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Commonwealth v. Tiscione

Supreme Judicial Court of Massachusetts, Worcester

June 25, 2019

COMMONWEALTH
v.
VINCENT A. TISCIONE, THIRD v.

          Heard: March 4, 2019.

         Indictments found and returned in the Superior Court Department on September 5, 2014. The cases were tried before Daniel M. Wrenn, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Sara A. Laroche for the defendant.

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

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

          BUDD, J.

         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 (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 ...

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