Com. v. Foster

• Decision Date: 30 January 1992
• Citation: 585 N.E.2d 331,411 Mass. 762
• Parties: COMMONWEALTH v. Jesse G. FOSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 331

585 N.E.2d 331

411 Mass. 762

COMMONWEALTH v. Jesse G. FOSTER.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 8, 1991.

Decided Jan. 30, 1992.

Daniel J. Harrington, Melrose, for defendant.

James W. Sahakian, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LYNCH, Justice.

After a jury trial in the Superior Court the defendant was convicted of assault with intent to commit rape of a child under sixteen years of age, and of one count of violating a restraining order issued under the provisions of G.L. c. 209A (1990 ed.). ¹ The Appeals Court reversed, and we granted further appellate review. We affirm the convictions entered in the Superior Court. In reversing the defendant's convictions the Appeals Court reasoned that the judge impermissibly invaded the jury's deliberations. Commonwealth v. Foster, 30 Mass.App.Ct. 588, 571 N.E.2d 421 (1991). The Appeals Court did not reach the defendant's other argument of prosecutorial misconduct.

1. Intrusion upon the jury's prerogative. The rules of criminal procedure allow a trial judge to require the jury to return a verdict or verdicts with respect to any charges on which they have reached a verdict. ² The issue in this case is whether the trial judge lost that discretion because of the way he presented the case to the jury. In his charge to the jury the judge included the following remarks:

"You will have what's called a verdict slip, you'll have four of them ... one for each [offense charged. On each of them circle either guilty or not guilty].... Your foreperson should sign. Your foreperson should date. Don't make any other marks on the slip. If you have occasion to take more than one vote and need to tally the votes, do it on some other piece of paper.... I suggest ... that when you go out to the jury room ... you allow each of you to speak first before taking any votes, but that's just a suggestion and you can do whatever you want. It's entirely up to you.

. . . . .

"[L]et me say also [that] there is no Guiness Book of World Record's entry for the jury that took the longest to deliberate and there is no NC2A indoor record for the jury that came in with a verdict the fastest. You take whatever time, long or short, is necessary for deciding this case. You may, if you wish, but you need not, report a verdict as you reach each verdict. You may decide that you want to wait and announce all of them at once. It's up to you."

On the second day of its deliberations the jury sent a question to the judge who, after responding, engaged in the following colloquy THE COURT: "... Now, Mr. Foreman, if you would please just answer this question "yes" or "no." ... Do you have a verdict as to any indictment or any count of any indictment?"

FOREMAN JUROR: "Yes, we do."

THE COURT: "Very well. I will ask you to return a verdict on that indictment or indictments, that count or counts. What you should do is to take the notebook--Do you have the jury book with you? All right. If you'll return to the jury room and take, bring with you into the courtroom those, any indictment or indictments or parts of an indictment as to which you have a unanimous verdict and then you will come into the courtroom, please, and we'll take the return of so much as you have reached a unanimous verdict and if you require a short amount of time now to complete your work on all of the indictments, you may at your discretion do that, but if you feel that you are going to have additional discussion, I want you to feel free to have additional discussion, but I merely wish you to bring back whatever indictments you have completed. Am I clear? "

FOREMAN JUROR: "You are clear and may I ask the Court a question?"

THE COURT: "Yes."

FOREMAN JUROR: "The Court indicated when it charged the jury that the jury had the choice of returning one as they occurred or waiting until all four were complete, the foreperson asked the jury at the outset of deliberations what their collective decision was. Their collective decision was all four. Am I permitted to ask them or, in other words, the Court is simply ordering us to do that?"

THE COURT: "I don't like using the word ordered, but I do wish you to return whatever verdicts you have now. All right. You may return to the jury room." (Emphasis added.)

After a brief recess the jury returned the guilty verdicts which are the subject of this appeal.

The defendant argues and the Appeals Court agreed that the judge's reversal of his instruction on the manner in which the jury verdicts be returned may have affected the jury's deliberations and encroached on the jury's authority. It is, of course, true that whatever impairs the essentials of the right to jury trial must be struck down, Commonwealth v. Bellino, 320 Mass. 635, 639, 71 N.E.2d 411, cert. denied, 330 U.S. 832, 67 S.Ct. 872, 91 L.Ed. 1280 (1947), and that trial courts must be careful to avoid invading the province of the jury or any conduct which has a tendency toward jury coercion. See Commonwealth v. Connor, 392 Mass. 838, 844, 467 N.E.2d 1340 (1984); Commonwealth v. Rodriquez, 364 Mass. 87, 99, 300 N.E.2d 192 (1973); Commonwealth v. Rollins, 354 Mass. 630, 638, 241 N.E.2d 809 (1968); Commonwealth v. Cote, 5 Mass.App.Ct. 365, 370, 363 N.E.2d 276 (1977).

It is also true, however, that members of a jury are presumed to obey the instructions of the judge. See Commonwealth v. Amirault, 404 Mass. 221, 232, 535 N.E.2d 193 (1989); DeWitt v. Wells, 294 Mass. 65, 66, 200 N.E. 574 (1936); Stricker v. Scott, 283 Mass. 12, 14, 186 N.E. 45 (1933); Allen v. Boston Elevated Ry., 212 Mass. 191, 194, 98 N.E. 618 (1912); Rudberg v. Bowden Felting Co., 188 Mass. 365, 366, 74 N.E. 590 (1905). See also Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979). Here, the judge's additional instructions explicitly required the jury to return only those verdicts which were unanimous and complete. He took pains to make sure the foreman understood his directive. To conclude that the jury could have felt pressure to convert provisional verdicts against the defendant into final ones and to abandon all doubts that they may have privately entertained runs counter to the clear instructions of the judge and amounts to mere speculation without any support in the record. We conclude that on the facts in this case, the judge did not impermissibly invade the jury's deliberations.

2. Prosecutorial misconduct.

Before trial, the judge stated that during the Commonwealth's case-in-chief the parties should not explore the bases for the mutual restraining orders which had been issued against the defendant and the mother of the victim. ³ On cross-examination of the mother, the defendant attempted to raise an inference of an ongoing social relationship between the defendant and the mother. On redirect the prosecutor asked the mother about the reasons for the restraining order. Eighteen questions later, the judge, sua sponte, stopped the prosecutor from pursuing this line of questioning. The judge however refused to strike the testimony elicited to that point. The defendant, indicating that he was "just going to object," moved for a mistrial. The judge denied the motion.

The other instance of alleged misconduct occurred during cross-examination of the defendant. Defendant testified that he and the mother had no problems, and that they had a continuous intimate relationship. The prosecutor again inquired about the incident that lead to the issuance of the restraining order against the defendant. The defendant objected; the question was allowed but never answered. Later on the defendant again objected, arguing that the prosecutor was going into the background of the restraining order, and consequently moved for a mistrial. The judge denied the motion.

While it is true that a promise by the Commonwealth to the defendant must be kept, see Commonwealth v. Harris, 364 Mass. 236, 238, 303 N.E.2d 115 (1973), we conclude that no promise existed here to be broken. There was, of course, an order of the judge. A judge, however, has a right to vary his rulings any time prior to closing, as long as such variance does not cause harm to a party. Catania v. Emerson Cleaners, Inc., 362 Mass. 388, 390, 286 N.E.2d...