Com. v. McCarthy

• Decision Date: 27 September 1994
• Docket Number: No. 93-P-275,93-P-275
• Parties: COMMONWEALTH v. Brian McCARTHY.
• Court: Appeals Court of Massachusetts

Page 248

637 N.E.2d 248

37 Mass.App.Ct. 113

COMMONWEALTH v. Brian McCARTHY.

No. 93-P-275.

Appeals Court of Massachusetts Essex.

Argued Dec. 15, 1993.

Decided July 29, 1994.

Further Appellate Review Denied Sept. 27, 1994.

Kerry David Strayer, Brookline, for defendant.

Elin H. Graydon, Asst. Dist. Atty., for Com.

Before SMITH, PORADA and GREENBERG, JJ.

GREENBERG, Justice.

After a Superior Court jury stated that it had reached verdicts, the session clerk read to the jurors the indictments charging the defendant with possession of burglarious instruments (G.L. c. 266, § 49) and attempted breaking and entering a building in the daytime with intent to commit a felony (G.L. c. 274, § 6). To both charges, when the clerk inquired how the jury found, the forewoman responded, "Not Guilty." But when the session clerk asked for the verdict on a final indictment, which alleged breaking and entering a building in the daytime with intent to commit a felony (G.L. c. 266, § 18), he asked, "[W]hat say you now on [the indictment] charging [the defendant] with breaking and entering a building in the daytime [omitting the words with intent to commit a felony ]: Is the defendant guilty or not guilty?" The foreperson of the jury replied "Guilty." The jurors then affirmed the verdict and were discharged. ¹

On appeal from that conviction, the defendant claims a variety of errors. We first consider his claim that the mistake by the clerk in reading the indictment and recording the verdict rendered his conviction null and void. ²

The evidence would have permitted the jury to find the following. When the police were called by a neighbor to a two-family house in Methuen, they checked the exterior of the building. All the doors were secure, but the frame of the rear basement window was pushed in, its glass was broken, and a piece of wood, which had been ripped off, was lying on the ground in front of the window. Two officers made their way into the basement through the broken window because all the exterior doors were locked. No one was in the basement, but the door at the head of the stairs was ajar, so one officer proceeded to the first-floor landing. He found that the door to the first-floor apartment was locked.

Meanwhile, from his position in front of the house, a third officer saw a man, later identified as the defendant, appear on the second-floor porch. The defendant asked what brought the officer to the scene. Then, in response to the officer's inquiry, he stated that he lived there, and quickly withdrew into the rear hall on the second floor of the building.

At that point, one of the officers on the first floor heard footsteps directly above him. He went to the head of the stairway, where he encountered the defendant. When questioned, the defendant stated that he was visiting friends who lived there and that he had used keys to gain entry. This was untrue: none of the keys found on his person fit the locks to any of the doors.

After the defendant was arrested, the officers discovered that one of the hinge pins from the door to the first-floor apartment had been removed and the other had been raised. They seized a wrench that was on the floor in front of the door.

In his instructions to the jury on the indictment which charged the defendant with the crime of breaking and entering in the daytime with intent to commit a felony (G.L. c. 266, § 18), the judge correctly defined each element of the offense and clearly informed them that they had to find beyond a reasonable doubt that the breaking of the building must be with "the specific intent to commit a felony." Separate verdict slips were prepared, presumably by the session clerk; the slip in regard to that charge contained a handwritten shorthand caption which read: "B & E Bldg. D.T." The intent element, however, did appear on the face of the indictment, which was attached to the verdict slip and sent to the jury. After deliberations the foreperson checked on the verdict slip for that charge the box indicating guilt.

The defendant complains that the pronouncement and recording of the verdict were deficient because the session clerk's question failed to include the words "with intent to commit a felony." This case is a variation on a theme recently developed in Commonwealth v. Andino, 34 Mass.App.Ct. 423, 611 N.E.2d 744 (1993). See also Commonwealth v. Harris, 23 Mass.App.Ct. 687, 505 N.E.2d 221 (1987).

In the Harris case the defendant was tried on an indictment charging armed assault with intent to murder. During the trial, the session clerk, prosecutor, and judge on various occasions correctly stated the crime alleged in the indictment but at other times mistakenly stated that the charge was the lesser included offense of "assault with intent to murder." The jury were instructed on armed assault with intent to murder, but not the lesser included offense of assault with intent to murder. The jury returned with a verdict slip marked "Guilty" which bore on its reverse the mistaken legend "assault with intent to murder." The clerk read the jury slip and asked the foreman for the jury's verdict on the indictment charging "assault with intent to murder." The foreman responded, "Guilty." Id. at 688-689, 505 N.E.2d 221. Judgment was then entered against the defendant and he was given a sentence that exceeded the maximum permissible sentence for assault with intent to murder. Id. at 690-691, 505 N.E.2d 221. On appeal we held that the verdict could stand only as to the lesser included offense of simple assault with intent to murder. We reasoned that the jurors cannot be asked to explain why they returned that particular verdict. Id. at 692-693, 505 N.E.2d 221. We pointed out also that there might have been no mistake since, on the evidence presented, it was open to the jury to find the defendant guilty of the lesser included offense. Id. at 693 n. 9, 505 N.E.2d 221.

Our decision was in accord with a venerated principle, supported by a long line of cases, that "[t]he only verdict which can be received and regarded, as a complete and valid verdict of a jury, upon which a judgment can be rendered, is an open and public verdict, given in and assented to, in open court, as the unanimous act of the jury, and affirmed and entered of record, in the presence and under the sanction of the court." Lawrence v. Stearns, 11 Pick 501, 502 (1831). Commonwealth v. Powers, 21 Mass.App.Ct. 570, 574, 488 N.E.2d 430 (1986), and cases cited.

This general rule has been applied strictly, but not without limit. In Commonwealth v. Andino, 34 Mass.App.Ct. at 424, 611 N.E.2d 744, the defendants were charged with, and evidence was introduced to support the charge of, receiving a stolen motor vehicle. The verdict slip read: "receiving stolen property," a separate and distinct offense. When the verdict was read in open court the jurors responded affirmatively that the defendant was guilty of "receiving stolen property." Id. at 424-425, 611 N.E.2d 744. In that case, we permitted an exception to the line of cases outlining the general rule because the evidence, the arguments, and the instructions at trial regarding the stolen motor vehicle matched the charges. ³ Other unusual factors were present in the case. The jurors could not have been mistaken about the charge because all of the "evidence, arguments, and instructions at trial related to a particular stolen motor vehicle...." Id. at 427, 611 N.E.2d 744. We also noted that the judge's instruction on using an automobile without authority as a lesser included offense focused the jury's attention exclusively on the motor vehicle, diminishing the possibility of mistake. Ibid.

The instant case does not differ from that presented in the Andino case. Here, the judge correctly instructed the jury with respect to all of the elements of the offense. He read to the jury the statutory language highlighting the intent element. Moreover, the split verdict--"not guilty" on the charge of attempting to break and enter the first-floor apartment and "guilty" on the charge at issue--indicates that the jurors were not confused and that no mistake, in fact, occurred. Nor was there any evidence introduced at trial that would permit a verdict of guilty on any lesser included offense. Similarly, here, the clerk, reading the shorthand caption of the verdict slip, referred to an abbreviated version of the offense that was properly charged in the indictment and announced in open court at the outset of the proceedings.

The case of Commonwealth v. Vinnicombe, 28 Mass.App.Ct. 934, 935, 549 N.E.2d 1137 (1990), upon which the defendant relies, is distinguishable. There the judge actually charged the jury on the nonexistent crime of "breaking and entering a building in the daytime" and omitted the felonious intention element of the crime from his instructions. The defendant conceded an unpermitted entry into the building but presented a defense that he intended only to "talk" to an occupant.

We briefly mention other issues raised by the defendant. On the second day of deliberations an alternate juror was substituted when one of the original deliberating jurors failed to appear due to an illness. The defendant was not entitled to a hearing before the alternate juror was substituted because his trial was conducted in a county designated as a "participating county" under G.L. c....