Commonwealth v. Jones

542 N.E.2d 1040, 405 Mass. 661, 1989 Mass. LEXIS 245

Opinions

Liacos, C.J.

The defendant appeals from his 1983 conviction by a jury in the Boston Municipal Court Department of stealing or receiving a stolen vehicle. G. L. c. 266, § 28 (a), as appearing in St. 1980, c. 463, § 4. The Appeals Court affirmed in an unpublished memorandum and order pursuant to Appeals Court Rule 1:28. 26 Mass. App. Ct. 1102 (1988). We granted further appellate review. Subsequent to the trial and to the decision of the Appeals Court, we decided, in Commonwealth v. Smith, 403 Mass. 489, 497 (1988), that it is reversible error to allow alternate jurors to sit in the jury room with the deliberating jurors.

The Commonwealth argues that Smith should not apply retroactively to this case. That issue was decided in Smith. We stated that “[t]he rule adopted today applies in cases that are pending on direct appeal or as to which the time for direct appeal has not expired on the date of this decision.” Id. at 497 n.l. The Commonwealth also argues that Smith should not apply to this appeal because defense counsel failed to object to the judge’s sua sponte decision to allow the alternate jurors to sit in the jury room during deliberations. In Smith, however, defense counsel (but not the defendant) failed to object and affirmatively agreed to the procedure. Id. at 493. We concluded in Smith that, “in view of the vital importance of the right to trial by a jury that is free from outside influence, and the potential for interference with that right, a defendant is not barred from contending on appeal that the presence of alternate jurors in the jury room during deliberations was reversible error even though defense counsel had agreed to that procedure.” Id. at 495. Therefore, we reverse, and, as in Smith, we remand for a new trial. In light of this ruling, we need not consider the defendant’s other claims of error.

Judgment of the Boston Municipal Court Department reversed.

Verdict set aside.