ibid.   On the other hand,

well-established precedent recognizes "the finality of jury

verdicts and protection of jurors from unwelcome solicitation or

harassment by litigants following their jury service."

     6
       We note that, while the defendant requested such a hearing
on the morning of the sentencing enhancement trial, he did not
advance it by motion for new trial, with supporting affidavits,
at that time or after the denial of his request. A motion for
new trial is the recognized route for raising postverdict claims
because it permits a clarified record to serve as a basis for
the judge's decision and for appellate review. See, e.g.,
Commonwealth v. Fidler, 377 Mass. 192, 194 n.2 (1979);
Commonwealth v. Werner, 81 Mass. App. Ct. 689, 693 (2012). In
the interest of judicial economy, we conclude that, based on the
record before us, this is one of those rare cases where we are
able to resolve a postverdict claim without further proceedings
below. Cf. Commonwealth v. Zinser, 446 Mass. 807, 811-812
(2006).
                                                                     7


Commonwealth v. Bresnahan, supra at 769.    "Cases in which

postverdict inquiry was proper have been narrowly limited."

Commonwealth v. Semedo, 456 Mass. 1, 22-23 (2010).    Generally, a

postverdict inquiry of a juror may only be conducted if the

court finds that extraneous matters became part of the jury's

deliberations, Commonwealth v. Fidler, 377 Mass. 192, 193

(1979), or where a reasonable basis of racial or ethnic

prejudice, see Commonwealth v. Laguer, 410 Mass. 89, 97 (1991),

or some other personal bias is raised, see Commonwealth v.

Guisti, 434 Mass. at 253.   "Where a case is close, . . . a judge

should exercise discretion in favor of conducting a judicial

inquiry."   Ibid., quoting from Commonwealth v. Dixon, 395 Mass.

149, 153 (1985).   The defendant here contends that an

evidentiary hearing was necessary to ensure that he received a

fair trial free of extraneous influence and bias.

     1.   Extraneous influence.   When there is a claim of

extraneous influence on a jury, the defendant "bears the burden

of demonstrating [by a preponderance of the evidence] that the

jury were in fact exposed to the extraneous matter."

Commonwealth v. Fidler, supra at 201.    See Commonwealth v.

Kincaid, 444 Mass. 381, 386 (2005). 7   "A trial judge has broad



     7
       If the defendant meets the burden of showing that the
extraneous matter came to the jury's attention, "the burden then
shifts to the Commonwealth to show beyond a reasonable doubt
                                                                    8


discretion in determining whether a postverdict inquiry of a

juror is warranted and is under no duty to conduct such an

inquiry unless the defendant makes a 'colorable showing' that

extraneous matters may have affected a juror's impartiality."

Commonwealth v. Guisti, supra at 251, quoting from Commonwealth

v. Dixon, supra at 152.   "[T]here must be something more than

mere speculation," and, here, the defendant has not provided any

more.   Commonwealth v. Dixon, supra, quoting from United States

v. Barshov, 733 F.2d 842, 851 (llth Cir. 1984), cert denied, 469

U.S. 1158 (1985).   See also Commonwealth v. Philyaw, 55 Mass.

App. Ct. 730, 737 (2002).

     Typically, extraneous influences are "specific facts not

mentioned at trial concerning one of the parties or the matter

in litigation . . . brought to the attention of the deliberating

jury," Fidler, supra 200, such as pretrial publicity about the

case, Commonwealth v. Cameron, 385 Mass. 660, 668 (1982), or

extraneous information about the defendant, Commonwealth v.

Kamara, 422 Mass. 614, 616-617 (1996), or the crime scene.    See

Commonwealth v. Cuffie, 414 Mass. 632, 636-638 (1993);

Commonwealth v. Philyaw, supra at 737.   The animating principle

is that "[l]itigants are entitled to a decision on the evidence

at trial, governed by the rules of evidence," and, "[w]hile the


that [the defendant] was not prejudiced by the extraneous
matter." Commonwealth v. Fidler, supra at 201.
                                                                     9


jury may leaven its deliberations with its wisdom and

experience, in doing so it must not bring extra facts into the

jury room."    Ibid. (citation omitted).

       In determining whether the juror's purported familiarity

with Welch's Automotive constituted an extraneous influence, we

find instructive the cases pertaining to unauthorized juror

visits to crime scenes.    While "[a] juror's unauthorized visit

to a location relevant to a case is not per se prejudicial,"

"[c]ompetent evidence that [a juror] . . . had access to

potentially prejudicial information unfiltered by the trial

process may suffice to invalidate a verdict."    Commonwealth v.

Cuffie, supra at 636-637.    Where a defendant claimed mistaken

identity, a juror's visit to a crime scene in order to determine

how well a police officer could see a defendant provided her

with "extraneous information by which to evaluate the testimony

of the officer on this point."    Id. at 637 n.6.   The court held

that it was therefore error for the judge not to conduct a voir

dire to determine whether the visit had occurred and what the

juror might have communicated to her fellow jurors.    Id. at 636-

637.    See Commonwealth v. Philyaw, supra at 739-740 (where

police officers identified the defendant as climbing over fences

and where his main defense was misidentification, buttressed by

his alleged inability to navigate such fences after an

automobile accident, it was error for the judge not to conduct a
                                                                    10


voir dire where an affidavit alleged that, prior to verdict, a

juror had visited the scene to assess the fences with respect to

the defendant's ability to scale them).

     Unlike Cuffie and Philyaw, this case does not present any

possible extraneous influence that "may suffice to invalidate a

verdict."   Cuffie, supra at 637.   The defendant has not alleged

that "specific facts not mentioned at trial concerning . . . the

matter in litigation were brought to attention of the

deliberating jury . . . ."    Commonwealth v. Philyaw, supra at

739, quoting from Commonwealth v. Fidler, supra at 200.    Any

knowledge of Welch's that the juror might have obtained as a

customer would have been essentially coincident with the

evidence of the site presented at trial.    There were no facts,

unfiltered by the trial process, which could have influenced the

juror or been communicated to other jurors.    Thus, no further

inquiry was necessary to determine whether the verdict had been

tainted by an extraneous matter.

     2.   Juror bias.   The defendant asserts that an evidentiary

hearing was required to assess the juror's bias because the

juror had been a customer of the witness's business, Welch's

Automotive, which had been the location of an alleged breaking

and entering.   "Although juror bias is not an extraneous matter,

a postverdict inquiry may be appropriate where there is evidence

of bias in order to ensure that the defendant received a fair
                                                                   11


trial."    Commonwealth v. Guisti, 434 Mass at 253, and cases

cited.    When a defendant raises a "'reasonable claim' of juror

bias" after the verdict, due process requires a hearing.

Commonwealth v. Guisti, supra at 254, quoting from Commonwealth

v. Amirault, 399 Mass. 617, 625 (1987).    We review this

determination for abuse of discretion.    See Commonwealth v.

Amirault, supra at 627.    A showing of actual or implied bias

constitutes structural error, and the defendant need not show

that the verdicts were affected by the impartiality.    See

Commonwealth v. Hampton, 457 Mass. 152, 163 (2010).

     The essence of the defendant's claim is not so much that

the juror was biased against him, but that he, as a customer,

was biased in favor of the witness whose business was allegedly

the target of criminal activity. 8   Under these circumstances, we

do not consider that relationship to be the kind that would

intrude upon a juror's ability to assess uncontroverted

evidence.    See Commonwealth v. Subilosky, 352 Mass. 153, 161

(1967) (the fact that a prospective juror had an account in or

did business with a bank that had been robbed would not be basis

for disqualification in trial for robbery of the bank).     The

juror's hypothesized partiality to Shapiro as the proprietor of

     8
       In assessing the relationship between juror and witness,
while the court could no doubt properly consider that Shapiro
stated that he did not recognize the juror, that fact would not
be dispositive of the juror's possible familiarity with Shapiro.
                                                                    12


Welch's -- supposedly biasing him against the defendant -- does

not rise above the level of "mere speculation," as it must to

require further postverdict inquiry. 9   Commonwealth v. Dixon, 395

Mass. at 152, quoting from United States v. Barshov, 733 F.2d.

at 851.   The judge did not abuse her discretion in concluding

that an evidentiary hearing was not warranted.

    The defendant also argues that the juror's conversation with

Shapiro postverdict suggests that he may have not answered one

of the voir dire questions truthfully.    At voir dire, the list

of the witnesses' names was read, along with the hometown of

each, but no other information was shared.    Before the list was

read, the judge explained, "I want to make sure that you're not

related to them and that you don't know any of these people."

After the list was read, the judge asked the jurors whether they

knew or were related to any of the potential witness, and none

of the jurors answered in the affirmative.    Prior to the reading

of the witness list, the judge had informed the jury of the

nature of the allegations in the case, including that it

involved gas stations in the towns of Littleton, Concord,

Boxborough, and Westford.   But the identities of the individual

gas stations -- including Welch's Automotive -- were not

     9
       This case does not raise suspicions regarding the juror's
ability to impartially evaluate the credibility of Shapiro as a
witness because Shapiro testified only to undisputed facts to
which the investigating officer also testified.
                                                                  13


revealed until after the voir dire.   The defendant argues that

the fact that the juror approached Shapiro at the gas station

suggests that the juror would have recognized Shapiro's name

and, thus, that his negative response to this question at voir

dire was false, calling into question the integrity of the

verdict.   Quite apart from the fact that several benign

alternatives are equally plausible, 10 we do not think that an

evidentiary hearing was required here.

     "An impartial jury are the cornerstone of a fair trial;

'[t]he failure to grant a defendant a fair hearing before an

impartial jury violates even minimal standards of due process.'"

Commonwealth v. Amirault, 399 Mass. 617, 624 (1987), quoting

from Commonwealth v. Susi, 394 Mass. 784, 786 (1985).   "Voir

dire examination serves to protect th[is] right by exposing

possible biases, both known and unknown, on the part of

potential jurors. . . .   The necessity of truthful answers . . .

is obvious."    McDonough Power Equip., Inc. v. Greenwood, 464

U.S. 548, 554 (1984) (McDonough).   That said, "defendants must

also recognize that they are not entitled to perfection in the

trial process."   Commonwealth v. Amirault, supra.



     10
       The juror may not have recognized Shapiro at all at trial
but recognized him at the gas station based in Shapiro's role as
a witness at trial. Or the juror may have recognized Shapiro
based on his appearance as soon as he took the stand.
                                                                 14


     "[T]o obtain a new trial . . . , a party must first

demonstrate that a juror failed to answer honestly a material

question on voir dire, and then further show that a correct

response would have provided a valid basis for a challenge for

cause."   Commonwealth v. Amirault, supra at 625.   See

Commonwealth v. Emerson, 430 Mass. 378, 384 (1999), cert.

denied, 529 U.S. 1030 (2000).   If the judge finds that the juror

answered voir dire questions mistakenly, but honestly, the

analysis as to actual bias ends, and the judge must find the

juror impartial.   See McDonough, supra at 556 ("[T]he motive for

concealing information may vary, but only those reasons that

affect a juror's impartiality can truly be said to affect the

fairness of a trial").

     In this case, where during the voir dire, the witnesses

were only identified by name and hometown; the witnesses were

not presented to the jury during jury selection; there was no

link during voir dire between the witnesses and the gas stations

that had been targeted; and no colorable reason has been

presented as to why a juror would deliberately give a false

answer; we cannot say that the judge abused her discretion in

failing to hold an evidentiary hearing on juror bias.     See

Commonwealth v. Emerson, supra (juror bias is a question of fact
                                                                   15


reviewed for abuse of discretion). 11    Nor could we conclude that,

even if the juror were honest though mistaken in his answer,

this is one of those exceptional situations where, because of

the relationship between the juror and the witness, bias can be

implied as a matter of law.   See Commonwealth v. Amirault, 399

Mass. at 628.   The defendant has not made the requisite showing

of juror bias to warrant a postverdict inquiry. 12    See id. at 625

(postverdict hearing required if defendant raises a "reasonable

claim" of juror bias).   See also Commonwealth v. Guisti, 434

Mass. at 253-254. 13

     3.   Sufficiency of the evidence.    The defendant argues that

the evidence was insufficient to support a conviction for

breaking and entering at Welch's Automotive.     We consider the

evidence in the "light most favorable to the Commonwealth" to

determine whether "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

     11
       Even if the juror had not answered honestly, a correct
answer would not have provided a valid basis for a challenge for
cause. See Commonwealth v. Subilosky, 352 Mass. at 161.
     12
       Because we determine that there was no need for a
postverdict inquiry with respect to the Welch's conviction, we
need not consider the defendant's argument that bias taints the
other convictions as well.
     13
       Another judge could reasonably elect to conduct a voir
dire. However, the rejection of that alternative in these
circumstances did not constitute an abuse of discretion.
                                                                    16


from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).     A

conviction may be entirely or partially supported by

circumstantial evidence and the permissible inferences drawn

therefrom.    See Commonwealth v. Fitzpatrick, 463 Mass. 581, 590

(2012).   "To be permissible, an inference need only be

'reasonable and possible', not 'necessary or inescapable.'"      Id.

at 590-591, quoting from Commonwealth v. Casale, 381 Mass. 167,

173 (1980).

     Viewed in the light most favorable to the Commonwealth,

the evidence was sufficient to establish the defendant as the

perpetrator.   The central question at trial with regard to the

break-in at Welch's was one of identification.    The evidence

included a photograph of the panel that had been dislodged from

the garage door at Welch's featuring shoeprints.    The patterns

of the shoeprints matched the soles of the sneakers that were

recovered from the defendant.   Additional circumstantial

evidence also linked the Welch's break-in to the incidents at

the other nearby gas stations, which occurred in a similar

manner.   In particular, videotape surveillance evidence from

other incidents was admitted alongside evidence that a witness

has previously identified the defendant as the individual in

those videotape recordings.   The jury also could have inferred

that, after finding no cash at Welch's, the defendant then

traveled to a nearby Concord gas station to break into it.
                                                                  17


Taken together, there was sufficient evidence to sustain the

conviction of the defendant of breaking and entering at Welch's

Automotive.

                                   Judgments affirmed.
