Commonwealth v. Tennison

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: COWIN, J.
• Citation: Commonwealth v. Tennison, 440 Mass. 553, 800 N.E.2d 285 (Mass. 2003)
• Decision Date: 08 October 2003
• Parties: COMMONWEALTH vs. NADIA TENNISON (and two companion cases).

440 Mass. 553

800 NE 2d 285

COMMONWEALTH vs. NADIA TENNISON (and two companion cases¹).

Supreme Judicial Court of Massachusetts, Suffolk.

October 8, 2003.

December 12, 2003.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Kajal K. Chattopadhyay, Assistant District Attorney, for the Commonwealth

Geraldine C. Griffin for Nadia Tennison.

Daniel J. Bennett for David Young.

COWIN, J.

Indictments against the defendants arose from accusations that they had attacked Cynthia Hunter, the victim, several hours after a fight between Hunter and the defendant Nadia Tennison at a local bar. A Superior Court jury convicted Tennison of assault and battery, and the defendant David Young of unlawful possession of both ammunition and a firearm with a barrel of sixteen inches or less. The jury acquitted the two defendants of other charges.² Both defendants appealed, claiming that the trial judge erred by mishandling a possible instance of jury contamination, and by admitting a statement of the victim as a prior consistent statement. Young also contended that the evidence was insufficient to convict him of the firearm charge and Tennison appealed from the denial of her motion for a new trial. The Appeals Court concluded in an unpublished memorandum and order pursuant to its rule 1:28 that the judge had not handled the jury contamination issue properly and reversed the judgments as to both defendants. Commonwealth v. Tennison, 57 Mass. App. Ct. 1108 (2003).³ We granted the Commonwealth's application for further appellate review and affirm the convictions.

1. The jury contamination claim. Tennison's primary claim is that she is entitled to a new trial because of the way in which the judge dealt with an accusation of jury contamination. We set forth the facts concerning this issue. After the jury had begun deliberations, Young's counsel (counsel) moved to withdraw.⁴ This motion was based on the fact that during a weekend recess, counsel became aware that his client had been in contact with one of the jurors from the outset of the trial. Indeed, counsel believed that the "taint ha[d] become pervasive through the jury." Because counsel might be required to testify against Young, he was concerned that this potential conflict of interest required his withdrawal. After consulting with bar counsel, he refused to reveal the name of the allegedly tainted juror or any further details, the information having been obtained in a privileged communication with his client.

At this point, the judge conducted an individual voir dire of the jurors, informing each of his concern that one of them may have violated his previous instructions by being in contact with, or knowing someone, involved in the case. The judge asked each juror the following questions:

(1) "Were you entirely truthful when you said you didn't know anyone involved in the case?" (2) "Have you contacted, or been contacted by, anyone involved in the case?" (3) "Have you heard any conversations in the jury room that would suggest that some juror may know or be in contact with anyone involved in the case?"⁵

Each juror responded in turn that he or she and, as far as they knew, all the other jurors had not been in contact with and did not know anyone involved in the case.

The judge then ordered counsel, who by now had consulted with his own counsel, to reveal the name of the allegedly tainted juror. At this time, counsel moved for a mistrial, on the ground that removing any single juror would raise a negative inference that one or both of the defendants had been involved in "something untoward." The judge denied this request, and, at the judge's further insistence, counsel finally revealed the name of the juror in question.⁶ This juror (juror no. 5-6) was confronted with the accusation, but the judge took care to avoid asking her to respond or provide additional information. Neither defendant requested any further voir dire of the jury. After excusing juror no. 5-6, the judge appointed an alternate.⁷ He informed the "new" jury that juror no. 5-6 had been discharged for personal reasons, and instructed them that they were not to speculate on the reasons for the discharge. He told them to put aside what had been said during earlier deliberations, and to begin deliberations anew on all seven indictments. The sealed verdict which had previously been returned on Tennison's assault and battery charge was nullified. The judge then allowed counsel's motion to withdraw and appointed successor counsel for Young for the remainder of the case. The jury returned their verdicts on the following day.⁸

The defendants claim that the judge erred in three respects in handling this difficult situation. First, Tennison argues that a mistrial on all seven indictments should have been ordered immediately following counsel's revelations, or, at least, after the judge failed to conduct more extensive questioning of all the jurors to determine the extent of the alleged contamination. Second, Tennison urges that a mistrial should have been declared on at least the one indictment that had already been sealed by the time juror no. 5-6 was dismissed. Finally, Young claims that he was denied assistance of counsel from the time his counsel moved to withdraw until the judge's appointment of successor counsel. We discuss each of these issues in turn.

Tennison contends that, as soon as counsel revealed his belief that his client had been in contact with a juror, there was a "manifest necessity" for a mistrial because the rest of the jury might have been tainted (the jurors had already been together for one week during the trial and one and one-half days of deliberations). Tennison further argues that a mistrial was necessary once juror no. 5-6 was removed following the voir dire, because the other jurors would have assumed that she had been in contact with a party and would have inferred from her statements during the nullified deliberations that it was one of the defendants. This inference, the argument goes, severely prejudiced both defendants.

In Commonwealth v. Jackson, 376 Mass. 790, 800 (1978), this court set forth procedures for courts to follow when a claim of extraneous influence on the jury is brought to the attention of a trial judge. The judge should first "determine whether the material . . . raises a serious question of possible prejudice." Id. If the judge so determines, he or she should conduct a voir dire examination of the jurors. Id. This initial voir dire may be conducted collectively, but if, in fact, a juror indicates exposure to the extraneous material in question, an individual voir dire is required to determine the extent of that exposure and its prejudicial effect. Id. See Commonwealth v. Koumaris, ante 405, 412 (2003); Commonwealth v. Francis, 432 Mass. 353, 369-370 (2000). The trial judge has discretion in addressing these issues, and we must give deference to his conclusions. Id. See Commonwealth v. Koumaris, supra at 412; Commonwealth v. Federici, 427 Mass. 740, 747 (1998); Commonwealth v. Trapp, 423 Mass. 356, 363, cert. denied, 519 U.S. 1045 (1996); Commonwealth v. Kamara, 422 Mass. 614, 616 (1996).

In this case, there was no need for the judge to order an immediate mistrial when he learned of counsel's allegations, or after he removed juror no. 5-6. The judge first determined that there was a serious question of possible prejudice, and then conducted an individual voir dire of the jury. The questions during voir dire were neutral and did not mention or imply any wrongdoing on the part of the defendants.⁹ Every member of the jury denied exposure to extraneous material or influence. Once juror no. 5-6 was removed, the judge clearly instructed the new jury to refrain from speculating on the reasons for her removal and to disregard the earlier deliberations. The jury are presumed to follow the judge's instructions. Commonwealth v. Degro, 432 Mass. 319, 328 (2000). In some circumstances, a judge has discretion to declare that there is "manifest necessity" for a mistrial because "the ends of justice cannot be attained without discontinuing the trial." A Juvenile v. Commonwealth, 392 Mass. 52, 55 (1984). Here, however, the judge properly safeguarded the defendants' rights by following the procedures set forth in the Jackson case, and there was no "manifest necessity" for a mistrial.

Tennison, however, maintains that the Jackson procedure was not properly followed, because juror no. 5-6 was not pressed for more information, and because the judge did not conduct a second voir dire to determine the extent of jury contamination after juror no. 5-6 was removed. Neither party requested a second voir dire at trial, so Tennison must demonstrate a "substantial risk of a miscarriage of justice." See Commonwealth v. Jackson, supra at 797.

Tennison cites Commonwealth v. Kamara, supra at 615-616, in support of her position that there should have been a second voir dire. In that case, one juror discussed facts extraneous to the trial evidence with the rest of the jury. Id. at 617. After questioning this juror and discovering what she had said, the judge conducted individual questioning of the other jurors, who all admitted to hearing the extraneous information to some degree. Id. The judge then removed the offending juror, appointed an alternate and, having determined that the remaining jurors could still decide the case exclusively on the evidence, instructed the new jury to begin deliberations. Id. at 618. Tennison argues that, in her case, the judge should have followed this same procedure.

However, in this case, unlike the Kamara case, all the jurors denied being exposed to extraneous information. If juror no. 5-6 was lying, there was a legitimate concern that she not be compelled to disclose her perjury before seeking legal advice, and the judge acted properly in simply removing her and refraining from asking her further questions. He informed her that...