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14-P-1873                                              Appeals Court

                 COMMONWEALTH   vs.   KRISTIE L. FIRMIN.


                             No. 14-P-1873.

         Middlesex.      November 6, 2015. - February 10, 2016.

              Present:   Katzmann, Milkey, & Carhart, JJ.


Constitutional Law, Jury. Jury and Jurors.        Practice, Criminal,
     Instructions to jury.



     Complaint received and sworn to in the Framingham Division
of the District Court Department on February 29, 2012.

     The case was tried before Douglas W. Stoddart, J.


     Jin-Ho King for the defendant.
     Charles Koech, Assistant District Attorney, for the
Commonwealth.


     CARHART, J.      The defendant appeals from her conviction by a

District Court jury of operating under the influence of alcohol,

second offense, G. L. c. 90, § 24(1)(a)(1), on the basis that

the trial judge gave a coercive jury instruction.1         We agree.2


     1
       Charges of negligent operation of a motor vehicle and
operating a motor vehicle with a suspended license, subsequent
                                                                  2


    Background.    In the early morning hours of February 29,

2012, a Framingham police officer stopped a vehicle he had been

following after he observed it making some erratic movements.

The officer determined that the defendant was driving, and that

she was under the influence of alcohol.   The defendant was

arrested and tried for operating a motor vehicle under the

influence of alcohol.

    After closing arguments and following his general

instructions on the law, the trial judge stated:

    "If I can give you some helpful hints -- because we do this
    every day -- it's not fun or easy to be a juror, we know
    that. So, to the extent that you could create a collegial
    atmosphere in the room, that would be great. So, when the
    door shuts, it would be very helpful if people didn't make
    pronouncements, you know, 'This is the way I'm going to
    vote', because then it's hard to extract somebody from a
    corner and our goal is to get a unanimous verdict.

         "If we don't get a unanimous verdict, it's called a
    mistrial or a hung jury and we have to do this case all
    over again and we're booked out until May now.[3] So, we'd
    really appreciate it if you guys could resolve this. So, I
    guess I would suggest that, maybe let everybody, you know,
    just chat informally, not take formal votes right away and
    then, at some point during the deliberations, if you see a
    ground swell of support in one direction or the other, then


offense, were dismissed. The defendant was found not
responsible for speeding and a marked lanes violation.
    2
       The defendant also claims that the prosecutor committed
error creating a substantial risk of a miscarriage of justice
when she argued facts not in evidence during closing argument.
Based on the outcome of this opinion, that claim need not be
reached.
    3
        The trial took place on January 24, 2013.
                                                                    3


    do whatever voting or whatever you need to do to get to
    that ultimate point."

    The judge continued, "Now, in terms of timing, I think what

we'll do is give you the case now, but we're going to cut you

loose at one o'clock.    If you have a verdict real quick before

1:00, we'll take it, but otherwise, we'll see you back at 2:00."

Court adjourned at 12:41 P.M. and the jury went to lunch from 1

P.M. until 2 P.M.    Court reconvened at 2:28 P.M., whereupon the

jury delivered the verdict.

    Discussion.     Because the defendant did not object to the

judge's instruction, we review only to determine "whether the

timing [or the content] of the charge [was error] creat[ing] a

substantial risk of a miscarriage of justice."    Commonwealth v.

Scanlon, 412 Mass. 664, 678 (1992).   We agree with the defendant

that the timing and content of the judge's instruction created

such a risk in this case.

    "The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights guarantee a

criminal defendant the right to a trial by an impartial jury."

Commonwealth v. Guisti, 434 Mass. 245, 251 (2001).    "Article 29

of the Massachusetts Declaration of Rights also guarantees 'the

right of every citizen to be tried by judges as free, impartial

and independent as the lot of humanity will admit.'"    Guisti, at

251 n.8.   An "impartial" jury consists of "jurors who will
                                                                    4


conscientiously apply the law and find the facts."    Wainwright

v. Witt, 469 U.S. 412, 423 (1985).   While "[t]he weight and

credibility of the evidence is the province of the jury,"

Commonwealth v. Gomez, 450 Mass. 704, 711 (2008), jurors must

"apply the law as interpreted by the court."    United States v.

Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied sub

nom. Boardman v. United States, 397 U.S. 991 (1970).     Thus

"[w]hen instructing the jury, a judge must avoid language that

may coerce the jury into reaching a verdict."     Commonwealth v.

O'Brien, 65 Mass. App. Ct. 291, 294 (2005).    See Commonwealth v.

Villafuerte, 72 Mass. App. Ct. 908, 910 (2008).

    Here, the judge gave an instruction similar to that set

forth in Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851), as

modified by Commonwealth v. Rodriquez, 364 Mass. 87, 98-101,

101-102 (1973) (Appendix).   The so-called Tuey-Rodriquez charge

"is an instruction designed to encourage the jury to reach a

verdict, if possible," Commonwealth v. Bresnahan, 462 Mass. 761,

766 n.4 (2012), and it is "the 'orthodox approach' to dealing

with a deadlocked jury."   Ray v. Commonwealth, 463 Mass. 1, 6

(2012).   In pertinent part, the instruction provides:

    "[T]he verdict to which a juror agrees must . . . be his
    own verdict, the result of his own convictions, and not a
    mere acquiescence in the conclusion of his fellows, yet, in
    order to bring twelve minds to a unanimous result, you must
    examine the questions submitted to you with candor, and
    with a proper regard and deference to the opinions of each
    other. You should consider that it is desirable that the
                                                                   5


    case be decided. . . . [I]t is your duty to decide the
    case, if you can conscientiously do so. . . . [I]n
    conferring together, you ought to pay proper respect to
    each other's opinions, and listen, with a disposition to be
    convinced, to each other's arguments."

Rodriquez, supra at 101 (Appendix).

    We recognize that "[n]otification that the jury are

deadlocked is not a prerequisite for the [Tuey-Rodriquez]

charge; rather, it is within the judge's discretion to give it."

Commonwealth v. Wilson, 443 Mass. 122, 143 (2004).   However, we

think that the judge abused his discretion here, when he

instructed the jury, before it had begun deliberating, that (1)

the jurors should "do whatever voting or whatever [they] need to

do" to reach a verdict "if [they] see a ground swell of support

in one direction or the other" because, "[i]f we don't get a

unanimous verdict . . . we have to do this case all over again

and we're booked out until May now"; (2) the court would "really

appreciate it if [the jury] could resolve this"; and (3) the

court would take a verdict if the jury reached one between 12:41

P.M., when they adjourned to deliberate, and 1:00 P.M., when

they recessed for lunch.

    "The purpose of the [Tuey-Rodriquez] instruction is to

encourage a purportedly deadlocked jury to consider seriously

and with an open mind the views and arguments of each member."

Ray, supra at 3 n.3.   See Commonwealth v. Jenkins, 416 Mass.

736, 747-748 (1994) (Liacos, J., dissenting).   It "is designed
                                                                    6


to urge the jury to reach a verdict by giving more serious

consideration to opposing points of view."    Commonwealth v.

Carnes, 457 Mass. 812, 827 (2010).   Because it "has a 'sting'

and can, if improperly phrased or improvidently given, risk

'coercion' of the jury to reach a verdict with which they are

not fully comfortable," Ray, supra at 6, quoting from Rodriquez,

supra at 100, a Tuey-Rodriquez charge "should not be employed

prematurely or indiscriminately."    Commonwealth v. Rollins, 354

Mass. 630, 638 (1968).   See Rodriquez, supra at 100 (modified

Tuey instruction may not be used prematurely); Jenkins, supra

(Tuey-Rodriquez instruction should "never" be given

prematurely); O'Brien, 65 Mass. App. Ct. at 296 ("instructions

given to a jury that have not reached the point of deadlock may

have an impermissibly coercive effect").    "A judge crosses the

line between enlightening the jurors' understanding [of the law]

and coercing them [into returning a verdict] when 'he overcomes

the will by the weight of his authority.'"    Commonwealth v.

Diaz, 19 Mass. App. Ct. 29, 34 (1984), quoting from Horning v.

District of Columbia, 254 U.S. 135, 139 (1920) (Brandeis, J.,

dissenting).   We agree with the defendant that because the jury

deliberations were not "due and thorough," the judge's

instruction was "inappropriate."    Carnes, supra at 829.

    Moreover, the judge erroneously "digress[ed] from" the

language of the approved Tuey-Rodriquez charge "with language
                                                                    7


compelling the jury to reach a verdict," O'Brien, 65 Mass. App.

Ct. at 295, such as stating that the case would have to be

retried if they could not reach a verdict and the court was

booked until May, that the jurors should do "whatever voting or

whatever [they] need to do" if they saw a "ground swell of

support" in either direction, and that the court would take the

verdict if it was reached within the approximate twenty minutes

before the lunch break.   See Villafuerte, 72 Mass. App. Ct. 910,

quoting from O'Brien, 65 Mass. App. Ct. at 295 ("[A] judge may

not depart from the Tuey-Rodriquez charge with language

compelling the jury to reach a verdict by stating, for example,

that 'the case must at some time be decided'").   Judges are

advised not to stray from the express language of the Tuey-

Rodriquez charge, Commonwealth v. Sosnowski, 43 Mass. App. Ct.

367, 374 (1997); O'Brien, 65 Mass. App. Ct. at 295, and they

"must be particularly vigilant that there not creep into the[ir]

phraseology any suggestion that the jurors are obligated to

decide the case one way or another."   Ibid.   See Commonwealth v.

Brown, 367 Mass. 24, 31-32 (1975) (charge coercive where it

strayed from Tuey and referenced the "cost in terms of money and

effort and time that a case of this sort entails").   Here, the

judge also omitted "language requiring that the verdict to which

a juror agrees must be 'the result of his own convictions, and

not a mere acquiescence in the conclusion of his fellows,' and
                                                                   8


that 'it is [the juror's] duty to decide the case, if [he] can

conscientiously do so.'"   Id. at 32, quoting from Highland

Foundry Co. v. New York, N.H. & H. R.R., 199 Mass. 403, 409

(1908).   The judge's instruction went beyond the Tuey-Rodriguez

charge in "(1) inform[ing] the jury that the case must at some

time be decided and (2) tend[ing] to induce those jurors

tentatively in the minority to be persuaded by those in the

majority."   Commonwealth v. Jones, 373 Mass. 423, 427-428

(1977).   We think that the judge's instruction "may [have led]

jurors to believe that they should compromise their own

conscientious convictions in order to reach a verdict," O'Brien,

65 Mass. App. Ct. at 296, and, in light of the fact that the

jury returned a guilty verdict less than thirty minutes after

returning from lunch, we agree that the instruction

impermissibly "cast[s] the balance substantially more in favor

of conviction."   Brown, supra at 32.

    Accordingly, the judgment is reversed and the verdict is

set aside.

                                    So ordered.
