Com. v. Cousin

• Decision Date: 24 September 2007
• Citation: 449 Mass. 809,873 N.E.2d 742
• Parties: COMMONWEALTH v. Joseph COUSIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

873 N.E.2d 742

449 Mass. 809

COMMONWEALTH v. Joseph COUSIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 10, 2007.

Decided September 24, 2007.

Willie J. Davis, Boston, for the defendant.

John P. Zanini, Assistant District Attorney (Joshua Wall, Assistant District Attorney, with him) for the Commonwealth.

The following submitted briefs for amici curiae:

Martha Coakley, Attorney General, & Pamela L. Hunt, Assistant Attorney General, for the Attorney General.

Ruth T. Dowling, Stephen G. Huggard, Hilary B. Dudley, Nina L. Pickering, & Emily M. Smith, Boston, for Lawyers Committee for Civil Rights Under Law of the Boston Bar Association & others.

Gregory I. Massing, Special Assistant Attorney General, Catherine P. Bailey, & Erin Deveney for Executive Office of Public Safety and Security.

John M. Thompson for Committee for Public Counsel Services.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

At a murder trial, the judge excused three deliberating jurors on the ground that they had not disclosed their criminal records in response to the juror questionnaire. As insufficient jurors then remained to continue deliberations, the judge determined that "manifest necessity" required her to declare a mistrial. To determine whether principles of double jeopardy now bar further prosecution of the defendant, we must decide whether the prosecutor was authorized to obtain the jurors' criminal records, whether it was proper to bring them to the court's attention in the circumstances of this case, and whether the judge was warranted in dismissing the jurors.¹

The defendant was indicted for murder, possession of a stolen motor vehicle, and unlawful possession of a sawed-off shotgun, and was tried with a codefendant. When jury deliberations commenced, there were twelve deliberating and three alternate jurors. After five days of deliberations, the foreperson was discharged for personal reasons; a substitute juror was added and the jury were instructed to begin deliberations anew. Four days later, the jury returned verdicts of not guilty for the codefendant. On the following day, the jury informed the court that they were deadlocked with respect to the charges against the defendant. Before the judge responded to this information, the prosecutor notified the court that his inquiry had revealed that five jurors had criminal histories that had not been disclosed in their responses to juror questionnaires.

The defendant moved for a mistrial, claiming that the prosecutor had acted improperly by checking the jurors' criminal records. The motion was denied. After questioning three of the jurors regarding their failure to disclose their criminal histories, the judge discharged all three.² At this point, only eleven people remained on the jury. With the agreement of the parties, the judge discharged the jury and declared a mistrial.

The defendant then filed a motion to dismiss the indictments on double jeopardy grounds. After the trial judge denied the motion, the defendant petitioned a single justice of this court for an order barring a retrial. The petition was denied and the defendant appealed to the full bench. Following oral argument, we requested further briefing on several issues regarding criminal record checks of jurors.³ We conclude that the prosecutor did not act improperly in obtaining the jurors' criminal records and bringing them to the court's attention, that dismissal of the jurors who failed to disclose their criminal histories was proper, and that principles of double jeopardy do not apply to bar further prosecution of the defendant.

Background. The facts of the underlying crime are not relevant in determining the issues before us. Thus, we set forth only those events that led to the declaration of the mistrial. Our recitation is derived largely from the judge's helpful memorandum of decision, which relies on undisputed facts unless otherwise noted. We have supplemented the judge's findings with other undisputed facts that appear in the record.

The case began with an extensive voir dire of more than 200 potential jurors. The voir dire extended for three days. Because anticipated trial testimony would involve gang members, as well as attitudes toward cooperating witnesses and the conduct of the police investigation of the murder, the voir dire attempted to determine, inter alia, that no seated juror had what the judge termed "inappropriate attitudes" toward the Boston police department, law enforcement or cooperating witnesses. After the voir dire, trial proceeded without incident until the deliberations stage. We have previously set forth all of the relevant events that occurred during the deliberations, except that, before the jury returned their verdict acquitting the codefendant, the jury foreperson wrote a note to the judge stating his view that some jurors believed the defendants had been "set up" by the Boston police department. The foreperson informed the judge that he had not discussed the note with the other jurors.⁴ Eventually, the jury sent a note to the court indicating they were deadlocked as to the defendant.

By the time defense counsel arrived at the court to address the issue of a response to the latter note, the prosecutor had provided the session clerk with the criminal offender record information (CORI) of the deliberating jurors and the two alternates, which he asked the clerk to provide to the judge and defense counsel. These records detailed the significant criminal histories of five of the jurors. None of the five had revealed these histories in response to the following question on the juror questionnaire: "Describe briefly any involvement (past or present) as a party or a victim in a civil or criminal case: you or any member of your immediate family."⁵,⁶ Juror A,⁷ a thirty-two year old woman, had a seven-page criminal record with fifty-three entries, including an outstanding warrant and convictions in 1995 for nine larcenies by check and for a compulsory insurance violation. She was in default on a 2002 complaint for operating after suspension of license.

Juror B had a three-page record with twenty-two entries, including a 1971 conviction for assault and battery on a police officer and a 1971 Superior Court trial that ended in an acquittal. He was a sixty-three year old man, and the last entry on his record was in 1987.

Juror C, a twenty-nine year old woman, had five charges against her, all in 1999, and all of which were ultimately dismissed. One of the charges was for assault and battery on a police officer; another charge on a separate date was for assault and battery. A charge of being a disorderly person was "continued without a finding" and ultimately dismissed. This juror also had defaulted on numerous court appearances.⁸

Based on the criminal records, the prosecutor requested a voir dire of the five jurors to determine whether material misrepresentations had been made. He contended that such misrepresentation on the questionnaire, completed under the pains and penalties of perjury,⁹ deprived the parties and the court of information needed in order to decide whether a juror should be seated. The prosecutor also maintained that it was reasonable to assume that falsification of the questionnaire was an indication that the juror could not follow the rule of law in the charge and could not be fair and impartial during deliberations. While conceding that the information on the five jurors' questionnaires was contradicted by the CORI, defense counsel moved for a mistrial because the prosecutor had checked these records. The motion was denied.

The judge then conducted a voir dire. When juror A was shown her record, she did not indicate that it was inaccurate. Out of the hearing of the juror, defense counsel suggested that the woman be advised of her privilege under the Fifth Amendment to the United States Constitution and her right to counsel before further interrogation regarding her completion of the questionnaire. The judge stated that doing so would automatically require dismissal of the juror. Without further questioning and with both counsels' acquiescence, the judge excused juror A on the ground that her conduct was "an affront to the integrity of the process."

The parties and the attorneys agreed that the court should proceed with the voir dire, and that a total of three jurors acknowledging their criminal records would be sufficient to conclude the matter. Jurors B and C were questioned and acknowledged their records, and both parties agreed that the two jurors had to be excused. At this point, there were only eleven jurors remaining, and the judge allowed the defendant's motion for mistrial, concluding that the "fundamental fairness of the process has been affected by the misrepresentations of the juror questionnaires." Defense counsel agreed that there was "no alternative . . . to . . . a mistrial," but did not waive his original ground for a mistrial, i.e., the conduct of the prosecutor in obtaining the CORI. The judge stated that her decision to declare a mistrial was based on the material misrepresentations to the court, especially in view of the extensive voir dire questioning about juror attitudes towards the Boston police department, gangs and cooperating witnesses. The judge stated that the jurors' actions prevented informed decisions as to whether the jurors should be excused for cause or whether a peremptory challenge should be exercised.

Standard of review. We do not disturb an order of a single justice denying relief under G.L. c. 211, § 3, unless there is an abuse of discretion or other error of law. Victory Distributors, Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 137, 755 N.E.2d 273 (2001).

Discussion. The double jeopardy clause of the Fifth Amendment to the United States Constitution, and comparable protections under our statutory and common law, generally prevent a criminal defendant from...