Com. v. Smith

• Decision Date: 12 December 1988
• Citation: 531 N.E.2d 556,403 Mass. 489
• Parties: COMMONWEALTH v. Robert SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 556

531 N.E.2d 556

403 Mass. 489

COMMONWEALTH v. Robert SMITH.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued March 7, 1988.

Decided Dec. 12, 1988.

Maureen B. Brodoff, Committee for Public Counsel Services, Boston, for defendant.

Paul J. Molloy, Sp. Asst. Atty. Gen., for Com.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant was convicted of one count of armed assault in a dwelling with intent to commit a felony, and two counts of assault and battery by means of a dangerous weapon. He appealed, and we granted his application for direct appellate review. On appeal, he alleges three grounds of reversible error: first, that the trial judge improperly allowed four alternate jurors to attend the jury deliberations; second, that the defendant was deterred from testifying in his own behalf because the trial judge committed an error of law in denying the defendant's motion in limine to bar use of the defendant's prior armed robbery convictions for impeachment purposes; and third, that the trial judge wrongly allowed the prosecutor to elicit the fact that the defendant had been compelled to give saliva, blood, hair, and handwriting samples by means of a court order. We agree with the defendant that it was reversible error to allow the four alternate jurors to be present in the jury room during jury deliberations, and we therefore reverse his convictions. For the guidance of the parties and the judge on remand, we shall briefly comment on the other issues.

The prosecution's evidence indicated that two armed, masked men invaded the home of Roland Backlund and his son, Michael, in Braintree at about 9 P.M. on the night of October 30, 1984. The intruders assaulted the Backlunds and demanded the key to a safe in the Backlund home. The police were alerted by a neighbor, and Officers Kessinger and Brady arrived at the scene at about 9:20 P.M. Shots were exchanged, and the heavier of the two intruders was hit by a bullet. The intruders escaped.

An intensive search of the area around the house was undertaken. At approximately 10:45 P.M., a man was found wounded, muddy, and soaking wet under a dock at the Braintree Yacht Club, not far from the victims' house. Their house bordered on the Monatiquot River. The defendant and the prosecution agree that this man, Richard Molisse, was one of the Backlunds' assailants.

At 1:30 A.M., Braintree police Officer Leo Coppens noticed the defendant hop over a guardrail onto Quincy Avenue near the Thayer Public Library, an area roughly adjacent to the Braintree Yacht Club. He was wearing dark clothing, and was soaking wet and covered with mud. The man matched a description of the second assailant given to Officer Coppens by Officer Brady, and Coppens proceeded to arrest the defendant. After the arrest, Brady positively identified the defendant, saying "I can tell by the eyebrows," a reference to the defendant's very full, bushy eyebrows. Brady also identified the defendant in court as the second assailant.

At trial, the defendant attempted to cast doubt on whether he was the second assailant. In his closing argument, defense counsel also argued that there had not been any second assailant, and that Molisse had perpetrated the crime by himself.

Sixteen jurors had been empaneled. The prosecutor and defense counsel agreed that the four alternate jurors remaining after reduction of the jury to twelve members pursuant to Mass.R.Crim.P. 20(d)(2), 378 Mass. 889 (1979), would be permitted to attend, but not participate in, the jury's deliberations. Nothing in the record or in the parties' briefs suggests that the defendant personally agreed to that procedure. At the conclusion of his jury instructions, the judge explained to the jurors the process of jury reduction and the role of the alternate jurors in this way: "At the start of this case, we impanelled sixteen jurors as insurance against the contingency that some of you might not be able to continue serving after the case was started, and this would be in order to avoid a mistrial. However, fortunately we're all here and everyone seems to be in good health. Ordinarily, we handle this by having the clerk draw from the box the names of the four jurors, and those are called the alternate jurors, and they stand by ready to serve in the event one of the working jurors is for any reason unable to continue.

"Counsel, in appreciation of what good jurors you have been, have agreed that those four jurors that are chosen as alternate jurors will be permitted to go into the jury room and listen to the discussions but will not be permitted to say anything, nor will they of course be permitted to vote.

"This is a more--it seems like a fairer method than having those four jurors sit outside the jury room just waiting for the jury to come in with a verdict. It has the additional advantage that in the event one of the working jurors for some reason is unable to continue serving, continue deliberating, then we draw one of the alternate jurors and have that alternate juror sit in for the juror that is unable to continue serving. If we didn't have that and we had an alternate juror go in to replace a juror, the jury has to go back to square one and start all over again, and this involves a considerable amount of time and considerable inconvenience for everybody.

"So that the four jurors that are called and named as alternate jurors will be in the jury room with you, Mr. Foreman and ladies and gentlemen, but, Mr. Foreman, I instruct you very stiffly and severely that they are not to be permitted to enter into any of the discussions. They can listen; they can observe, but they can't talk. Do you understand?"

Allowing alternate jurors into the jury room during deliberations is proscribed by rule 20(d)(2), which states that, upon submission of the case to the jury, alternate jurors "shall be kept separate and apart from the other jurors in some convenient place." The deliberations of the regular jurors are of no concern to the alternates; if it becomes necessary to substitute an alternate for a regular juror during deliberations, deliberations must begin anew. Commonwealth v. Haywood, 377 Mass. 755, 770, 388 N.E.2d 648 (1979). Furthermore, unlike Mass.R.Crim.P. 19, 378 Mass. 888 (1979), which allows a defendant to waive either his right to a trial by jury or his right to a twelve-person jury in the Superior Court, rule 20(d)(2) has no waiver provision. There can be no doubt that, despite his good intentions, the judge erred by allowing the alternates to attend the jury deliberations. The question is whether there should be a remedy, and, if so, what the remedy should be, in light of the values sought to be protected by rule 20(d)(2) and in light of the judge's jury instructions concerning nonparticipation by the alternates and counsel's agreement to the procedure.

The Commonwealth argues that defense counsel's agreement to the procedure prevents the defendant from asserting that it was reversible error. The Commonwealth relies on several cases involving procedural irregularities involving juries, where we have either held that the defendant could not complain on appeal where his counsel acquiesced or failed to object below, or held that there was no substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Barrows, 391 Mass. 781, 783-784, 464 N.E.2d 66 (1984); Commonwealth v. MacDonald (No. 1), 368 Mass. 395, 397-400, 333 N.E.2d 189 (1975); Commonwealth v. Zakas, 358 Mass. 265, 267-268, 263 N.E.2d 446 (1970); Amado v. Commonwealth, 349 Mass. 716, 717-719, 722, 212 N.E.2d 205 (1965). However, there is no inflexible rule, applicable in all instances, that defense counsel's agreement to a procedure involving the jury, or failure to object to it, operates as a waiver or otherwise prevents the defendant from asserting on appeal that the procedure constituted reversible error. For instance, by statute and rule a defendant's right to a jury trial can be waived only by the defendant's personal execution of a written waiver, G.L. c. 263, § 6 (1986 ed.), Mass.R.Crim.P. 19(a), Gallo v. Commonwealth, 343 Mass. 397, 402, 179 N.E.2d 231 (1961), and even then, by declaration of this court, such a waiver is ineffective in the absence of an appropriate colloquy between the judge and the defendant. Ciummei v. Commonwealth, 378 Mass. 504, 506-511, 392 N.E.2d 1186 (1979). These exceptions to the general rule that a defendant is bound by his or her counsel's agreements reflect the extraordinary value we place on the right of trial by jury. Proper respect for the right to jury trial also dictates judicial vigilance to ensure, in so far as reasonably possible, that jury deliberations are conducted privately and without extraneous influence. See Commonwealth v. Fidler, 377 Mass. 192, 196, 385 N.E.2d 513 (1979); Woodward v. Leavitt, 107 Mass. 453, 460 (1871).

The critical fact to be recognized in this case is that "alternate jurors," as long as they remain alternates, really are not jurors. When they attend jury deliberations they do so as mere strangers. State v. Cuzick, 85 Wash.2d 146, 530 P.2d 288 (1975), like this case, involved the presence without objection of a nonparticipating alternate juror during the jury's deliberations. In affirming a decision of the Court of Appeals reversing the defendant's convictions, the Supreme Court of Washington reasoned as follows: "However many persons comprise a jury, there can be no question that it must reach its decision in private, free from outside influence. This principle is of constitutional stature.... No one contends that the alternate juror fully participated in the jury's discussions; we assume he followed, at least substantially, the court's instructions not to do so. He was, then, essentially an outsider watching the other members of the panel reach their decision. His presence as one not obligated to express an opinion, not...