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Commonwealth v. DiBnedetto

Appeals Court of Massachusetts, Worcester

January 11, 2019


          Heard: October 5, 2018.

         Complaint 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.

          Mathew B. Zindroski for the defendant.

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

          Present: Massing, Ditkoff, & Englander, JJ.

          MASSING, J.

         As a 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.) .


         We 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 self-defense .

         In the 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. "

         Following 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."

         The 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 obviously."

         After a 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.

         The 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 ...

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