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SJC-12629

            COMMONWEALTH   vs.   VINCENT A. TISCIONE, THIRD.



            Worcester.     March 4, 2019. - June 25, 2019.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Firearms. Jury and Jurors. Practice, Criminal, Jury and
     jurors, Deliberation of jury, Fair trial, Harmless error.
     Constitutional Law, Jury, Fair trial, Harmless error. Fair
     Trial. Error, Harmless. Evidence, Constructive
     possession, Firearm.



     Indictments found and returned in the Superior Court
Department on September 5, 2014.

    The cases were tried before Daniel M. Wrenn, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Sara A. Laroche for the defendant.
     Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.     In December 2015, the defendant, Vincent A.

Tiscione, was tried on multiple charges relating to the illegal

possession and improper storage of firearms and ammunition.
                                                                      2


During deliberations, a juror informed a court officer that she

"could not continue" to deliberate.     Subsequently, in a colloquy

with the judge, the juror stated that she was "upset" by other

jurors "being argumentative," and that she was "emotional"

because of the health issues of various family members.    After

the colloquy, the judge discharged the deliberating juror and

replaced her with an alternate juror.    Ninety minutes later, the

jury found the defendant guilty.   The Appeals Court affirmed the

judgments.   Commonwealth v. Tiscione, 93 Mass. App. Ct. 1118

(2018).   We conclude that the juror was discharged for reasons

that were not purely personal to the juror and that her

dismissal was prejudicial error, and therefore we vacate the

judgments entered against the defendant.    Because we also

conclude that there was sufficient evidence to survive the

defendant's motion for required findings of not guilty, we

remand this case to the Superior Court for further proceedings

consistent with this opinion.1




     1 As we vacate the defendant's convictions based on the
erroneous discharge of a deliberating juror, we need not reach
the remaining issues raised on further appellate review, i.e.,
the admission of prior bad acts evidence and the prosecutor's
closing argument. See Commonwealth v. Tiscione, 93 Mass. App.
Ct. 1118 (2018). However, to the extent that these issues
reemerge in a retrial, we reject the defendant's arguments for
substantially the same reasons stated by the Appeals Court.
                                                                       3


     Background.   1.   Evidence at trial.   The defendant was

tried on several firearm-related offenses.2    Before his arrest,

the defendant was living in an apartment with his girlfriend and

his girlfriend's family.   The Commonwealth's main witness -- the

mother of the defendant's girlfriend -- testified that the

defendant pointed a shotgun at someone in the apartment before

placing the shotgun under his bed.    In another incident, the

witness also saw the defendant placing a handgun in his bedroom

closet.   When the defendant was away, the witness took the

handgun and hid it in a hole in the wall of the apartment.       The

defendant later discovered that the handgun was missing; he

stated, "Where's my gun?   Where's my F-ing gun?" and "I'll be

back, and you better find my F-ing gun."

     The witness telephoned the police and directed them to the

hidden handgun in the wall; she also informed the police that

there might have been other guns in that bedroom.     The police

were thus able to recover a pistol and a shotgun from the

apartment, both with ammunition.     The theory of the defense at




     2 The defendant was convicted by a jury of two counts of
possession of a firearm without a firearm identification card
(G. L. c. 269, § 10 [h]), two counts of possession of ammunition
without a firearm identification card (G. L. c. 269, § 10 [h]),
and two counts of improper storage of a firearm (G. L. c. 140,
§ 131L [a], [b]). He thereafter was convicted at a bench trial
of two counts each of possession of a firearm and possession of
ammunition while previously having been convicted of a violent
crime or serious drug offense (G. L. c. 269, § 10G [a]).
                                                                      4


trial was that the Commonwealth had not adequately proved that

the defendant possessed the firearms and ammunition; in his

motion for required findings of not guilty, the defendant also

argued that there was no evidence that the ammunition was, in

fact, capable of being fired.    The judge denied the motion.

     2.   Jury deliberations.    The jury began their deliberations

late in the day on December 9.    Approximately one and one-half

hours after resuming their deliberations on the morning of

December 10, the jury submitted a note to the trial judge

asking, "If we cannot get 12-0, must we vote 'not guilty'?"3      The

judge brought the jury into the court room and instructed them

that all verdicts must be unanimous.

     During the lunch break, a court officer informed the judge

that juror no. 44 had removed herself from the jury room, that

she was "visibly upset, visibly shaken," and that she stated

that "she could not continue as a juror."     The court officer

further stated that when he asked the juror to return to

deliberations, she refused, at which point deliberations were

halted.   The judge conferred with the parties, and the juror

then was brought before the court for a colloquy.




     3 A second note, submitted with the first, asked whether the
jury could consider the counts out of order. In response, the
judge told the jury that they could address the counts in any
order.
                                                                      5


     When the judge asked the juror why she would not go back

into the deliberation room, she told the judge that "a couple

people [were] being argumentative," that another juror accused

her of "putting words in [his] mouth," and that "it was just

enough to upset [her]."     She acknowledged, however, that she did

not feel threatened.    The judge spoke with the parties outside

the juror's presence and indicated that, based on her responses,

it appeared that the juror's distress stemmed from her views on

the case.4

     When the juror returned, the judge made further inquiry.

He noted that the juror was "emotional," and asked her about it.

The juror responded by listing several family members and the

health issues each was experiencing, including her father who

had dementia, her sister's husband who had Alzheimer's disease,

her husband who had undergone hip surgery one month prior, and

her daughter's father-in-law who was recovering from open-heart

surgery.     She stated that she "[felt] like [she] should be with

family."

     The two then had the following exchange:

     The judge: "So if I could summarize, you've got a lot on
     your plate separate and apart from your jury service; is
     that right?"

     The juror:    "Yes."

     4 The judge stated: "At least preliminarily, it sounds like
this is not a personal problem, but it relates to [the juror's]
views on the case, or at least that's what I've heard so far."
                                                                  6



    The judge: "And the process of being put in a deliberation
    room and going back and forth was something that
    emotionally kind of tipped the balance for you?"

    The juror:   "Yes."

    The judge: "And all of your life experiences and the loads
    of life, if you will, has reached a tipping point for you.
    Is that fair?"

    The juror:   "Yes."

    The judge: "All right. I don't want to put words in your
    mouth. If what I've said isn't -- "

    The juror: "No; I just -- I didn't think we would be here
    this long. I feel like I should be with my family; and the
    people in there -- it's just arguing, and I'm
    uncomfortable."

    Ultimately, the judge concluded that there was "good cause"

to discharge the juror, finding at that time that she had "a

personal issue," that "the burdens in her life" were

"significant," that "her personal emotional state . . . ha[d]

overwhelmed her," and that "she no longer [had] an ability to

participate as a juror in this case."   The defendant requested

that the judge inquire of the other jurors to ensure that they

were not "bullying" the juror for her views.    The judge

disagreed, stating that such an inquiry would impermissibly

reveal the substance of the deliberations.     Over the defendant's

objection, the judge discharged the juror and replaced her with

an alternate juror.
                                                                      7


    The judge instructed the remaining jurors to "begin

deliberations anew" with the alternate juror.     At some point

during the renewed deliberations, the court belatedly received a

note generated at 11:35 A.M. -- that is, after the jury had

received their supplementary instruction that all verdicts had

to be unanimous but before juror no. 44 was dismissed.      This

note indicated that, despite the judge's supplementary

instruction, the jury had remained deadlocked for the remainder

of the morning.

    Approximately ninety minutes after the alternate juror

joined the jury, they returned guilty verdicts on all charges

before them.

    Discussion.     1.   Discharge of deliberating juror.   a.

Standard.    "The discharge of a deliberating juror is a sensitive

undertaking and is fraught with potential for error.     It is to

be done only in special circumstances, and with special

precautions."    Commonwealth v. Connor, 392 Mass. 838, 843

(1984).     Discharging a juror during deliberations 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
                                                                    8


    after a hearing only upon a finding of an emergency or
    other compelling reason."5

The rules of criminal procedure similarly provide:

    "If, at any time after the final submission of the case by
    the court to the jury but before the jury has agreed on a
    verdict, a juror dies, becomes ill, or is unable to perform
    his duty for any other cause, the judge may order him to be
    discharged and shall direct the clerk to place the names of
    all the remaining alternate jurors in a box and draw the
    name of an alternate who shall take the place of the
    discharged juror on the jury, which shall renew its
    deliberations with the alternate juror."

Mass. R. Crim. P. 20 (d) (3), 378 Mass. 889 (1979).

    During deliberations, a juror properly may be discharged

"only [for] reasons personal to [that] juror, having nothing

whatever to do with the issues of the case or with the juror's

relationship with his [or her] fellow jurors."   Connor, 392

Mass. at 844-845.   "Allowing discharge only for personal reasons

ensures that such action will not 'affect the substance or the

course of the deliberations.'"   Commonwealth v. Swafford, 441

Mass. 329, 336 (2004), quoting Connor, supra at 845 n.4.




    5  General Laws c. 234, § 26B, as amended through St. 1979,
c. 344, § 9A, similarly provided that if a deliberating juror
"dies, or becomes ill, or is unable to perform his duty for any
other good cause shown to the court, the court may order him to
be discharged," but was repealed in 2016. St. 2016, c. 36, § 1.
The trial here occurred before the repeal of this statute; but,
in any case, we have treated the "good cause" standard of § 26B
as synonymous with the "best interests of justice" and
"compelling reason" standards of G. L. c. 234A, § 39. See
Commonwealth v. Cousin, 449 Mass. 809, 821 n.19 (2007), cert.
denied, 553 U.S. 1007 (2008).
                                                                   9


    To make this determination, a judge must hold a hearing

with the juror in question.   Connor, 392 Mass. at 843-844.

"[B]ecause the inquiry may well lead to a conclusion that the

juror cannot be discharged, the judge must scrupulously avoid

any questioning that may affect the juror's judgment."    Id. at

844, citing Commonwealth v. Webster, 391 Mass. 271, 275-276

(1984).   We defer to a judge's factual findings where they are

not clearly erroneous.   See Swafford, 441 Mass. at 337, citing

Commonwealth v. Tennison, 440 Mass. 553, 560 (2003).

    b.    Application.   Here, the judge properly held a hearing

to question the juror in the presence of both parties to find

out why the juror would not continue to deliberate and to

determine whether removal of the juror was warranted.    During

the colloquy, the juror told the judge that she did not want to

return to deliberate because members of the jury were "being

argumentative," that another juror accused her of "putting words

in [his] mouth," and that it "upset" her.   Although the judge

initially concluded that the juror's problem stemmed from her

"views on the case" rather than a "personal problem," after the

juror additionally expressed concern about her family members,
                                                                      10


the judge concluded that there was "good cause" to discharge

her.6

        Because the juror stated during the colloquy that her

distress was based not on personal issues alone, but also on

events that took place in the jury room with her fellow jurors,

it was error to discharge her.       See Connor, 392 Mass. at 844-

845.        The Commonwealth points to Swafford, 441 Mass. 329, and

Commonwealth v. Leftwich, 430 Mass. 865 (2000), two cases in

which we upheld the discharge of a deliberating juror, arguing

that the circumstances here were comparable.        We disagree.

        In Leftwich, 430 Mass. at 873-874, we concluded that the

juror was discharged properly where the judge based the decision

to discharge on "the juror's statement that she could not

continue to deliberate in a fair manner and because of the

physical manifestations of stress that the judge had observed."

The judge found that "the juror was very emotionally distraught,

was shaking 'from head to toe,' and was clearly under

extraordinary stress."        Id. at 873.   Although the juror's

"extreme emotional distress" was connected, in part, to

deliberations, we concluded that "[i]f a deliberating juror is



       In finding that the juror's "personal life experiences"
        6

had "overwhelmed her, and [that] she no longer [had] an ability
to participate as a juror," the judge did not explicitly find
that the reasons for discharge were purely personal. However,
to the extent that he implicitly so found, the finding was
clearly erroneous.
                                                                   11


determined to be experiencing severe emotional or mental

distress, well beyond that level of distress that often

accompanies deliberations, it is within the trial judge's

discretion to discharge that juror after consideration of all

the circumstances," because "[w]e do not . . . require jurors to

serve at their peril."    Id. at 874.   In contrast, here, the

judge noted that the juror was "visibly upset" and "emotional,"

but there was no finding that the juror was incapacitated by

"extreme emotional distress."   See id. at 872-874 (deliberating

juror was "having difficulty breathing," among other issues, due

to stress of deliberations).

    Nor are the circumstances in this case akin to those in

Swafford, 441 Mass. at 337, where we held that a judge properly

discharged a juror who "physically separated herself from the

jury, took leave from participation in their deliberations, and

told the judge four times that she could no longer be fair and

impartial."   We concluded that although the juror's behavior

appeared to stem from a perceived slight by another juror, "the

judge's finding that the juror's reclusive and abdicatory

behavior was a problem personal to her, and not in any normal

sense the product of her relationship to her fellow jurors, was

not clearly erroneous."   See id.   Here, the juror did not tell

the judge that she could not be fair, nor was there any

indication that the juror's behavior was aberrant in any way.
                                                                     12


       We also note that, although the issue goes to the question

of prejudice, there was no concern in either Leftwich or

Swafford that the discharged juror held a minority view or that

the jury were at an impasse.    See Swafford, 441 Mass. at 337;

Leftwich, 430 Mass. at 874.     In contrast, here, as discussed in

more detail infra, there were indications that the jury were

deadlocked at the time the juror refused to continue to

deliberate.

       We do understand that the judge here was in a difficult

position:   he was confronted with an emotional juror who had

removed herself from the jury room and said that she would not

continue to deliberate.    However, the judge had options

available to him rather than dismissing the juror at that point.

       For example, a judge in this situation might express

sympathy for the juror's personal situation, but also remind the

reluctant juror of the defendant's right to a fair trial, and of

the oath the juror took at the beginning of the trial to "well

and truly try the issue between the commonwealth and the

defendant . . . according to [the] evidence."     G. L. c. 278,

§ 4.   If, as in this case, it appears that emotions in the jury

room are heated, a judge might direct the jury to take a break

to allow for a cooling off period.    See Mass. R. Crim. P. 20 (e)

(3), 378 Mass. 889 (1979).     Indeed, depending on the time of

day, a judge might even suspend deliberations until the
                                                                   13


following business day.   In our view, a juror expressing

reluctance (or an outright refusal) to continue to deliberate is

an invitation to the judge to discuss the juror's concerns

generally -- that is, without delving into deliberations.    See,

e.g., Commonwealth v. McCowen, 458 Mass. 461, 487-489 (2010)

(member of deadlocked jury properly discharged where father of

juror's child was being prosecuted by same district attorney).

It is also an opportunity for the judge to explain the

importance of that juror's participation in the process to

ensure that the defendant receives a fair trial.   See

Commonwealth v. Torres, 453 Mass. 722, 731-737 (2009) (due to

problem juror, "the deliberations took several sharp turns, but

the judge, with a responsive and steady hand, kept the jury on

course by continually focusing them on their duties to

deliberate fairly").

    We acknowledge that, had the juror rejoined the

deliberations, the end result well might have been a mistrial.

Although it is not the ideal outcome, mistrials do occur.    If,

after "due and thorough deliberation," the jury report to the

judge twice that they are deadlocked, "they shall not be sent

out again without their own consent, unless they ask from the

court some further explanation of the law."   See G. L. c. 234A,

§ 68C.   Nevertheless, in these circumstances, an attempt must

first be made to determine whether the juror's purported
                                                                     14


inability to continue deliberations is a "demonstrable reality"

(citation omitted).     See Connor, 392 Mass. at 846-847.

     c.   Prejudice.    Having concluded that the discharge of the

juror during deliberations was error, we turn to the question

whether the error was prejudicial to the defendant.    See G. L.

c. 234A, § 74, which provides that any "irregularity" with

respect to discharging or managing jurors, among other things,

will not lead to reversal unless the error is preserved by

objection and the "objecting party has been specially injured or

prejudiced thereby."7

     We begin by noting that the error was of constitutional

dimension.   Article 12 of the Massachusetts Declaration of

Rights affords each criminal defendant the right to a fair jury

trial.    That right has the potential to be infringed upon when a

juror is discharged during deliberations.     Swafford, 441 Mass.

at 336, quoting Connor, 392 Mass. at 845 n.4 (allowing

"discharge only for personal reasons ensures that such action

will not 'affect the substance or the course of the

deliberations'").   See United States v. Brown, 823 F.2d 591,

596-597 (D.C. Cir. 1987) (discharging deliberating juror for




     7 We note that requiring that an objection be preserved
under this statute could be in some cases "incompatible with the
constitutional right to trial by jury." Commonwealth v. Sheehy,
412 Mass. 235, 240 (1992); however, here the defendant made a
timely objection to the juror's dismissal.
                                                                   15


reasons related to his or her doubts about government's evidence

is "unacceptable under the [United States] Constitution").      "In

order to safeguard a defendant's right to trial by a fair and

impartial jury, the judge must carefully scrutinize the reasons

offered for discharging a juror at this critical stage of trial

'to ensure that a lone dissenting juror is not permitted to

evade [the] responsibilities' of his oath or to avoid the stress

associated with persistently asserting a minority position in

deliberations."   Commonwealth v. Francis, 432 Mass. 353, 368

(2000), quoting Connor, supra at 843.

    A constitutional error preserved by a timely objection, as

this one was, is reviewed to determine whether it was harmless

beyond a reasonable doubt.   Commonwealth v. Vinnie, 428 Mass.

161, 163, cert. denied, 525 U.S. 1007 (1998), citing Chapman v.

California, 386 U.S. 18, 23 (1967).   Upon review, we conclude

that, given the events that took place before and after the

juror's replacement, and considering the substance of the

colloquy with the juror, discharging the juror was not harmless

beyond a reasonable doubt.

    Prior to the colloquy with the juror, the jury sent a note

to the judge asking, "If we cannot get 12-0, must we vote 'not

guilty'?"   During the colloquy, the juror indicated that people

were arguing and that it upset her.   An additional note, which

was generated in the morning but did not reach the court until
                                                                     16


after the juror had been dismissed and replaced, indicated that

the jury were deadlocked on two counts.     Finally, approximately

ninety minutes after the juror was replaced and the jury were

instructed to begin their deliberations anew, the defendant was

convicted on all counts.     Together, these facts allow for the

inference that the removal of the juror had an impact on the

outcome of the case.   In the circumstances, the Commonwealth

cannot meet its burden to show that the error was not harmless

beyond a reasonable doubt.     See Chapman, 386 U.S. at 24 (burden

is on "beneficiary of a constitutional error to prove beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained").     See also Commonwealth v. Marini, 375

Mass. 510, 520 (1978) (same).

    Jury trials often, if not always, require the balancing of

countervailing concerns.   It appears that in this case jury

deliberations became contentious, and when combined with the

juror's personal circumstances, this contentiousness resulted in

the juror's reluctance to continue her involvement.    However,

ensuring a fair trial in which the outcome is a unanimous

verdict or, if need be, a mistrial is the reason for the rule

articulated in Connor, 392 Mass. at 844, which allows a

deliberating juror to be discharged "only [for] reasons personal

to [the] juror" (emphasis added).    Thus, as "uncomfortable" as

the juror may have felt in the jury room, our law does not allow
                                                                  17


for the removal of a dissenting juror to resolve an impasse in

deliberations.   See id. at 843, citing United States v. Lamb,

529 F.2d 1153, 1156 (9th Cir. 1975).    Here, reversal is

required.

    2.   Sufficiency of the evidence.    The defendant argues that

the trial judge erred in denying his motion for required

findings of not guilty on the counts relating to the possession

of a shotgun because the Commonwealth failed to present

sufficient evidence from which the jury could infer that the

defendant had constructive possession of the shotgun recovered

as a result of the search.   We disagree.

    In reviewing evidence presented at trial for sufficiency,

we view it in the light most favorable to the prosecution.

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

Jackson v. Virginia, 443 U.S. 307, 319 (1979).   Showing the

defendant's constructive possession of the firearms and

ammunition requires only "proof of 'knowledge coupled with the

ability and intention to exercise dominion and control.'"

Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015),

quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989).

"This proof 'may be established by circumstantial evidence, and

the inferences that can be drawn therefrom.'"    Dagraca-Teixeira,

supra, quoting Brzezinski, supra.
                                                                    18


     Here, there was testimony that the defendant occupied the

apartment where the firearms and ammunition were found.       The

defendant was also seen handling and storing the guns while in

the apartment.     The defendant had numerous personal belongings

in the same closet as the shotgun.    Finally, the guns and

ammunition themselves were available to the jury as exhibits for

inspection.   The defendant does not dispute that he lacked the

requisite firearm identification card under G. L. c. 269,

§ 10 (h), or that the firearms were improperly stored under

G. L. c. 140, § 131L (a) and (b).     Thus, based on the evidence

at trial, the defendant was not entitled to a required finding

of not guilty on the charges pertaining to the shotgun.

     Conclusion.     We hereby vacate the judgments entered against

the defendant on December 10, 2015, following the jury trial,

and on January 8, 2016,8 following the bench trial, and remand

this case to the Superior Court for further proceedings

consistent with this opinion.

                                      So ordered.




     8 Because the charges at issue during the bench trial were
under G. L. c. 269, § 10G (a), they necessarily depended on the
jury's guilty findings as to the various alleged violations of
G. L. c. 269, § 10.
