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Commonwealth v. Gonsalves

Appeals Court of Massachusetts, Plymouth

September 6, 2019

COMMONWEALTH
v.
Adrian J. GONSALVES.

         Argued May 3, 2019

         [132 N.E.3d 138] Jury and Jurors . Practice, Criminal, New trial, Jury and jurors.

          INDICTMENT found and returned in the Superior Court Department on September 19, 2014. The case was tried before Richard J. Chin, J., and a motion for a new trial, filed on June 13, 2017, was heard by him.

          Keith Garland, Assistant District Attorney, for the Commonwealth.

          Glynis Mac Veety for the defendant.

         Present: Rubin, Desmond, & Ditkoff, JJ.

          OPINION

         RUBIN, J.

          The day after a jury convicted the defendant of manslaughter and acquitted him of assault and battery, the prosecutor from the Plymouth County district attorney’s office who tried the case discovered that one of the jurors who deliberated on the case had, prior to the start of the trial, accepted an unpaid clerical internship with that district attorney’s office, which was to begin one week after the trial concluded. The prosecutor made the discovery after [132 N.E.3d 139] trial when she sent a text message to the juror’s father, a police officer with whom she had worked in the past. The text message said, "Your daughter was on my jury. I hope she enjoyed the experience!" The juror’s father replied, "Yes she had a great experience. She is also doing an internship Tuesdays and Wednesdays at the DAs main office starting next week. You can talk to her about the case. Very interesting!"

          Commendably and appropriately, the prosecutor, upon learning this information from the father’s text message, immediately notified

Page 30

counsel for the defendant, who, alleging the juror was biased, moved for a new trial. The judge held an evidentiary hearing and allowed the defendant’s motion. The Commonwealth now appeals.

         Background .

         The following facts are taken from the judge’s findings supplemented by the uncontested evidence. See Commonwealth v. Buck, 64 Mass.App.Ct. 760, 761, 835 N.E.2d 623 (2005). Juror no. 45 (the juror) was considering a career in law enforcement. In a juror questionnaire she reported that she was a part-time student, a sophomore in college. Prior to the defendant’s trial, on April 23, 2017, she applied online to the Plymouth County district attorney’s office for a summer internship. The internship was part of the office’s "Volunteer Undergraduate Internship Program" and ran from May 30 through August 4. The internship was seven-and-one-half hours per day, two days per week. The juror was interested in the justice system and viewed the internship as an experience to put on her resume and an opportunity to obtain future references. On May 4, 2017, she received an e-mail from the district attorney’s office offering her the internship. She accepted the offer on May 5, 2017. The trial began ten days later, on May 15, 2017, and ended on May 23, 2017, one week before the juror was to start her internship.

          Before voir dire, all prospective jurors completed a confidential questionnaire that asked, among other things, "Have you or anyone in your household or family ever worked for ... [a] [l]aw enforcement agency?" In the judge’s new trial memorandum, he reported that "[d]uring impanelment, this Court struck for cause several jurors who appeared biased based on present or previous employment in law enforcement. For example, this Court struck an attorney who previously was ...


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