Heard: October 5, 2018.
received and sworn to in the Worcester Division of the
District Court Department on July 5, 2016. The case was tried
before Paul F. LoConto, J.
B. Zindroski for the defendant.
M. Oftring, Assistant District Attorney, for the
Present: Massing, Ditkoff, & Englander, JJ.
general rule, evidence of a jury's internal thought
processes cannot be used to impeach a verdict. In this
appeal, we consider whether this rule applies when the judge
learns, after a guilty verdict has been affirmed and
recorded, that the jurors misunderstood the unanimity
instruction and convicted the defendant by a vote of four to
two. Concluding that the rule does apply -- and that the
judge should have accepted the original verdict instead of
sending the jurors out to continue deliberations, resulting
in a second guilty verdict -- we affirm the defendant's
conviction in the District Court of assault and battery of a
family or household member, in violation of G. L. c. 265,
§ 13M (a.) .
briefly summarize the trial testimony, then discuss in
greater detail the circumstances surrounding the taking of
the verdict. The defendant arrived at the home of the father
of her two children to pick them up for a scheduled trip to
Niagara Falls. The father expected the defendant at 8 A.M.,
but she arrived at 4:30 A.M. and banged on the front door.
After an unfriendly exchange of words, the defendant punched
the father in the face. She claimed that she struck him in
final charge, the judge instructed the jury that the
defendant is presumed innocent "unless and until the
evidence convinces you unanimously as a jury that the
defendant is guilty beyond a reasonable doubt." The
judge reiterated, "And, again, your verdict whether it
is guilty or not guilty must be unanimous." After
selecting the foreperson, the judge explained to her,
"Once your jury has reached a unanimous verdict, that is
all six of you agree, it's your obligation to mark the
verdict slip. "
the judge's charge, the jury deliberated for
approximately forty minutes and reached a verdict. Before
taking the verdict, the judge informed the jury that they
would be free to talk about the case after they were
discharged, and "although I'm going to discharge you
... I do want to see you ever so briefly in the deliberation
room before you leave the building."
clerk then asked if the jury had reached "a unanimous
verdict." The foreperson answered, "Yes, we
have," and that the verdict was guilty. After recording
the verdict, the clerk asked the foreperson to confirm that
the verdict of guilty was accurate. She responded, "That
is correct." The clerk then asked the entire jury if the
guilty verdict was correct, and they affirmed that it was.
The judge then excused the jury, stating, "I'm going
to now formally discharge you. I'm going to see you
momentarily in the jury deliberation room." The judge
told the parties, "I'm just going to say goodbye to
the jurors and give them an opportunity if they want to
present any questions or criticisms. I'm not going to
discuss with them potential penalties or their deliberation
brief recess, the judge returned to the court room and
explained that after thanking the jurors for their service,
he had solicited feedback about their experience, emphasizing
that he did not want to hear about their deliberative
process. A juror asked, "[W]hat would happen" if
the result was four to two. The judge responded, "[Y]our
decision has to be unanimous." Another juror then
offered, "[W]ell, that should be made more plain, more
clear." The first juror added, "[B]ecause it
wasn't unanimous." At this point, the judge ended
the conversation, told the jury, "I can't discharge
you right now," and returned to the court room.
judge informed the parties that he intended to bring the
first juror into the court room to see if he had correctly
understood her comments. Without objection, the judge
described his recollection of the conversation to the juror
and asked what she had meant when she said the verdict was
not unanimous. The juror responded, "[T]wo of us, we
didn't find the defendant guilty and four did." The
juror said that she had voted not guilty and identified the
foreperson as the other not guilty vote. She had ...