COMMONWEALTH vs. PATRICK KEANE

JACOBS, J. Convicted of rape by a Superior Court jury, the defendant, after a jury-waived trial, was sentenced pursuant to G. L. c. 279, s. 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 try." 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

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movement." The judge then instructed the jury in terms substantially identical to the modified Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851), charge, appearing in Rodriquez, supra at 101-102, and directed that they resume their deliberation. The defendant claims his counsel failed him at this point by not objecting. After further deliberating for less than two hours, the jury dispatched another note to the judge stating, "[W]e have two verdicts and [are] hopelessly deadlocked on the other charge[s]. Do you want to know what the verdicts are[?]" Without objection, the judge took the jury's verdicts of guilty on a lesser included offense of rape on one of the indictments charging aggravated rape, and not guilty on the breaking and entering indictment. He declared a mistrial as to the indictments charging assault and battery and a second aggravated rape after the jury foreman stated in open court that the jury had been unable to agree upon verdicts as to those indictments.

"General Laws c. 234, s. 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). [Note 1] See also Commonwealth v. Jenkins, 416 Mass. 736, 737 (1994). The record clearly demonstrates that the judge did not believe, at the time he received the jury's second note, that they had engaged in "due and thorough deliberation." In the circumstances, it is a reasonable inference that the second note expressed nothing so urgent as requiring a particular response from the judge. [Note 2] He did not "return" the jury to the courtroom upon receiving the second note and when he did address them at 4:00 P.M., in the course of adjourning deliberations for the day, he

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indicated in an apparent reference to the Rodriquez charge that the time had not arrived for further instruction. Cf. Commonwealth v. Winbush, supra at 683. Upon receiving the jury's third note, the judge's immediate use of the Rodriquez charge was an indication he then had determined that the jury, at that juncture, had deliberated in a due and thorough fashion. See Commonwealth v. Valliere, 366 Mass. 479, 496 (1974); Commonwealth v. Jenkins, 34 Mass. App. Ct. 135, 141 (1993) ("It is not until a judge determines, as matter of discretion, that the jury's deliberations have been 'due and thorough' that a jury's return counts under the statute") S.C., Commonwealth v. Jenkins, supra at 738 ("We accept the Appeals Court's view that, where there is nothing to indicate the contrary, the giving of a Rodriquez charge on the first return of the jury that is significant for our purposes implied that the judge had concluded that the jury's deliberations were 'due and thorough' in the words of s. 34"). We therefore, conclude the judge did not err in sending the jury out to deliberate after receiving the third note and, consequently, there was no occasion for objection by trial counsel.

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. [Note 3] That approach, combined with counsel's broad attack on the Commonwealth's proof, neither deprived the defendant of a defense nor can it reasonably be construed as below standard representation.

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

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the jury by the prosecutor were improper. See Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980).

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, s. 25. [Note 4] The habitual offender allegation was contained in the same indictment as charged the defendant with aggravated rape and also set forth the two predicate prior convictions. The motion to dismiss was filed after the defendant's conviction of rape under that indictment and prior to his jury-waived trial on the habitual offender charge. First, he asserts that the two prior convictions described in the indictment do not implicate the habitual offender statute because he served concurrent sentences for those convictions, and thus was not "twice . . . committed to prison." Concurrent prison sentences, imposed for separate and distinct offenses, together with a third conviction of a felony, support a finding of habitual offender status under the statute. Commonwealth v. Hull, 19 Mass. App. Ct. 1004 (1985), S.C., 397 Mass. 466 (1986) (where the Supreme Judicial Court affirmed on grounds unrelated to the issues here presented). Next, the defendant claims he was prematurely indicted as an habitual offender before he was convicted of his third felony. Our case law, however, indicates that indictment under G. L. c. 279, s. 25, and its predecessors, is often included within the same indictment as charges the felony, conviction of which serves as predicate for sentencing as an habitual criminal. See Commonwealth v. Graves, 155 Mass. 163, 163-164 (1892) (Indictment for abortion also charged defendant with being an habitual criminal, specifying two prior crimes, and the jury were instructed that if the defendant was the person named in the record of prior convictions and sentences and they found him guilty of abortion as charged, they were authorized to find he was an habitual criminal). See also Commonwealth v. Hull 19 Mass. App. Ct. at 1004. Not only are we not directed to authority supporting the defendant's contention, but common sense and reasons of

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judicial economy support the long-standing practice implicitly approved by our courts. Finally, the defendant, without benefit of authority, argues that the habitual offender indictment, which specified aggravated rape as his third crime, should have been dismissed upon his conviction of the lesser included offense of rape. He attempts to buttress this contention with the argument that his State and Federal constitutional rights were somehow affected by his not having specific notice that the felony of rape would be used to support his sentence as an habitual offender. This argument overlooks that G. L. c. 279, s. 25, essentially governs sentencing and does not set forth a substantive crime. It also ignores that an indictment for aggravated rape clearly gives notice of the lesser included crime of rape. Compare Commonwealth v. Gagnon, 387 Mass. 768, 769 (1982), cert. denied, 461 U.S. 921 and 464 U.S. 815 (1983); Commonwealth v. Washington, 15 Mass. App. Ct. 378, 383-384 (1983). Not only is the felony of rape a conceptual component of the crime of aggravated rape but the definition of the word "rape" when used in an indictment comprises a verbatim part of the indictment definition of the words "aggravated rape." See G. L. c. 277, s. 39. The judge did not err in denying the defendant's motion to dismiss the indictment.

Judgment affirmed.

Order denying motion to dismiss affirmed.