Commonwealth v. KalinowskiCommonwealth v. Kalinowski
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- Before:
- Kass
Three indictments went to the jury: attempted larceny of a motor vehicle,
1
malicious injury to personal property, viz., a motor vehicle;
2
and assault and battery by means of a dangerous weapon.
3
Deliberations began on
The judge answered the jury’s questions and instructed the clerk to provide the jury with fresh verdict slips. Later that day, shortly past noon, the jury returned verdicts of guilty on all three indictments. No objection was made to the acceptance of any of the verdicts by the court or to their recordation.
Four days after sentencing, the defendant moved to dismiss the indictments for attempted larceny of a motor vehicle and malicious injury to personal property. The stated ground for the motion was a theory of double jeopardy, i.e., that as to the indictments upon which the jury, as originally constituted, had agreed upon verdicts, the defendant had been subjected to two deliberations by reason of the jury starting deliberations from scratch with the alternate juror. This misconceives the principle of double jeopardy, which is that a defendant ought not to be required to submit to repeated efforts to convict and the consequent embarrassment, expense, ordeal and anxiety.
Costarelli
v.
Commonwealth,
374 Mass. 677, 681 (1978), and cases cited. The defendant here was not being put “twice to the bar.”
United States
v.
Hotz,
620 F.2d 5, 6 (1st Cir. 1980). No fundamentals of the constitutional right to a trial by jury as described in
Commonwealth
v.
Bellino,
320 Mass. 635, 639, cert. denied, 330 U.S. 832 (1947), and commented upon in
To the extent the defendant might have a valid objection, it would be that under
It may fairly be argued, and the Commonwealth does so, that the defendant did not timely object to reconsideration of the two indictments on which the jury as originally constituted seem to have acted. 4 There is reason to believe, however, that the request for fresh verdict slips, which appeared as a footnote to a request by the jury for additional instruction, became submerged in consideration by the judge and counsel of how the jury’s questions concerning the applicable law might best be answered.
We proceed to inquire, therefore, if under
So far as material,
These cases, however, antedate the introduction into the statute in 1967,
5
of the juror substitution mechanism. In the course of considering that provision in
Commonwealth
v.
Haywood,
377 Mass. at 768, the court took note of the legislative purpose of avoiding a long and expensive retrial due to the disability of a juror, while protecting the defendant’s right to a trial by jury. It would be inconsistent with the remedial purpose of the 1967 amendment to give it a narrow construction. See
Wynn
v.
Assessors of Boston,
281 Mass. 245, 249 (1932). At least on the facts of the instant case, where the filling out of the verdict slips on two charges may have been tentative and where the jury had yet to arrive at a consensus on a portion of the charges against the defendant, we hold that the jury had not “agreed on a ver
Two other issues were raised on appeal. There is no merit to the defendant’s argument that he was entitled to have the jury instructed that they might consider that he was too drunk to form a specific intent. The case is controlled by
Commonwealth
v.
Sheehan,
376 Mass. 765, 774 (1978), and cases cited, which restated the rule in Massachusetts that voluntary consumption of alcohol itself “cannot warrant a finding of the absence of a specific criminal intent.”
Id.
There was no evidence which warranted an instruction along the lines requested by the defendant, even if we were to read, as the defendant would have us do, certain dicta in
Sheehan
as leaving the door ajar to modifying the usual rule in cases of alcohol intoxication. The subject of
Sheehan
was drug intoxication. In the record of the instant case there is no clear indication of the influence of alcohol on the defendant’s state of mind. Before he joined in an attempt to steal a car and then tried to ward off his pursuers with a screwdriver, the defendant had gone to a pub and said he was “kind of drunk when I went there.”
No objection was made by the defendant to the content of a supplemental instruction on the elements of assault and battery by means of a dangerous weapon, which he now attacks on appeal. The objection here seems to have been that no additional instruction was necessary because the judge had already charged the jury correctly. At all events, the supplemental charge described the offense in accordance with Commonwealth v. Appleby, 380 Mass. 296, 303-307 & n.5 (1980). See also Commonwealth v. Richards, 363 Mass. 299, 303 (1973); Commonwealth v. Tarrant, 367 Mass. 411, 414-417 (1975).
Judgments affirmed.
Notes
The original verdict slips were destroyed and may as easily have been verdicts of guilty as not guilty. The indictment for malicious injury to property was placed on file after verdict upon motion of the assistant district attorney. Thus, as a practical matter, this appeal concerns only the indictment for attempted larceny of a motor vehicle.
By St. 1967, c. 285.
A parallel juror substitution provision in G. L. c. 234A, dealing with jury procedures in Middlesex County, does not contain the qualifying phrase “before the jury has agreed on a verdict” but permits the seating of an alternate juror “at any time after the submission of the case.” See