Supreme Judicial Court of Massachusetts, Worcester
Heard: March 4, 2019.
found and returned in the Superior Court Department on
September 5, 2014. The cases were tried before Daniel M.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
A. Laroche for the defendant.
M. Oftring, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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
Evidence at trial.
defendant was tried on several firearm-related
offenses. 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."
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
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'?" The judge brought the jury into the court
room and instructed them that all verdicts must be unanimous.
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
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
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 ...