COMMONWEALTH vs. KENNETH L. HUNT.

ABRAMS, J. The defendant, Kenneth L. Hunt appeals his conviction of murder in the first degree and the denial of his motion for a new trial. On appeal, the defendant claims that statements he made to the police were improperly admitted in evidence, that statements made to the woman he lived with after he drank liquor she purchased with money obtained from a police officer involved in the murder investigation should not have been admitted, and that new trial is required because one or more of the jurors were exposed to prejudicial information from extraneous sources.

We find no merit in the claims of error predicated on the evidentiary used of the defendant's statements. We are also in hearing [Note 1] indicates one juror knew before voting the convict that the defendant had a prior criminal record, in light of overwhelming evidence of the defendant's guilt, the extraneous information did not prejudice the defendant so as to require a new trial. We therefore affirm the judgment and the denial of the motion for a new trial. We also conclude that there is no reason to exercise our power under G. L. c. 278, Section 33E, in favor of the defendant.

We summarize the evidence at trial. The victim, a cousin of the defendant, was brutally murdered in her fourth-floor apartment at 45 School Street in Springfield sometime during the evening of January 5, 1982. The victim's boyfriend, Harrison Grant, saw her at her apartment that evening about 6:30 P.M. According to Grant, he left at 8:45 P.M., at which time the victim was in her night clothes.

After visiting his sister and then a friend, Grant returned to the victim's apartment building at 11:30 P.M. He rang her apartment, using the buzzer at the security door, but received no response. Although Grant did not have a key to the victim's apartment, he was able to unlock the security door with the key to his apartment. As Grant approached the victim's fourth-floor apartment, he heard her television set playing at a loud volume. Grant's repeated knocks failed to bring her to the door.

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After unsuccessfully attempting to convince the apartment complex janitor, who lived at 47 School Street, to unlock the door to the victim's apartment, Grant returned to that door and opened it by breaking a glass panel with his hand and reaching inside to turn the knob. Stepping inside, he saw the victim lying on her couch in a partially naked and bloody state. Grant went back to inform the janitor. Alerted by Grant's shouts and hysterical behavior, the janitor called the police, who arrived to find the victim, and Grant, bleeding from his left arm, [Note 2] yelling, "[T]hey killed her, they killed her." The victim's neck was slashed and her body had suffered multiple stab wounds to the chest, abdomen, and groin. There were strips of sheeting around her neck and ligature marks on her wrist. In addition to blood, water was found on the bed and in the vicinity of the body. An autopsy revealed sperm in the victim's vagina and rectum. [Note 3]

Several items from the victim's apartment were removed by police and later introduced in evidence at trial. [Note 4] A thorough search of the apartment failed to produce the victim's wallet. The rear door to the apartment was unlocked. There were signs of forced entry.

That evening, the defendant, who was living with one Linda Anderson in the apartment of Anderson's former father-in-law, [Note 5] became involved in an argument with Anderson, which culminated in their tearing each other's clothes. The genesis of the dispute was the dispute was the defendant's unemployed status and

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Anderson's consequent burden of supporting them on the money she earned at her job. Anderson shouted at the defendant to "get off his lazy butt . . . and get a job." After the fight, Anderson went across the street to visit a friend. At 11:30 P.M., the defendant knocked on the door of the apartment of Anderson's friend, and told the friend that if she saw Anderson, she should tell her to come home, that the defendant had something important to tell her (Anderson).

When Anderson returned to the apartment at midnight, the defendant was there. The defendant told her he had gone for a walk to the Springfield Civic Center, where he sat on the steps. The defendant showed her two twenty dollar bills, and told her he found the money at the Civic Center folded in a discarded cigarette box. The defendant offered her the money for use in paying their rent. He suggested that they leave Springfield for Florida or California, and said, "we [have] to get out of here." The defendant also stated they should "find another apartment where nobody will know where we're living." Shortly thereafter, the defendant and Anderson moved to another apartment.

On January 16, 1982, the defendant and Anderson went to the Springfield police station at the request of the police, who were questioning everyone who knew or was related to the victim. Before they arrived at the station, the defendant told Anderson not to mention to the police his discovery of the forty dollars on January 5 because the police might think he had robbed the victim. [Note 6]

At the station, in response to a question about his whereabouts on the evening of January 5, the defendant stated that, after Anderson left their apartment, he departed at 9:30 P.M. to visit a former girlfriend, Jerri Wills, who lived at 73 School Street. He said he spoke to Wills, who was wearing a reddish robe and a faded green nightgown, through the door to her

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apartment, but that she didn't let him in the apartment because she was busy with another visitor. According to the defendant, he returned to his apartment, arriving at 10:15 P.M. The defendant said he had not gone to the victim's apartment on January 5, and that, although he had visited her at 45 School Street. The defendant asserted that he knew the victim lived in the School Street area, but did not know where her apartment was located.

The defendant and Anderson left the station. They returned on January 18 for further questioning. The defendant repeated his January 16 version of his actions on the night of the murder. At one point, the defendant was separated from Anderson, given Miranda warnings, and told that it was important he tell his truth about whether he had been at 45 School Street that night, because the police were checking fingerprints. The defendant again denied having gone to the victim's apartment. At the station, both Anderson and the defendant signed forms consenting to a search of their apartment. The police also obtained the defendant's fingerprints. When the defendant and Anderson left the station, he asked her whether she had told the police about the money he found on January 5. Anderson informed the defendant that she had told the police.

At the apartment, in the defendant's absence, Anderson gave the police the clothes he had worn on January 5, including one sock. When the defendant returned and found out what the police had taken away, he searched for the other sock, telling Anderson he wanted to see if there was blood on it. The defendant found the sock, and Anderson observed a red stain on it.

At trial, forensic experts stated that the shirt, jacket, pants, and sock worn by the defendant on January 5 had human blood on them, that a sample of human hair found in the victim's apartment was similar to the defendant's hair, that a sample of dog hair found in the apartment resembled hair the police had removed from the dog that lived in the defendant's former apartment, that fibers detected on the sweater worn by the defendant on the night of the murder matched the fibers of the

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victim's robe, and that a palm print discovered on the bloody section of the broom handle found in the victim's apartment was identical to the defendant's palm print. In addition, Jerri Wills contradicted the defendant's assertion that he had visited and spoken to her on January 5, and stated that she did not own a robe or nightgown resembling the clothes the defendant claimed he saw her wearing that night.

After the Commonwealth had rested, the defendant took the stand, admitted that he had been in the victim's apartment on the night she was killed, but denied committing the crime. The defendant stated that, at the end of his argument with Anderson, she suggested he visit his friends that night. After Anderson departed, he went a package store, he stood on the sidewalk, glanced down, and spotted a money clip lying on the ground. He picked up the clip, pocketed the two twenty-dollar and one ten-dollar bills it contained, discarded the clip, went back into the package store, and bought of bottle of wine.

According to the defendant, he then went to visit a friend named Mumby, but found out she no longer lived at the address. The defendant insisted he then visited Jerri Wills, and that Wills told him she was busy with a boyfriend. The defendant said he asked Wills where his cousin lived, and Wills gave him general directions.

When the defendant, who is illiterate, arrived at the victim's building, he was unable to discern in which apartment she lived. The defendant said he went around to the back stairway. where he encountered a couple of residents who pointed out the victim's apartment. As he was walking up the stairs to the apartment, a man came running down and nearly knocked him over. The defendant found the back door to the victim's apartment open and walked in. He saw the victim's blood-covered body, and was so startled he dropped the wine bottle he was still carrying, which broke on the floor.

The defendant said he thought of calling the police, but decided not to because he didn't want to be blamed for the murder. For the same reason, he subsequently withheld from the police the fact that he had been in the victim's apartment.

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Before leaving the apartment, he decided to clear up the mess created by the wine bottle because it was the only thing he had brought into the apartment. He used the broom to brush the glass into a plastic bag which he subsequently discarded in a dumpster. He also wiped the floor with a clean cloth he found in the victim's bathroom. He left the apartment, went to the Civic Center, sat on the steps, and then returned to his apartment.

Asked on cross-examination why he had told Anderson that he found the money in a cigarette box at the Civic Center rather than in money clip in front of the package store, the defendant stated that forty dollars belonging to Anderson's former father-in-law had disappeared from the apartment they were living in, that the former father-in-law suspected the defendant, and that he (the defendant) thought that his discovery of the forty dollars would exacerbate the former father-in-law's suspicions.

1. Statements to police. The defendant claims his statement to police on January 18, that he had never been to the victim's 45 School Street apartment, was obtained in violation of his Fifth Amendment privilege, and that its use in evidence requires a new trial. [Note 7] We do not agree.

After holding a hearing, the judge found that when the defendant and Anderson came to the police station on January 16, 1982, the murder investigation had not focused on any one suspect. The defendant and Anderson arrived between 5 P.M. and 6 P.M. and were together at all times during the interview. Neither the defendant nor Anderson was under arrest, and both departed the station after the questioning, which lasted four to five hours. No Miranda warnings were given, nor was the

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defendant, who indicated to the police he wanted to assist in the murder investigation, subjected to any pressure. Notwithstanding his illiteracy, the defendant was alert, responsive, and articulate. He started on three or four occasions that he had never been to the 45 School Street apartment.

On January 18, at the request of the police, the defendant and Anderson returned to the police station for further joint questioning. They were not placed under arrest [Note 8] and again departed after a four to five hour questioning session. At one point, the defendant was taken to a separate room, given Miranda warnings, told the police were examining fingerprints taken in the victim's apartment, and asked if he had ever been in the 45 School Street apartment. The defendant reiterated that he had never been in that apartment.

The judge concluded that the defendant was not in custody at any time during the January 16 or January 18 interrogations, and that, even if the separate interrogation of the defendant on January 18 qualified as custodial, the defendant was advised of his Miranda rights and validly waived those rights.

On appeal, the defendant contests only the judge's conclusion that he validly waived his privilege against self-incrimination during the separate interrogation on January 18. We conclude that the record amply supports the judge's determination that the defendant was not in custody during the interrogations on January 16 and January 18, particularly in light of the defendant's own testimony that he was comfortable during the questioning and was not in any way frightened, threatened, or pressured. See Oregon v. Mathiason, 429 U.S. 492 (1977); Commonwealth v. Bryant, 390 Mass. 729, 736-741 (1984); Commonwealth v. Best, 381 Mass. 472, 493-494 (1980).

We need not decide whether the separate questioning on January 18 was custodial, for there is nothing in the record that would lead us to disturb the judge's finding that the defendant's waiver of his Miranda rights during that questioning was knowing and intelligent. Further, the statement elicited from the defendant in that setting was wholly corroborative of his previous, lawfully obtained statements.

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2. Statements to Anderson. The defendant argues reversal is required because Anderson, acting as an agent of the police, induced him to become intoxicated and discuss the victim's murder with her. The defendant did not object to Anderson's trial testimony concerning the conversation in question, [Note 9] and we therefore consider the defendant's claim only for the purposes of determining whether the failure to exclude that testimony created a substantial risk of a miscarriage of justice.

On cross-examination by the defense, Anderson stated that, on January 18 or 19, 1982, she informed on of the officers who interviewed her that that the defendant relaxes when he drinks. According to Anderson, the officer asked her to get the defendant drunk and induce him to talks about the murder. When she told the officer she had no money for liquor, he gave her a ten dollar bill. Anderson stated she used the money to purchase a bottle of whiskey, which she brought home. The defendant drank the whiskey and "relaxed." On redirect examination, the prosecutor elicited from Anderson that, after the defendant imbibed the liquor, he asked her what the police knew about the murder. Anderson also said that, when she asked the defendant if he had been at the victim's 45 School Street apartment, the defendant asserted he had not been there. The next day, Anderson told the police what the defendant had said.

Because the defendant did not object to Anderson's version of her conversation with the defendant, we are bereft of any findings as to the credibility of her statement that she was furnished money by a police officer for the purpose of eliciting incriminating information from the defendant. If the officer's conduct was as alleged by Anderson, it clearly exceeded the bounds of proper investigation, and a conviction founded on

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statements elicited in the context suggested by Anderson would in all likelihood necessitate reversal. "[T]he police may not accomplish through private proxies what they cannot do directly. If the defendant had shown [that Anderson was] . . . acting as agent of the police pursuant to a scheme to elicit statements from the defendant by coercion or guile . . . . the statements would have to be suppressed for failure to give Miranda warnings." Commonwealth v. Mahnke, 368 Mass. 662, 677 (1975),cert. denied, 425 U.S. 959 (1976).

Assuming, for purposes of discussion only, the veracity of Anderson's allegation, the defendant is not, on these facts, entitled to a new trial, for we cannot say that the use of his statements to Anderson created a substantial risk of a miscarriage of justice. Given his prior assertions to the police that he had not been in the victim's apartment, the consciousness of guilt inferable from his denial to Anderson that he had been in the apartment was not prejudicial. Nor do we perceive any prejudice to the defendant in the disclosure to the jury that, after ten hours of questioning by police, he was interested in what the police knew about the crime. [Note 10]

3. Extraneous influences on jury verdict. On the night of Friday, July 23, 1982, the date on which the jury returned the verdict against the defendant, the defendant's attorney received a telephone call from George Bozeman, one of the deliberating jurors, who stated his opinion that the jury has discussed improper matter before returning the verdict. Defense counsel advised Bozeman to report the matter to the trial judge, and on Monday, July 26, 1982, the judge, defense counsel, and the prosecutor received a note from Bozeman stating that

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"[s]everal fellows jurors spoke to the group as though they did not follow daily instructions," that "one person mentioned law enforcement views of the past and pending indictments against Hunt," that "another [juror] added knowledge of testimony carefully excluded at Hunt's trial," and that "two others recounted news they saw."

Following the guidelines set forth in Commowealth v. Fidler, 377 Mass. 192, 200-201 (1979), the judge questioned Bozeman in the presence of the prosecutor and defense counsel on July 29, 1982. Bozeman said that immediately after the verdict was reached, but before the verdict was reported to the judge, [Note 11] one juror stated he had previously worked in the sheriff's office, that he knew the defendant had a prior conviction in Bermuda, [Note 12] and that the defendant had been or would be indicted for the death of someone at a hospital in the Springfield area who was killed in a manner resembling the victim's murder. [Note 13] According to Bozeman, the juror also stated that Florida and Bermuda officials would search their records for evidence against the defendant following his conviction in this case. Bozeman further testified that, in the interim after the verdict was reached, a second juror said that defendant had made a statement to his girl friend that had been excluded from evidence because the contents proved him to be a liar. [Note 14] Bozeman also referred to comments by two other unidentified jurors in the same time period that suggested those jurors had disobeyed instructions to eschew media accounts of the trial.

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On September 14, 1982, the judge individually questioned the other eleven deliberating jurors. Both jurors name the Bozeman denied making the statements attributed to them by Bozeman. However, one other juror recalled that another juror stated after the verdict had been reached that the defendant had a prior criminal record. All of the jurors said they had not been exposed to media coverage during the trial.

On the basis of the jurors' answers to the questions put to them during the two Fidler hearings, the judge issued thoroughly written findings and rulings on the defendant's motion for a new trial. The judge found that the remarks brought to the court's attention by Bozeman, if made, were all made after the jury had arrived at its unanimous verdict and after the court officers had been so advised. The judge also found that, apart from the corroboration of Bozeman's allegation that the defendant's prior record was discussed after the verdict was reached. Bozeman's allegations derived no support from the testimony of the other jurors. Based on his observation of Bozeman and the other jurors, the judge concluded that Bozeman's uncorroborated allegations were not credible. The judge found, however, that the defendant's prior record was discussed after the verdict had been agreed on and while the jurors were waiting to report the verdict.

The judge ruled that, unless a juror's uncommunicated knowledge during deliberations of matters not in evidence constitutes an extraneous influence on a jury verdict, the defendant had failed to meet his burden of proving the existence of an extraneous influence on jury verdict, the defendant had failed to meet his burden of proving the existence of an extraneous influence. See Commonwealth v. Fidler, supra at 201. The judge noted that the status of uncommunicated knowledge as extraneous matter was an issue of first impression in this Commonwealth, [Note 15] assumed that the defendant had succeeded

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in demonstrating an extraneous influence, but concluded that the Commonwealth had met its burden of "show[ing] beyond a reasonable doubt that [the defendant] was not prejudiced by the extraneous matter." Id.

The record fully supports the judge's finding that no extraneous information was communicated among the jurors prior to their arrival at a unanimous verdict, and we do not understand the defendant to argue to the contrary. Thus, this not a case where "specific facts not mentioned at trial concerning one of the parties or the matter in litigation were brought to the attention of the deliberating jury by a juror" (emphasis supplied). Commonwealth v. Fidler, supra at 200. However, although no extraneous facts were communicated by a juror to the other deliberating jurors, the record is consistent with the judge's finding that one juror had knowledge of the defendant's prior record before voting to convict. [Note 16] The question before us is whether that knowledge entitled the defendant to a new trial.

In deciding whether a verdict may be impeached through juror testimony indicating that a deliberating juror possessed uncommunicated factual knowledge not adduced at trial, we start with the proposition that "[l]itigants are entitled to a decision on the evidence at trial, governed by the rules of evidence." Commonwealth v. Fidler, supra at 197. "[W]hile the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room" (emphasis supplied). United States v. McKinney, 429 F.2d 1019, 1023 (5th Cir.), modified on rehearing, 434 F.2d 831 (1970), cert. denied, 401 U.S. 922 (1971). Competent evidence that one, rather than some or all jurors, had access to potentially prejudicial information unfiltered by the trial process may suffice to invalidate a verdict. A defendant is "entitled to be tried by 12, not 9 or even 10 [or 11] impartial

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and unprejudiced jurors." Parker v. Gladden, 385 U.S. 363, 366 (1966).

In order to avoid harassment of jurors, prevent jury tampering, promote the finality of verdicts, and maintain confidence in such verdicts, we have, however, limited the extent to which juror testimony may be used to overturn a verdict. Commonwealth v. Fidler, supra at 195. The balance we have struck permits consideration of juror testimony regarding "overt factors" affecting the verdict, but prohibits impeachment of verdicts through juror testimony concerning "matters resting in a juror's consciousness." Id. at 198. Commonwealth v. Maltais, 387 Mass. 79, 91 (1982). "[T]he line between overt factors and matters resting in a juror's consciouness is not easily drawn, and difficult cases will arise." Commonwealth v. Fidler, supra at 198.

This is such a difficult case, but we believe that a juror's independent knowledge of a defendant's criminal record, when established through the testimony of other jurors, [Note 17] is an overt factor "by which the verdict's validity can be objectively assessed." Id., quoting 3 J. Weinstein & M. Berger, Evidence par. 606[03], at 606-25 (1978). The defendant's claim for a new trial on the basis of a juror's exposure to extra-record information would merit attention if such exposure were demonstrated through evidence that the juror read newspaper articles or spoke with a persons who communicated that information, see Parker v. Gladden, supra; we can think of no reason why a different result should be reached when the evidence is that the juror made statements that clearly establish such exposure. See Commonwealth v. Fidler, supra at 200. "There was not mention of [the defendant's criminal record] in court, so . . . the only possible

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source of this information was extraneous to the trial." Id. at 199-200.

Concluding that the defendant met his burden of demonstrating a deliberating juror's exposure to extraneous matter, [Note 18] we turn our attention to the question whether the defendant was prejudiced by one juror's awareness of his prior criminal record. In evaluating prejudice, the trial judge properly avoided "any evidence concerning the actual effect of the matter on the juror's decision," but rather focused " on the probable effects of the extraneous facts on a hypothetical average jur[or]." Commonwealth v. Fidler, supra at 201.

An evaluation of the prejudicial effect of extraneous information requires consideration of a "matrix of factors," United States v. Howard, 506 F.2d 865, 867 n.1 (5th Cir. 1975), including whether the information is so inherently damaging to the defendant's case that prejudice must be inferred. Commonwealth v. Fidler, supra at 201 n.8. We think the judge properly concluded that juror knowledge of a defendant's prior criminal record does not fall into the category of extraneous matter automatically requiring a new trial. Murphy v. Florida, 421 U.S. 794, 795 (1975). Cf. State v. Beier, 263 N.W. 2d 622 (Minn. 1978) (defendant in rape trial nor prejudiced by

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three jurors' knowledge that he was awaiting trial on charges relating to death of another girl). The judge was therefore free to consider the effect of the extraneous knowledge in light of the strength of the evidence against the defendant. Commonwealth v. Fidler, supra. United States v. McKinney, 434 F.2d 831, 832-833 (5th Cir. 1970), cert. denied, 401 U.S. 922 (1971). State v. Beier, supra.

We are in agreement with the judge that the evidence against the defendant was overwhelming. The defendant admitted at trial that he was in the victim's apartment during the evening she was killed and was shown to have blood and fibers from the victim's robe on his clothes. As we read the record, the inconsistencies and logical gaps in the defendant's explanations of his presence in the apartment and his activities that evening were sufficient to warrant the assumption of the judge, who observed the defendant, the defendant's credibility to the average juror was destroyed irrespective of knowledges of prior convictions. We note in particular the defendant's inability to explain his conflicting versions of where he had obtained the money he acquired the night of the murder, and the defendant's insistence that he had visited Jerri Wills that night in the face of Wills' contradiction of that claim. There was no error in the judge's considering as evidence of strength of the case against Hunt the fact that a unanimous verdict, including the votes of eleven jurors not shown to have been exposed to extraneous information, was reached within an hour of their retirement to the jury room. See Commonwealth v. Doyle, ante 23 (1984); Commonwealth v. Webster, 391 Mass. 271, 276 n.2 (1984). Finally, we observe that, given the defendant's claim that his repeated lying about his presence in the victim's apartment was prompted by fear that he would be blamed for the crime, the knowledge of one juror that the defendant had a prior criminal record does not necessarily detract from the credibility of the defense.

We conclude that there is no error in the judge's determination that the Commonwealth demonstrated beyond a reasonable doubt that the defendant was not prejudiced by the extraneous matter. Commonwealth V. Fidler, supra at 201. There was no error in the denial of the motion for a new trial.

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4. Review pursuant to G. L. c. 278, Section 33E. We have carefully reviewed the record before us to consider whether the defendant is entitled to a new trial or to the entry of a verdict of a lesser degree of guilt. We conclude there is no reason to exercise our power in favor of the defendant.

Judgment affirmed. Denial of motion for new trial affirmed.