COMMONWEALTH vs. JESSE G. FOSTER.

COMMONWEALTH vs. JESSE G. FOSTER.

411 Mass. 762

October 8, 1991 - January 30, 1992

Middlesex County

Present: LIACOS, C.J., WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR, & GREANEY, JJ.

At a criminal trial the judge's reversal of his instruction to the jury on the manner in which their verdicts were to be returned did not, on the facts in the case, impermissibly invade the jury's deliberations. [763-766]

At a criminal trial in which the judge ordered the parties to refrain from exploring the bases for mutual restraining orders that had been issued against the defendant and the mother of the victim, no prejudice to the defendant resulted from the prosecutor's inquiring about the incident that led to the issuance of the restraining order against the defendant where, in response to the defendant's attempt to raise an inference of an ongoing social relationship between the defendant and the mother, the testimony the prosecutor sought in his inquiry was relevant and admissible to refute that inference, and it was within the judge's discretion to permit the inquiry; where the testimony elicited as to the reason for the restraining orders was to a great extent cumulative and any adverse effect was dissipated by the judge's instruction to the jury; and where objection by the defendant to the inquiry was not timely and was therefore waived. [766-768]

INDICTMENTS found and returned in the Superior Court Department on August 23, 1988.

The cases were tried before Hiller B. Zobel, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Daniel J. Harrington for the defendant.

James W. Sahakian, Assistant District Attorney, for the Commonwealth.

LYNCH, J. After a jury trial in the Superior Court the defendant was convicted of assault with intent to commit rape

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of a child under sixteen years of age, and of one count of violating a restraining order issued under the provisions of G. L. c. 209A (1990 ed.). [Note 1] The Appeals Court reversed, and we granted further appellate review. We affirm the convictions entered in the Superior Court. In reversing the defendant's convictions the Appeals Court reasoned that the judge impermissibly invaded the jury's deliberations. Commonwealth v. Foster, 30 Mass. App. Ct. 588 (1991). The Appeals Court did not reach the defendant's other argument of prosecutorial misconduct.

1. Intrusion upon the jury's prerogative. The rules of criminal procedure allow a trial judge to require the jury to return a verdict or verdicts with respect to any charges on which they have reached a verdict. [Note 2] The issue in this case is whether the trial judge lost that discretion because of the way he presented the case to the jury. In his charge to the jury the judge included the following remarks:

"You will have what's called a verdict slip, you'll have four of them . . . one for each [offense charged. On each of them circle either guilty or not guilty] . . . . Your foreperson should sign. Your foreperson should date. Don't make any other marks on the slip. If you have occasion to take more than one vote and need to tally the votes, do it on some other piece of paper . . . . I

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suggest . . . that when you go out to the jury room . . . you allow each of you to speak first before taking any votes, but that's just a suggestion and you can do whatever you want. It's entirely up to you.

"[L]et me say also [that] there is no Guiness Book of World Record's entry for the jury that took the longest to deliberate and there is no NC2A indoor record for the jury that came in with a verdict the fastest. You take whatever time, long or short, is necessary for deciding this case. You may, if you wish, but you need not, report a verdict as you reach each verdict. You may decide that you want to wait and announce all of them at once. It's up to you."

On the second day of its deliberations the jury sent a question to the judge who, after responding, engaged in the following colloquy:

THE COURT: " . . . Now, Mr. Foreman, if you would please just answer this question "yes" or "no." . . . Do you have a verdict as to any indictment or any count of any indictment?"

FOREMAN JUROR: "Yes, we do."

THE COURT: "Very well. I will ask you to return a verdict on that indictment or indictments, that count or counts. What you should do is to take the notebook -- Do you have the jury book with you? All right. If you'll return to the jury room and take, bring with you into the courtroom those, any indictment or indictments or parts of an indictment as to which you have a unanimous verdict and then you will come into the courtroom, please, and we'll take the return of so much as you have reached a unanimous verdict and if you require a short amount of time now to complete your

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work on all of the indictments, you may at your discretion do that, but if you feel that you are going to have additional discussion, I want you to feel free to have additional discussion, but I merely wish you to bring back whatever indictments you have completed. Am I clear?"

FOREMAN JUROR: "You are clear and may I ask the Court a question?"

THE COURT: "Yes."

FOREMAN JUROR: "The Court indicated when it charged the jury that the jury had the choice of returning one as they occurred or waiting until all four were complete, the foreperson asked the jury at the outset of deliberations what their collective decision was. Their collective decision was all four. Am I permitted to ask them or, in other words, the Court is simply ordering us to do that?"

THE COURT: "I don't like using the word ordered, but I do wish you to return whatever verdicts you have now. All right. You may return to the jury room." (Emphasis added.)

After a brief recess the jury returned the guilty verdicts which are the subject of this appeal.

The defendant argues and the Appeals Court agreed that the judge's reversal of his instruction on the manner in which the jury verdicts be returned may have affected the jury's deliberations and encroached on the jury's authority. It is, of course, true that whatever impairs the essentials of the right to jury trial must be struck down, Commonwealth v. Bellino, 320 Mass. 635 , 639, cert. denied, 330 U.S. 832 (1947), and that trial courts must be careful to avoid invading the province of the jury or any conduct which has a tendency toward jury coercion. See Commonwealth v. Connor, 392 Mass. 838 , 844 (1984); Commonwealth v. Rodriquez, 364 Mass. 87 , 99

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(1973); Commonwealth v. Rollins, 354 Mass. 630 , 638 (1968); Commonwealth v. Cote, 5 Mass. App. Ct. 365 , 370 (1977).

It is also true, however, that members of a jury are presumed to obey the instructions of the judge. See Commonwealth v. Amirault, 404 Mass. 221 , 232 (1989); DeWitt v. Wells, 294 Mass. 65 , 66 (1936); Stricker v. Scott, 283 Mass. 12 , 14 (1933); Allen v. Boston Elevated Ry., 212 Mass. 191 , 194 (1912); Rudberg v. Bowden Felting Co., 188 Mass. 365 , 366 (1905). See also Parker v. Randolph, 442 U.S. 62, 73 (1979). Here, the judge's additional instructions explicitly required the jury to return only those verdicts which were unanimous and complete. He took pains to make sure the foreman understood his directive. To conclude that the jury could have felt pressure to convert provisional verdicts against the defendant into final ones and to abandon all doubts that they may have privately entertained runs counter to the clear instructions of the judge and amounts to mere speculation without any support in the record. We conclude that, on the facts in this case, the judge did not impermissibly invade the jury's deliberations.

2. Prosecutorial misconduct.

Before trial, the judge stated that during the Commonwealth's case-in-chief the parties should not explore the bases for the mutual restraining orders which had been issued against the defendant and the mother of the victim. [Note 3] On

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cross-examination of the mother, the defendant attempted to raise an inference of an ongoing social relationship between the defendant and the mother. On redirect the prosecutor asked the mother about the reasons for the restraining order. Eighteen questions later, the judge, sua sponte, stopped the prosecutor from pursuing this line of questioning. The judge, however, refused to strike the testimony elicited to that point. The defendant, indicating that he was "just going to object," moved for a mistrial. The judge denied the motion.

The other instance of alleged misconduct occurred during cross-examination of the defendant. Defendant testified that he and the mother had no problems, and that they had a continuous intimate relationship. The prosecutor again inquired about the incident that lead to the issuance of the restraining order against the defendant. The defendant objected; the question was allowed but never answered. Later on the defendant again objected, arguing that the prosecutor was going into the background of the restraining order, and consequently moved for a mistrial. The judge denied the motion.

While it is true that a promise by the Commonwealth to the defendant must be kept, see Commonwealth v. Harris, 364 Mass. 236 , 238 (1973), we conclude that no promise existed here to be broken. There was, of course, an order of the judge. A judge, however, has a right to vary his rulings any time prior to closing, as long as such variance does not cause harm to a party. Catania v. Emerson Cleaners, Inc., 362 Mass. 388 , 390 (1972). Ferris v. Ray Taxi Serv. Co., 259 Mass. 401 , 405 (1927). Here, in response to the dynamics of trial the judge's rulings modified his pretrial order. The relationship between the mother and the defendant was specifically put in issue by the defendant during his cross-examination

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of the mother. The evidence elicited by the prosecutor was relevant and admissible to refute the inference of an ongoing social relationship sought to be established by the defendant. See Commonwealth v. Chalifoux, 362 Mass. 811 , 815-816 (1973). See also Commonwealth v. Scott, 408 Mass. 811 , 817-818 (1990); Commonwealth v. Travis, 408 Mass. 1 , 13 (1990). It was within the judge's discretion, therefore, to modify his original pretrial ruling to permit redirect examination on a subject raised by the defendant on cross-examination rather than limit the prosecutor to raising the matter in rebuttal as his original order had contemplated. The cross-examination of the defendant was outside the scope of the original order. Again the prosecutor's question was admissible in view of the direct examination of the defendant.

Furthermore, the judge had already ruled that the restraining orders themselves were admissible. The testimony elicited as to the reason for the orders was, therefore, to a great extent cumulative and any adverse effect was dissipated by the judge's instructions to the jury. [Note 4] With this in mind no prejudice could have resulted from the prosecutor's questions to the defendant on cross-examination.

Finally, the defendant's objection during redirect was not timely and was therefore waived. See Commonwealth v. Cadwell, 374 Mass. 308 , 311 (1978). See also Commonwealth v. Baptiste, 372 Mass. 700 , 706 (1977) (objection coming after a question was answered was not timely); Boyle v. Columbian Fire Proofing Co., 182 Mass. 93 , 98-99 (1902)

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(failure to make timely objection is a waiver to both the question and the answer).

Judgments affirmed.

FOOTNOTES

[Note 1] The defendant was found not guilty on a charge of rape of a child under sixteen, and a second count of violating a restraining order.

[Note 2] Massachusetts Rule of Criminal Procedure 27 (b), 378 Mass. 897 (1979), provides as follows:

"(b) Several Offenses or Defendants. If there are two or more offenses or defendants tried together, the jury may with the consent of the judge at any time during its deliberations return or be required by the judge to return a verdict or verdicts with respect to the defendants or charges as to which a verdict has been reached; and thereafter the jury may in the discretion of the judge resume deliberation. The judge may declare a mistrial as to any charges upon which the jury cannot agree upon a verdict; provided, however, that the judge may first require the jury to return verdicts on those charges upon which the jury can agree and direct that such verdicts be received and recorded." (Emphasis added.)

[Note 3] The exact language follows:

THE COURT: "I tell you, Mr. [Prosecutor], I think it would be the fairest to do it this way. During the Commonwealth's case in chief we will not hear any testimony about the bad blood, if that's what we can call it, colloquially speaking, there may have or may not have existed between the parties other than the fact that a restraining order was obtained."

PROSECUTOR: "Yes, Your Honor."

THE COURT: "And the two restraining orders, of course, will be Exhibits. Now, at the close of the defendant's evidence, if the defendant decides to put in any evidence, a matter which of course is entirely open to Mr. [Defense Counsel] even though he's given me a list of witnesses, if at that point when the defendant has rested it appears to me that I should favor an application from you to bring in by way of rebuttal some of the past history, then we can recall [the mother of the victim] and bring it in then. But I think the fairest thing to do is not to bring it in at this point, that is, during the Commonwealth's case in chief. So, you'll please instruct [the mother of the victim] as to that."

[Note 4] "Now, you've heard a lot about this relationship that went on between [the mother of the victim] and the defendant and you've heard a lot about years of history of a relationship between the two of them. Ladies and gentlemen, we are not here to try what happened five years ago between them. We are not here to go into who got a restraining order against whom and who was right and who was doing what to whom and who was going to the Probate Court. We're not here to talk about those issues. What we are here for is to decide what happened on two specific dates last summer of 1988, and there are three issues in this case."