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17-P-1012                                            Appeals Court

             COMMONWEALTH   vs.   SHEENA R. DiBENEDETTO.


                            No. 17-P-1012.

      Worcester.        October 5, 2018. - January 11, 2019.

            Present:   Massing, Ditkoff, & Englander, JJ.


Assault and Battery. Practice, Criminal, Verdict, Instructions
     to jury, Deliberation of jury, Question by jury. Jury and
     Jurors.


     Complaint received and sworn to in the Worcester Division
of the District Court Department on July 5, 2016.

    The case was tried before Paul F. LoConto, J.


     Mathew B. Zindroski for the defendant.
     Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.


    MASSING, J.    As a general rule, evidence of a jury's

internal thought processes cannot be used to impeach a verdict.

In this appeal, we consider whether this rule applies when the

judge learns, after a guilty verdict has been affirmed and

recorded, that the jurors misunderstood the unanimity

instruction and convicted the defendant by a vote of four to
                                                                     2


two.    Concluding that the rule does apply -- and that the judge

should have accepted the original verdict instead of sending the

jurors out to continue deliberations, resulting in a second

guilty verdict -- we affirm the defendant's conviction in the

District Court of assault and battery of a family or household

member, in violation of G. L. c. 265, § 13M (a).

       Background.   We briefly summarize the trial testimony, then

discuss in greater detail the circumstances surrounding the

taking of the verdict.    The defendant arrived at the home of the

father of her two children to pick them up for a scheduled trip

to Niagara Falls.     The father expected the defendant at 8 A.M.,

but she arrived at 4:30 A.M. and banged on the front door.

After an unfriendly exchange of words, the defendant punched the

father in the face.    She claimed that she struck him in self-

defense.

       In the final charge, the judge instructed the jury that the

defendant is presumed innocent "unless and until the evidence

convinces you unanimously as a jury that the defendant is guilty

beyond a reasonable doubt."    The judge reiterated, "And, again,

your verdict whether it is guilty or not guilty must be

unanimous."    After selecting the foreperson, the judge explained

to her, "Once your jury has reached a unanimous verdict, that is

all six of you agree, it's your obligation to mark the verdict

slip."
                                                                     3


    Following the judge's charge, the jury deliberated for

approximately forty minutes and reached a verdict.    Before

taking the verdict, the judge informed the jury that they would

be free to talk about the case after they were discharged, and

"although I'm going to discharge you . . . I do want to see you

ever so briefly in the deliberation room before you leave the

building."

    The clerk then asked if the jury had reached "a unanimous

verdict."    The foreperson answered, "Yes, we have," and that the

verdict was guilty.    After recording the verdict, the clerk

asked the foreperson to confirm that the verdict of guilty was

accurate.    She responded, "That is correct."   The clerk then

asked the entire jury if the guilty verdict was correct, and

they affirmed that it was.    The judge then excused the jury,

stating, "I'm going to now formally discharge you.    I'm going to

see you momentarily in the jury deliberation room."     The judge

told the parties, "I'm just going to say goodbye to the jurors

and give them an opportunity if they want to present any

questions or criticisms.    I'm not going to discuss with them

potential penalties or their deliberation obviously."

    After a brief recess, the judge returned to the court room

and explained that after thanking the jurors for their service,

he had solicited feedback about their experience, emphasizing

that he did not want to hear about their deliberative process.
                                                                       4


A juror asked, "[W]hat would happen" if the result was four to

two.    The judge responded, "[Y]our decision has to be

unanimous."   Another juror then offered, "[W]ell, that should be

made more plain, more clear."    The first juror added, "[B]ecause

it wasn't unanimous."    At this point, the judge ended the

conversation, told the jury, "I can't discharge you right now,"

and returned to the court room.

       The judge informed the parties that he intended to bring

the first juror into the court room to see if he had correctly

understood her comments.    Without objection, the judge described

his recollection of the conversation to the juror and asked what

she had meant when she said the verdict was not unanimous.       The

juror responded, "[T]wo of us, we didn't find the defendant

guilty and four did."    The juror said that she had voted not

guilty and identified the foreperson as the other not guilty

vote.   She had "kept quiet" during the affirmation because the

foreperson had said that only a majority was needed to reach a

verdict.

       The judge sent the juror back to the deliberation room with

instructions to not speak with anyone and called the foreperson

into the court room.    When asked if she understood whether the

verdict had to be unanimous, she replied, "All six of us thought

it was the majority," and, "I guess nobody paid attention to the

word unanimous."    The judge sent the foreperson back to the
                                                                     5


deliberation room with instructions to have no discussion with

anyone.

    The judge suggested, and the parties agreed, that the jury

should continue deliberations after being reinstructed on

unanimity.    The judge brought the jury back to the court room,

instructed them that "all six of you would have to agree that

the defendant is guilty or the defendant is not guilty," and

ordered them to resume deliberations.     Later that day, after

asking to be reinstructed on self-defense, the jury again

reported that they had reached a verdict.     The foreperson

announced the verdict of guilty; the judge polled the jury, and

all affirmed that they had voted guilty.     The judge thanked the

jury and dismissed them, stating, "You are discharged and free

to leave."

    Discussion.      Although at trial she agreed with how the

judge handled the issue, the defendant now contends that by the

time the judge learned that the original verdict was not

unanimous he had already discharged the jurors and could not

validly order them to continue deliberations.    Accordingly, she

asks that we set aside the second verdict and order a new trial.

The Commonwealth responds that the original verdict was valid

and, in the alternative, that the second verdict was valid as

well.     We conclude that the jury's original guilty verdict was

final when the foreperson announced it in open court, the rest
                                                                     6


of the jury affirmed it, and the clerk recorded it.    None of the

jurors publicly voiced or otherwise indicated disagreement, nor

did any of them come forward to state that the verdict was not

accurate.    Only when the judge later invited the jury to express

their criticisms and suggestions did the jurors communicate the

content of their deliberations.    The original verdict should not

have been disturbed.1

     "Before a verdict has been affirmed and recorded, the judge

may set it aside or instruct the jury and send them out for

further deliberation."     Commonwealth v. Brown, 367 Mass. 24, 28

(1975).     The announcement and affirmation of the verdict

provides "each juror . . . an opportunity to express his dissent

to the court, in case his decision has been mistaken or

misrepresented by the foreman or his fellows, or in case he has

been forced into acquiescence by improper means."     Commonwealth

v. Lawson, 425 Mass. 528, 530 (1997), quoting Lawrence v.

Stearns, 11 Pick. 501, 502 (1831).     See Commonwealth v. Nettis,

418 Mass. 715, 718 (1994) (verdict not final where juror

publicly indicated dissent during affirmation).




     1 We recognize that the judge endeavored not to intrude into
the jury's deliberative process, and that his subsequent actions
were taken solely "out of concern for an accurate verdict and
fair treatment of the defendant. The judge was correct to place
[his] concerns on the record in the presence of all counsel."
Commonwealth v. Lassiter, 80 Mass. App. Ct. 125, 130 n.8 (2011).
                                                                  7


     After being affirmed by the jury and recorded by the clerk,

however, the verdict is final.   See Commonwealth v. Martell, 407

Mass. 288, 292, 294 (1990); Lawrence, 11 Pick. at 502.    Once the

verdict is affirmed and recorded, "a judge is generally

precluded from inquiring into alleged improprieties in the

jury's deliberations or decision-making."   Commonwealth v.

Lassiter, 80 Mass. App. Ct. 125, 130 (2011).2   A judge cannot

vacate a verdict based on "a juror's change of heart nor a

juror's subsequent disclosure of a subjective disagreement with

her apparent vote."    Commonwealth v. Dias, 419 Mass. 698, 703

(1995).   "Whatever disagreement that a juror may have secretly

entertained but did not indicate in open court may not be the

basis for reversal."   Lawson, 425 Mass. at 532.

     Impeaching a duly recorded verdict by subsequent inquiry

into the jurors' deliberations has long been prohibited.    See

Tanner v. United States, 483 U.S. 107, 117 (1987); McDonald v.

Pless, 238 U.S. 264, 267-268 (1915); Commonwealth v. Moore, 474

Mass. 541, 544-545 (2016).   See also Commonwealth v. Fidler, 377

Mass. 192, 195 (1979) (tracing "rule against juror impeachment

of a verdict" to Vaise v. Delaval, 99 Eng. Rep. 944 [K.B.


     2 A judge does not violate this rule by allowing jurors "to
correct formal and clerical errors in the recording of verdicts
to which they had properly agreed." Brown, 367 Mass. at 28.
See Latino v. Crane Rental Co., 417 Mass. 426, 430 (1994) ("When
a jury reached a verdict but it was improperly reported, we have
allowed a correction to be made").
                                                                   8


1785]).   "The proper evidence of the decision of the jury is the

verdict returned by them upon oath and affirmed in open court;

it is essential to the freedom and independence of their

deliberations that their discussions in the jury room should be

kept secret and inviolable; and to admit the testimony of jurors

to what took place there would create distrust, embarrassment

and uncertainty."   Fidler, 377 Mass. at 196, quoting Woodward v.

Leavitt, 107 Mass. 453, 460 (1871).

    Thus, juror testimony concerning the jurors' internal

deliberations cannot be used to impeach a verdict.   See

Commonwealth v. Hebert, 379 Mass. 752, 755 (1980), quoting

Fidler, 377 Mass. at 198 ("our law does not permit inquiry into

'the subjective mental processes of jurors, such as the reasons

for their decisions'").   "The judge is precluded from inquiring

into the internal decision making process of the jury as a whole

or of the individual juror being questioned."   Martell, 407

Mass. at 294-295.   Accordingly, evidence that jurors

"misunderstood the instructions of the presiding judge, or that

they were induced by misapprehension to assent to the

affirmation of the verdict," Bridgewater v. Plymouth, 97 Mass.

382, 390 (1867), "testimony that the jurors did not follow the

judge's instructions," Cassamasse v. J.G. Lamotte & Son, Inc.,

391 Mass. 315, 317-318 (1984), or that a juror "felt pressured
                                                                    9


by her fellow jurors to vote guilty," Martell, 407 Mass. at 295,

cannot be considered.

     The prohibition against juror testimony to impeach a

verdict is not absolute.    Fidler, 377 Mass. at 196.   Juror

testimony may be used to show the existence of extraneous

influences on the verdict, such as unauthorized site visits,

improper communications with third parties, or consideration of

facts not in evidence.     See Martell, 407 Mass. at 294-295;

Cassamasse, 391 Mass. at 317-318; Fidler, 377 Mass. at 197.

"[I]nquiry into extraneous influences does not probe into

'subjective mental processes.'"    Matter of the Enforcement of a

Subpoena, 463 Mass. 162, 175 (2012), quoting Fidler, 377 Mass.

at 198.3




     3 The proper parameters of juror testimony are succinctly
summarized in Mass. G. Evid. § 606(b) (2018), as follows:

     "(1) Prohibited Testimony or Other Evidence. During an
     inquiry into the validity of a verdict or indictment, a
     juror may not testify about any statement made or incident
     that occurred during the jury's deliberations, the effect
     of anything on that juror's or another juror's vote, or any
     juror's mental processes concerning the verdict or
     indictment. The court may not receive a juror's affidavit
     or evidence of a juror's statement on these matters.

     "(2) Exceptions.    A juror may testify about whether

           (A) extraneous prejudicial information was improperly
           brought to the jury's attention or

           (B) an outside influence was improperly brought to
           bear on any juror."
                                                                  10


    Judges are also permitted to inquire whether a verdict was

infected by racial or ethnic bias, even though such questioning

straddles the line between the jurors' subjective mental

processes and extraneous influences.   See Pena-Rodriguez v.

Colorado, 137 S. Ct. 855, 869 (2017); Commonwealth v. McCowen,

458 Mass. 461, 497 (2010).   "[W]here a juror makes a clear

statement that indicates he or she relied on racial stereotypes

or animus to convict a criminal defendant, the Sixth Amendment

[to the United States Constitution] requires that the no-

impeachment rule give way in order to permit the trial court to

consider the evidence of the juror's statement and any resulting

denial of the jury trial guarantee."   Pena-Rodriguez, 137 S. Ct.

at 869.

    An argument might be made that this exception to the

general rule should be extended to protect the right to a

unanimous jury.   See Burch v. Louisiana, 441 U.S. 130, 134

(1979) (Sixth and Fourteenth Amendments to United States

Constitution require juries of six to be unanimous);

Commonwealth v. Conefrey, 420 Mass. 508, 511-512 & n.7 (1995)

(although not specifically guaranteed under Massachusetts

Declaration of Rights, common law requires unanimous jury

verdicts in criminal trials in Commonwealth).   However, the same

logic would apply with even more force to permit inquiry into

whether the jury understood and properly applied the judge's
                                                                   11


instructions on the government's burden of proof (including its

obligation to prove the absence of self-defense), or on the

standard of proof beyond a reasonable doubt, which implicate

bedrock constitutional rights.   See Commonwealth v. Shanahan,

422 Mass. 631, 632 (1996); Commonwealth v. Stokes, 374 Mass.

583, 589 (1978).   We decline to start down this slippery slope,

lest the exceptions swallow the rule.   The infection of the

criminal justice system with racial or ethnic bias is a unique

type of constitutional deprivation that requires a vigilant

response not warranted in the circumstances presented here.

    Applying the general rule, we have held that a judge erred

by striking a recorded verdict after learning in a posttrial

conversation with the jurors that one or two of them disagreed

with the guilty verdict.   Lassiter, 80 Mass. App. Ct. at 127,

130-131.   The defendant argues that Lassiter is distinguishable

because it involved only subjective disagreement with the

verdict -- the foreperson stated "that they all voted and that

they unanimously agreed," id. at 127 -- whereas here the jurors'

testimony provided objective evidence that the verdict was not

unanimous.   The distinction is irrelevant.   The error in

Lassiter and the error here were the same -- juror testimony

concerning internal deliberations, in this case, that they

misunderstood the unanimity instruction, is incompetent to

impeach a duly recorded and binding verdict.   See United States
                                                                     12


v. Homer, 411 F. Supp. 972, 976-979 (W.D. Pa.), aff'd, 545 F.2d

864 (3d Cir. 1976), cert. denied, 431 U.S. 954 (1977) (jurors'

testimony that they did not understand judge's unanimity

instructions incompetent to impeach verdict); Hall v. Levine,

104 P.3d 222, 225 (Colo. 2005) (error to set aside verdict based

on jurors' disclosures in postverdict conversation with trial

judge that they had "failed to follow instructions requiring the

verdict to be unanimous").

    We find further support for our decision in Commonwealth v.

Reaves, 434 Mass. 383 (2001).   After a verdict of guilty had

been recorded on a charge of murder in the first degree had been

recorded, the judge polled the jury and learned that the vote

was eleven to one.    Id. at 395.   The judge then ordered the jury

to resume deliberations; forty-five minutes later they

unanimously agreed to the verdict.    Id. at 396.   The court held

that the judge erred by polling the jury after the verdict had

been recorded, and that the original verdict was valid.     Id.

    The jurors' testimony here did not relate to "overt

factors" that a judge may properly assess in deciding the

verdict's validity.   Latino v. Crane Rental Co., 417 Mass. 426,

431 (1994).   Fidler, 377 Mass. at 198.    In Latino, 417 Mass. at

428, a number of jurors complained to the judge and to defense

counsel that their votes were ignored.     The court found the

presence of overt factors in that the jurors "made relatively
                                                                    13


prompt, unsolicited complaints to the judge," and "most

significantly, 'no' answers were audible on the court reporter's

tape."   Id. at 431.   Similarly, this was not a case in which the

jurors spontaneously and promptly informed the judge that the

verdicts were erroneous because they were the result of clerical

error.   See Brown, 367 Mass. at 28-29 ("the jury, by their own

action and without any suggestion from the judge or any one

else, immediately indicated that the verdicts reported did not

state what they had agreed to").    Here, by contrast, the record

reflects that no juror expressed any public disagreement with

the original verdict when it was announced.    See Dias, 419 Mass.

at 703; Nettis, 418 Mass. at 718.   The original verdict was not

ambiguous, contrast Commonwealth v. Zekirias, 443 Mass. 27, 31-

32 (2004), but accurately reflected the result of the

deliberations, contrast Brown, 367 Mass. at 28-29.

    A judge's power to set aside a verdict and send the jury

out for further deliberations "terminates when the verdict is

affirmed and recorded."   Brown, 367 Mass. at 28.4   The original

guilty verdict was valid, and the judge erred by setting it


    4  We need not address whether the judge effectively
discharged the jury after he accepted the original verdict,
rendering any further deliberations void. In any event, the
judge's error in setting aside the original verdict "clearly
inured to the defendant's benefit, giving him a second chance to
be acquitted. . . . No harm flowed thereafter, not least
because the defendant was ultimately no worse off than if the
error had never occurred." Lassiter, 80 Mass. App. Ct. at 131.
                                                               14


aside based on impermissible evidence of the jury's internal

deliberations.

                                   Judgment affirmed.
