Commonwealth v. Tiscione, SJC-12629

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation124 N.E.3d 690,482 Mass. 485
Docket NumberSJC-12629
Parties COMMONWEALTH v. Vincent A. TISCIONE, Third.
Decision Date25 June 2019

Sara A. Laroche, Boston, for the defendant.

Susan M. Oftring, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.


In December 2015, the defendant, Vincent A. Tiscione, was tried on multiple charges relating to the illegal possession and improper storage of firearms and ammunition. During deliberations, a juror informed a court officer that she "could not continue" to deliberate. Subsequently, in a colloquy with the judge, the juror stated that she was "upset" by other jurors "being argumentative," and that she was "emotional" because of the health issues of various family members. After the colloquy, the judge discharged the deliberating juror and replaced her with an alternate juror. Ninety minutes later, the jury found the defendant guilty. The Appeals Court affirmed the judgments. Commonwealth v. Tiscione, 93 Mass. App. Ct. 1118, 107 N.E.3d 1255 (2018). We conclude that the juror was discharged for reasons that were not purely personal to the juror and that her dismissal was prejudicial error, and therefore we vacate the judgments entered against the defendant. Because we also conclude that there was sufficient evidence to survive the defendant's motion for required findings of not guilty, we remand this case to the Superior Court for further proceedings consistent with this opinion.1

Background. 1. Evidence at trial. The defendant was tried on several firearm-related offenses.2 Before his arrest, the defendant was living in an apartment with his girlfriend and his girlfriend's family. The Commonwealth's main witness -- the mother of the defendant's girlfriend -- testified that the defendant pointed a shotgun at someone in the apartment before placing the shotgun under his bed. In another incident, the witness also saw the defendant placing a handgun in his bedroom closet. When the defendant was away, the witness took the handgun and hid it in a hole in the wall of the apartment. The defendant later discovered that the handgun was missing; he stated, "Where's my gun? Where's my F-ing gun?" and "I'll be back, and you better find my F-ing gun."

The witness telephoned the police and directed them to the hidden handgun in the wall; she also informed the police that there might have been other guns in that bedroom. The police were thus able to recover a pistol and a shotgun from the apartment, both with ammunition. The theory of the defense at trial was that the Commonwealth had not adequately proved that the defendant possessed the firearms and ammunition; in his motion for required findings of not guilty, the defendant also argued that there was no evidence that the ammunition was, in fact, capable of being fired. The judge denied the motion.

2. Jury deliberations. The jury began their deliberations late in the day on December 9. Approximately one and one-half hours after resuming their deliberations on the morning of December 10, the jury submitted a note to the trial judge asking, "If we cannot get 12-0, must we vote ‘not guilty’?"3 The judge brought the jury into the court room and instructed them that all verdicts must be unanimous.

During the lunch break, a court officer informed the judge that juror no. 44 had removed herself from the jury room, that she was "visibly upset, visibly shaken," and that she stated that "she could not continue as a juror." The court officer further stated that when he asked the juror to return to deliberations, she refused, at which point deliberations were halted. The judge conferred with the parties, and the juror then was brought before the court for a colloquy.

When the judge asked the juror why she would not go back into the deliberation room, she told the judge that "a couple people [were] being argumentative," that another juror accused her of "putting words in [his] mouth," and that "it was just enough to upset [her]." She acknowledged, however, that she did not feel threatened. The judge spoke with the parties outside the juror's presence and indicated that, based on her responses, it appeared that the juror's distress stemmed from her views on the case.4

When the juror returned, the judge made further inquiry. He noted that the juror was "emotional," and asked her about it. The juror responded by listing several family members and the health issues each was experiencing, including her father who had dementia

, her sister's husband who had Alzheimer's disease, her husband who had undergone hip surgery one month prior, and her daughter's father-in-law who was recovering from open-heart surgery

. She stated that she "[felt] like [she] should be with family."

The two then had the following exchange:

THE JUDGE : "So if I could summarize, you've got a lot on your plate separate and apart from your jury service; is that right?"
THE JUROR : "Yes."
THE JUDGE : "And the process of being put in a deliberation room and going back and forth was something that emotionally kind of tipped the balance for you?"
THE JUROR : "Yes."
THE JUDGE : "And all of your life experiences and the loads of life, if you will, has reached a tipping point for you. Is that fair?"
THE JUROR : "Yes."
THE JUDGE : "All right. I don't want to put words in your mouth. If what I've said isn't --"
THE JUROR : "No; I just -- I didn't think we would be here this long. I feel like I should be with my family; and the people in there -- it's just arguing, and I'm uncomfortable."

Ultimately, the judge concluded that there was "good cause" to discharge the juror, finding at that time that she had "a personal issue," that "the burdens in her life" were "significant," that "her personal emotional state ... ha[d] overwhelmed her," and that "she no longer [had] an ability to participate as a juror in this case." The defendant requested that the judge inquire of the other jurors to ensure that they were not "bullying" the juror for her views. The judge disagreed, stating that such an inquiry would impermissibly reveal the substance of the deliberations. Over the defendant's objection, the judge discharged the juror and replaced her with an alternate juror.

The judge instructed the remaining jurors to "begin deliberations anew" with the alternate juror. At some point during the renewed deliberations, the court belatedly received a note generated at 11:35 A.M. -- that is, after the jury had received their supplementary instruction that all verdicts had to be unanimous but before juror no. 44 was dismissed. This note indicated that, despite the judge's supplementary instruction, the jury had remained deadlocked for the remainder of the morning.

Approximately ninety minutes after the alternate juror joined the jury, they returned guilty verdicts on all charges before them.

Discussion. 1. Discharge of deliberating juror. a. Standard. "The discharge of a deliberating juror is a sensitive undertaking and is fraught with potential for error. It is to be done only in special circumstances, and with special precautions." Commonwealth v. Connor, 392 Mass. 838, 843, 467 N.E.2d 1340 (1984). Discharging a juror during deliberations is governed by G. L. c. 234A, § 39, which states in pertinent part:

"The court shall have the discretionary authority to dismiss a juror at any time in the best interests of justice.... The court shall have authority to excuse and discharge a juror participating in jury deliberations after a hearing only upon a finding of an emergency or other compelling reason."5

The rules of criminal procedure similarly provide:

"If, at any time after the final submission of the case by the court to the jury but before the jury has agreed on a verdict, a juror dies, becomes ill, or is unable to perform his duty for any other cause, the judge may order him to be discharged and shall direct the clerk to place the names of all the remaining alternate jurors in a box and draw the name of an alternate who shall take the place of the discharged juror on the jury, which shall renew its deliberations with the alternate juror."

Mass. R. Crim. P. 20 (d) (3), 378 Mass. 889 (1979).

During deliberations, a juror properly may be discharged "only [for] reasons personal to [that] juror, having nothing whatever to do with the issues of the case or with the juror's relationship with his [or her] fellow jurors." Connor, 392 Mass. at 844-845, 467 N.E.2d 1340. "Allowing discharge only for personal reasons ensures that such action will not ‘affect the substance or the course of the deliberations.’ " Commonwealth v. Swafford, 441 Mass. 329, 336, 805 N.E.2d 931 (2004), quoting Connor, supra at 845 n.4, 467 N.E.2d 1340.

To make this determination, a judge must hold a hearing with the juror in question. Connor, 392 Mass. at 843-844, 467 N.E.2d 1340. "[B]ecause the inquiry may well lead to a conclusion that the juror cannot be discharged, the judge must scrupulously avoid any questioning that may affect the juror's judgment." Id. at 844, 467 N.E.2d 1340, citing Commonwealth v. Webster, 391 Mass. 271, 275-276, 461 N.E.2d 1175 (1984). We defer to a judge's factual findings where they are not clearly erroneous. See Swafford, 441 Mass. at 337, 805 N.E.2d 931, citing Commonwealth v. Tennison, 440 Mass. 553, 560, 800 N.E.2d 285 (2003).

b. Application. Here, the judge properly held a hearing to question the juror in the presence of both parties to find out why the juror would not continue to deliberate and to determine whether removal of the juror was warranted. During the colloquy, the juror told the judge that she did not want to return to deliberate because members of the jury were "being argumentative," that another juror accused her of "putting words in [his] mouth," and that it "upset" her. Although the judge initially concluded that the juror's problem stemmed from her "views on the case" rather than a ...

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