NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 21-P-1102 COMMONWEALTH vs. ARTHUR MELLEN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 On July 19, 2018, the defendant's fiancé called the police after learning that the defendant may have been suicidal and that her handgun was missing. Norwood police officers responded to the call and found the defendant passed out in a lawn chair in the backyard of a side-by-side duplex, the right side of which he shared with his fiancé, holding his fiancé's handgun.

The defendant was tried on two counts of a five-count indictment: carrying a firearm without a firearm identification card (count two) and larceny of a firearm (count three). 1 On

1. Voir dire. After exchanging proposed attorney voir dire questions, the parties each agreed, at the final pretrial conference, that they had no objections to the other's

dismissed at the request of the Commonwealth on December 13, 2019, following trial.

questions. During empanelment the Commonwealth asked its proposed questions without objection, including question four, "Do you understand and accept that, as a juror, your only duty is to determine the facts of the case?" After the jurors were seated, defense counsel noted at side bar that while he did not think any of the jurors were "really misled" by question four, he asked that when the judge instructed the jury, the judge make clear that the jurors' job included more than just determining the facts. The judge agreed, and as requested, provided proper instruction on the role of the jury at least four times after empanelment. On appeal, the defendant argues that question four was improper, as a juror's role includes more than just determining the facts of the case, and that the trial judge abused his discretion by permitting it to be asked. The Commonwealth rightly conceded at argument that the question standing alone was not correct.

Here, defense counsel did not object to the question when it was proposed or after it was asked. Instead, he asked that the judge provide some further instruction to the jury that they apply the law as given to them by the judge; the judge provided that instruction repeatedly. As a result, the defendant's claim is waived. See Commonwealth v. Vickery, 82 Mass. App. Ct. 234, 235 (2012) ("acquiescence of defense counsel to actions taken by the trial judge can constitute a waiver of any objection to the

judge's actions"). In any event, because we presume that jurors follow instructions, Commonwealth v. Anderson, 445 Mass. 195, 214 (2005), and the judge explained the jury's role, any harm to the defendant resulting from the question "was cured by the judge's instructions to the jury." Commonwealth v. Horn, 23 Mass. App. Ct. 319, 325 (1987). "[A]ny error was not 'of a type and seriousness which should lead [the court] to reverse in the absence of a proper [objection]'" (citation omitted). Id. 2. Jury nullification instruction. During the trial, defense counsel requested an instruction on jury nullification, which the judge denied. A defendant does not have a right to a jury nullification instruction; there was no error. See Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007) (no error in failing to provide jury nullification instruction as "[j]ury nullification is inconsistent with a jury's duty to return a guilty verdict of the highest crime proved beyond a reasonable doubt"). 3 Conclusion. In light of Guardado I, 491 Mass. at 668, the defendant's conviction of unlawfully possessing a firearm in

violation of G. L. c. 269, § 10 (h), is vacated, and the verdict is set aside.

So ordered.

By the Court (Milkey, Massing & Henry, JJ. 4),

Clerk

Entered: December 6, 2023.