COMMONWEALTH vs. JESSE G. FOSTER.

LAURENCE, J. The defendant Foster was tried to a jury on indictments charging rape of a child under sixteen years of age; assault on a child under sixteen with intent to commit rape; and two counts of violation of a G. L. c. 209A restraining order. He seeks reversal of his convictions on the charges of assault with intent to rape and one count of violation of a restraining order. [Note 1] His grounds of appeal are (1) prosecutorial misconduct in the form of repeated introduction of inadmissible evidence and (2) prejudicial intrusion by the trial judge into the province of the jury. The alleged intrusion occurred when the judge effectively ordered the jury, in the middle of their deliberations, to return whatever separate verdicts they had reached. The judge had originally instructed

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that the jury could, at their option, return all four verdicts simultaneously rather than separately, and they had in fact elected to do so. We find sufficient merit in Foster's second point to reverse his convictions. [Note 2]

At 3:00 P.M. on May 1, 1989, after five days of trial, the judge charged the jury. His instructions included the following remarks (emphases added):

"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] . . . . 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 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."

The jury then retired at 3:15 P.M. to deliberate. They continued their deliberations for the rest of the afternoon of May 1 and resumed for several hours upon reconvening May 2. At some point during the afternoon of May 2, the jury

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sent a question to the judge through their foreman [Note 3] concerning the dates two of the offenses were alleged to have been committed. After answering the jury's question, the judge engaged the jury foreman in the colloquy reproduced in the margin. [Note 4] The effect of the colloquy was to instruct the foreman to have the jury return whatever verdicts they had reached. Following the jury's retirement, Foster's counsel objected to the judge's action. He pointed out that the jury had originally been given a choice as to the mode of their deliberations. Since they had, according to the foreman, elected to consider all the charges together so as to bring in all four verdicts simultaneously, he contended that the judge's instruction to return partial verdicts "may affect the manner in which they are deliberating in this case." The judge rejected

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counsel's argument, relying on the language of Mass.R.Crim.P. 27(b), 378 Mass. 897 (1979), [Note 5] and stating that:

"I regard it as a matter of discretion on the evening of the second day of deliberation [Note 6] when there is a substantial possibility that the jury may have to disperse and return again for further deliberation, that the court take from the jury whatever verdicts it has and that is the basis for my decision in accordance with the rule."

Following an unspecified (but apparently short) period of time thereafter, the jury, at 4:55 P.M. on May 2, 1989, returned verdicts of guilty on the charges of assault with intent to rape a child and one count of violation of a c. 209A restraining order. The judge at that point invited the jury to continue deliberating as long as they desired into the evening on the remaining two charges, but the foreman expressed the jury's desire to reconvene in the morning. The next day, May 3, 1989, the jury deliberated until 4:50 P.M. when they announced not guilty verdicts on the indictments charging rape of a child and one count of violation of a restraining order.

We have not been referred to any Massachusetts decision on point and our research has not disclosed any. Nonetheless, our review of the circumstances attending the jury's deliberations leads us to agree with Foster's argument on appeal. Reversal is required because the trial judge did unduly, however unintentionally, encroach on the jury's authority. One of the basic principles of our Constitution is the fundamental, indeed "sacred," right of trial by jury in criminal prosecutions. See Massachusetts Declaration of Rights, arts. 12 and 15;

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Commonwealth v. Bellino, 320 Mass. 635, 639, 640, cert. denied, 330 U.S. 832 (1947). "Whatever tends in any appreciable degree to impair the essentials of the right must be struck down." Id. at 639. That the jury be free from undue judicial pressure, contemporaneous or subsequent, has long been held to be one of the essentials of the right to trial by jury in a criminal case. Commonwealth v. Anthes, 5 Gray 185, 209-210 (1855).

There is a distinction between proper judicial guidance of the jury and improper judicial action likely to coerce. Commonwealth v. Hebert, 379 Mass. 752, 755 (1980). Although the line separating the two is not always clear, doubts about its precise location must be resolved in favor of jury freedom. Thus, trial courts have been enjoined to act "with care to avoid all coercion and any indication [to the jury] of judicial bias or pressure." Commonwealth v. Rollins, 354 Mass. 630, 638 (1968). The courts must use "the utmost caution . . . to avoid invading the province of the jury." Commonwealth v. Connor, 392 Mass. 838, 844 (1984). See also Commonwealth v. Cote, 5 Mass. App. Ct. 365, 370 (1977). Any judicial conduct that "has a tendency toward [jury] coercion" should be avoided, even if the risk to trial fairness is "a slight one." Commonwealth v. Rodriquez, 364 Mass. 87, 99 (1973).

The Rodriquez decision, although focusing on the issue of a Tuey charge to a deadlocked jury, [Note 7] restated the values preserved by these principles of judicial restraint in dealing with juries: the "free and unfettered exercise of individual judgment and expression of conscience which is at the very core of the jury system" and "the give and take of group deliberation, a basic attribute of the jury system often expressed as a major characteristic justifying its continuance in our judicial system" (citations omitted). Id. at 99-100.

Considering "[t]he total effect of what took place," we think that the judge's colloquy with the foreman "created appreciable danger of . . . improper invasion of the province of

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the jury . . . ." Commonwealth v. Gonzalez, 28 Mass. App. Ct. 10, 15 (1989). The jury were initially instructed by the judge that they were free to take as long as they wished in their deliberations, to take tentative votes, to take multiple votes, to reconsider prior votes, and to defer finality in reporting their votes until agreement had been reached on all four charges. They had chosen the option of reserving final decision "until all four were complete" (see note 4, supra). We can reasonably infer that any votes they had taken up to the time of the judge's discussion with the foreman may have been provisional, possibly "the result of a temporary compromise in an effort to reach unanimity." A Juvenile v. Commonwealth, 392 Mass. 52, 56 (1984).

The judge's expression to the foreman of his desire for immediate return of the verdicts the jury had reached may well have prejudiced Foster. It could have been understood by the jurors as a requirement that they abandon any doubts which they may have privately entertained about Foster's guilt on the charges thus far discussed but which they would have been prepared to express in subsequent reconsideration after further assessment of all the evidence bearing on all the charges. The judge's professed reluctance to use the word "order" did not effectively mitigate the impact of his abrupt and unexplained change of the rules of deliberation. By overriding the foreman's expressed reservations, he created "a strong likelihood that the jury may have given special weight to the judge's . . . communication," Commonwealth v. Webster, 391 Mass. 271, 277 (1984), as an effective command. It was perceivable, moreover, as an order not merely to return the verdicts seriatim but also to return immediately whatever verdicts had received unanimous, even if tentative, votes without further deliberation on those charges.

"A jury should not be precluded from reconsidering a previous vote on any issue . . . ." A Juvenile v. Commonwealth, supra at 56 (citation omitted). By insisting on the return of partial verdicts which he had earlier informed the jury could be reconsidered at any time prior to unanimity on all four charges, the judge effectively precluded such reconsideration

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and thereby "overc[a]me . . . the will [of the jury] by the weight of his authority," in a manner that amounted to "placing the judicial thumb on the scale . . . ." Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 34, 35 (1984) (citation omitted). [Note 8]

We think that the following observations by the United States Court of Appeals for the Second Circuit regarding the sensitive dynamics of jury deliberations are relevant to the instant situation:

"The difficulties of a jury's task in reaching unanimous verdicts as to . . . multiple charges counsel against judicial attempts to structure the course of jury deliberations . . . . [J]uries should have considerable latitude in determining for themselves the structure of the deliberative process . . . . The jury's discretion should extend to the timing of reporting its verdicts . . . . [If jurors] are required to return a partial verdict, there is a risk that some jurors might mistakenly permit a tentative vote to become an irrevocable final vote and forgo the opportunity to gain new insights concerning the evidence [as it is reassessed in light of their subsequent deliberations]." United States v. DiLapi, 651 F.2d 140, 146-147 (2d Cir. 1981), cert. denied, 455 U.S. 938 (1982) (discussing multiple charges against several defendants).

We have no doubt that any coercion of the jury was unintended, that the judge acted with proper motives, and that he reasonably relied on what appeared to be the literally permissive text of rule 27(b). We must, however, appraise the action complained of not by the good intentions behind it but by its probable impact on the jury's process and the trial's

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fairness. The broad discretion to require partial verdicts under rule 27(b) is not exercised properly when, as here, the jury have been given and have chosen the option of returning simultaneous, rather than separate or partial, verdicts at the conclusion of all their deliberations. [Note 9] Extracting partial verdicts in the unusual circumstances of this case strayed beyond the legitimate bounds of judicial guidance and trial management.

Judgments reversed.

Verdicts set aside.