NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-854
COMMONWEALTH
vs.
BRANDON M. BAMFORD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
was found guilty of one count of indecent assault and battery on
a child under the age of fourteen. He was found not guilty of
two additional counts of indecent assault and battery on a child
under the age of fourteen and one count of rape of a child
aggravated by age difference. On appeal, the defendant argues
that the judge erred in giving the Tuey-Rodriquez charge, see
Commonwealth v. Rodriquez, 364 Mass. 87 (1973); Commonwealth v.
Tuey, 8 Cush. 1 (1851), causing a substantial risk of a
miscarriage of justice. He also argues that certain statements
in the Commonwealth's closing argument caused a substantial risk
of a miscarriage of justice. We affirm. Background. We summarize the facts as presented to the
jury. After sustaining a head injury, the victim's father was
unable to help care for his children. The victim's mother
became the primary support for the household and turned to the
defendant, the victim's uncle, to help with childcare. The
defendant would often watch the nine year old victim and her
thirteen year old brother at his home where the children would
spend the night. The defendant sometimes had his own young
daughter at home, but he had no roommates. On multiple
occasions, the defendant asked the victim to sleep in his bed.
While in bed together, the defendant touched the victim's
vagina. The defendant also placed the victim's hand on his
penis two or three times.
The jury began deliberations in the late afternoon of the
fourth day of trial. On the morning of the second day of
deliberations, the jury sent a note to the judge. In this first
note, the jury asked why there were two indictments under G. L.
c. 265, § 13B, assault and battery on a child less than fourteen
(hand on penis). After consulting with both parties, the judge
gave the jurors a written response, stating that the
Commonwealth had charged the defendant with violating the
statute twice by having the victim touch the defendant's penis.
2 A little over an hour later, the jury sent a second note,
asking the judge, "What are the next steps if the jury cannot
come to a unanimous verdict?" The judge stated to the parties
that because the jury had been deliberating for only a short
amount of time and there was no indication they were at an
impasse, he was inclined to respond that they should continue
their deliberations. There was no objection by either party.
At around 3 P.M., while the jury was still deliberating,
the judge discussed with the parties their thoughts on a
possible Tuey-Rodriquez charge, and again stated that he had not
found that the jury were at an impasse yet. The parties agreed
to let the jury go home early and continue their deliberations
in the morning.
The next morning, after about thirty-five minutes of
deliberations, the jury sent a third note asking, "Is it
allowable to have unanimous decisions on some but not all
indictments? Or can a jury be 'hung' on 1 of 4 indictments?"
While discussing with the parties, the judge stated that he
wanted to respond to the jury's questions in the affirmative and
that he did not think that a Tuey-Rodriquez charge was
appropriate yet because the jury were asking questions and not
stating they were at an impasse. Neither party objected. The
3 judge responded, "Yes," to both questions, and the jury
continued their deliberations.
That afternoon, the jury sent a fourth note stating, "The
jury has reached [a] unanimous verdict on 3 of the 4
indictments. On the other we are at a deadlock." The judge
stated to the parties that at this point, the jury had "[b]een
at it a long time. They[']ve asked a couple of questions early
on that gave an indication that they were concerned about being
deadlocked, although they didn't say it. This is where they
said they're deadlocked." He went on to say that he intended to
give them the Tuey-Rodriquez charge. Defense counsel stated,
"That's wise," and the prosecutor agreed. The judge then gave
the jury the Tuey-Rodriquez instruction and sent them back to
deliberate. Forty-two minutes later, the jury returned with the
verdicts, finding the defendant guilty of one count of indecent
assault and battery on a child under the age of fourteen and not
guilty of the three other charges.
Discussion. 1. General Laws c. 234A, § 68C, and Tuey-
Rodriquez charge. For the first time on appeal, the defendant
argues that the judge coerced the jury and violated G. L.
c. 234A, § 68C, when he gave the Tuey-Rodriquez charge, ordering
the jury to continue deliberating after they had twice reported
being deadlocked. The defendant did not raise this claim at
4 trial, and in fact expressed agreement when the judge determined
it was time to give the instruction. As such, we review for a
substantial risk of a miscarriage of justice. See Commonwealth
v. Abdul-Alim, 91 Mass. App. Ct. 165, 171 (2017).
General Laws c. 234A, § 68C, prohibits a judge "from
ordering further deliberations by a deadlocked jury that has
twice reported being at an impasse after due and thorough
deliberation, unless they explicitly consent or seek
clarification on the law." Read v. Commonwealth, 495 Mass. 312,
323, cert. denied, 145 S. Ct. 1964 (2025). The statute
safeguards jurors "from being coerced into reaching a verdict."
Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982)
(interpreting substantially identical precursor statute, G. L.
c. 234, § 34). Whether due and thorough deliberation has
occurred, thus triggering the statute, "is a matter of
discretion for the trial judge." Veiga v. Schochet, 62 Mass.
App. Ct. 440, 443 (2004). Similarly, "[w]hether the jury are
deadlocked, and whether the Tuey-Rodriquez charge should be
given at a particular time, are matters that are addressed to
the discretion of the trial judge." Commonwealth v. O'Brien, 65
Mass. App. Ct. 291, 295 (2005). We thus review these decisions
for abuse of discretion. See Commonwealth v. Jenkins, 416 Mass.
736, 740-741 (1994).
5 "Generally, where the judge apprehends that the jury are
deadlocked, the Tuey-Rodriquez charge . . . may be given."
O'Brien, 65 Mass. App. Ct. at 295. "When used appropriately and
after the jury have engaged in due and thorough deliberation,
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-854
COMMONWEALTH
vs.
BRANDON M. BAMFORD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
was found guilty of one count of indecent assault and battery on
a child under the age of fourteen. He was found not guilty of
two additional counts of indecent assault and battery on a child
under the age of fourteen and one count of rape of a child
aggravated by age difference. On appeal, the defendant argues
that the judge erred in giving the Tuey-Rodriquez charge, see
Commonwealth v. Rodriquez, 364 Mass. 87 (1973); Commonwealth v.
Tuey, 8 Cush. 1 (1851), causing a substantial risk of a
miscarriage of justice. He also argues that certain statements
in the Commonwealth's closing argument caused a substantial risk
of a miscarriage of justice. We affirm. Background. We summarize the facts as presented to the
jury. After sustaining a head injury, the victim's father was
unable to help care for his children. The victim's mother
became the primary support for the household and turned to the
defendant, the victim's uncle, to help with childcare. The
defendant would often watch the nine year old victim and her
thirteen year old brother at his home where the children would
spend the night. The defendant sometimes had his own young
daughter at home, but he had no roommates. On multiple
occasions, the defendant asked the victim to sleep in his bed.
While in bed together, the defendant touched the victim's
vagina. The defendant also placed the victim's hand on his
penis two or three times.
The jury began deliberations in the late afternoon of the
fourth day of trial. On the morning of the second day of
deliberations, the jury sent a note to the judge. In this first
note, the jury asked why there were two indictments under G. L.
c. 265, § 13B, assault and battery on a child less than fourteen
(hand on penis). After consulting with both parties, the judge
gave the jurors a written response, stating that the
Commonwealth had charged the defendant with violating the
statute twice by having the victim touch the defendant's penis.
2 A little over an hour later, the jury sent a second note,
asking the judge, "What are the next steps if the jury cannot
come to a unanimous verdict?" The judge stated to the parties
that because the jury had been deliberating for only a short
amount of time and there was no indication they were at an
impasse, he was inclined to respond that they should continue
their deliberations. There was no objection by either party.
At around 3 P.M., while the jury was still deliberating,
the judge discussed with the parties their thoughts on a
possible Tuey-Rodriquez charge, and again stated that he had not
found that the jury were at an impasse yet. The parties agreed
to let the jury go home early and continue their deliberations
in the morning.
The next morning, after about thirty-five minutes of
deliberations, the jury sent a third note asking, "Is it
allowable to have unanimous decisions on some but not all
indictments? Or can a jury be 'hung' on 1 of 4 indictments?"
While discussing with the parties, the judge stated that he
wanted to respond to the jury's questions in the affirmative and
that he did not think that a Tuey-Rodriquez charge was
appropriate yet because the jury were asking questions and not
stating they were at an impasse. Neither party objected. The
3 judge responded, "Yes," to both questions, and the jury
continued their deliberations.
That afternoon, the jury sent a fourth note stating, "The
jury has reached [a] unanimous verdict on 3 of the 4
indictments. On the other we are at a deadlock." The judge
stated to the parties that at this point, the jury had "[b]een
at it a long time. They[']ve asked a couple of questions early
on that gave an indication that they were concerned about being
deadlocked, although they didn't say it. This is where they
said they're deadlocked." He went on to say that he intended to
give them the Tuey-Rodriquez charge. Defense counsel stated,
"That's wise," and the prosecutor agreed. The judge then gave
the jury the Tuey-Rodriquez instruction and sent them back to
deliberate. Forty-two minutes later, the jury returned with the
verdicts, finding the defendant guilty of one count of indecent
assault and battery on a child under the age of fourteen and not
guilty of the three other charges.
Discussion. 1. General Laws c. 234A, § 68C, and Tuey-
Rodriquez charge. For the first time on appeal, the defendant
argues that the judge coerced the jury and violated G. L.
c. 234A, § 68C, when he gave the Tuey-Rodriquez charge, ordering
the jury to continue deliberating after they had twice reported
being deadlocked. The defendant did not raise this claim at
4 trial, and in fact expressed agreement when the judge determined
it was time to give the instruction. As such, we review for a
substantial risk of a miscarriage of justice. See Commonwealth
v. Abdul-Alim, 91 Mass. App. Ct. 165, 171 (2017).
General Laws c. 234A, § 68C, prohibits a judge "from
ordering further deliberations by a deadlocked jury that has
twice reported being at an impasse after due and thorough
deliberation, unless they explicitly consent or seek
clarification on the law." Read v. Commonwealth, 495 Mass. 312,
323, cert. denied, 145 S. Ct. 1964 (2025). The statute
safeguards jurors "from being coerced into reaching a verdict."
Commonwealth v. Winbush, 14 Mass. App. Ct. 680, 682 (1982)
(interpreting substantially identical precursor statute, G. L.
c. 234, § 34). Whether due and thorough deliberation has
occurred, thus triggering the statute, "is a matter of
discretion for the trial judge." Veiga v. Schochet, 62 Mass.
App. Ct. 440, 443 (2004). Similarly, "[w]hether the jury are
deadlocked, and whether the Tuey-Rodriquez charge should be
given at a particular time, are matters that are addressed to
the discretion of the trial judge." Commonwealth v. O'Brien, 65
Mass. App. Ct. 291, 295 (2005). We thus review these decisions
for abuse of discretion. See Commonwealth v. Jenkins, 416 Mass.
736, 740-741 (1994).
5 "Generally, where the judge apprehends that the jury are
deadlocked, the Tuey-Rodriquez charge . . . may be given."
O'Brien, 65 Mass. App. Ct. at 295. "When used appropriately and
after the jury have engaged in due and thorough deliberation,
the charge is an important tool 'designed to urge the jury to
reach a verdict by giving more serious consideration to opposing
points of view'" (citation omitted). Commonwealth v. Chalue,
486 Mass. 847, 860 (2021). Because the instruction has a
"sting" to it, "it should not be used prematurely." O'Brien,
supra.
On appeal, the defendant implies that the third note, in
which the jury questioned whether it was "allowable to have
unanimous decisions on some but not all of the indictments? Or
can a jury be 'hung' on 1 of 4 indictments?" constituted a
"return" for purposes of G. L. c. 234A, § 68C.1 Thus, the
defendant alleges, the fourth note, which stated, "The jury has
1 The defendant also posits that the second note could have been a return. He argues that following the second note, in which the jury inquired about "next steps if [they] could not come to a unanimous verdict," the judge was "well aware that the note signaled a possible deadlock" and the judge's subsequent comments at the end of that day "implied that [he] realized that the communication could constitute[] a 'return' under the statute." We disagree. The judge explicitly found that the second note did not constitute an impasse (or a "return" under the statute). Given the length of deliberations at that point and the content of the note, we see no abuse of discretion in this finding. See Veiga, 62 Mass. App. Ct. at 444.
6 reached [a] unanimous verdict on 3 of the 4 indictments. On the
other [indictment] we are at a deadlock," was a second return
under the statute. Following the defendant's argument to its
logical conclusion, the judge failed to ask the jury for their
consent before sending them back out, and coerced them through
the Tuey-Rodriquez and violated the statute. We disagree.
As the trial judge remarked while discussing the third note
with the parties, the jurors asked two questions that merited
responses. The jury did not state that they were deadlocked.
Thus, as the judge explicitly found, a Tuey-Rodriquez charge was
not yet appropriate.2 See O'Brien, 65 Mass. App. Ct. at 296
("instructions given to a jury that have not reached the point
of deadlock may have an impermissibly coercive effect"). That
the judge did not interpret the third note to suggest that the
jury were at an impasse was not an abuse of discretion. See
Veiga, 62 Mass. App. Ct. at 443-444 (no abuse of discretion in
failing to declare impasse where although notes sent by jury
used phrases with word "deadlock," context "suggested that the
2 We note that at this point it may have been practical, although not required, to give the jury the alternate American Bar Association instruction sometimes referred to as "Tuey- Rodriquez light." See Rodriquez, 364 Mass. at 101-102. That charge is "less emphatic than the [Tuey-Rodriquez] charge and is intended for use either as part of the original instructions to the jury or as a supplemental instruction when the jurors appear to be running into difficulty reaching a verdict." Id. at 101.
7 process of deliberating was ongoing rather than over"); Winbush,
14 Mass. App. Ct. at 683 (after receipt of ambiguous note, it
was within judge's discretion to determine whether jury were
deadlocked). Further, the judge properly responded to the
jury's questions that they could indeed return partial verdicts.
The fourth note, in which the jurors declared that they
were "at a deadlock," was the first return for purposes of G. L.
c. 234A, § 68C. Following receipt of that note, the judge found
that the jury had "[b]een at it a long time." He then told the
parties that he believed it was time to give the Tuey-Rodriquez
instruction, implicitly finding that "due and thorough
deliberation" had taken place.3 See Jenkins, 416 Mass. at 738
("the giving of a [Tuey-]Rodriquez charge on the first return of
the jury [suggesting impasse] . . . implied that the judge had
concluded that the jury's deliberations were due and thorough"
[quotation and citation omitted]). We see no abuse of
discretion in such a finding. Because this was the first time
the judge found that there had been due and thorough
deliberations, he was not required to ask for the jury's consent
to continue deliberating under G. L. c. 234A, § 68C. See
Commonwealth v. Keane, 41 Mass. App. Ct. 656, 659 (1996)
3 When the judge concluded it was time to give the Tuey- Rodriquez instruction, the jurors had been deliberating for more than eleven hours.
8 (because judge did not determine that deliberations had been due
and thorough until second report of deadlock, judge did not err
in sending jury out to deliberate further without their
consent).
The defendant's suggestion that in making this
determination, the judge "appeared to avoid" engaging in the
appropriate evaluation is not supported by the record.
Following the second note, the first indication that the jurors
may be struggling, the judge made an explicit finding that he
did not believe the question about "next steps" suggested an
impasse and noted the short amount of time the jury had spent
deliberating at that point. At the end of that day, he
addressed with the parties the possibility of a future Tuey-
Rodriquez charge and reiterated that he was not yet finding an
impasse based on the length of deliberations. See Abdul-Alim,
91 Mass. App. Ct. at 171-172 (determination of due and thorough
deliberation "requires evaluation of the complexity of the case,
the extent of evidentiary conflict on material issues, and the
total length of time the jury [have] spent attempting to resolve
those conflicts" [quotation and citation omitted]). The record
also reflects the judge's thorough discussions with the parties
after each subsequent note. It is thus clear that from early on
in the deliberations, the judge was cognizant of his duties
9 under G. L. c. 234A, § 68C, to determine whether the content of
the notes suggested an impasse and to evaluate the case together
with the length of time the jury had deliberated to determine
whether those deliberations were due and thorough.
As noted, the defendant did not object to the judge's
course of action at any point and in fact explicitly agreed with
his responses to all of the jury's notes as well as the timing
of the Tuey-Rodriquez charge. "[S]uch an omission indicates
that the potential for coercion argued now was not apparent to
one on the spot." Lowenfield v. Phelps, 484 U.S. 231, 240
(1988). Further, that the jury returned a verdict forty-two
minutes after the instruction does not show coercion. See
Jenkins, 416 Mass. at 740 (that jury returned fifteen minutes
after Tuey-Rodriquez instruction with guilty verdict "does not
point to coercion").
Even were we to find error in the timing of the charge,
"[w]here, as here, the judge 'urges further deliberation in an
effort to agree upon a verdict, and in doing so [his] comments
are balanced and not slanted toward conviction, we are unable to
perceive harm to the defendant'" (citation omitted). Abdul-
Alim, 91 Mass. App. Ct. at 173. Accordingly, we discern no risk
of a substantial risk of a miscarriage of justice.
10 2. Closing argument. The defendant argues that the
prosecutor's comments regarding the defendant's "opportunity" to
assault the victim as well as a remark personally vouching for
the witnesses' credibility and the defendant's guilt were
improper. As there was no objection at trial, we review any
error for a substantial risk of a miscarriage of justice. See
Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
The defendant first challenges the prosecutor's remarks
suggesting that the defendant had the "opportunity" to sexually
assault the victim.4 He claims these remarks amounted to
improper burden shifting requiring that he show he did not
"avail himself" of such an opportunity, and that the remarks
improperly suggested guilt "based on mere presence or ability."
We do not agree with the defendant's analysis of these comments,
4 The prosecutor used the word "opportunity" four times in her closing:
"This is a case of opportunity. The [d]efendant was a grown 29-year-old man [who] saw a nine-year-old vulnerable girl in a situation that was very, very difficult. . . .
"The opportunity was there. He saw that this child came from a troubled home. He brought her to his home -- and remember, at the time he was living at a home where there were no other adults present. . .
"This is the case of opportunity. The [d]efendant took an opportunity where he saw a child that nobody else was really watching over. And he used this vulnerable child and molested her."
11 "which we review 'in light of the entire argument, as well as in
light of the judge's instruction to the jury and the evidence at
trial.'" Commonwealth v. Johnson, 463 Mass. 95, 111 (2012),
quoting Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002).
There was evidence presented at trial about the victim's
difficult home life and how her mother had sought help from the
defendant. The defendant frequently watched the victim
overnight at his home where no other adults lived. The
prosecutor reiterated this evidence and also the victim's
testimony that the defendant was her uncle, a trusted person
with whom she spent a lot of time. With respect to the
statements that this was a case of "opportunity," we do not see
this as the prosecutor suggesting that the defendant's "mere
presence or ability" meant he was guilty. This was not a
situation where the identity of the perpetrator was at issue and
the defendant's presence at the scene was used to imply guilt.
Contrast Commonwealth v. Jones, 477 Mass. 307, 317 (2017)
(Commonwealth properly relied on evidence of defendant's
presence at scene to prove identity). Rather, the prosecutor
framed the defendant's motive as taking advantage of an
opportunity that was presented to him -- an opportunity whereby
he, a trusted adult, was able to exploit a vulnerable young girl
with few to no witnesses around. This did not constitute
12 improper burden shifting. Contrast Commonwealth v. Amirault,
404 Mass. 221, 240 (1989) (prosecutor's closing argument
improper where he claimed defendant "was unable to point to one
single thing in the whole world that would account for why all
these children and parents have turned against him"). Rather,
the prosecutor was permitted to, and did, "argue forcefully for
a conviction based on the evidence and on inferences that may
reasonably be drawn from the evidence" (quotation and citation
omitted). Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018).
Further, the judge instructed the jury, both in his
precharge and final charge to the jury, on the Commonwealth's
burden of proof, telling them that the defendant had no
obligation to prove anything, and that closing arguments were
not evidence. See Commonwealth v. Gonzalez, 465 Mass. 672, 681
(2013) (jury are presumed to follow instructions). Accordingly,
there was no error in the prosecutor's statements regarding the
defendant's "opportunity."
The defendant next challenges the prosecutor's following
statement made during closing argument as improper personal
vouching.
"I would ask when you go to deliberate that you consider the testimony that you heard from the Commonwealth's witnesses, and I would suggest that once you've done that you will come to the same conclusion that I have, that the Defendant is guilty of all indictments against him."
13 Improper vouching occurs when an attorney expresses a
personal opinion regarding the credibility of a witness or
suggests they have knowledge independent of the evidence before
the jury. See Commonwealth v. Muller, 477 Mass. 415, 433
(2017). As the Commonwealth essentially conceded at oral
argument, this statement constituted improper vouching.
Viewed in its entirety, however, the improper statement did
not result in a substantial risk of a miscarriage of justice.
The remark specifically invited the jury to "consider the
testimony that you heard from the Commonwealth's witnesses."
The prosecutor did not suggest that her opinion was based on
knowledge independent of the evidence before the jury. Contrast
Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016) (substantial
risk of miscarriage of justice where prosecutor implied in
closing that there were "additional witnesses corroborating the
complainant's testimony beyond what was legitimately in
evidence"). Further, "[t]he jury are presumed to understand
that a prosecutor is an advocate, and statements that are
[e]nthusiastic rhetoric, strong advocacy, and excusable
hyperbole will not require reversal" (quotation and citation
omitted). Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 10
(2019).
14 In the context of an otherwise proper closing where the
jury were instructed that arguments are not evidence, we do not
see that the misstatement could have made a difference in the
jury's conclusion. This is especially so where the defendant
was acquitted of three of the four charges against him. See
Commonwealth v. Santana, 101 Mass. App. Ct. 690, 695 (2022)
(where case "boiled down to a determination of credibility . . .
the split verdict indicates that the jurors were able to
impartially assess the credibility of the witnesses").
Accordingly, the improper statement did not create a substantial
risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Hershfang, Hodgens & Smyth, JJ.5),
Clerk
Entered: April 2, 2026.
5 The panelists are listed in order of seniority.