Com. v. Conefrey, 92-P-966

Citation640 N.E.2d 116,37 Mass.App.Ct. 290
Decision Date02 November 1994
Docket NumberNo. 92-P-966,92-P-966
PartiesCOMMONWEALTH v. George CONEFREY, Sr.
CourtAppeals Court of Massachusetts

Edmund C. Mathers, Brockton, for defendant.

Julia K. Holler, Asst. Dist. Atty., for Com.

Before WARNER, C.J., and SMITH and GILLERMAN, JJ.

WARNER, Chief Justice.

In November, 1988, a Barnstable County grand jury indicted George Conefrey for indecent assault and battery on his eight year old daughter, whom we shall refer to as Lisa, "on divers times and dates during 1986." 1 See G.L. c. 265, § 13B. The defendant was tried and convicted of violating G.L. c. 265, § 13B, in 1989, but the conviction was reversed on appeal because the defendant did not have a meaningful opportunity to exercise his right to self-representation. Commonwealth v. Conefrey, 410 Mass. 1, 570 N.E.2d 1384 (1991). After retrial in August, 1991, the defendant was convicted for a second time.

In this appeal, the defendant alleges error in the trial judge's refusal to give two jury instructions: (1) that the jury must unanimously find one specific incident of indecent assault and battery in order to convict the defendant; and (2) that there is an element of sexual purpose or intent in G.L. c. 265, § 13B. In addition, the defendant argues for the first time on appeal that G.L. c. 265, § 13B, is unconstitutionally vague and overbroad. Although we agree with the defendant that there was error in the refusal to instruct on "specific unanimity," we affirm because the error did not prejudice the defendant.

The evidence at trial was that approximately seven incidents of indecent assault and battery occurred: three at the defendant's apartment in Falmouth and four at another apartment in West Falmouth. Lisa gave no specific dates for any of the incidents. Six of the incidents were of the same general description (hereafter the "bed incidents"): Lisa and the defendant were sitting on his bed watching television, and the defendant dropped his pants, exposed his penis and asked her to touch it. Although Lisa said that she did not want to touch his penis, the defendant said "it was okay" and took her hand and put it there. The defendant also told Lisa that her mother "didn't need to know about it."

One of the seven incidents occurred in the shower at the defendant's apartment in West Falmouth (hereafter the "shower incident"). Lisa and the defendant were showering together, and the defendant rubbed his penis against Lisa's stomach.

In fresh complaint testimony, a Department of Social Services social worker corroborated Lisa's description of the "bed" and "shower" incidents of indecent assault and battery. A second fresh complaint witness, a State police investigator, corroborated Lisa's testimony regarding the six "bed" incidents. The Commonwealth did not present any other witnesses, and the defendant did not testify on his own behalf.

1. Alleged errors in jury instructions. Where there is a timely objection at trial and compliance with Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979), 2 the issue of whether the judge erred in charging the jury is properly preserved. The standard of review is prejudicial error rather than the standard of whether the omission of the instructions created a substantial risk of a miscarriage of justice. Cf. Commonwealth v. Preziosi 399 Mass 748, 752, 506 N.E.2d 887 (1987).

"The legal adequacy of a particular instruction to the jury can only be judged in the context of the whole charge, and not on the basis of limited or isolated portions of it." Commonwealth v. Carrion, 407 Mass. 263, 270, 552 N.E.2d 558 (1990). The judge began with general instructions on reasonable doubt, declaring that the jury was "bound to act conscientiously upon the evidence" to determine if the proof of the defendant's guilt was "proof beyond surmise or conjecture or speculation or some doctrine of probabilities or chances." After giving further general instructions on the credibility of witnesses and on the drawing of inferences, the judge instructed on the elements of indecent assault and battery. "[I]n order to prove that a touching is indecent," the judge explained, "it must be established that there was an act or a series of acts; and here in this allegation the Government has to establish that there was a series of acts, at least two, that were, indeed, indecent." 3 Near the conclusion of the charge, while addressing the foreperson and explaining the necessity for polling the jury, the judge declared that "there is no verdict until every juror subscribes to that verdict." Finally, the judge defined the verdict as "the truth as best twelve honorable jurors can determine that truth to be."

a. Jury instruction on specific unanimity. Near the conclusion of the jury charge, the trial judge gave a general unanimity instruction: "there is no verdict until every juror subscribes to that verdict. In short, whatever the verdict is, it has to be unanimous." The defendant had requested, instead, that the judge give a specific unanimity instruction: "[i]n order to convict the defendant you must unanimously agree beyond a reasonable doubt upon at least one incident." When defense counsel objected at the conclusion of the jury charge, the judge refused to give the instruction he requested. 4 The defendant contends that the judge's failure to instruct the jury on "specific unanimity" violated his Federal constitutional rights.

Courts have credited juries with "using robust intuition and good common sense [to] understand and act on the understanding that a general instruction about unanimity implicitly calls for more specific unanimity." Commonwealth v. Lemar, 22 Mass.App.Ct. 170, 172, 492 N.E.2d 105 (1986). Where a general unanimity instruction is given, we presume that each juror followed it unless there is evidence to the contrary. Commonwealth v. Sylvester, 400 Mass. 334, 340, 509 N.E.2d 275 (1987). "[A] specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged"; i.e., as here, which particular incident of indecent conduct led to the conviction for indecent assault and battery. Commonwealth v. Keevan, 400 Mass. 557, 566-567, 511 N.E.2d 534 (1987).

Our appellate courts have twice addressed the need for a specific unanimity instruction. In Commonwealth v. Lemar, 22 Mass.App.Ct. at 172, 492 N.E.2d 105, this court "assume[d] ... that a judge would be obliged to give a specific [unanimity] instruction if the defendant requested it in accordance with the normal procedure of Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979)." In Commonwealth v. Comtois, 399 Mass. 668, 676-677 n. 11, 506 N.E.2d 503 (1987), the court commented, without deciding, that a judge should honor a defendant's request for a specific unanimity instruction. In both the Comtois and Lemar cases, the question was whether a judge's failure to give a specific unanimity instruction sua sponte (where none was requested at trial) created a substantial risk of a miscarriage of justice. This is the first case involving allegations of separate incidents of criminal conduct in which we address the refusal to give a specific unanimity instruction after a proper request and a timely objection. Cf. Commonwealth v. Ramos, 31 Mass.App.Ct. 362, 367, 577 N.E.2d 1012 (1991) (no error where judge rejected defendant's request for specific unanimity instruction, where prosecution alleged one event and alternative theories of guilt).

We do not constrain jurors to agree unanimously on one theory of culpability for a single charged offense, but we may require that a conviction be based on unanimous agreement as to which specific act constitutes the offense charged. See Commonwealth v. Ramos, 31 Mass.App.Ct. at 367, 577 N.E.2d 1012. Where a statute disjunctively proscribes several methods for committing an offense, the Commonwealth can prove a violation of that statute by proof of any one method; unanimity as to a certain method (e.g., type of weapon, mental state) is not required. See Commonwealth v. Murphy, 415 Mass. 161, 164, 612 N.E.2d 1137 (1993). See also Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (held specific unanimity not required as to mental state for first degree murder, where evidence supported conviction for premeditated or felony murder). Where there are "alternative sets of facts or episodes which support a finding of guilty" (e.g., "divers" dates or times), however, the jury must reach a unanimous verdict as to at least one of those specific sets of facts or episodes. See Commonwealth v. Comtois, 399 Mass. at 676, 506 N.E.2d 503; Commonwealth v. Lemar, 22 Mass.App.Ct. at 173, 492 N.E.2d 105. 5

As we noted in Lemar, 22 Mass.App.Ct. at 172, 492 N.E.2d 105, the issue of specific unanimity "has had some vogue in Federal courts." 6 See United States v. Holley, 942 F.2d 916, 926 (5th Cir.1991), cert. denied, 510 U.S. 821, 114 S.Ct. 77, 126 L.Ed.2d 45 (1993) (general unanimity instruction usually sufficient unless there is "genuine possibility" that jury were confused or that basis of conviction was different jurors concluding that defendant committed different acts). Accord United States v. Schiff, 801 F.2d 108, 114-115 (2nd Cir.1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987); United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992); United States v. Sayan, 968 F.2d 55, 65 (D.C.Cir.1992); United States v. Hager, 969 F.2d 883, 891 (10th Cir.), cert. denied, 506 U.S. 964, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992); United States v. Gruenberg, 989 F.2d 971, 975 (8th Cir.), cert. denied, 510 U.S. 873, 114 S.Ct. 204, 126 L.Ed.2d 161 (1993).

"[J]uror disagreement as to the critical facts of the offense might reflect a 'reasonable doubt' that the defendant actually engaged in criminal activity." United States v. Correa-Ventura, 6 F.3d 1070,...

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21 cases
  • Com. v. Berry
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 14, 1995
    ...(defendant entitled to instruction on specific unanimity where criminal conduct occurred on divers dates); Commonwealth v. Conefrey, 37 Mass.App.Ct. 290, 294, 640 N.E.2d 116, further appellate review granted, 418 Mass. 1110, 642 N.E.2d 301 (1994) (jurors must agree unanimously on which spec......
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  • Com. v. Conefrey
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 12, 1995
    ...defendant guilty of indecent assault and battery on his daughter. 1 The Appeals Court affirmed the conviction. Commonwealth v. Conefrey, 37 Mass.App.Ct. 290, 640 N.E.2d 116 (1994). We granted the defendant's application for further appellate review. The defendant contends that the trial jud......
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1 books & journal articles
  • Cross-Examination in Sexual Assault Cases
    • United States
    • James Publishing Practical Law Books Relentless Criminal Cross-Examination
    • March 30, 2016
    ...has previously ruled that “indecent” is not an unconstitutionally vague term as used G.L. c. 265, §13B, Commonwealth v. Conefrey , 37 Mass. App. Ct. 290, 301-302 (1994) (“[a] statute ‘is not vague simply because “it requires a person to conform his conduct to an imprecise but comprehensible......

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