COMMONWEALTH vs. GEORGE CONEFREY, SR.

LIACOS, C.J. In November, 1988, a Barnstable County grand jury returned an indictment charging the defendant with indecent assault and battery on his daughter, a child under the age of fourteen years, "at divers times and dates during 1986." See G. L. c. 265, Section 13B (1992 ed.). In June, 1989, a jury found the defendant guilty. This court reversed the conviction on appeal because the defendant did not have

Page 509

a meaningful opportunity to exercise his right to self-representation. Commonwealth v. Conefrey, 410 Mass. 1, 13 (1991). After retrial in August, 1991, a jury again found the defendant guilty of indecent assault and battery on his daughter. [Note 1] The Appeals Court affirmed the conviction. Commonwealth v. Conefrey, 37 Mass. App. Ct. 290 (1994). We granted the defendant's application for further appellate review.

The defendant contends that the trial judge committed reversible error in refusing to instruct the jury that they must unanimously find one specific incident of indecent assault and battery in order to convict. [Note 2] The Appeals Court concluded that the judge erred in declining to give the defendant's requested instruction on "specific unanimity," but that this error did not prejudice the defendant. Commonwealth v. Conefrey, supra at 297. We agree that the judge erred in not giving the requested specific unanimity instruction. However, we conclude that a harmless error analysis is not appropriate in this case. We reverse the defendant's conviction. [Note 3]

Facts. The Commonwealth presented three witnesses at the second trial. The defendant's daughter, whom we shall

Page 510

call Lisa, was eight years old at the time of the alleged incidents in 1986. She testified to eight incidents of indecent assault and battery. Lisa gave no specific dates for any of the incidents. Seven incidents (the "bed incidents") were substantially similar: while Lisa and the defendant sat on his bed watching television, the defendant pulled down his pants, exposed his penis, and asked her to touch it. Although Lisa initially objected, the defendant told her that "it was okay." He then took her hand and put it on his penis. The defendant also told Lisa that she need not tell her mother. Lisa testified that three bed incidents occurred at the defendant's apartment in Falmouth. She further testified that four bed incidents occurred after the defendant moved to West Falmouth. Another incident (the "shower incident") also occurred in West Falmouth. While Lisa and the defendant were showering together, the defendant rubbed his penis against her stomach. [Note 4]

In fresh complaint testimony, a Department of Social Services social worker corroborated Lisa's description of the "bed" and "shower" incidents of indecent assault and battery. A second fresh complaint witness, a State police investigator, corroborated Lisa's testimony about the "bed incidents."

Specific unanimity instruction. Near the conclusion of the jury charge, the judge instructed the jury that "there is no verdict until every juror subscribes to that verdict. In short, whatever the verdict is, it has to be unanimous." The defendant had requested, in writing, that the judge give this specific unanimity instruction: "In order to convict the defendant you must unanimously agree beyond a reasonable doubt upon at least one incident." Although defense counsel objected at the

Page 511

end of the jury charge, the judge refused to give the requested specific unanimity instruction. [Note 5] The defendant asserts that the judge's failure to instruct the jury on "specific unanimity" amounted to reversible error. [Note 6] We agree.

At the outset, we note that "[i]t is beyond dispute that the jury verdict in a criminal trial in this Commonwealth must be unanimous." Commonwealth v. Hebert, 379 Mass. 752, 754 (1980), citing Brunson v. Commonwealth, 369 Mass. 106, 120 (1979).

Page 512

Mass. R. Crim. P. 27 (a), 378 Mass. 897 (1979). [Note 7] This case is the first in which we have addressed a trial judge's refusal to give a specific unanimity instruction after a proper request and a timely objection, where alternate incidents could support a conviction. "A general unanimity instruction informs the jury that the verdict must be unanimous, whereas a specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987). [Note 8]

We recognize that in certain circumstances a general unanimity instruction adequately will protect a defendant's right to a unanimous verdict. See Commonwealth v. Sylvester, 400 Mass. 334, 340 (1987)

Page 513

(where general unanimity instruction is given, reviewing court assumes that jury followed it absent evidence to the contrary). However, in other situations, where evidence of separate incidents is offered to the jury and any one incident could support a conviction, a general unanimity instruction may not suffice to ensure that the jury actually does reach a unanimous verdict. See Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 367 (1991). [Note 9] We believe that this is such a case.

In Commonwealth v. Comtois, 399 Mass. 668 (1987), the defendant was charged with rape and abuse of a child under the age of sixteen years on divers dates. At trial, the defendant did not request that the judge give a specific unanimity instruction. On appeal, the defendant claimed that the judge erred in failing to instruct the jury sua sponte that they could not convict him without agreeing unanimously on a specific unlawful act as the basis for the conviction. Id. at 675-676. We concluded that, even if the judge's instructions were in error, they did not create a substantial risk of a miscarriage of justice. Id. at 677. However, we noted that a judge should give a specific unanimity instruction if a defendant requested it in accordance with the normal procedure of Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979). Id. at 676-677 n.11.

Similarly, in Commonwealth v. Lemar, 22 Mass. App. Ct. 170 (1986), the Appeals Court addressed the need for a specific unanimity instruction where the defendant, like the defendant in this case, had been charged with indecent assault and battery on a child under fourteen years of age "on divers dates and times." The evidence at trial showed that criminal incidents had occurred on three separate dates. Although the judge instructed the jury that they must act unanimously, he did not instruct that the jurors must unanimously agree to at

Page 514

least one of the incidents in order to convict the defendant. Because the defendant had not requested a specific unanimity instruction at trial, the issue on appeal was whether the judge's failure to give such an instruction sua sponte created a substantial risk of a miscarriage of justice. Id. at 173. The Appeals Court concluded that there was no such risk, but also assumed that a judge would be obliged to give a specific unanimity instruction if the defendant properly requested it. Id. at 172.

In light of Massachusetts precedent, we conclude that the judge erred in refusing to give the defendant's requested specific unanimity instruction. In a case such as this one, where the defendant requested a specific unanimity instruction and where there is a significant likelihood that the conviction resulted from different jurors concluding that the defendant committed different acts, the judge should give the requested specific unanimity instruction. Because the judge did not give such an instruction, we cannot know whether the jurors unanimously agreed that any particular incident occurred. Indeed, in light of the fact that Lisa testified to eight incidents, there exists the distinct possibly that the jury did not agree about which of those numerous incidents actually occurred. Some jurors may have convicted the defendant on the basis of one alleged incident, while others may have convicted him based upon any of the seven other alleged incidents. Indeed, as to the so-called bed incidents, they allegedly occurred at three distinct locations (the defendant's Falmouth apartment and both of his West Falmouth apartments). To correct any potential confusion, the judge should have augmented the general unanimity instruction to ensure that the jurors understood their duty unanimously to agree to a particular set of facts. Even with the general unanimity instruction, the judge's charge could have permitted the jury to reach a nonunanimous verdict. This we cannot accept. [Note 10]

Page 515

We consider next the effect of the judge's error. Specifically, we must determine whether we should affirm the defendant's conviction because the judge's refusal to give the requested specific unanimity instruction amounted to harmless error. The United States Court of Appeals for the Third Circuit recently addressed this issue in United States v. Edmonds, No. 93-1890 (3d Cir. Apr. 18, 1995). In that case, the court held that the trial judge erred in not giving a requested specific unanimity instruction. Id. at ____. The court then noted that the Supreme Court's decision in Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), precluded harmless error analysis. Id. See Commonwealth v. Garcia, 379 Mass. 422, 445 (1980) (Liacos, J., dissenting) (erroneous charge on reasonable doubt cannot be harmless error). In Sullivan v. Louisiana, supra at 2081, the Supreme Court addressed the propriety of harmless error analysis where the jury instructions gave an unconstitutional definition of reasonable doubt. The Court held that using harmless error analysis in such a situation would violate the defendant's right to a jury trial under

Page 516

the Sixth Amendment to the United States Constitution. Id. at 2083. The Court explained:

"Since [the jury never found the defendant guilty beyond a reasonable doubt,] there has been no jury verdict within the meaning of the Sixth Amendment [and] the entire premise of [harmless error] review is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict . . . would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon

which harmless-error scrutiny can operate." Id. at 2082. The United States Court of Appeals for the Third Circuit concluded that this same reasoning applied to bar harmless error analysis where the absence of a specific unanimity instruction had permitted the jury to return a nonunanimous verdict. United States v. Edmonds, supra at____-____. We adopt the Third Circuit's approach. In this case, the judge's failure to give the requested specific unanimity instruction allowed the jury to return a nonunanimous verdict. Thus, there may not have been a unanimous jury finding of guilty of the crime charged. Because there was no verdict, it is impossible for us to consider "whether the guilty verdict actually rendered in this trial was surely unattributable to the error" (emphasis in original). Sullivan v. Louisiana, supra at 2081. See Commonwealth v. Thornley, 406 Mass. 96, 101-102 (1989) (essential question in harmless error analysis is whether the error might have contributed to the verdict). [Note 11] Accordingly, we reverse the defendant's conviction.

So ordered.