20 Mass. App. Ct. 917 | Mass. App. Ct. | 1985
Counsel apparently communicated with the trial judge.
In ruling as he did, the judge assigned no weight to Adams’ testimony about the jury’s being rushed and about Adams’ own ruminations. This was surely correct; indeed jurors are barred even from giving evidence about the interna of the jury’s deliberations or the mental processes of any juror. So we learn from the leading case of Commonwealth v. Fidler, 377 Mass. 192, 196 (1979). See also Commonwealth v. Scanlan, 9 Mass. App. Ct. 173, 184 (1980). On the other hand, Fidler holds (at 196-200) that extraneous information coming to the jury ’ s attention, or an outside influence brought to bear upon any juror, may taint a verdict,
The judge could rest his decision herein only upon Adams’ testimony about the intrusion of an unidentified man. No further inquiry among the other jurors, court officers, or bystanders was suggested by counsel or undertaken by the judge on his own motion. True it is that the occurrence was irregular and suggested a breakdown of the usual precautions that are taken to insulate juries. We think, however, that the judge was mistaken in thinking (as his memorandum indicates) that because the precise effect on a jury of the particular happening could not be assessed, prejudice must be assumed to the point of justifying the undoing of a conviction otherwise well founded. Although the decision no doubt followed from a delicate scruple on the part of the judge, it was not realistic: in all likelihood the prejudice would be nil, and certainly not such as to impeach the stability of a criminal judgment. Nor could the judge’s decision be defended as lying somewhere at the edge of discretion. Cf. Woodward v. Leavitt, 107 Mass. 453, 460 (1871); Commonwealth v. Royster, 15 Mass. App. Ct. 970, 971 (1983). The result did not square with decisions in comparable cases of casual invasions of jury rooms,
So ordered.
It is suggested in Commonwealth v. Fidler, 377 Mass. 192, 203 (1979), that the better practice, where possible, is to put the initial communication to the judge in affidavit form. On this basis the judge in discretion can decide whether a substantial issue is presented requiring an evidentiary hearing. See Commonwealth v. Stewart, 383 Mass. 253, 260 (1981); Commonwealth v. Healy, 393 Mass. 367, 391 (1984); Commonwealth v. Ciminera, 11 Mass. App. Ct. 101, 107 (1981). Cf. Commonwealth v. Saarela, 15 Mass. App. Ct. 403, 406-407 (1983).
Constitutional rights to jury trial and of confrontation and due process may ultimately be involved.
See United States v. Lubrano, 529 F.2d 633, 638 (2d Cir. 1975); United States v. Luciano, 734 F.2d 68, 71 (1st Cir. 1984); Harris v. Commonwealth, 315 S.W. 2d 630, 633 (Ky. 1958); State v. Buffa, 51 N.J. Super. 218, 238-239 (1958); State v. Billups, 301 N.C. 607, 616-617 (1981); Drummer v. State, 366 P.2d 20, 25-26 (Wyo. 1961); with which compare Turner v. Louisiana, 379 U.S. 466, 474 (1965); United States v. Freeman, 634 F.2d 1267, 1269-1270 (10th Cir. 1980).
See Commonwealth v. Hunt, 392 Mass. 28, 37-43 (1984); United States ex rel. Owen v. McMann, 435 F.2d 813, 815, 818-819 (2d Cir. 1970), cert. denied, 402 U.S. 906 (1971). Cf. Commonwealth v. Tavares, 385 Mass. 140, 155-156 (1982).
See Harrington v. Worcester, Leicester, & Spencer St. Ry., 157 Mass. 579, 582-583 (1893). Cf. Commonwealth v. Jones, 15 Mass. App. Ct. 692, 694-696 (1983).