Commonwealth v. Tiscione , 482 Mass. 485 ( 2019 )

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SJC-12629
COMMONWEALTH vs. VINCENT A. TISCIONE, THIRD.
Worcester. March 4, 2019. - June 25, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Firearms. Jury and Jurors. Practice, Criminal, Jury and
jurors, Deliberation of jury, Fair trial, Harmless error.
Constitutional Law, Jury, Fair trial, Harmless error. Fair
Trial. Error, Harmless. Evidence, Constructive
possession, Firearm.
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.
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.
2
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
1 As we vacate the defendant's convictions based on the
erroneous discharge of a deliberating juror, we need not reach
the remaining issues raised on further appellate review, i.e.,
the admission of prior bad acts evidence and the prosecutor's
closing argument. See Commonwealth v. Tiscione, 93 Mass. App.
Ct. 1118 (2018). However, to the extent that these issues
reemerge in a retrial, we reject the defendant's arguments for
substantially the same reasons stated by the Appeals Court.
3
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
2 The defendant was convicted by a jury of two counts of
possession of a firearm without a firearm identification card
(G. L. c. 269, § 10 [h]), two counts of possession of ammunition
without a firearm identification card (G. L. c. 269, § 10 [h]),
and two counts of improper storage of a firearm (G. L. c. 140,
§ 131L [a], [b]). He thereafter was convicted at a bench trial
of two counts each of possession of a firearm and possession of
ammunition while previously having been convicted of a violent
crime or serious drug offense (G. L. c. 269, § 10G [a]).
4
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.
3 A second note, submitted with the first, asked whether the
jury could consider the counts out of order. In response, the
judge told the jury that they could address the counts in any
order.
5
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."
4 The judge stated: "At least preliminarily, it sounds like
this is not a personal problem, but it relates to [the juror's]
views on the case, or at least that's what I've heard so far."
6
The judge: "And the process of being put in a deliberation
room and going back and forth was something that
emotionally kind of tipped the balance for you?"
The juror: "Yes."
The judge: "And all of your life experiences and the loads
of life, if you will, has reached a tipping point for you.
Is that fair?"
The juror: "Yes."
The judge: "All right. I don't want to put words in your
mouth. If what I've said isn't -- "
The juror: "No; I just -- I didn't think we would be here
this long. I feel like I should be with my family; and the
people in there -- it's just arguing, and I'm
uncomfortable."
Ultimately, the judge concluded that there was "good cause"
to discharge the juror, finding at that time that she had "a
personal issue," that "the burdens in her life" were
"significant," that "her personal emotional state . . . ha[d]
overwhelmed her," and that "she no longer [had] an ability to
participate as a juror in this case." The defendant requested
that the judge inquire of the other jurors to ensure that they
were not "bullying" the juror for her views. The judge
disagreed, stating that such an inquiry would impermissibly
reveal the substance of the deliberations. Over the defendant's
objection, the judge discharged the juror and replaced her with
an alternate juror.
7
The judge instructed the remaining jurors to "begin
deliberations anew" with the alternate juror. At some point
during the renewed deliberations, the court belatedly received a
note generated at 11:35 A.M. -- that is, after the jury had
received their supplementary instruction that all verdicts had
to be unanimous but before juror no. 44 was dismissed. This
note indicated that, despite the judge's supplementary
instruction, the jury had remained deadlocked for the remainder
of the morning.
Approximately ninety minutes after the alternate juror
joined the jury, they returned guilty verdicts on all charges
before them.
Discussion. 1. Discharge of deliberating juror. a.
Standard. "The discharge of a deliberating juror is a sensitive
undertaking and is fraught with potential for error. It is to
be done only in special circumstances, and with special
precautions." Commonwealth v. Connor, 392 Mass. 838, 843
(1984). Discharging a juror during deliberations is governed by
G. L. c. 234A, § 39, which states in pertinent part:
"The court shall have the discretionary authority to
dismiss a juror at any time in the best interests of
justice. . . . The court shall have authority to excuse
and discharge a juror participating in jury deliberations
8
after a hearing only upon a finding of an emergency or
other compelling reason."5
The rules of criminal procedure similarly provide:
"If, at any time after the final submission of the case by
the court to the jury but before the jury has agreed on a
verdict, a juror dies, becomes ill, or is unable to perform
his duty for any other cause, the judge may order him to be
discharged and shall direct the clerk to place the names of
all the remaining alternate jurors in a box and draw the
name of an alternate who shall take the place of the
discharged juror on the jury, which shall renew its
deliberations with the alternate juror."
Mass. R. Crim. P. 20 (d) (3), 378 Mass. 889 (1979).
During deliberations, a juror properly may be discharged
"only [for] reasons personal to [that] juror, having nothing
whatever to do with the issues of the case or with the juror's
relationship with his [or her] fellow jurors." Connor, 392
Mass. at 844-845. "Allowing discharge only for personal reasons
ensures that such action will not 'affect the substance or the
course of the deliberations.'" Commonwealth v. Swafford, 441
Mass. 329, 336 (2004), quoting Connor, supra at 845 n.4.
5 General Laws c. 234, § 26B, as amended through St. 1979,
c. 344, § 9A, similarly provided that if a deliberating juror
"dies, or becomes ill, or is unable to perform his duty for any
other good cause shown to the court, the court may order him to
be discharged," but was repealed in 2016. St. 2016, c. 36, § 1.
The trial here occurred before the repeal of this statute; but,
in any case, we have treated the "good cause" standard of § 26B
as synonymous with the "best interests of justice" and
"compelling reason" standards of G. L. c. 234A, § 39. See
Commonwealth v. Cousin, 449 Mass. 809, 821 n.19 (2007), cert.
denied, 553 U.S. 1007 (2008).
9
To make this determination, a judge must hold a hearing
with the juror in question. Connor, 392 Mass. at 843-844.
"[B]ecause the inquiry may well lead to a conclusion that the
juror cannot be discharged, the judge must scrupulously avoid
any questioning that may affect the juror's judgment." Id. at
844, citing Commonwealth v. Webster, 391 Mass. 271, 275-276
(1984). We defer to a judge's factual findings where they are
not clearly erroneous. See Swafford, 441 Mass. at 337, citing
Commonwealth v. Tennison, 440 Mass. 553, 560 (2003).
b. Application. Here, the judge properly held a hearing
to question the juror in the presence of both parties to find
out why the juror would not continue to deliberate and to
determine whether removal of the juror was warranted. During
the colloquy, the juror told the judge that she did not want to
return to deliberate because members of the jury were "being
argumentative," that another juror accused her of "putting words
in [his] mouth," and that it "upset" her. Although the judge
initially concluded that the juror's problem stemmed from her
"views on the case" rather than a "personal problem," after the
juror additionally expressed concern about her family members,
10
the judge concluded that there was "good cause" to discharge
her.6
Because the juror stated during the colloquy that her
distress was based not on personal issues alone, but also on
events that took place in the jury room with her fellow jurors,
it was error to discharge her. See Connor, 392 Mass. at 844-
845. The Commonwealth points to Swafford, 441 Mass. 329, and
Commonwealth v. Leftwich, 430 Mass. 865 (2000), two cases in
which we upheld the discharge of a deliberating juror, arguing
that the circumstances here were comparable. We disagree.
In Leftwich, 430 Mass. at 873-874, we concluded that the
juror was discharged properly where the judge based the decision
to discharge on "the juror's statement that she could not
continue to deliberate in a fair manner and because of the
physical manifestations of stress that the judge had observed."
The judge found that "the juror was very emotionally distraught,
was shaking 'from head to toe,' and was clearly under
extraordinary stress." Id. at 873. Although the juror's
"extreme emotional distress" was connected, in part, to
deliberations, we concluded that "[i]f a deliberating juror is
In finding that the juror's "personal life experiences"
6
had "overwhelmed her, and [that] she no longer [had] an ability
to participate as a juror," the judge did not explicitly find
that the reasons for discharge were purely personal. However,
to the extent that he implicitly so found, the finding was
clearly erroneous.
11
determined to be experiencing severe emotional or mental
distress, well beyond that level of distress that often
accompanies deliberations, it is within the trial judge's
discretion to discharge that juror after consideration of all
the circumstances," because "[w]e do not . . . require jurors to
serve at their peril." Id. at 874. In contrast, here, the
judge noted that the juror was "visibly upset" and "emotional,"
but there was no finding that the juror was incapacitated by
"extreme emotional distress." See id. at 872-874 (deliberating
juror was "having difficulty breathing," among other issues, due
to stress of deliberations).
Nor are the circumstances in this case akin to those in
Swafford, 441 Mass. at 337, where we held that a judge properly
discharged a juror who "physically separated herself from the
jury, took leave from participation in their deliberations, and
told the judge four times that she could no longer be fair and
impartial." We concluded that although the juror's behavior
appeared to stem from a perceived slight by another juror, "the
judge's finding that the juror's reclusive and abdicatory
behavior was a problem personal to her, and not in any normal
sense the product of her relationship to her fellow jurors, was
not clearly erroneous." See id. Here, the juror did not tell
the judge that she could not be fair, nor was there any
indication that the juror's behavior was aberrant in any way.
12
We also note that, although the issue goes to the question
of prejudice, there was no concern in either Leftwich or
Swafford that the discharged juror held a minority view or that
the jury were at an impasse. See Swafford, 441 Mass. at 337;
Leftwich, 430 Mass. at 874. In contrast, here, as discussed in
more detail infra, there were indications that the jury were
deadlocked at the time the juror refused to continue to
deliberate.
We do understand that the judge here was in a difficult
position: he was confronted with an emotional juror who had
removed herself from the jury room and said that she would not
continue to deliberate. However, the judge had options
available to him rather than dismissing the juror at that point.
For example, a judge in this situation might express
sympathy for the juror's personal situation, but also remind the
reluctant juror of the defendant's right to a fair trial, and of
the oath the juror took at the beginning of the trial to "well
and truly try the issue between the commonwealth and the
defendant . . . according to [the] evidence." G. L. c. 278,
§ 4. If, as in this case, it appears that emotions in the jury
room are heated, a judge might direct the jury to take a break
to allow for a cooling off period. See Mass. R. Crim. P. 20 (e)
(3), 378 Mass. 889 (1979). Indeed, depending on the time of
day, a judge might even suspend deliberations until the
13
following business day. In our view, a juror expressing
reluctance (or an outright refusal) to continue to deliberate is
an invitation to the judge to discuss the juror's concerns
generally -- that is, without delving into deliberations. See,
e.g., Commonwealth v. McCowen, 458 Mass. 461, 487-489 (2010)
(member of deadlocked jury properly discharged where father of
juror's child was being prosecuted by same district attorney).
It is also an opportunity for the judge to explain the
importance of that juror's participation in the process to
ensure that the defendant receives a fair trial. See
Commonwealth v. Torres, 453 Mass. 722, 731-737 (2009) (due to
problem juror, "the deliberations took several sharp turns, but
the judge, with a responsive and steady hand, kept the jury on
course by continually focusing them on their duties to
deliberate fairly").
We acknowledge that, had the juror rejoined the
deliberations, the end result well might have been a mistrial.
Although it is not the ideal outcome, mistrials do occur. If,
after "due and thorough deliberation," the jury report to the
judge twice that they are deadlocked, "they shall not be sent
out again without their own consent, unless they ask from the
court some further explanation of the law." See G. L. c. 234A,
§ 68C. Nevertheless, in these circumstances, an attempt must
first be made to determine whether the juror's purported
14
inability to continue deliberations is a "demonstrable reality"
(citation omitted). See Connor, 392 Mass. at 846-847.
c. Prejudice. Having concluded that the discharge of the
juror during deliberations was error, we turn to the question
whether the error was prejudicial to the defendant. See G. L.
c. 234A, § 74, which provides that any "irregularity" with
respect to discharging or managing jurors, among other things,
will not lead to reversal unless the error is preserved by
objection and the "objecting party has been specially injured or
prejudiced thereby."7
We begin by noting that the error was of constitutional
dimension. Article 12 of the Massachusetts Declaration of
Rights affords each criminal defendant the right to a fair jury
trial. That right has the potential to be infringed upon when a
juror is discharged during deliberations. Swafford, 441 Mass.
at 336, quoting Connor, 392 Mass. at 845 n.4 (allowing
"discharge only for personal reasons ensures that such action
will not 'affect the substance or the course of the
deliberations'"). See United States v. Brown, 823 F.2d 591,
596-597 (D.C. Cir. 1987) (discharging deliberating juror for
7 We note that requiring that an objection be preserved
under this statute could be in some cases "incompatible with the
constitutional right to trial by jury." Commonwealth v. Sheehy,
412 Mass. 235, 240 (1992); however, here the defendant made a
timely objection to the juror's dismissal.
15
reasons related to his or her doubts about government's evidence
is "unacceptable under the [United States] Constitution"). "In
order to safeguard a defendant's right to trial by a fair and
impartial jury, the judge must carefully scrutinize the reasons
offered for discharging a juror at this critical stage of trial
'to ensure that a lone dissenting juror is not permitted to
evade [the] responsibilities' of his oath or to avoid the stress
associated with persistently asserting a minority position in
deliberations." Commonwealth v. Francis, 432 Mass. 353, 368
(2000), quoting Connor, supra at 843.
A constitutional error preserved by a timely objection, as
this one was, is reviewed to determine whether it was harmless
beyond a reasonable doubt. Commonwealth v. Vinnie, 428 Mass.
161, 163, cert. denied, 525 U.S. 1007 (1998), citing Chapman v.
California, 386 U.S. 18, 23 (1967). Upon review, we conclude
that, given the events that took place before and after the
juror's replacement, and considering the substance of the
colloquy with the juror, discharging the juror was not harmless
beyond a reasonable doubt.
Prior to the colloquy with the juror, the jury sent a note
to the judge asking, "If we cannot get 12-0, must we vote 'not
guilty'?" During the colloquy, the juror indicated that people
were arguing and that it upset her. An additional note, which
was generated in the morning but did not reach the court until
16
after the juror had been dismissed and replaced, indicated that
the jury were deadlocked on two counts. Finally, approximately
ninety minutes after the juror was replaced and the jury were
instructed to begin their deliberations anew, the defendant was
convicted on all counts. Together, these facts allow for the
inference that the removal of the juror had an impact on the
outcome of the case. In the circumstances, the Commonwealth
cannot meet its burden to show that the error was not harmless
beyond a reasonable doubt. See Chapman, 386 U.S. at 24 (burden
is on "beneficiary of a constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained"). See also Commonwealth v. Marini, 375
Mass. 510, 520 (1978) (same).
Jury trials often, if not always, require the balancing of
countervailing concerns. It appears that in this case jury
deliberations became contentious, and when combined with the
juror's personal circumstances, this contentiousness resulted in
the juror's reluctance to continue her involvement. However,
ensuring a fair trial in which the outcome is a unanimous
verdict or, if need be, a mistrial is the reason for the rule
articulated in Connor, 392 Mass. at 844, which allows a
deliberating juror to be discharged "only [for] reasons personal
to [the] juror" (emphasis added). Thus, as "uncomfortable" as
the juror may have felt in the jury room, our law does not allow
17
for the removal of a dissenting juror to resolve an impasse in
deliberations. See id. at 843, citing United States v. Lamb,
529 F.2d 1153, 1156 (9th Cir. 1975). Here, reversal is
required.
2. Sufficiency of the evidence. The defendant argues that
the trial judge erred in denying his motion for required
findings of not guilty on the counts relating to the possession
of a shotgun because the Commonwealth failed to present
sufficient evidence from which the jury could infer that the
defendant had constructive possession of the shotgun recovered
as a result of the search. We disagree.
In reviewing evidence presented at trial for sufficiency,
we view it in the light most favorable to the prosecution.
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979). Showing the
defendant's constructive possession of the firearms and
ammunition requires only "proof of 'knowledge coupled with the
ability and intention to exercise dominion and control.'"
Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015),
quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989).
"This proof 'may be established by circumstantial evidence, and
the inferences that can be drawn therefrom.'" Dagraca-Teixeira,
supra, quoting Brzezinski, supra.
18
Here, there was testimony that the defendant occupied the
apartment where the firearms and ammunition were found. The
defendant was also seen handling and storing the guns while in
the apartment. The defendant had numerous personal belongings
in the same closet as the shotgun. Finally, the guns and
ammunition themselves were available to the jury as exhibits for
inspection. The defendant does not dispute that he lacked the
requisite firearm identification card under G. L. c. 269,
§ 10 (h), or that the firearms were improperly stored under
G. L. c. 140, § 131L (a) and (b). Thus, based on the evidence
at trial, the defendant was not entitled to a required finding
of not guilty on the charges pertaining to the shotgun.
Conclusion. We hereby vacate the judgments entered against
the defendant on December 10, 2015, following the jury trial,
and on January 8, 2016,8 following the bench trial, and remand
this case to the Superior Court for further proceedings
consistent with this opinion.
So ordered.
8 Because the charges at issue during the bench trial were
under G. L. c. 269, § 10G (a), they necessarily depended on the
jury's guilty findings as to the various alleged violations of
G. L. c. 269, § 10.