Commonwealth v. Roth

• Decision Date: 11 October 2002
• Citation: 776 NE 2d 437,437 Mass. 777
• Parties: COMMONWEALTH v. JEFFREY ROTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

437 Mass. 777

776 NE 2d 437

COMMONWEALTH v. JEFFREY ROTH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 2002.

October 11, 2002.

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

Gregory I. Massing, Assistant District Attorney (Nicole M. Procida, Assistant District Attorney, with him) for the Commonwealth.

Hugh W. Samson for the defendant.

SOSMAN, J.

The Commonwealth has petitioned pursuant to G. L. c. 211, § 3, asking this court to set aside "partial verdicts" taken after a deliberating jury twice reported that they were deadlocked. A single justice of this court reserved and reported the case to the full bench. While we agree with the Commonwealth that the judge erred in taking "partial verdicts" on lesser included offenses within a single indictment, principles of double jeopardy preclude retrial of the defendant on the offenses as to which the jury rendered verdicts of not guilty. Although the judge should not have asked for or taken them, those verdicts will stand. The Commonwealth may retry the defendant only on the remaining lesser included offenses on which the jury were unable to reach a verdict. 1. Facts and procedural history. The defendant was charged in two indictments, one for vehicular homicide (G. L. c. 90, § 24G [a]) and the other for operating while under the influence of liquor causing serious bodily injury (G. L. c. 90, § 24L [1]), stemming from a two-car collision on Interstate Route 95. The defendant's vehicle, a Dodge Durango, struck the victims' vehicle, a Ford Bronco. Both victims were ejected from the Bronco. One victim died; the other sustained serious injuries. At trial, the jury heard conflicting testimony and sharply divergent expert opinions as to how the accident occurred. The Commonwealth contended that the defendant, traveling in excess of eighty miles an hour, wove between lanes and struck the Bronco. The defendant contended that he had been traveling in one lane and under the speed limit, that the Bronco had angled across his lane, and that he had swerved his vehicle in an unsuccessful attempt to avoid the collision. There was also conflicting testimony from various witnesses at the scene, and later at the hospital, expressing sharply divergent views as to whether the defendant was intoxicated.

Trial commenced on November 14, 2000. The judge gave his final instructions on November 27, including instructions on a lesser included offense for each indictment.¹ After two days of deliberation, a note from the foreperson reported that the jury were deadlocked. Deliberations were suspended, and the jury were told to report back the following morning. After consulting with counsel, the judge concluded that his instructions on the lesser included offenses had been erroneous, and that the evidence permitted the jury to consider additional lesser included offenses.² Thus, when the jury returned on the morning of November 29, the judge delivered new, complete instructions including those additional lesser included offenses and gave the jury revised verdict slips reflecting that wider array of offenses.³ As to the indictment charging motor vehicle homicide, the jury were given the following lesser included offenses for their consideration: (1) motor vehicle homicide operating recklessly or negligently so as to endanger (but not while under the influence of liquor); (2) motor vehicle homicide operating under the influence of liquor (but not operating recklessly or negligently); (3) operating under the influence of liquor; and (4) operating recklessly or negligently. As to the indictment charging operating while under the influence of liquor causing serious bodily injury, the list of lesser included offenses consisted of the following: (1) operating while under the influence of liquor (but not operating recklessly or negligently) causing serious bodily injury; (2) operating while under the influence of liquor; and (3) operating recklessly or negligently. See note 2, supra. The revised verdict slips provided separate boxes for "Guilty" corresponding to the offense as charged and each of the lesser included offenses, with a single box designated "Not Guilty" to be checked if the jury found the defendant not guilty of any offense.

At the end of that day of further deliberation, the jury again reported that they were deadlocked. The next morning, November 30, the judge gave the jury the so-called Tuey-Rodriquez instruction, see Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973) (Appendix A), and they resumed deliberations.⁴ After several hours of further deliberation, the foreperson sent the judge the following note: "We have tried our hardest and cannot come to a unanimous decision. After viewing and reviewing all evidence and testimony, we cannot agree." The judge then consulted with counsel concerning the declaration of a mistrial. Defense counsel requested that the judge inquire as to whether the jury had reached any "partial verdicts." The Commonwealth requested that the judge simply declare a mistrial. The judge decided that he would inquire of the jury as to any "partial verdicts."

The inquiry as to "partial verdicts" began with the judge's explaining to the jury that he did not want to inquire into, or be told anything about, "what it is that you have discussed or the nature of your deliberations." Next, he explained that, if the foreperson did not understand any of his questions, she should simply respond that she did not understand. The judge then inquired as to whether the jury had reached a unanimous verdict with respect to the motor vehicle homicide offense as charged. After an extended explanation by the judge as to what was meant by that inquiry, interspersed with repeated questions and expressions of confusion by the foreperson, the foreperson responded that the jury had reached a unanimous verdict on that offense.⁵ The judge then proceeded to make a similar inquiry with respect to the offense as charged in the second indictment, asking the foreperson whether the jury had agreed on a verdict as to that charge. The foreperson replied that they had also reached a verdict as to that charge. The judge then instructed:

"All right. Now, what I'm going to do, Ladies and Gentlemen, is I'm going to direct you to return to the jury room and to record — if indeed it is your unanimous verdict, if all twelve of you, as to those two charges, are in agreement on a verdict of guilty or not guilty — I'm going to direct you to record that verdict and then to return that paper to the Court and then I will, perhaps, inquire further of you."

At that juncture, the prosecutor asked to be heard at sidebar. She objected to the procedure, arguing that "it seemed very confusing," expressing doubt whether the foreperson had understood the question, and observing that "all of the jurors had looks on their faces, like they didn't know what she was talking about when she said yes." The prosecutor also expressed concern that the process, and the phrasing of the question, improperly pressured the jury to make a decision. The judge disagreed with that assessment, but proceeded to rephrase his question to the jury:

"Let me just say again, two things: the question that I have asked is whether all twelve of you have reached an agreement with regard to the offense charged in each indictment that's comprised of five elements. And you have the written instructions to consult, if you go back and you want to consult them. If you have reached a unanimous decision that the Commonwealth has proved the guilt of the defendant on each indictment beyond a reasonable doubt or that it has not, that is, that you agree on a verdict of guilty or not guilty, I am directing you to go back and to record that verdict on each of the verdict slips by checking whether or not the verdict on that charge is guilty, if the Commonwealth has proved all those five elements beyond a reasonable doubt; and if you have unanimously agreed that the Commonwealth has not proved those five elements beyond a reasonable doubt, then you should not check that box. And that's what I'm asking each of you to do.

"So if your verdict is that the Commonwealth has proved those five elements beyond a reasonable doubt and, in accordance with the instructions I've given you, that box should be checked and it should be signed and dated by the foreperson on each indictment.

"If your decision, unanimously, is that the Commonwealth has not proved those five elements beyond a reasonable doubt, then you should come back with that box not checked. And that's all I'm asking you to do.

"If you go back to the jury room and you're not clear on what it is I'm asking you to do, then the procedure is, you write a note with the question and I'll try to answer it."

The jury then returned to the deliberation room.

In the jury's absence, the judge then noted that, "until I gave the jury that last instruction, I'm not sure whether it would have been clear to the jurors what they were supposed to do with that verdict slip in the event that all twelve of them believe that the Commonwealth had not proved, beyond a reasonable doubt, the guilt of the defendant because the potential confusion was, if they checked not guilty, it could be inconsistent with the potential for a unanimous guilty of one of the lesser included offenses." The prosecutor protested that the instruction was still confusing, and that the jurors had looked confused. She pointed out that the format of the verdict slip, which had not been designed to take any such partial verdicts, added to that confusion.⁶ The judge explained that if the jury returned with the verdict slip blank, he would interpret that blank as a unanimous vote of not guilty for the offense as charged, and that he would then inquire of the jury to confirm that that was their vote.

The jury returned,⁷ and the judge asked the foreperson whether the jury had reached "a unanimous verdict...