Opinion
19-P-1765
06-28-2021
COMMONWEALTH v. Mark S. O'BRIEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor and negligent operation of a motor vehicle. He appeals, alleging that the judge erred when she denied his motion for a mistrial, despite a report that one juror had reported to the other jurors an out-of-court observation. We affirm the convictions.
The judge found the defendant not responsible for related civil motor vehicle infractions. On the operating under the influence charge, the judge revoked the defendant's license to operate for forty-five days, and sentenced him to one year of probation, with the condition that he enter and complete an alcohol education program pursuant to G. L. c. 90, § 24D. On the negligent operation of a motor vehicle charge, the judge sentenced the defendant to one year of concurrent probation.
Background. 1. Testimony at trial. Two witnesses testified at trial, Foxborough Police Officer James Parah and Norman Valois. Parah testified that, on July 1, 2017, around 5:43 P.M. , he was driving a marked police cruiser on Main Street in Foxborough. He observed a green Toyota Camry cross the roadway's center line, fail to use a directional signal while changing lanes, and drive through a red light after briefly stopping in the middle of an intersection. Parah then signaled the operator to pull over. When Parah approached the Camry and spoke with the operator, whom he identified as the defendant, he noticed a strong odor of alcohol coming from the car. The defendant was alone in the car; his eyes were "glassy and bloodshot"; his speech was slurred; and, when he spoke, he said things that "were hard to understand."
Parah asked the defendant whether he had had anything to drink, and the defendant responded that he had three beers with dinner. Parah then asked the defendant to perform a field sobriety test, a "nine step walk and turn"; although Parah gave the defendant two opportunities to perform the test, the defendant was unsuccessful on both tries. The officer also gave the defendant two opportunities on a second test, "the one-legged stand." Both attempts were unsuccessful and, on the second try, the defendant fell back against his car. Parah then placed him under arrest. During the booking process, Parah also collected a receipt from the defendant, which showed that, on July 1, 2017 at 1:43 P.M. , the defendant had purchased two Bud Light beers, three Pabst Blue Ribbon beers, and one hamburger from Victory Lane Grille.
Norman Valois testified for the defendant that, on that same day, he had worked with the defendant during the day, and then, along with the defendant and one other person, had gone to the Victory Lane Grille, where the defendant ordered a hamburger, a salad, and "two or three" beers. The defendant also bought Valois and the other person one beer each. Valois testified that the defendant seemed "normal" when he left the restaurant. Valois also testified that the defendant had worked for Valois "on and off for three or four years."
2. Juror question and voir dire. During jury deliberations, the judge received a note from the jury foreperson stating: "Witness and Defendant seen at lunch talking about the policeman's testimony. Does this matter?" The judge then conducted an individual voir dire of each sitting juror, asking what they heard and saw and whether they could be impartial in this case.
The judge first questioned the jury foreperson, who explained that one of the jurors had seen the defendant and Valois speaking during lunch and that the juror had "mentioned it" to the other members of the jury. However, the juror had not gone "into detail as to what the discussion was about." The judge then questioned the foreperson as follows:
Q.: "So, would you be able to follow my instruction not to discuss this matter any further and to disregard it because you're to base your decision in this case only on what occurred in the courtroom and the testimony in the courtroom. Would you be able to follow that instruction?"
A.: "Yes."
Q.: "Okay. All right. And if anyone was to mention this again in the jury deliberations, would you bring that to my attention?"
A.: "Yep."
The judge then questioned Juror No. 3, who informed the judge that he was the individual who had observed the defendant and the witness talking about the case during lunch. The juror explained that he observed the defendant and the witness talking about the officer's testimony and that one of them had said that there were inconsistencies in the officer's testimony. The juror went on to say, "But there was nothing that was said that so, you should answer this way or you should say this. There was nothing like that. It was just sort of a report out of what was discussed in the morning." The juror said that he told the foreperson and the other jurors that he had seen the defendant and the witness together at lunch and "that it, for me, raised a question about the ... nature of the acquaintance.... I thought they seemed to know each other much better than ... what was portrayed." The judge then asked Juror No. 3 whether he would still be "able to base [his] decision solely on what was inside the courtroom, only consider evidence as [to] what's in the court as opposed to what [he] observed and heard outside the courtroom." Juror No. 3 replied: "Yes." The judge then instructed Juror No. 3 not to discuss the matter any further with the other jurors, and the juror agreed.
The judge then questioned each of the remaining jurors individually. Each of the jurors confirmed that they would be able to disregard the comments from Juror No. 3 regarding the conversation he overheard at lunch. Defense counsel then requested a mistrial, stating that there were inconsistencies in the level of detail given by the jurors during the voir dire. The judge denied the request, concluding that the conversation among the jurors about the overheard conversation appeared to be limited, that it had been brought to the judge's attention "right away," and that each juror had agreed not to consider the conversation during their deliberations. The judge then issued the following instruction to the jury as a whole:
"Members of the jury, I'm going to have you resume your deliberations. I'm just going to remind you you're to decide what the facts are solely from the evidence that's been admitted in the case and not from any suspicion or conjecture. The evidence in this case consists of the sworn testimony of the witnesses as you recall them, any documents or things that were received into evidence as exhibits, and any facts or evidence that was agreed upon by the parties. Anything you may have seen or heard when the court was not in session is not evidence and you may not consider it in any way. Also, I'm asking you not to discuss anything that we discussed at the sidebar conferences when I interviewed you all at the sidebar. All right. Thank you. You may go back to deliberations."
The jury then resumed deliberation and ultimately issued their verdicts.
Discussion. Criminal defendants have the right to a trial before an impartial jury. Commonwealth v. Philbrook, 475 Mass. 20, 30 (2016). "Prohibiting ... extraneous influences on jurors" is an important safeguard to a defendant's right to trial before an impartial jury. Id. When a trial judge learns that extraneous information has possibly prejudiced a jury, the judge "generally should conduct an individual voir dire of each of the deliberating jurors," Commonwealth v. Blanchard, 476 Mass. 1026, 1027 (2017), "to determine the extent of the juror's exposure to the material and its effects on the juror's ability to render an impartial verdict." Commonwealth v. Jackson, 376 Mass. 790, 800–801 (1978).
"The purpose of the voir dire is twofold: to determine the extent of the jury's exposure and the effect of that exposure on the jurors’ ability fairly to decide the matter. As part of the initial inquiry into the extent of the exposure, the judge should ask the juror whether he or she read, saw, heard, or otherwise became aware of the extraneous materials during the jury's deliberations. The judge should then inquire into the effect of the exposure on the particular juror, with the focus of the question or questions being whether the juror can deliberate without being influenced by the materials. In asking about the effect of the extraneous materials on the individual juror, the judge should caution the juror not to speculate about the effect on any other juror or on the jury as a whole." (Citation omitted.)
Blanchard, 476 Mass. at 1027. See Commonwealth v. Roman, 470 Mass. 85, 97 (2014), quoting Commonwealth v. Meas, 467 Mass. 434, 451, cert. denied, 135 S. Ct. 150 (2014) ("Because the judge ‘is in the best position to observe and assess the demeanor of the juror[s] on voir dire ... [t]he determination that [a] juror was unaffected by extraneous information is within the sound discretion of the trial judge’ " [citation omitted]); Commonwealth v. Mejia, 461 Mass. 384, 395 (2012) ; Commonwealth v. Tennison, 440 Mass. 553, 560 (2003). As we reiterated in Commonwealth v. DaCosta, 96 Mass. App. Ct. 105, 110 (2019), "The judge must then exercise her discretion to determine whether the jurors remain impartial and can disregard the extraneous information." The judge is entitled to rely on jurors’ assertions that they remain impartial. Roman, 470 Mass. at 97.
This procedure is used in those cases where exposure to extraneous material comes to light before a seated jury has completed deliberations. See Blanchard, 476 Mass. at 1026–1027. Cases where the exposure is discovered after jurors have already been discharged requires a different inquiry. See id.; Commonwealth v. Kincaid, 444 Mass. 381, 386–387 (2005) ; Commonwealth v. Fidler, 377 Mass. 192, 199–200 (1979).
The Supreme Judicial Court also has recently reiterated this teaching. "A trial judge has ‘discretion in addressing issues of extraneous influence on jurors discovered during trial.’ " Commonwealth v. Colon, 482 Mass. 162, 168 (2019), quoting Commonwealth v. Trapp, 423 Mass. 356, 362, cert. denied, 519 U.S. 1045 (1996). "Because the ‘determination of a juror's impartiality is essentially one of credibility, and therefore largely one of demeanor, [a reviewing] court give[s] a trial judge's determination of impartiality great deference.’ " Colon, supra, quoting Philbrook, 475 Mass. at 30. "A reviewing court will not disturb a judge's findings of impartiality, or a judge's finding that a juror is unbiased, absent a clear showing of an abuse of discretion or that the finding was clearly erroneous" (quotations and citations omitted). Colon, supra. In addition, the court in Colon noted that "[a] defendant bears the burden of demonstrating an extraneous influence by a preponderance of the evidence." Id. at 167.
In the present case, it is clear that the judge followed the proper procedure. She conducted an individual voir dire of each of the jurors after learning of Juror No. 3's comments during deliberations. During her inquiry, the judge assessed the extent of each juror's exposure to the material and its effects on the juror's ability to render an impartial verdict; she specifically asked each juror what the juror heard during deliberations and whether they would be able to remain impartial. Having questioned all the jurors, the judge then exercised her discretion and determined that the jurors were able to remain impartial. We see no error.
Judgments affirmed.