41 Mass. App. Ct. 656 | Mass. App. Ct. | 1996
Convicted of rape by a Superior Court jury, the defendant, after a jury-waived trial, was sentenced pursuant to G. L. c. 279, § 25, as an habitual offender. He appeals, essentially claiming jury coercion, ineffective assistance of counsel, and erroneous denial of his motion to dismiss the habitual offender indictment. We affirm.
1. Coercion of the jury. Arguing that the judge’s instruction pursuant to Commonwealth v. Rodriquez, 364 Mass. 87 (1973), was coercive in the circumstances, the defendant asserts his trial counsel’s failure to object was an error so substantial as to require reversal of his rape conviction. The relevant events are as follows: Following a trial of nearly three days duration on four indictments alleging two aggravated rapes, assault and battery, and breaking and entering in the nighttime with intent to commit a felony, the jury began its deliberations on Tuesday morning, April 12, 1994. At 3:10 p.m., the jury submitted two questions relating to the substantive elements of the breaking and entering charge (the first note). The jury resumed deliberation at 10:12 a.m. on Wednesday, April 13, shortly after the judge had given answers to their questions and further instruction. That afternoon, the judge received a second note from the jurors. At 4:00 p.m., he informed the jurors “I did receive your note [the second note] earlier and shared it with the lawyers. I am going to excuse you at this point. You came in early and have had a long day. But I am going to ask you to come back tomorrow and try again. So we are going to ask you to come back here tomorrow at nine o’clock and give it another tiy.” Significantly, the judge also stated to the jury, “It may be at some point tomorrow that I have some further instructions to give you.” The following day, Thursday, April 14, the prosecutor, in an apparent reference to the second note, observed that it had come in at approximately 2:30 to 3:00 p.m., and that it “indicated a deadlock, and you [the judge] did not bring them down,” to which the judge responded, “That’s correct.” That day, Thursday, the jury resumed deliberations at 9:25 a.m. They returned to the courtroom at 9:50 a.m., at which time the judge indicated that he had received a third note from the foreman which read, “We have been in a deadlock since last Monday. There has been no
“General Laws c. 234, § 34, stands guard to prevent jurors, after ‘due and thorough’ deliberations, from being coerced into reaching a verdict in the face of views conscientiously reached and held.” Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982).
2. Ineffective assistance of trial counsel. The defendant claims that trial counsel, after maintaining a consent “defense” during the Commonwealth’s case, abruptly abandoned it in her closing argument. A fair reading of that argument reveals that while counsel did not use the word “consent,” the clear import of her remarks was that nothing happened during the defendant’s encounter with the alleged victim that was not consensual.
The defendant also claims trial counsel was ineffective in failing to object to two comments by the prosecutor. The defendant fails to show, however, that the comments were not based on record evidence or that the inferences suggested to
3. Denial of motion to dismiss the habitual offender indictment. The defendant claims three errors in the denial of his motion to dismiss his indictment under G. L. c. 279, § 25.
Judgment affirmed.
Order denying motion to dismiss affirmed.
The full text of G. L. c. 234, § 34, is as follows: “If a jury, after due and thorough deliberation, return to court without having agreed on a verdict, the court may state anew the evidence or any part thereof, explain to them anew the law applicable to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law.”
While we discern no error deriving from the treatment of the second note from the jury, we suggest that judges, even in the absence of a request by counsel, establish a clear record of the contents of any communication from the jury and the court’s reaction to it. Compare Commonwealth v. Moyne, 38 Mass. App. Ct. 282, 288-289 (1995).
The record reveals that defense counsel informed the judge that she was experiencing difficulty with the defendant with respect to the prospective subject of argument. Appellate counsel speculates that the defendant had objected to a consent defense. In any event, as we have indicated, trial counsel’s argument was not ineffective, especially in view of the fact that the defense rested without presenting evidence. The record does not support the defendant’s contention that trial counsel defaulted on any of her obligations in closing argument.
General Laws c. 279, § 25, provides, in relevant part: “Whoever has been twice convicted of crime and sentenced and committed to prison . . . shall, upon conviction of a felony, be considered an habitual criminal and be punished by imprisonment in the state prison for the maximum term provided by law as a penalty for the felony for. which he is then to be sentenced.”