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Commonwealth v. Moore

Supreme Judicial Court of Massachusetts, Suffolk

June 16, 2016

COMMONWEALTH
v.
DWAYNE MOORE

          Heard: February 10, 2016.

         Indictments found and returned in the Superior Court Department on January 7, 2011.

         A postconviction emergency motion for judicial intervention to prohibit inquiry of the jury, filed on July 23, 2015, was heard by Jeffrey A. Locke, J., and questions of law were reported by him to the Appeals Court.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Teresa K. Anderson, Assistant District Attorney Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth.

          Chauncey B. Wood for the defendant.

          K. Neil Austin, Caroline S. Donovan, & David A.F. Lewis, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          BOTSFORD, J.

         We consider here five questions reported by a Superior Court judge to the Appeals Court concerning the effect of an amendment to Mass. R. Prof. C. 3.5 (c), as appearing in 471 Mass. 1428 (2015) (rule 3.5 [c]), regarding an attorney's ability to communicate, postverdict, with jurors who deliberated on, or were discharged from, the attorney's client's case. Rule 3.5 (c) became effective on July 1, 2015.

         1. Background.

         From February 13 to March 22, 2012, the defendant was tried in the Superior Court in Suffolk County on charges of murder in the first degree (four counts), G. L. c. 265, § 1; home invasion, G. L. c. 265, § 18C; armed robbery, G. L. c. 265, § 17; armed assault with intent to murder, G. L. c. 265, § 18 (b); aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c0; carrying a firearm without a license, G. L. c. 269, § 10 (a.); and trafficking in cocaine, G. L. c. 94C, § 32E (b). The jury were deadlocked on nine of the charges and found the defendant not guilty on the tenth (trafficking in cocaine). The trial judge declared a mistrial. On October 2, 2012, the defendant filed a motion for a change of venue on account of extensive media coverage, which was allowed in part. The defendant was retried before a jury from Worcester County sitting in the Suffolk County Court House from October 16 to December 18, 2012. In the middle of deliberations, an issue concerning a deliberating juror's compliance with the judge's instruction not to consult extra-trial research arose. After individual inquiry of each deliberating juror, the judge dismissed one juror and, based on a finding that the remaining jurors were not affected by exposure to extraneous information, denied the defendant's motion for a mistrial. The jury continued to deliberate. One week later, the jury found the defendant guilty on the four indictments charging murder in the first degree as well as on those charging home invasion and armed robbery, and not guilty on the remaining three charges.[1] The defendant filed a notice of appeal on January 2, 2013; the appeal has been docketed in this court but has not yet been briefed or argued.

         On July 14, 2015, two weeks after the effective date of rule 3.5 (c), one of the defendant's appellate attorneys sent a letter to the assistant district attorney representing the Commonwealth on appeal, informing her of defense counsel's intention to contact the deliberating jurors in the defendant's second trial pursuant to amended rule 3.5 (c), and attached a copy of the proposed letter that counsel intended to send to the jurors. On July 21, 2015, the defendant's appellate counsel sent via first class mail the letters to the deliberating jurors. Later that same day, the assistant district attorney sent an electronic mail (e-mail) message to the defendant's appellate counsel, notifying them that the Commonwealth would file a motion to prohibit juror communication, and further explained that "[i]t is the Commonwealth's position that postconviction inquiry of jurors remains prohibited as a matter of law."

         On July 23, 2015, the Commonwealth filed an emergency motion for judicial intervention to prohibit postconviction inquiry of the jury; the defendant's appellate counsel filed an opposition. After hearing, the motion judge, who had been the trial judge in the defendant's second trial, agreed to report to the Appeals Court five questions concerning rule 3.5 (c), ordered that the defendant's appellate counsel not communicate further with the discharged jurors pending further order of the court, and further ordered that counsel retain sealed and unread any written or e-mail responses they might receive from jurors in response to the letter previously sent.

         The five reported questions are the following:

"1. In revising Rule 3.5 of the Massachusetts Rules of Professional Conduct to permit attorney originated communications with discharged jurors, did the Supreme Judicial Court implicitly overrule the prohibition against attorney originated communications with jurors as set forth in Commonwealth v. Fidler, 377 Mass. 192, 203-204 (1979)?
"2. In generally adopting the American Bar Association's Model Rule 3.5 containing the language 'prohibited by law, ' did the Supreme Judicial Court intend Commonwealth v. Fidler to be continuing precedent?
"3. If the answer to question two is 'no, ' then what types of contact with discharged jurors by an attorney, if any, are 'prohibited by law' under Rule 3.5(c) (1)?
"4. If the answer to question one is 'yes, ' and the answer to question two is 'no, ' does revised Rule 3.5 permit attorneys to communicate with jurors who were discharged prior to July 1, 2015?
"5. If the answer to question four is 'yes, ' in light of Commonwealth v. Fidler, are attorneys required to seek approval from the court prior to contacting jurors?"

         We transferred the judge's report from the Appeals Court to this court on our own motion.

         2. Discussion.

         a. Attorney disciplinary rules and the Fidler decision.

         Effective October 2, 1972, this court adopted S.J.C. Rule 3:22, the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, as appearing in 359 Mass. 796 (1971). Disciplinary Rule (DR) 7-108 (D) governed postverdict contact with jurors. This rule permitted attorneys to initiate communication with jurors postverdict without permission of the court, providing that "the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service." S.J.C. Rule 3:22, DR 7-108 (D), as appearing in 359 Mass. 826 (1971). The text of DR 7-108 (D) was essentially identical to the Model Code of Professional Responsibility that previously had been adopted by the American Bar Association (ABA).

          Seven years later, this court decided Commonwealth v. Fidler, 377 Mass. 192 (1979). The defendant in Fidler was convicted of armed robbery after a jury trial in the Superior Court, and thereafter filed a motion for a new trial based on alleged juror misconduct. See J_d. at 193-194. In support of the motion, the defendant filed an affidavit of one of the deliberating jurors. See J_d. The affidavit averred that the jury considered in their deliberations matters the judge had instructed them to disregard, and also that extraneous information had been introduced into the jury deliberations in the form of statements by a juror about factual matters relating to the defendant that had not been presented in evidence at trial. See J_d. The trial judge denied the defendant's motion for a new trial without an evidentiary hearing. In considering the defendant's appeal from this denial, this court affirmed the common-law rule, first discussed by this court in Woodward v. Leavitt, 107 Mass. 453, 460 (1871), but having earlier roots in England, that inquiry into jury deliberations is prohibited.[2] In particular, we reiterated that it is impermissible to impeach a jury verdict with juror testimony concerning the contents of the jury's deliberations, and also impermissible to "permit evidence concerning the subjective mental processes of jurors, such as the reasons for their decisions." [3]Fidler, supra at 198. After discussing these common-law precepts, we proceeded to define and adopt a separate rule that, going forward, would require all postverdict contact with and interviews of jurors by attorneys to occur under court supervision and ...


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