Commonwealth v. DeJesus

691 N.E.2d 234, 44 Mass. App. Ct. 349, 1998 Mass. App. LEXIS 38
CourtMassachusetts Appeals Court
DecidedMarch 2, 1998
DocketNo. 95-P-1888
StatusPublished
Cited by9 cases

This text of 691 N.E.2d 234 (Commonwealth v. DeJesus) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. DeJesus, 691 N.E.2d 234, 44 Mass. App. Ct. 349, 1998 Mass. App. LEXIS 38 (Mass. Ct. App. 1998).

Opinion

Brown, J.

The defendant appeals from convictions of armed [350]*350robbery (G. L. c. 265, § 17), assault and battery with a dangerous weapon (G. L. c. 265, § 15A[6]), and illegal possession of a firearm (G. L. c. 269, § 10[o]). Our focus in tins opinion is the error by the judge in failing to notify the parties that the jury returned a question during deliberation.

1. After the judge’s instructions, the jury retired for deliberation. When the jury returned with their verdict, the judge notified counsel that, “for the record, there was a question asked. I took it upon myself. I gave an answer. They had a question here. I’ll show it to you, self-explanatory. Once I show it to you you’ll see why I didn’t call you.”1 Immediately after this statement, and without pause for discussion from counsel, the judge allowed the jury to return their verdict; the defendant was found guilty on all three charges. Defense counsel objected; the judge, noting the objection, proceeded directly to sentencing.

Once a judge becomes aware of circumstances indicating an issue relating to jury deliberations, the judge must take immediate affirmative steps to protect the rights of both the accused and the Commonwealth. Commonwealth v. Marks, 12 Mass. App. Ct. 511, 518-522 (1981). At a minimum, the judge should inform counsel for both sides, on the record, as well as the defendant, of the issue. Commonwealth v. Donovan, 15 Mass. App. Ct. 269, 272 (1983). In addition, with counsel participating in the effort, the judge should endeavor to correct any problem, if possible. Ibid. See, e.g., Commonwealth v. Floyd P., 415 Mass. 826, 833 (1993), in which the court termed the judge’s ex parte action as “irregular” and noted that, “before a judge responds to a jury communication of legal significance . . ., counsel should be given the opportunity to assist the judge in framing an appropriate response and to place on record any objection they might have to the course chosen by the judge.” See also Thames v. Commonwealth, 365 Mass. 477, 478 n.2 (1974) (“The circumstances of this case indicate that, where possible, any messages or questions from the jury to the judge should be in writing; that they should be shown to counsel and immediately placed on record; and that any reply thereto by the judge to the jury should also be placed on record in the presence of counsel, if available”).

It was error for the judge to have handled the jury’s question on his own. The absence of counsel or the defendant from such [351]*351a colloquy, however, does not necessarily constitute reversible error. Compare Commonwealth v. Martino, 412 Mass. 267, 286 (1992); Commonwealth v. Hicks, 22 Mass. App. Ct. 139, 147 (1986). Cf. Curtis v. Duvall, 124 F.3d 1, 4-7 (1st Cir. 1997) (harmless error analysis applied where supplementary instruction given to the jury in absence of counsel); Commonwealth v. Curtis, 417 Mass. 619, 633-636 (1994).

Here, although the judge should have informed the defendant and both counsel of the jury’s question, we conclude the defendant was not prejudiced by the judge’s failure to do so. See United States v. Parent, 954 F.2d 23, 25 (1st Cir. 1992) (trial judge’s error in failing seasonably to inform counsel about a jury note does not require reversal if the error is “benign”). The defendant’s argument that had he been informed of the question he would have requested that the court reinstruct on both the presumption of innocence and the burden of proof is opportunistic and off point. A judge, in responding to a question from the jury, need not go beyond the scope of the jury’s question and instruct on other matters. See Commonwealth v. Sires, 370 Mass. 541, 547 (1976); Commonwealth v. Amazeen, 375 Mass. 73, 82 (1978). Because the judge had already instructed the jury on the burden of proof and the presumption of innocence at the beginning of the trial and at the close of the evidence, he properly could have refused to reinstruct the jury on those matters had the defendant so requested.

2. Two additional issues are raised on appeal. First, the defendant argues that the trial judge erred in denying his motion for a required finding of not guilty on the charge of illegal possession of a firearm. Second, the defendant claims prejudice by the judge’s restraint of cross-examination of the complaining witness.

a. The only eyewitness to the shooting was the victim, Juan Almonte. Although Almonte described the shooting incident at several times during his testimony, he offered no description of the gun other than as a “shotgun.” When asked on cross-examination, Almonte had no recollection of the length of the gun barrel. No other evidence was presented describing the weapon.2 At the close of evidence, the defendant’s motion for a required finding of not guilty on the charge of illegal possession of a firearm was denied.

[352]*352The Commonwealth has conceded error, acknowledging that it failed to present any evidence as to the length of the barrel of the shotgun. See G. L. c. 140, § 121, as amended through St. 1989, c. 433 (to prove shotgun is a “firearm” within the meaning of the statute, evidence must establish, as an element, that the barrel length of the shotgun is “less than eighteen . . . inches”). Thus, the judge’s denial of the defendant’s motion for a required finding of not guilty on the indictment charging illegal possession of a firearm was error.

The defendant’s argument that the two remaining convictions should be reversed due to the prejudice accruing from the introduction of evidence of the shotgun is without merit. Although not sufficient to sustain the firearm charge, the evidence relative to the weapon was still relevant to prove the essential elements of the two additional charges, armed robbery and assault and battery by means of a dangerous weapon.

b. Finally, the defendant alleges the judge erred in limiting cross-examination of the complaining witness and by his questioning of the witness. The judge sustained several objections during the cross-examination of Almonte, foreclosing any inquiry about his job history and sources of income. Additionally, defense counsel was chastised, at side bar, for his line of questioning of the complaining witness; there came a point where the court briefly took over examination of Almonte.

The right to confrontation and cross-examination is an essential and fundamental requirement for a fair trial. “However, a criminal defendant’s confrontation right is not absolute. Although the defendant is entitled to a reasonable cross-examination of witnesses against him, the scope of cross-examination rests largely in the sound discretion of the trial judge. Determining whether the defendant’s constitutional rights were violated is done by weighing “the materiality of the witness’s direct testimony and the degree of the restriction on cross-examination.” Commonwealth v. Kirouac, 405 Mass. 557, 561 (1989). “We shall not overrule a trial judge’s determination as to the proper scope of cross-examination unless the defendant demonstrates that the judge abused his discretion and that the defendant was prejudiced thereby.” Commonwealth v. Miles, 420 Mass.

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Bluebook (online)
691 N.E.2d 234, 44 Mass. App. Ct. 349, 1998 Mass. App. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dejesus-massappct-1998.