Commonwealth v. DiBenedetto
Commonwealth v. DiBenedetto
Opinion
*682 As a general rule, evidence of a jury's internal thought processes cannot be used to impeach a verdict. In this appeal, we consider whether this rule applies when the judge learns, after a guilty verdict has been affirmed and recorded, that the jurors *154 misunderstood the unanimity instruction and convicted the defendant by a vote of four to two. Concluding that the rule does apply -- and that the judge should have accepted the original verdict instead of sending the jurors out to continue deliberations, resulting in a second guilty verdict -- we affirm the defendant's conviction in the District Court of assault and battery of a family or household member, in violation of G. L. c. 265, § 13M( a ).
Background . We briefly summarize the trial testimony, then discuss in greater detail the circumstances surrounding the taking of the verdict. The defendant arrived at the home of the father of her two children to pick them up for a scheduled trip to Niagara *683 Falls. The father expected the defendant at 8 A.M. , but she arrived at 4:30 A.M. and banged on the front door. After an unfriendly exchange of words, the defendant punched the father in the face. She claimed that she struck him in self-defense.
In the final charge, the judge instructed the jury that the defendant is presumed innocent "unless and until the evidence convinces you unanimously as a jury that the defendant is guilty beyond a reasonable doubt." The judge reiterated, "And, again, your verdict whether it is guilty or not guilty must be unanimous." After selecting the foreperson, the judge explained to her, "Once your jury has reached a unanimous verdict, that is all six of you agree, it's your obligation to mark the verdict slip."
Following the judge's charge, the jury deliberated for approximately forty minutes and reached a verdict. Before taking the verdict, the judge informed the jury that they would be free to talk about the case after they were discharged, and "although I'm going to discharge you ... I do want to see you ever so briefly in the deliberation room before you leave the building."
The clerk then asked if the jury had reached "a unanimous verdict." The foreperson answered, "Yes, we have," and that the verdict was guilty. After recording the verdict, the clerk asked the foreperson to confirm that the verdict of guilty was accurate. She responded, "That is correct." The clerk then asked the entire jury if the guilty verdict was correct, and they affirmed that it was. The judge then excused the jury, stating, "I'm going to now formally discharge you. I'm going to see you momentarily in the jury deliberation room." The judge told the parties, "I'm just going to say goodbye to the jurors and give them an opportunity if they want to present any questions or criticisms. I'm not going to discuss with them potential penalties or their deliberation obviously."
After a brief recess, the judge returned to the court room and explained that after thanking the jurors for their service, he had solicited feedback about their experience, emphasizing that he did not want to hear about their deliberative process. A juror asked, "[W]hat would happen" if the result was four to two. The judge responded, "[Y]our decision has to be unanimous." Another juror then offered, "[W]ell, that should be made more plain, more clear." The first juror added, "[B]ecause it wasn't unanimous." At this point, the judge ended the conversation, told the jury, "I can't discharge you right now," and returned to the court room.
The judge informed the parties that he intended to bring the first juror into the court room to see if he had correctly understood *684 her comments. Without objection, the judge described his recollection of the conversation to the juror and asked what she had meant when she said the verdict was not unanimous. The juror responded, "[T]wo of us, we didn't find the defendant *155 guilty and four did." The juror said that she had voted not guilty and identified the foreperson as the other not guilty vote. She had "kept quiet" during the affirmation because the foreperson had said that only a majority was needed to reach a verdict.
The judge sent the juror back to the deliberation room with instructions to not speak with anyone and called the foreperson into the court room. When asked if she understood whether the verdict had to be unanimous, she replied, "All six of us thought it was the majority," and, "I guess nobody paid attention to the word unanimous." The judge sent the foreperson back to the deliberation room with instructions to have no discussion with anyone.
The judge suggested, and the parties agreed, that the jury should continue deliberations after being reinstructed on unanimity. The judge brought the jury back to the court room, instructed them that "all six of you would have to agree that the defendant is guilty or the defendant is not guilty," and ordered them to resume deliberations. Later that day, after asking to be reinstructed on self-defense, the jury again reported that they had reached a verdict. The foreperson announced the verdict of guilty; the judge polled the jury, and all affirmed that they had voted guilty. The judge thanked the jury and dismissed them, stating, "You are discharged and free to leave."
Discussion . Although at trial she agreed with how the judge handled the issue, the defendant now contends that by the time the judge learned that the original verdict was not unanimous he had already discharged the jurors and could not validly order them to continue deliberations. Accordingly, she asks that we set aside the second verdict and order a new trial. The Commonwealth responds that the original verdict was valid and, in the alternative, that the second verdict was valid as well. We conclude that the jury's original guilty verdict was final when the foreperson announced it in open court, the rest of the jury affirmed it, and the clerk recorded it. None of the jurors publicly voiced or otherwise indicated disagreement, nor did any of them come forward to state that the verdict was not accurate. Only when the judge later invited the jury to express their criticisms and suggestions did the jurors communicate the content of their deliberations.
*685 The original verdict should not have been disturbed. 1
"Before a verdict has been affirmed and recorded, the judge may set it aside or instruct the jury and send them out for further deliberation."
Commonwealth
v.
Brown
,
After being affirmed by the jury and recorded by the clerk, however, the
*156
verdict is final. See
Commonwealth
v.
Martell
,
Impeaching a duly recorded verdict by subsequent inquiry into the jurors' deliberations has long been prohibited. See
Tanner
v.
United States
,
*686
"The proper evidence of the decision of the jury is the verdict returned by them upon oath and affirmed in open court; it is essential to the freedom and independence of their deliberations that their discussions in the jury room should be kept secret and inviolable; and to admit the testimony of jurors to what took place there would create distrust, embarrassment and uncertainty."
Fidler
,
Thus, juror testimony concerning the jurors' internal deliberations cannot be used to impeach a verdict. See
Commonwealth
v.
Hebert
,
The prohibition against juror testimony to impeach a verdict is not absolute.
Fidler
,
*157
Matter of the Enforcement of a Subpoena
,
Judges are also permitted to inquire whether a verdict was infected by racial or ethnic bias, even though such questioning straddles the line between the jurors' subjective mental processes
*687
and extraneous influences. See
Pena-Rodriguez
v.
Colorado
, --- U.S. ----,
An argument might be made that this exception to the general rule should be extended to protect the right to a unanimous jury. See
Burch
v.
Louisiana
,
Applying the general rule, we have held that a judge erred by striking a recorded verdict after learning in a posttrial conversation
*688
with the jurors that one or two of them disagreed with the guilty verdict.
Lassiter
,
We find further support for our decision in
Commonwealth
v.
Reaves
,
The jurors' testimony here did not relate to "overt factors" that a judge may properly assess in deciding the verdict's validity.
Latino
v.
Crane Rental Co
.,
A judge's power to set aside a verdict and send the jury out for further deliberations "terminates when the verdict is affirmed and recorded."
Brown
,
Judgment affirmed .
We recognize that the judge endeavored not to intrude into the jury's deliberative process, and that his subsequent actions were taken solely "out of concern for an accurate verdict and fair treatment of the defendant. The judge was correct to place [his] concerns on the record in the presence of all counsel."
Commonwealth
v.
Lassiter
,
A judge does not violate this rule by allowing jurors "to correct formal and clerical errors in the recording of verdicts to which they had properly agreed."
Brown
,
The proper parameters of juror testimony are succinctly summarized in Mass. G. Evid. § 606(b) (2018), as follows:
"(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations, the effect of anything on that juror's or another juror's vote, or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
"(2) Exceptions. A juror may testify about whether
(A) extraneous prejudicial information was improperly brought to the jury's attention or
(B) an outside influence was improperly brought to bear on any juror."
We need not address whether the judge effectively discharged the jury after he accepted the original verdict, rendering any further deliberations void. In any event, the judge's error in setting aside the original verdict "clearly inured to the defendant's benefit, giving him a second chance to be acquitted .... No harm flowed thereafter, not least because the defendant was ultimately no worse off than if the error had never occurred."
Lassiter
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.