Com. v. Fredette, 00-P-989.

• Decision Date: 11 October 2002
• Docket Number: No. 00-P-989.,00-P-989.
• Citation: 776 N.E.2d 464,56 Mass. App. Ct. 253
• Parties: COMMONWEALTH v. Joseph A. FREDETTE.
• Court: Appeals Court of Massachusetts

776 N.E.2d 464

56 Mass. App. Ct. 253

COMMONWEALTH v. Joseph A. FREDETTE.

No. 00-P-989.

Appeals Court of Massachusetts, Worcester.

Argued March 21, 2002.

Decided October 11, 2002.

COPYRIGHT MATERIAL OMITTED

Alan J. Black, Springfield, for the defendant.

Beth R. Levenson, Special Assistant District Attorney, for the Commonwealth.

Present: LAURENCE, GILLERMAN, & MILLS, JJ.

LAURENCE, J.

The defendant appeals from his 1995 convictions, after a jury trial, on three counts of unnatural and lascivious acts. G.L. c. 272, § 35.¹ We conclude that the cumulative prejudice to the defendant from defective jury procedures and the prosecutor's improper closing argument mandates a new trial.

Background. The incidents resulting in the convictions allegedly took place from 1971 to 1973, while the defendant was the executive director of Come Alive, Inc., a group home for troubled teenagers in Worcester. The defendant was then a priest and a member of the Assumptionist Order.² The complainants, who were both thirteen when the alleged incidents began, were among the delinquents committed to the defendant's care at Come Alive by the Juvenile Court and the Department of Youth Services. The Worcester police department began investigating charges of abuse at Come Alive in late 1973 or early 1974.

The investigation resulted in the issuance of four criminal complaints in May, 1974, alleging several counts of abuse by the defendant against Jones. Smith denied that he had been abused by the defendant during that police investigation and made no abuse allegations against him until 1992.

After the allegations had come to light, but before the May, 1974, complaints were issued, the defendant removed to Canada, where he had been ordained.³ Worcester authorities could not extradite him at that time because no extradition treaty between the United States and Canada was in force until March, 1976. Thereafter, no effort was made to extradite the defendant until 1992, when the Worcester police department reactivated the case (as the coincidental consequence of publicity surrounding the arrest of another priest on charges of sexual abuse of minors) and initiated extradition proceedings.

The defendant contested extradition but was delivered into the custody of United States officials in May, 1994. He brought a motion to dismiss the indictments in May, 1995, alleging violations of his rights to a speedy trial and due process because of the lengthy delay in prosecuting him and the loss of potentially exculpatory documents by the Worcester police department in the intervening years. After five days of evidentiary hearings the motion was denied, and the defendant was brought to trial and convicted of the three charges made by Smith.

Extraneous influence during jury deliberations. During their deliberations, the jurors sent the judge a note. It stated, in part, that one of the jurors wanted to review Smith's testimony.⁴ The judge brought the jury into the courtroom and read the entire note into the record, including the following: "The concern of the eleven other jurors is that this one juror watched a [television] news program on the case. It was an interview with [Sam Smith's] mother. The one juror doesn't feel this is swaying him." The judge did not ask for or provide an opportunity for comment by counsel regarding the note, the content of the interview, the extent of the jurors' knowledge thereof, or the procedure to be followed in light of the note. Instead, he stated, immediately after he had read the note into the record, "Well, as long as he doesn't feel that this is swaying him, then it shouldn't sway him." The judge then paraphrased the general cautionary instruction he had previously given the jury in his final charge (to decide the case solely on the evidence) and took no further action.⁵ Defense counsel said and did nothing at that time.⁶

Only after the verdicts were returned and recorded did the defendant's counsel address the issue. He requested that the jurors be polled and that there be an individual voir dire of the jurors regarding their exposure to the extraneous information mentioned in the note and the effect it may have had on their deliberations. The judge complied with the request and questioned each juror.⁷ Every juror denied that the information had influenced his or her verdicts.

The circumstances of the original juror's exposure to the extraneous information became clear during the voir dire. He recounted that while he was in his kitchen, the news program was playing on the television in the living room. He "heard something to the effect of Mrs. [Smith] asserting that her son was never a criminal until after he met [the defendant]." Although several jurors revealed knowledge of Mrs. Smith's interview and the fact that there had been some discussion of it in the jury room (see note 11 and accompanying discussion, infra), the defendant's motion for a "mistrial" was denied without argument or discussion.⁸

The judge's failure to seek counsel's assistance when framing his answer to the jurors' note was contrary to the established principles outlined in Commonwealth v. Bacigalupo, 49 Mass.App.Ct. 629, 632-633, 731 N.E.2d 559 (2000), where we said: "A defendant has a constitutional right to be present at all critical stages of criminal proceedings.... A critical stage in criminal proceedings includes those occasions when a judge is called upon to respond to a deliberating jury's communication which is of legal significance .... The assistance of counsel at that stage requires the judge, before he or she responds to such a communication, to afford counsel the opportunity to assist in framing an appropriate answer and to place on record any objections they might have to the course chosen by the judge.... The law requires a judge to allow counsel a meaningful opportunity to assist in the framing of the response to a jury's communication before an answer is given to the jury." See Commonwealth v. Floyd P., 415 Mass. 826, 833, 615 N.E.2d 938 (1993); Commonwealth v. Davis, 52 Mass.App.Ct. 75, 78, 751 N.E.2d 420 (2001).

In addition to depriving the defendant of his constitutional right to such a meaningful opportunity by immediately responding to the jurors' note without eliciting counsel's participation, the judge ignored the procedures that have been prescribed when he becomes aware of "potentially extraneous influence on a jury.... [The judge must not only] determine whether the material goes beyond the record and raises a serious question of possible prejudice ... including [determining] the likelihood that the material reached one or more jurors," Commonwealth v. Jackson, 376 Mass. 790, 800, 383 N.E.2d 835 (1978), but "must [also] assess the possible prejudicial effect of the jury's exposure to [the] extraneous information, and weigh the impact of that extraneous information on the jurors by conducting an individual voir dire of each juror." Commonwealth v. Kamara, 422 Mass. 614, 616, 664 N.E.2d 825 (1996).

Despite the judge's contravention of these requirements, the defendant raised no objection to the failure to provide him with a meaningful opportunity to participate in the response to a note that, at a minimum, revealed an extraneous influence in the jury room. Nor did he request that the judge take "appropriate steps to investigate," Commonwealth v. Correa, 437 Mass. 197, 200, 770 N.E.2d 435 (2002), the concern suggested by the fact that "the jury may have been exposed" to extraneous material that "`raises a serious question of possible prejudice⁹ ... [by] conduct[ing] a voir dire of jurors." Commonwealth v. Francis, 432 Mass. 353, 369-370, 734 N.E.2d 315 (2000), quoting from Commonwealth v. Jackson, 376 Mass. at 800, 383 N.E.2d 835 (emphasis added). Accordingly, our review is limited to determining whether there was error that created a substantial risk of a miscarriage of justice. Commonwealth v. Francis, supra at 370-371 & n. 14, 734 N.E.2d 315.9

We conclude that the judge's preverdict and postverdict handling of the extraneous influence issue created such a substantial risk because it plausibly influenced the guilty verdicts in a material way. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). The judge's reliance on the conclusory and unspecific juror note to satisfy himself that the one juror who heard the television interview (whom the judge failed to question as "he was supposed to do," Commonwealth v. Trapp, 423 Mass. 356, 362-363, 668 N.E.2d 327, cert. denied, 519 U.S. 1045, 117 S.Ct. 618, 136 L.Ed.2d 542 [1996] ) would not be "swayed" was multiply prejudicial as well as erroneous.¹⁰ By not identifying what the extraneous information was — i.e., the actual content of the televised interview with Smith's mother — the judge rendered himself unable to make the necessary "determination [of] ... the likelihood that the material reached ... more jurors," Commonwealth v. Jackson, 376 Mass. at 800, 383 N.E.2d 835, and the requisite "assess[ment of] the possible prejudicial effect of the jury's exposure to [the] extraneous information, and weigh[ing of] the impact of the extraneous information on the jurors." Commonwealth v. Kamara, 422 Mass. at 616, 664 N.E.2d 825. The judge's inaction allowed the jury to continue deliberating while in possession of information that they may well have weighed adversely to the defendant.

That risk was made manifest in the course of the postverdict voir dire. As noted above, it disclosed that the juror mentioned in the note had heard Smith's mother in effect denouncing the defendant's charged abuse as the cause of the later criminality of her son (who would not otherwise have been so inclined). Had such a revelation been made at the time the judge received the note, there would, in all probability, have been further inquiry as to the exposure of other jurors to that condemnation, either by defense counsel roused from his apparent lethargy by the potentially...