Com. v. Amirault

• Decision Date: 13 April 1987
• Parties: COMMONWEALTH v. Gerald AMIRAULT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 129

506 N.E.2d 129

399 Mass. 617

COMMONWEALTH v. Gerald AMIRAULT.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Jan. 8, 1987.

Decided April 13, 1987.

Juliane Balliro, Boston, for defendant.

Karen J. Kepler, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

NOLAN, Justice.

Gerald Amirault appeals from the denial of his motion for a new trial on numerous indictments charging rape and sexual abuse of children. He argues that his right to a fair trial was violated by the misconduct of a juror and that he is entitled to a new trial. ¹ The claimed misconduct concerns the failure of a juror to answer correctly a question posed during the jury empanelment process. This information did not surface until after the jury had returned their verdicts. The trial judge conducted a hearing to determine whether Amirault had been harmed by the nondisclosure. The judge concluded that the juror was not biased and that the circumstances did not warrant a finding of implied bias. The motion for a new trial was therefore denied. We granted the Commonwealth's application for direct appellate review. We agree with the judge's ruling and affirm the denial.

The defendant was involved in the operations of the Fells Acres Day School in Malden. In January and September, 1985, a Middlesex County grand jury returned the indictments which charged Amirault with rape and indecent assault and battery. Nine different children, both male and female, were named as victims. On July 19, 1986, after a three-month trial, the jury found Amirault guilty on all indictments. The jury deliberations lasted twelve days.

On Monday, July 21, 1986, a telephone call was received in the offices of Amirault's attorneys. The caller identified himself as a Mr. Galligan and asked to speak with one of the attorneys involved in the Fells Acres case. Galligan related that on the previous day, he had read a newspaper account of the trial. The story was accompanied by a photograph of the jurors standing outside the court house. Galligan thought that one of the jurors looked familiar to him. The jurors' names were provided in the story and he was sure that he knew one of the jurors. Galligan informed the attorney that what he knew about the juror caused him to question whether Amirault received a "fair shake." He believed that, while a teenager, the juror had accused Galligan's cousin of rape. Furthermore, the case had gone to court and his cousin had been sentenced to a prison term. The attorney asked Galligan for more details, but Galligan stated he was reluctant to become further involved and that the attorney should be able to verify his information. Galligan refused to say anymore about himself. He concluded the conversation by remarking that he might call back, but there is no indication that he ever did.

Amirault's attorney then petitioned the judge to direct the Commonwealth to provide the defense with access to criminal records in order to verify Galligan's story. The judge entered such an order on August 1, 1986. The inquiry revealed that the juror's name was indeed correctly provided by Galligan along with certain other personal matters. On the basis of that corroborating information, defense counsel extended the scope of the investigation. A private investigator was retained. He interviewed two individuals who were somewhat familiar with the juror's past. One person confirmed that the juror had been raped and that a man had gone to prison for a lengthy period of time but could not recall the year of the incident or the rapist's name. The other individual's knowledge was more vague, but that individual had been told that the juror was raped, and that a man had gone to prison for the crime.

On August 12, 1986, the judge ordered the juror to appear at an in camera hearing. The order informed the juror that the juror was entitled to have counsel present and that the juror's attorney could view beforehand the documents relating to Amirault's motion for a new trial. The hearing took place on August 19 and Amirault was present. Defense counsel initially sought to question the juror by claiming that the juror was Amirault's witness. The judge responded that as she had summoned the juror, she would initiate the interrogation and then permit both the defendant and the Commonwealth to pose questions.

A review of the empanelment process is necessary at this point before turning to the evidence produced at the hearing. During the empanelment, the judge and trial counsel utilized written questionnaires along with oral examination. Three written documents were completed by the jurors who reached the final oral examination. All individuals who were summoned to jury service filled out a standard, one-page form. A special, three-page document with questions especially pertinent to the present case was also given to all potential jurors. A list of over 375 potential witnesses was appended to this questionnaire. The answer to these questions were examined by the judge and trial counsel over eight days. Based upon the responses, a "pool" of forty-eight potential jurors were found to be indifferent. These jurors filled out another specifically drafted form. Those who were not eliminated by their written answers underwent voir dire inquiry by the judge.

The juror underwent the process described. On the standard form, there is a question in which a respondent is asked, "[D]escribe briefly any involvement (past or present) as a party or victim in a civil or criminal case: you or any member of your family." The juror answered, "No." The specially drafted document contained the following question: "Have you or any member of your immediate family or any of your close friends ever been a victim, witness, or defendant in a criminal case?" The juror responded affirmatively but answered "No," to a follow-up question concerning whether the matter ever went to trial. The juror was questioned about the nature of this answer on voir dire and informed the judge that a member of the juror's immediate family had been charged with driving under the influence. The judge asked whether that incident would have any affect on the juror's ability to be impartial. After receiving satisfactory answers, the juror was found to be indifferent and neither side objected.

Thus, the postverdict hearing was conducted to determine whether the juror had correctly answered the question about being a criminal victim and what harm, if any, had been suffered by Amirault if Galligan's story was true.

We set forth relevant portions of the colloquy between the juror and the judge:

Q: "So the first question that would be posed by the Court to the juror would be: Did the event, as alleged, occur? And the event, as alleged, would be whether or not you were ever the victim of a crime at some point in your life--alleged?"

A: "To my knowledge, I can never remember being a victim of a crime. If something happened in my life, it had to be over 40 years ago, and it has something--been completely blocked from my mind; I know no details about it whatsoever. I cannot recall anything about it. I had to have been a child, and I just cannot remember anything about it."

Q: "And when you responded to the question on the first questionnaire, the answer was 'No.' Was that based upon the fact that you could not remember anything--"

A: "I cannot remember--the only thing that came to my mind was my children being in trouble, and that's the only thing that's important to me."

Q: "And as the trial went on, there was no impact as far as the prior incident? Nothing ever came to mind in your--"

A: "I can't remember anything, so nothing come into my mind."

Q: "All right. And when you went into the juror service on this panel and you answered that you could decide it solely upon the evidence--"

A: "Definitely."

Q: "--were you ready then to follow the instructions of the Court?"

A: "Definitely."

Q: "Is it reasonable, then, to assume that if you have no memory, or had no memory of it at that time, that you made no mention of anything to any of your fellow jurors at any time about yourself?"

A: "I have nothing to remember."

Defense counsel then cross-examined the juror about the incident. Relevant excerpts from the record are included below.

Q: "[Y]ou had indicated that you remember something happening to you as a child, but you don't remember any details or particulars about what this was?"

A: "Exactly right."

Q: "Does it refresh your memory at all if I ask you whether or not it was in the nature of a sexual assault of any type?"

A: "No."

Q: "Does it refresh your memory at all if I ask you if it was in the nature of a rape incident?"

A: "No."

Q: "Okay. Do you have any memory of ever having told anybody that something in the nature of a sexual assault occurred when you were a child?"

A: "No."

Q: "Do you remember telling anybody that somebody went to jail for a long time as a result of an incident involving you as a child?"

A: "I never remember anybody going to jail."

Defense counsel continued to interrogate the juror about what the juror remembered. The final question asked was whether the juror understood the possible penalties that could be imposed for a dishonest or incomplete voir dire answer. Both the Commonwealth and the juror's attorney objected and the judge did not permit the juror to answer. Since defense counsel had no further questions, the juror was excused. Counsel then argued to the judge why the question was proper. Additionally, counsel requested that the hearing be extended so that the defense could present additional witnesses who might impeach the juror's credibility. Specifically, counsel wanted to call the two individuals interviewed by the private investigator and to present expert testimony pertaining to the ability of a rape victim to suppress the memory of such an experience and remain impartial in circumstances...