Opposition Brief — Richardson v. Massachusetts

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AUG 22 1977

ofietarters. 12..cLenx

Ocroser TERM, 1972

No. 72-5115

JAMES W. RICHARDSON,

PETITIONER,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO TH

SUPREME JUDICIAL COURT OF MASSACHUSETTS

BRIEF FOR THE ‘

COMMONWEALTH OF MASSACHUSETTS S$

IN OPPOSITION a®

Rosert H. Quinn, <

Attorney General, Ss

Joun J. Irwin, JR.,

On the brief: Assistant Attorney General,

Wuitam C. Hotmzs, Chief, Criminal Division.

Francis J. TEacue, Davin A. MILLs,

Legal Interns to Assistant Attorney General,

the Department Chief, Appellate Section.

Blanchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

Questions Presented

Statement of the Case

Argument ............. RE See eee

I. The Decision Of The Massachusetts Supreme

Judicial Court That There Was No Error In The

Trial Court’s Giving The Tuey Charge And

Denying The Motion To Poll The Jury Was

Correct. 245). .4;. By eae peel on eee

A. The Tuey Charge. |

cution’s Burden of Proof Does Not Ren-

der a Tuey-Allen Charge Unconstitu-

tional.

to a Deadlocked Jury it 11:15 P.M.,

After Twelve Hours of Deliberations,

and Requiring the Jury To Deliberate

Further Does Not Infringe Petitioner’s

Constitutional Rights Under the Four-

teenth Amendment.

B. Denial Of-The Motion To Poll The Jury. ..

II. The Petition Fails To Raise A Substantial Fed-

eral Question On Either Issue Presented.

A. The Tuey-Allen Charge.

B. The Denial Of The Motion To Poll The J ury.

Appendix A

Table of Contents

TABLE oF CITATIONS

Cases

Agnew v. United States, 165 U.S. 36 (1897)

Allen v. United States, 164 U.S. 492 (1896)

Apodaca v. Oregon, 40 U.S.L.W. 4528 (1972)

Brooks v. Gladden, 226 Ore. 191, 358 P.2d 1055 (1961) 18,19

Commonwealth v. Richardson, 1972 Mass. Adv. Sh. 869 2,

3, 4, 15, 19, 20

Commonwealth v. Roby, 29 Mass. (12 Pick.) 496 (1832) 19

Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1 (1851). 2,5

DeVault v. United States, 338 F.2d 179 (10th Cir. 1964) 18

Duncan v. Louisiana, 391 U.S. 145 (1968) 5

Fairmount Glass Works v. Cub Fork Coal Co., 287

U.S. 474 (1933)

Fulwood v. United States, 359 F.2d 960 (D.C. Cir. 1966),

cert. denied 387 U.S. 234 (1967)

Gordon v. United States, 438 F.2d 858 (5th Cir.) cert.

denied 404 U.S. 828 (1971) 18, 22

Green v. United States, 309 F.2d 852 (5th Cir. 1962) .. 9

Hale v. United States, 435 F.2d 737 (5th Cir.) cert.

denied 402 U.S. 976 (1970) : 12

Havsrath v. N. Y. Central R.R. Co., 401 F.2d 634 (6th

Cir. 1968) 18

Hernandez v. Delgado, 375 F.2d 584 (1st Cir. 1967)

Humpries v. District of Columbia, 174 U.S. 190 (1899) 17

Table of Contents

eeeee (aemey SE BP oe

Mills v. Tinsley, 314 F.2d 311 (10th Cir.) cert. denied,

ewer (0008) i ae PA es

Miranda vy. United States, 255 F.24 9 (1st Cir. 1958) _..

0’Rourke v. United States, 347 F.2d 124 (9th Cir. 1965)

Palmer Oil Corp. v. Amerada Petroleum Corp., 343 U.S.

390 (1952)

Powell v. United States, 297 F.2d 318 (5th Cir. 1961) |.

Pugliano v. United States, 348 F.2d 902 (1st Cir. 1965)

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955)

Ryan v. People, 50 Colo. 99, 114 P. 306 ( ss EE at nae

State v. Grierson, 96 N.H. 36, 69 A.2d 851 ( 1949) ......

State v. Randall, 137 Mont. 534, 353 P.2d 1054 ( 1960) ..

State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959)

United States v. Barash, 412 F.2d 26 (2nd Cir.) cert.

denied 396 U.S. 832 (1969)

United States v. Betancourt, 497 F.2d 851 (5th Cir.

i ee

United States v. Brown, 411 F.2d 930 (7th Cir. 1969)

cert. denied 396 U.S. wee eee ek eed Ve

United States v. Flannery, 451 F.2d 880 (1st Cir. 1971)

iv’ Table‘of Contents‘

; Page

United States v. Hynes, 424 F.2d 754 (2nd Cir.) cert.

denied 399 U.S. 983 (1970) ...------s sere ere 6, 11

United States v. Miniert, 303 F.2d 550 (2nd Cir.), cert.

denied, 371 U.S. 847 (1962) .....-- 2-2 eerste 13

United States v. Grosso, 358 F.2d 154 (3rd Cir. 1966) .. 18

United Siates v. Haupt, 330 U.S. 631 (1947) .........- 13

United States v. Parks, 411 F.2d 1171 (1st Cir. 1969)... 14

United States v. Pleva, 66 F.2d 529 (2nd Cir. 1933) .... 1b

United States v. Pope, 415 F.2d 685 (8th Cir. 1969),

cert. denied, 397 U.S. 950 (1970) .....-----2 00 16

United States v. Rao, 394 F.2d 354 (2nd Cir.), cert.

denied 393 U.S. 845 (1968) ......----: esr r errr 7, 11

United States v. Sawyers, 423 F.2d 1335 (4th Cir. 1970

15, 16

United States v. Spock, 416 F.2d 165 (1st Cir. 1969)... 5

United States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971) 8

United States v. Wynn, 415 F.2d 135 (10th Cir. 1969)

cert. denied sub nom Panaccione v. United States, 396

U.S. B87 (1969) center retest reer eters 8

Williams v. United States, 419 F.2d 740 (D.C. Cir. 1969) 18

Zucht v. King, 260 U.S. 174 (1922) ....--.---2 ss 21

Constitutional Provisions

U.S. Constitution,

Sixth Amendment ........----.-::ssesrrrt 5

Fourteenth Amendment .......-------:::50°: 1, 2, 1

Statutes

98 U.S.C. 1257(3) ..-... 66 e sheer ee COE 23

Federal Rules of Civil Procedure, Rule 31 (d) ...... 17, 18

Mass. General Laws, ¢. 231 §113... .. enti th 1k aetna se

Table ‘of Contents |

3% Page

17 Ariz. Rev. Stat. Ann., Rules Cr. Proc. rule 284

‘(West 1955) :

Ark. Stat. Ann. Penal Code §1163 (Deering 1971) ....

Fla. Stat. Ann. $919.10 (West 1944)

Idaho Code Ann. ch: 19 §2316 (Supp. 1971)

Burns Ind. Stat. Ann. §1811 (1956)

Iowa Code Ann. §785.15 (West 1970) 17

La. Stat. Ann. Code Crim. Proc, art. 812 (West 1967) 17

Minn. Stat. Ann. §631.16 (West 1947)

Mont. Rev. Code §9$4.7416 ( 1947)

Neb. Rev. Stat. (174.531 (1971)

N.Y. Consol. Laws, Code Cr. Proe. §450 (McKinney

1958)

N.D. Cent. Code §28-14-23 (1960)

Ohio Rev. Code $2945.77 (1970)

Okla. Stat. Ann. ch. 22 §921 ( West.-1958)

Ore. Rev. Stat. §17.255 (2) (1961)

Utah Code Ann. §77-33-10 (1953)

Wyo. Comp. Stat. §10-1401 (1945)

dn the inde

Supreme Court of the United States

Ocroser Term, 1972

No. 72-5115

JAMES W. RICHARDSON,

PETITIONER,

Vv.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

BRIEF FOR THE

COMMONWEALTH OF MASSACHUSETTS

IN OPPOSITION

Questions Presented

1. Whether giving a deadlocked jury the Tuey or Allen

charge without reference to the prosecution’s burden of

proof, after the jury had deliberated for twelve hours,

and requiring the jury to continue deliberations violated

defendant’s fourteenth amendment rights to due process

of law and trial by jury. |

\ Q Whether the trial wourt’s denial of defendant’s mo-

tion to poll the: jury. after the verdict. was returned, in

eq : i a"

the “eirentistances” of the’ trial; violated defendant’s four-

teenth amendment rights to due process of law and trial

by jury. ;

‘Statement of the Case

On September 12, 1972, petitioner was tried in the Sv-

perior Court for Middlesex County, Massachusetts, on a

charge of armed robbery. A mistrial was declared when the

jury failed to reach a verdict. Commonwealth v. Richard-

son, 1972 Mass. Adv. Sh. 869; Petitioner’s Brief for Cer-

tiorari, Appendix B, at 1. At a second trial, on November

8, 1967, petitioner was found guilty by the jury and sen-

tenced to prison for a term of twelve to twenty years.

Id. The events to which petitioner now objects occurred

as follows.

The jury retired at 11:10 am., November 8, after in-

structions by the trial judge. 1972 Mass. Adv. Sh. at 871;

Petitioner’s Brief at B4. See Brief for Respondent, Ap-

pendix A, for the trial judge’s instructions to the jury.’

Twelve hours later, at approximately 11:14 p.m., the

jury had not reached a verdict. The trial judge thereupon

read to the deadlocked jurors the so-called Twey or Allen

charge, using substantially the same language as that

used in the case of Commonwealth v. Tuey, 62 Mass. (8

Cush.) 1, 2 (1851). See Petitioner’s Brief at 5-6 for the

iThe record before the Supreme Judicial Court failed to comply

with the requirements of Mass. Gen. Laws ch. 231 §113. 1972

Mass. Adv. Sh. at 870; Petitioner’s Brief at B2. It consisted of,

inter alia, printed record included in petitioner's bili of exceptions

‘attached to Brief for Respondent as Appendix B, and five bulky

exhibits which included a transcript of the trial before the Middlesex

Superior Court on November 6-9, 1967 and a trial transcrip: of the

trial before the same court on September 12, 1967, which was

declared a mistrial. Only selected portions of the ponderous “reo

have been incladed as appendices to Respondent's y oa

—

‘language used by the trial judge im the instant ¢ase, No

reference was made by the trial judge to the prosecution’s

burden of proof, as was made in the original Tuey charge.

The jury retired for further deliberation and returned

a verdict of guilty approximately one hour later, at 12:20

am. 1972 Adv. Sh. at 871; Petitioner’s Brief at B4. The

court denied a request by petitioner to poll the jury.

Td. ;

Petitioner filed a motion for a new trial on November 9,

1967 (Record at 9-10). The grounds petitioner raised in

support of this motion included allegations that the court,

by requiring the jury to continue deliberations at a late

hour and by reading the Tuey charge had vidlated his

right to a fair trial (R. 9-10). This motion was denied and

petitioner’s exception saved. (R. 10).

Petitioner next brought a bill of exceptions to the Su-

preme Judicial Court, pursuant to Mass. Gen. Laws ch.

278 §31. The bill of exceptions contended, inter alia, that

there was error in denying defendant’s motion to poll

the jury. Petitioner’s conviction was affirmed by the Su-

preme Judicial Court. Commonwealth v. Richardson, 354

Mass. 773 (1968). Petitioner then sought a writ of hab-

eas corpus in the Federal District Court for the District

of Massachusetts. The petition was dismissed for failure

to exhaust state remedies. (R. 10-11).

On November 28, 1969, another motion for new trial

was filed by petitioner in the Superior Court. (R. 3, 22).

This motion was denied (R. 22). Petitioner claimed ex.

ceptions and on September 16, 1970, moved in the Su-

preme Judicial Court to remand the case to the Superior

Court for filing a motion for new trial. (R. 23). This mo-

tion was allowed by Justice Spalding of the Supreme

Jndicial Court, and the court ordered that the case be

Temanded to the Superior Court’ as requested in peti-

fioner’s motion. On Deeémber 10, 1970, petitioner ‘filed a

—_

motion for a new trial and the suppression of evidence,

(R. 23). After a hearing on December 14, 1970, petitioner’s

motion was denied on February 1, 1971. (R. 24).

A bill of exceptions was then brought by petitioner in

the Supreme Judicial Court to review the Superior

Court’s order of February 1, 1970, denying petitioner’s

motion for a new trial. (R. 25). Petitioner contended, m-

ter alia, that the trial court had erred in giving a Tuey

charge to the jury late at night and in denying the re-

quest to poll the jury. 1972 Mass. Adv. Sh. at 871; Peti-

tioner’s Brief at B3-4. The Supreme Judicial Court found

that the timing of the reading of the Tuey charge was 4

matter of discretion for the trial judge, and found no

error. Concerning the denial of the request to poll the

ury, the Supreme Judicial Court adhered to its previous

holding on the same issue in 354 Mass., wherein it was

held that petitioner had relied on facts that were not on

the record. 1972 Mass. Adv. Sh. at 871, Petitioner’s Brief

at B4. The Supreme Judicial Court accordingly over-

ruled petitioner’s exceptions, and the denial of the mo-

tion for new trial was upheld. Jd. The Supreme Judicial

Court’s decision on the above two issues is the basis of

the petition for certiorari presently before this Court.

Argument

L Tue Decision Or Toe Massacnusetts SuPREME Ju-

pica, Court Tuat Txerz Was No Exror Iv Tue ‘au.

Covurr’s Grvinc Toe Tuey Cuarce anp Dexyine Tue Mo-

tiox To Pout Tue Juzy Was CorRect.

A. The Tuey Charge.

Petitioner’s argument, in essence, is that the circum-

stances in which the trial judge gave the Tuey charge vie

listed his fourteenth amendment right to a jury trial in

that undue coercive pressure was exerted on the jur-

ors. The Tuey or Allen charge has been the source of much

appellate litigation since the initial version was enun-

ciated in Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1,

2 (1851). The charge is basically a supplemental instruc-

tion given to a deadlocked jury that if the opinions of a

minority of the jurors disagree with the opinion of the ma-

jority, the impasse may be resolved by the minority’s con-

sideration of the majority’s point of view. Id. at 3. It is a

common sense suggestion to the triers of fact that they

regard the reasonable opinions of others. This Court ap-

proved of a literal version of the Tuey charge in Allen v.

United States, 164 U.S. 492 (1896), and held that the

charge did not violate a defendant’s right to trial by

jury.

ince the original Tuey and Allen decisions, there has

developed a large volume of cases involving the charge

in both state and federal appellate courts. The Tuey-Allen

charge has often been challenged as violative of the sixth

amendment right to a jury trial, a right held binding on

the states by the fourteenth amendment. Duncan v. Loui-

siana, 391 U.S. 145, 147-58 ( 1968). The basis of these chal-

lenges has been that the charge itself, or the charge

coupled with the circumstances in which it was given,

has had a coercive effect upon the jury. In the exercise of its

constitutional function, the jury must of course be free

of undue pressure from the judge. United States v. Spock,

416 F.2d 165 (1st Cir. 1969).

When challenged on its face, the Tuey-Allen charge

has invariably been held constitutional. A “trial by jury”’

does not connote twelve (or less) isolated individuals, with

little or no legal expertise, free from all guidance by the

eourt. The parties are entitled to have a jury guided at

all stages by the trial judge, whose learned instruction

is, in fact, essential to a fair trial by jury.

‘Trial by jury, in the primary and usual sense of the

term at the common law and in the American Constitu-

tion, is not merely a trial by a jury of twelve men

before an officer vested with authority to cause them

to be summoned and impaneled, to administer oaths

to them and to the constable in charge, and to enter

judgment and issue execution on their verdict; but

it is a trial by a jury of twelve men, in the presence

and under the superintendence of a judge empowered

to instruct them on the law and to advise them on

the facts, and (except on acquittal of a criminal

charge) to set aside their verdict if in his opinion it

is against the law or the evidence. This proposition

has been so generally admitted, and so seldom con-

tested, that there has been little occasion for its

distinct assertion. Capital Traction Co. v. Hoff, 174

U.S. 1, 13-14 (1899). Accord, Patton v. United States,

281 U.S. 276, 288-89 (1930); Commonwealth v. Rol-

lins, 354 Mass. 630, 638 (1968).

The Tuey-Allen charge is a useful method whereby the

trial judge, in his sound discretion, assists the jury in

the performance of its role as the trier of facts. As such,

the charge is in the interests of both parties. See United

States v. Hynes, 424 F.2d 754, 755 n. 1 (2nd Cir.) cert.

denied 399 U.S. 933 (1970); Fulwood v. United States,

369 F.2d 960, 962 (D.C. Cir. 1966), cert. denied 387 US.

234, (1967).

The considerable costs in money and time to both

sides if a retrial is necessary certainly justify an

instruction to the jury that if it is possible for them

7 ;

to reach a unanimous verdict without any juror yield-

ing a conscientious conviction. .. they should do so.

Umited States v. Rao, 394 F.24 354, 355 (2nd Cir.),

cert, denied 393 U.S. 845 (1968).

This Court, has not directly considered the charge

since the Allen case in 1896. However, this Court impli-

citly approved of the charge as recently as May of 1972

in Johnson y. Louisiana, 40 U.S. L.W. 4524 (1972). In

holding that a unanimous jury verdict is not essential for

a conviction under the Constitution, this Court, per Jus-

tice White, stated :

We have no grounds for believing that majority jur-

ors, aware of their responsibility and power over the

liberty of the defendant, would simply refuse to lis-

ten to arguments presented to them in favor of acquit-

tal, terminate discussion and render a verdict. On the

contrary it is far more likely that a juror presenting

reasoned argument in favor of acquittal would either

have his arguments answered or would carry enough

other jurors with him to prevent conviction. A ma-

jority will cease discussion and outvote & minority

only after reasoned discussion has ceased to have per-

suasive effect or to serve any other purpose — when

a minority, that is, continues to insist upon acquittal

without having persuasive reasons in support of its

position. At that juncture there is no basis for deni-

grating the vote of so large a majority of the jury

or for refusing to accept their decision as being,

at least in their minds, beyond a reasonable doubt.

Indeed, at this point, a “‘dissenting juror should con-

sider whether his doubt Was a reasonable one. . . [when

it made] no impression upon the minds of so many

men, equally honest, equally intelligent with himself.’’

Allen v. United States, 164 U.S. 492, 501 (1896). Id.

at 4526. (Emphasis added).

It is true, as petitioner points out, that some juris-

dictions have discontinued or, to some extent, circum-

scribed the use of the literal Tuey-Allen charge. But in

these instances, the decisions were based on supervisory

grounds because, in the appellate courts’ supervisory dis-

cretion, the benefits of the charge were considered to have

been outweighed by its potential for misuse and its tend-

ency to generate appellate litigation. See, e.g., United

States v. Thomas, 449 F.2d 1177 (D.C. Cir. 1971); Uni-

ted States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert.

denied 396 U.S. 1017 (1970); United States v. Wynn, 415

F.2d 135 (10th Cir. 1969), cert. denied 297 U.S. 994 (1970) ;

United States v. Fioravanti, 412 F.2d 407 (3rd Cir.) cert.

denied sub nom. Panaccione v. United States, 396 US.

837 (1969); State v. Randall, 137 Mont. 534, 353 P.2d

1054 (1960); State v. Thomas, 86 Ariz. 161, 342 P.2d 197

(1959). However, these decisions all rested on supervisory

discretion, and upheld the constitutionality of the charge

itself.

Most of the litigation concerning the Tuey-Allen charge

has arisen from special circumstances in which the charge

was given or from cases where substantial variations

from the language of the original charge have occurred.

Indeed, on several of these occasions, courts have found

that the totality of circumstances did amount to constitu-

tionally coercive pressure on the jury. Most of these cases

involve situations where the trial judge made statements

in addition to the charge itself. See, e.g., United States

v. Thomas, supra, at 1182-83, where the trial judge, in

addition to the Allen charge, said that he was ‘‘not going

to declare a mistrial, and thereby require a retrial of this

ease before some other jury;’’ Green v. United States, 309

F.2d 852, 853 (5th Cir. 1962), a case in which the trial court

gave the Allen charge, and further instructed the jury

“,,.it is the duty of the minority to listen to the argument

of the majority with some distrust of their own judgment

because the rule is that the majority will have better judg-

ment than the mere minority... ;’? Powell v. United States,

297 F.2d 318, 319-20 (5th Cir. 1961), where the judge added

to the original charge that ‘‘It is no credit to a juror to

stand out in a pure spirit of stubborness’? and “If you

follow the principles of law given you by the Court and

if you recall the evidence, you ought to be able to agree

on a verdict.’’

Of course, in the instant case, the trial judge added

no such prejudicial embellishments. Rather, petitioner as-

signs two factors which, on the facts, he claims pro-

dueed an unconstitutional charge to the jury amounting

to coercive pressure by the trial judge. These factors are

(1) the omission of any reference to the prosecution’s bur-

den of proof and (2) the particular hour, 11:14 p.m., at

which the charge was read and the jury was ordered to con-

tinue deliberating.

1. Omission of a Statement of the Prosecution’s

Burden of Proof Does Not Render A Tuey-Allen

Charge Unconstitutional.

The Massachusetts Supreme Judicial Court has held

that the omission of a reference to the prosecutor’s bur-

den of proof in reading the Tuey-Allen charge is not pre-

judicial. Commonwealth v. Rollins, 354 Mass. 630, 638

(1968). The court reasoned that the precise language of the

charge must be left to the trial judge’s discretion. Id. Of

eourse, instructions concerning. the prosecution’s burden

of proof should be read in the initial instructions to the

jury. Agnew v. United States, 165 U.S. 36, 51-52 (1897);

Coffin v. United: States, 156 U.S..432,.452. (1895). Cf. In

Re Winship, 397 U.S. 358, 362-64 (1970). However, once

these instructions have been given, there is no purpose

served by repetition in the Tuey-Allen charge.

The Ninth Circuit dealt squarely with this issue in

Sullivan v. United States, 414 F.2d 714 (9th Cir. 1969).

The court found no prejudicial error in not mentioning,

in the Tuey-Allen charge, that the prosecution’s evidence

must establish guilt beyond a reasonable doubt, once this

point has already been emphasized in.the initial instrue-

tions to the jury. 7d. at 717. In summarizing the essen-

tials of a proper supplemental charge to a deadlocked

jury in Allen, this Court made no reference to a repeti-

tion of the burden of proof. 164 U.S. at 501. The First

Circuit has said the trial judge should remind the jury of

the burden of proof in administering the Tuey-Allen charge,

United States v. Flannery, 451 F.2d 880, 883 (1st Cir.

1971), but that it is not plain error to omit the reference.

Pugliano v. United States, 348 F.2d 902, 903 (1st Cir.

1965).

The original Tuey charge did contain a brief reminder

of the prosecution’s burden of proof. However, this re-

minder is peripheral to the function of the charge — to

assist the jury in reaching a verdict. No court has ever

held a Tuey-Allen charge unconstitutional because it failed

to mention the burden of proof. In the case at hand, at

the trial, the judge explicitly mentioned the prosecution’s

burden of proof at least seven different times. See Brief

for Respondent, Appendix at 1, 4, 10, 11, 12, 13 and 14.

The nature of the prosecution’s burden was painstakingly

explained and occupied a substantial portion of the ini-

tial charge. Id. at 12-13. A reading of the initial instruc

tions in Appendix A will show that it is inconceivable

that the jury was not clearly aware of the burden of

proof.

_—

The omission of a needless appendage does not. render

a constitutionally sound charge invalid. No court has ever

so held. The record in the present case clearly indicates

that the jury was well aware of the prosecution’s burden

of proof. Thus, the omission of a restatement of the burden

did not effect the constitutionality of the charge.

“11

2. Administering the Tuey-Allen Charge To A Dead-

locked Jury at 11:14 P.M., After Twelve Hours of

Deliberations, and Requiring the Jury To De-

liberate Further Does Not Infringe Petitioner’s

Constitutional Rights Under the Fourteenth

Amendment.

The Tuey-Allen charge is by its very nature a discre-

tionary device for the trial judge. It should be used only

where the jury has arrived at an impasse, and, in the

opinion of the judge, the interests of justice would best

be served by reminding the jurors that they conscientiously

listen to the opinions of one another. See, e.g., United States

v. Hynes, 424 F2d 754, 755 n. 1 (2nd Cir.), cert. denied,

399 U.S. 933 (1970) ; United States v. Rao, 394 F.2d 354, 355

(2nd Cir.), cert. denied 393 U.S. 845 (1968).

It must be remembered that jurors are laymen with dis-

similar backgrounds and personalities. The only common

denominator among the jurors is their lack of expertise in

the nuances of our legal system. The notion of collective

judgment, which is inherent in jury trials, permeates the

fabric of democratic society. However, in any circum-

stances, a collective judgment is very difficult to arrive at,

since reasonable men inevitably will disagree. The jury

toom is no different in this respect than any other institu-

tion in American society. The problems of reaching a jury

verdict in federal trials and, until recently, in state trials,

were even more difficult, due to the unanimity requirement.

This Court recognized the problems of collective judgment

in holding that unanimous jury verdicts are not constition-

ally mandated in Johnson v. Louisiana, 40 U.S.L.W. 4524

(1972) and Apodaca v. Oregon, 40 U.S.L.W. 4528 (1972).

When twelve legally inexperienced laymen are unable to

reach a collective decision after being afforded a reasonable

opportunity to do so, as occurred in petitioner’s trial, it is

not offensive to one’s sense of justice for the judge to

suggest that the dilemma might be resolved by a careful

weighing of the ideas of other jurors. This is especially

true when the judge reminds the jurors that in considering

their fellow jurors’ arguments, their own conscientious

convictions should not be sacrificed. This caveat was con-

tained in the original Twey charge and in the version

rendered at petitioner’s trial. Petitioner’s Brief at 5-6.

The problem facing any trial judge in a case where the

jury is having difficulty in arriving at a verdict is at what

point after the jury has begun deliberation the Tuey-Allen

charge, if called for, should be read. This decision neces-

sarily must be a matter of discretion, since the circum-

stances of each case vary. Any arbitrary rule by an appel-

late court on the time at which the charge should be read,

given the infinite number of variables present in each case,

would be inadequate and an unwarranted interference with

the discretion of trial courts. See Hale v. United States,

435 F.2d 737, 742 (5th Cir.), cert. denied 402 U.S. 976

(1970).

Petitioner asks the Court to arbitrarily decide that twelve

hours of jury deliberation is too long and 11:14 p.m. too

late for the use of the charge. He cites no authority for

his request beyond a survey of how certain appellate courts

either use the charge or, in the exercise of their supervisory

discretion, have circumscribed its use.

In fact, precedent cuts strongly against petitioner’s argu-

ment. The mere fact that a jury has deliberated for a long

period of time and is not allowed to separate is not, of itself,

prejudicial. See, e.g., United States v. Haupt, 330 U.S. 631,

643 (1947), where this Court rejected the contention that

a verdict of guilty was coerced in a prosecution for treason,

where the jury deliberated for twenty-eight hours without

sleep; Hyde v. United States, 225 U.S, 347 (1912), where

the Supreme Court found no error in the fact that a jury

sat in consultation for three days and nights (with recesses),

The Court stated:

It is true the trial was a long one and that the jury

was not allowed to separate. Neither fact is unusual

in criminal trials; the first is often unnecessary, the

second often expedient, and contributes to an impartial

judgment for and against defendants. Id. at 383.

See United States v. Grosso, 358 F.2d 154, 159 (3rd Cir.

1966); DeVault v. United States, 338 F.2d 179, 182

(10th Cir. 1964); Mills vy. Tinsley, 314 F.2d 311, 313

(10th Cir.), cert. denied, 374 U.S. 847 (1963) ; United

States v. Minieri, 303 F.2d 990, 556 (2nd Cir.), cert.

denied, 371 U.S. 847 ( 1962) ; Jenkins v. United States,

149 F.2d 118, 119 (5th Cir.) cert. denied, 326 U.S. 721

(1945). Cf. United States v. Barash, 412 F.2d 26 (2nd

Cir.) cert. denied 396 U.S. 832 (1969); O’Rourke v.

United States, 347 F.2d 124 (9th Cir. 1965).

It is noteworthy that in the Hyde case, the verdict was

challenged as having been coerced because the jury did not

want to face another day of deliberations, Thus, if a trial

judge recesses a jury after a long day of deliberations,

requiring further deliberations the following day, he con-

fronts the risk that his action will be challenged as coercive.

See Kawakita v. United States, 190 F.2d 506, 528 (9th

Cir. 1951), aff ’d, 343 U.S. 717 (1952), where it was held

that the purpose of keeping a jury together and not per-

mitting separation except under the supervision of a bailiff

is to make sure that no external sources influence the jurors.

If, however, the judge reads the Tuey-Allen charge to

avoid the necessity of reconvening the jury, this also,

according to petitioner, is coercive. The trial judge is

placed in a ‘‘damned if you do, damned if you don’t’? situ-

ation whichever way he exercises his discretion. The possi-

_ bility of such a dilemma explains the hesitancy of appellate

courts to overrule as ‘‘coercive’”’ matters within the trial

judge’s discretion.

The fact that the jury was ordered to continue deliber-

ations at 11:14 p.m. is not unusual in criminal cases, or

prejudicial. In United States v. Parks, 411 F.2d 1171 (1st

Cir. 1969), the First Circuit discussed the undesirability

of keeping jurors at work ‘‘yntil the small hours of the

morning.’’ Parks involved a situation in which the jury

presented a verdict at 3:07 a.m. While disapproving of the

holding of the jury until this late hour, the court stated:

The better practice in our opinion would be [to release

the jury] at midnight or so unless there were indi-

cations of a speedy verdict. Id. at 1173. (Emphasis

added).

In the present case, the jury delivered the verdict at

12:30 a.m., clearly within the ‘‘midnight or so’’ time frame

of Parks.

Precedent establishes that neither keeping a jury in

deliberation for twelve hours nor reconvening the jury for

further deliberation at 11:14 p.m. per se establishes preju-

dicial error. Some courts have held that keeping the jury,

when accompanied by other circumstances, can amount to

error. 358 F.2d at 159. However, these other circumstances

must be of a blatantly coercive nature. See, ¢.g;, United

States v. Pleva, 66 F.2d 529, 531-33 (2nd Cir. 1933), where

an elderly juror testified in open court that he was seri-

ously ill and would agree with the verdict if required to

deliberate any further only because he was physically unable

to continue.

Petitioner seeks to equate the Tuey-Allen charge with

those special circumstances such as a sick juror, which,

when combined with long prior deliberation and a late hour,

create a prima facie atmosphere of coercion. This conten-

tion has been squarely rejected by appellate courts. In

United States v. Betancourt, 427 F.2d 851 (5th Cir. 1970),

the defendant claimed that his constitutional rights were

violated when the trial judge read the Tuey-Allen charge

eleven and one-half hours after the beginning of the trial.

On appeal, the Fifth Circuit rejected this contention, noting

that while a recess might have been better, trial courts are

necessarily vested with wide discretion in controlling day-

to-day operations. Id. at 854-855. This is essentially the

same view taken by the Massachusetts Supreme Judicial

Court with respect to petitioner’s bill of exceptions. That

court stated :

There was a substantial reason for reading the charge

at some time, although ( considering the hour) it might

have been better judgment to have allowed the jury

to suspend deliberations until the morning. What the

judge did, however, was within his discretion. 1972

Mass. Adv. Sh. at 871, Petitioner’s Brief at B4.

In Betancourt, the court further held that the nonprejudi-

dal effect of the timing of the Tuey-Allen charge was

supported by the fact that neither counsel nor the jury

tequested a recess. Id. This is also true of the present case.

In United States v. Sawyers, 423 F.2d 1335 (4th Cir.

1970), the Fourth Circuit upheld a verdict of guilty where

the trial judge read the Tuey-Allen charge after the jury

had deliberated for fifteen hours. In support of its decision,

the court noted:

There was not the slightest intimation of impatience

with the minority, nor any words that could be con-

strued as a threat or even an expression of displeasure.

It is not suggested to us that the judge’s tone of voice

and facial expression (aspects that cannot appear in

the record) were other than ealm and. dispassionate.

Id. at 1340.

In United States v. Pope, 415 F.2d 685 (8th Cir. 1969),

cert. denied, 397 U.S. 950 (1970), the defendant alleged

coercive influence where the Tuey-Allen charge was read

after the jury had considered the case without decision for

eleven hours. The Eighth Circuit held:

[T]he deliberation for approximately 11 hours was not

so unreasonable in duration as to require the court to

declare a mistrial. The time a jury may deliberate is

within the sound discretion of the trial judge. Id.

at 690.

In the instant case, it was not prejudicial for the trial

judge to require the jury to continue deliberations at

11:14 p.m. after twelve hours of indecision. Neither the

length of time the jury labored, nor the hour the verdict

was returned, seem either extraordinary or prejudicial

in light of the opinions above. The administration of the

Tuey-Allen charge did not, in these circumstances, spaw?

a coercive atmosphere, as petitioner maintains. The Massa-

chusetts Supreme Judicial Court correctly found no error

in this regard.

B. Denial Of The Motion To Poll The Jury.

There is no constitutionally protected right to poll the

jury. In federal courts and state jurisdictions where there

is a right to poll the jury, this right is granted by statute.”

Petitioner concedes that ‘‘very little authority exists on

the question of whether the right [to poll the jury] is one

so basic as to be protected by constitutional requirements of

due process and jury trial.’’ Petitioner’s Brief at 12. The

obvious reason for the sparcity of authority is that there

is no such constitutional right.

In discussing the matter of jury polls in Humphries v.

District of Columbia, 174 U.S. 190 ( 1899), this Court said:

That generally, the right to poll a jury exists may be

conceded. Its object is to ascertain for a certainty that

each of the jurors approves of the verdict as returned ;

that no one has been coerced or induced to sign a

verdict to which he does not fully assent. It is not

a mater which is vital, is frequently not required by

litigants; and while it is an undoubted right of either,

it is not that which must be found in the proceedings

in order to make a valid verdict. Id. at 194. (Emphasis

added).

Subsequent to the Humphries case, Rule 31(d) of the

See, e.g., 18 U.S.C., Fed. Rules Cr. Proc. rule 31(d); 17 Ariz.

Rev. Stat. Ann., Rules Cr. Proc. rule 284 (West 1956); Ark. Stat.

Ann. Penal Code §1163 (Deering 1971); Fla. Stat. Ann. §919.10

(West 1944); Idaho Code Ann. ch. 19 §2316 (Supp. 1971); Burns

jaar (West. 1958); Ore. Rev. Stat. §17.355 (2) (1961); Utah

Ann: §77-33-10 (1953); Wyo. Comp. Stat. §10-1401 (1945).

Federal Rules of Criminal Procedure was adopted. This

rule states:

When a verdict is returned and before it is recorded

the jury shall be polled at the request of any party

or upon the court’s own motion. If upon the poll there

is not unanimous concurrence, the jury may be directed

to retire for further detiberations or may be dis-

charged.

The function of Rule 31(d) is to give to each juror

the opportunity to declare in open court his assent to the

verdict. It assures the parties and the court that a unami-

mous verdict has been reached. Miranda v. United States,

955 F.2d 9, 17 (1st Cir. 1958). The rule may also serve

a further useful function by clearing up apparent con-

fusion among the jurors as to the exact nature of the verdict

before the verdict is recorded. Williams v. United States,

419 F.2d 740, 746 (D.C. Cir. 1969). Rule 31(d) is a pro

cedural device used in federal courts. It is not a constitu-

tional requirement, and no court has held the rule out as

such. Havsrath v. N.Y. Central R.R. Co., 401 F.2d 634

(6th Cir. 1968) ; Hernandez v. Delgado, 375 F.2d 584, 585

(1st Cir. 1967). Cf. Gordon v. United States, 438 F.2d 858,

873-74 (5th Cir.), cert. denied 404 U.S. 828 (1971).

it is not binding on the states. See Brooks v. Gladden, 226

Ore. 191, 358 P.2d 1055 (1961). In Massachusetts, and

other states without a procedural rule corresponding to

Federal Rule 31(d), the function of the rule is usually

seeved when the court clerk, upon reading the verdies

ive inquiry of the jury. The clerk asks

burg, 338 Mass. 377, 386 (1959) ; Commonwealth v. Costiey,

118 Mass. 1, 28 (1875); Commonwealth v. Roby, 29 Mass.

(12 Pick.) 496, 513-15 (1832). Accord, 226 Ore. 191, 358

P.2d 1055; State v. Tucker, 146 Conn. 410, 151 A.2d 976

(1959) ; State v. Grierson, 96 N.H. 36, 69 A.2d 851 (1949) ;

Ryan v. People, 50 Colo. 99, 114 P. 306 (1911); in Re

Fellows, 5 Me. 333 (1888). It would be a rare and anomalous

occurrence where jurors would listen to, or speak collec-

tively in support of, the jury foreman, and immediately

contradict themselves if polled individually immediately

thereafter. 375 F.2d at 586. Thus, states without a rule

similar to Rule 31(d) consider such a rule unnecessary.

In the instant case, the trial court accomplished the

same effect as an individual poll when the clerk asked the

jury collectively if they agreed with the verdict as read.

Brief for Respondent, Appendix at 15. Petitioner con-

tends, however, that facts surrounding his motion to poll

the jury created a constitutional right to have his motion

granted. He states that the time the jury deliberated,

the Tuey-Allen charge, and the hour at which the charge

was read trigger a constitutional right to have the jury

polled. Petitioner’s conclusion is a non sequitur. There

was no unconstitutionality in the reading of the Tuey-Allen

charge, in the time at which the charge was read, or in the

length of jury deliberations, as discussed supra. The com-

bination of these elements does not give birth to a right

to poll the jury.

The Massachusetts Supreme Judicial Court, accordingly,

found no merit to petitioner’s contention. 1972 Mass. Adv.

Sh. at 871. Petitioner’s Brief at B4. The court adhered to

its. prior consideration of the issue in 354 Mass. 773, where

it was held that petitioner had relied on numerous facts

im support of his position that were not in the record.

These facts, which petitioner alleged but could not —

iwhis first bill of exeeptions, in 1968, were: . .. »

The jury consisted of two women, a male juror with

a physical disability, and several other older jurors.

These people had been deliberating for thirteen hours

and there was no apparent end in sight. Hither they

came back with a decision or they remained out.

Given the physical makeup of the jury and the time

element involved, it is clear that there was physical

duress involved. The jurors were thus highly suscep-

tible to assenting to a decision in which some of them

did not agree. As stated previously, there was a dis-

agreement between the jurors and then there was an

agreement, which given the totality of the circum-

stances is highly suspect. Brief for Defendant, pp. 15-

16, Commonwealth v. Richardson, 354 Mass. 773 (1968).

See Brief for Respondent, Appendix at 16-20.

Petitioner cryptically alleges that on the second bill of

exceptions brought before the Supreme Judicial Court in

1972, ‘‘the record had been implemented to assure that

all relevant facts both with respect to the argument of

‘absolute right’ and abuse of discretion were included.”

Petitioner’s Brief for Certiorari at pp. 9-10. However,

in the second bill of exceptions before the Supreme Judicial

Court, the record was not ‘‘sypplemented.’’ All that was

alleged in the second bill of exceptions, in addition to that

which was alleged in the first, was:

It is entirely conceivable that one or more jurors were

coerced by their fellows into their verdict because of

the lateness of the hour and the giving of the Tuey

charge and might have so stated if polled. We respect-

fully submit that under these circumstances an abuse

of diseretion occurred when the court below denied the

motion to poll the jury. Brief for Defendant, p. 39,

Commonwealth v. Richardson, 1972 Mass. Adv. Sh. 869.

See Brief for Respondent, Appendix E.

Thus, it is clear that no additional facts were brought

to the Supreme Judicial Court’s attention in the second bill

of exceptions, and that there was no error in the court’s

overruling of petitioner’s exception concerning his consti-

tutional right to poll the jury.

Il. Tue Petition Fans To Raise A SuspsTantTiaL FEepeRau

Question On Erruer Issvz PRresentep.

A. The Tuey-Allen Charge.

Neither the omission in the charge of a reference to the

prosecutor’s burden of proof nor the giving of the charge

at 11:14 p.m. and the requiring of the jury to continue

deliberations coerced the jury in such a way as to constitute

a deprivation of due process. Petitioner conjures up a

fallacious equation in his allegation that both of these

circumstances, taken together, amounted to unconstitutional

pressure. The trial judge explicitly impressed upon the

jurors the prosecutor’s burden of proof in his initial in-

structions. The length of time that the jury had been delib-

erating and the hours at which the charge was read and the

verdict rendered were neither unusual nor prejudicial.

No substantial fourteenth amendment issue is presented

by either circumstance, individually or both together. The

petition alleges unconstitutionality in circumstances which

on their face and on their facts contain no constitutional

error. Palmer Oil Corp. v. Amerada Petroleum Corp., 343

US. 390, 391-392 ( 1952) ; Zucht v. King, 260 U.S. 174, 177

(1922). There is not substantial disagreement among lower

federal or state courts on the issues. The decisions peti-

tioner relies upon as presenting ‘‘disagreement between and

among the state and lower federal courts”? involve super-

visory decisions concerning the exact scope to be given to

Tuey-Allen type charges within such jurisdictions. As such,

they represent differences in view as to how to apply a

principle which allows considerable room for discretion.

No authority is cited for overturning the charge on consti-

tutional grounds because of either an omission of a refer-

ence to the burden of proof or the timing of the charge.

B. The Denial Of The Motion To Poll The Jury.

There is no constitutionally protected right to poll the

jury. Again, petitioner asks the Court to chase the shadow

of constitutional error in a situation which on its face end

on its facts reveals none. The most that can be said for

petitioner’s argument is that, given the totality of circum-

stances, a potential fo> coercion might have existed.

Appellate courts will not probe into jurors’ heads to

guess what might have motivated the verdict and are reluc-

tant to impute disregard of a jury’s constitutional func-

tions. Fairmount Glass Works v. Cub Fork Coal Co., 287

U.S. 474, 485 (1933); Holt v. United States, 218 U.S. 245,

251 (1910); Gordon v. United States, 438 F.2d 858, 873-74

(5th Cir.), cert. denied 404 U.S. 828 (1971). As stated

by Mr. Justice Holmes in H olt :

If the mere opportunity for prejudice or corruption is

to raise a presumption that they exist, it will be

hard to maintain jury trials under the conditions of

the present day. 218 U.S. at 251.

Petitioner shows no more than an opportunity for preju-

dice. This Court has traditionally refrained from engaging

in the sort of hypothesizing of unconstitutionality which is

sought in this petition. The discretion of the Court will not

be exercised to entertain purely academic questions. Rice

v. Sioux City Cemetery, 349 U.S. 70, 74 (1955); Layne ¢

Bowler Corporation x. Western Well Works, 261 U.S. 387,

aw oF

erates “i SapcisaegS UN

Conclusion

The decision of the Massachusetts Supreme Judicial

Court that no constitutional error existed in the circum-

stances in which the Tuey charge was read at petitioner’s

trial, or in the denial of petitioner’s motion to poll the

jury, was manifestly correct. The Tuey charge itself is

constitutional on its face. There is no need for repeating

the burden of proof that must be borne by the prosecution

once that fact has been impressed upon the jury in the

initial instructions. The length of time the jury deliber-

ated, and the times at which the charge was read and verdict

returned were neither unusual nor prejudicial for criminal

trials.

There is no absolute right to poll the jury. Jurisdictions

which grant such a right do so on supervisory, rather than

constitutional, grounds. The particular events which oc-

curred at petitioner’s trial did not create such a consti-

tutional right.

No substantial federal questions are raised by the peti-

tion. The particular circumstances of this case are not

often encountered and present the kind of academic and

episodic issues this Court has traditionally considered as

not meriting certiorari. No novel, unsettled or important

question is presented. The threshold requirements of 28

U.S.C. §1257(3) for granting certiorari have not been met.

Wherefore it is respectfully submitted that the petition for

a writ of certiorari should be denied.

Respectfully submitted,

Rozert H. Quixy,

_ Attorney General,

Joun J. Inwin, Jz.,

ag .., Assistant Attorney General,

ie vg 1 Chief, Criminal Division. |

Assistant Attorney General,

Chief, Appellate Section.

APPENDIX A

Stenographic Transcript of Trial Judge’s

Charge to Jury

THE COURT. Mr. Foreman, ladies and gentlemen, I

have asked you to stand in your place, as I stand here now

in mine, at the beginning of my instructions to you, the

jury, in observance of an ancient custom of this Court. As

our ancestors stood, so we stand in recognition of the su-

premacy of the law in all our human affairs.

Now, the defendant, James W. Richardson, has been put

to trial on an indictment which charges him with the crime

of robbery while being armed.

The trial has proceeded on the basis that this indictment

has been properly and adequately pleaded to. You, the jury,

are to pass upon the guilt or innocence of this defendant.

This duty cannot be properly performed unless the rights

of the Commonwealth and of this defendant are fully and

properly protected.

It is the right of the Commonwealth to a conviction if

and so far as you, the jury, find that the Commonwealth

has proved this charge beyond a reasonable doubt.

It is the right of the defendant to an acquittal if and so

far as you, the jury, find that this charge has rst been

sustained.

Now, it is very important in the administration of justice

that no innocent person be convicted or punished for crime.

It may be that, as men and women, as individuals, that you

are moved to sympathy or compassion for this defendant

or for the parties who have been harmed or wronged.

But, Mr. Foreman, and members of the jury, sympathy

or compassion should not enter into your verdict. You are

sworn to make true deliverance between the Commonwealth

and this defendant according to the law and to the evidence.

You may be seated.

(Jury sat down.)

THE COURT. Mr. Foreman, ladies and gentlemen of

the jury, you have heard all the evidence in this case and

I wish to impress upon each and every one of you that if

your recollection concerning the testimony given in the

trial of this case is different from the recollection of coun-

sel or the Court, you are to call upon your own recollection

and your own understanding of the testimony in arriving

at a verdict in this case.

It is your own recollection and your own understanding

that is to guide you in arriving at a verdict in this case,

and not the recollection and understanding of cousel or of

the Court.

You may recall that in your opening instructions you

were instructed that the whole and sole responsibility of

deciding facts rested with you, the jury. This duty cannot

be trespassed upon by counsel, by the Court, or by anybody

else because from the beginning I wish to impress upon

each and every one of you that you, the jury, are the sole

judges of the facts.

You, the jury, not only have the right, but it is your duty

to draw certain inferences from the facts. The law re-

cognizes it as logical and proper that one fact may exist

from the proof of the existence of another.

Now, such inferences as you, the jury, may draw from

the facts must be based upon the trustworthy, the credible

evidence, and must not be based on surmise, speculation,

imagination, or conjecture.

Now, you, the jury, have heard all of the evidence in the

trial of this case. You have seen the witnesses here in this

courtroom. You, the jury, being the sole judges of the

facts, it necessarily follows that you, the jury, are the sole

judges of the credibility of the witnesses.

Now, in determininig the weight and the credit and the

value that you will attach to the tesimony of any one wit-

ness, you, the jury, should take into consideration the fol-

26°

' The conduct and the appearance of the witness on the

stand; the interest of the witness, if any, in the result of

this trial; the motive of the witness in testifying; the wit-

ness’ relation to or feeling for one party or the other; the

probability or the improbability of the witness’ testimony ;

the opportunity that the winess had to observe or to be

informed as to matters respecting which such witnesses

have given testimony; the inclination of the witness to

speak the truth or otherwise as to matters within the

knowledge of that particular witness.

Now, you, the jury, should take all of these matters into

your consideration and, together with all the other facts

and circumstances given in the trial of this case, it’s within

your province to give to the testimony of each witness such

weight and value as you, the jury, may determine.

You may accept the testimony of a witness in its entirety

if you determine it’s true; and by the same token, you may

reject the testimony of a witness in its entirety.

You may accept part of what a witness testifies to and

reject the remainder. In short, you will apply your plain

everyday common sense in making your appraisal of the

weight and the value that you will attach to the testimony

of any one witness.

Now, Mr. Foreman, members of the jury, I wish to in-

struct you that while this indictment will be taken with you

to your jury room when you retire for your deliberations,

I wish to instruct you that this indictment is not any evi-

dence in this case and you are not to be influenced by any

statement in this indictment.

The only evidence that you are to concern yourselves

with in arriving at a verdict in this case is the evidence

that you have heard from the lips of the witnesses here

in this courtroom, together with the exhibits that you will

take with you when you retire to your jury room for your

deliberations. That is the only evidence that you are to

concern yourselves with in arriving at a verdict in this

case.

You do not consider any arguments made by counsel

other than those based on the facts which you find true in

this case, nor any conclusions which they may draw from

their arguments or from the facts except as they appeal

to you as reasonable conclusions for you, the jury, to

draw from the facts that you, the jury, find true in this

case.

Now, Mr. Foreman, members of the jury, in every crim-

inal case each defendant is protected under the Constitu-

tion of our Commonwealth and the laws of our Common-

wealth by two great bulwarks against the unjust invasion

of a defendant’s rights and liberty in order to promote

justice and fairness to the accused and to assure to him

the fullest protection under our laws.

The first of these great bulwarks is that every criminal

defendant at the outset of the trial is presumed to be in-

nocent.

The second great bulwark — fully as important as the

first and on which I will instruct you more later — is that

the Commonwealth must prove the charge beyond a rea-

sonable doubt.

Now, Mr. Foreman, members of the jury, as I have al-

ready told you, every criminal defendant charged in this

court with having committed a crime is presumed at the

outset of the trial to be innocent. This presumption is not

evidence. It is a rule of evidence and this governs until

sufficient evidence to the contrary appears.

The fact that a defendant is suspected, arrested, or in-

dicted is not to be regarded as any circumstances or evi-

dence of his guilt and it is not to be regarded as creating

any unfavorable impressions against him.

He is not to be found guilty on suspicion, probability, or

conjecture. This defendant is to be found either guilty or

not guilty here and now by you, the jury, upon the legal

evidence given in the trial of this case and not on the fact

that he has been arrested, complained against, or indicted.

Now, Mr. Foreman, members of the jury, you will notice

that this indictment charges this defendant, James W.

Richardson, with having assaulted one Harold Malkonian,

Ralph Porcaro, Joseph Keenan, and John Tacey on De-

cember 15, 1966, in Watertown, while armed with a dan-

gerous weapon, with intent to rob them and did, in fact,

rob them.

Now, this indictment was brought under the provisions

of General Laws, Chapter 265, Section 17, which reads as

follows, with the immaterial provisions omitted, and I am

now quoting from this particular section :

‘‘Whoever, being armed with a dangerous weapon, as-

saults another and robs, steals or takes from his person

money or other property that may be the subject of lar-

ceny”’, shall be punished. That is the end of that particular

section.

Now, the offense of robbery while armed with a danger-

ous weapon is an aggravated form of common-law robbery.

The essence of robbery is the exertion of force, actual or

constructive, against another in order to take . personal

property of any value whatsoever, with the intention of

stealing it, from the protection which the person of that

other affords.

Robbery requires that the taking of money or property

must be accompanied with an intent to steal. Robbery is at

once a crime against the person and a crime against the

property.

The force and violence of putting in fear must be the

means by which the larceny is effected and must be prior

to or simultaneous with it.

You will notice that the indictment states that the defen-

dant did assault Harold Malkonian, Ralph Porcaro, J oseph

Keenan, and John Tacey with intent to rob and steal.

In order to prove the crime of robbery, it is not necessary

to prove that the defendant took the property from the

person of the owner. It is enough when the property or

money was in the owner’s possession and protection and

control and that he was compelled to surrender it by the

violence or fear caused by the defendant.

An assault and larceny or stealing are essential elements

of the crime of robbery.

We will now take up the different elements of the crime

of robbery while being armed with a dangerous weapon.

The statute says:

‘‘Whoever, being armed with a dangerous ‘ weapon’’,

First, I must give you the legal definition of a dangerous

weapon.

In law, a dangerous weapon is any instrument or instru-

mentality so constructed or so used as to be likely to pro-

duce death or great bodily harm.

In law, a dangerous weapon may also be defined as an

instrument or instrumentality which, because of the man-

ner in which it is used or attempted to be used, endangers

life or inflicts bodily harm or injury or is calculated or

likely to produce death or serious bodily injury.

In this case there was some evidence of a gun. The law

says that it is a question for you, the jury, to determine

whether the instrument alleged to have been used was or

was not a dangerous weapon. This is one of those questions

that is within your province as jurors to decide.

I wish to point out to you also that the use of a danger-

ous weapon is not an essential element on a charge of

robbery while armed.

The statute says:

‘*Whoever, being armed with a dangerous weapon’’. In

considering whether the weapon claimed to have been used

in this case is a dangerous weapon, you can consider the

likelihood of its use in making it a dangerous weapon.

If you, the jury, find that it was a dangerous weapon, it

is not necessary for the Commonwealth to prove that the

dangerous weapon was actually used to prove the offense

of robbery while armed — for the gist of the offense is

being armed, not the use of the weapon.

The law says: Proof that a person accused actually used

a dangerous weapon is not essential on a charge of robbery

while armed. The main or material point is whether he

was armed — not how he employed the alleged weapon.

Now, getting back to the statute again, it says:

‘Whoever, being armed with a dangerous weapon, as-

saults another’’. What is meant by an assault? An assault,

Mr. Foreman, members of the jury, is a present attempt to

do bodily injury to another coupled with a present ability

to commit it.

Any threatening gesture showing in itself or by words

or anything accompanied with it an immediate intention,

coupled with a present ability to do bodily harm to another,

is an assault.

To commit an assault, you need not actually strike some

other person. An assault can be committed by a person

without touching the body of the person assailed in any

way.

If you were to strike the other person, then this would

be a battery.

Now, the statute that we are considering requires only

an assault and not an assault and battery.

Now, once again, back to the statute. The statute says:

‘‘Whoever, being armed with a dangerous weapon, as-

saults another and robs, steals or takes away from his per-

son money or other property’’. Now, notice that word,

‘*and’’. There must be an assault and robbing or an assault

and stealing or a taking away of money or other property.

There must be an assault for a conviction under this stat-

ute whether the concomitant acts are robbing, stealing, or

taking away.

The statute uses the word, ‘‘rob’’. To rob is for a person

to take and carry away the personal property of another

from his person or from his possession and control against

his will, either by force or violence or by putting the victim

in fear, with the intent to steal.

Now, concerning stealing, in defining one alternative way

of committing larceny, the Legislature of our Common-

wealth uses the word, ‘‘steal’’,

To steal, for the purposes of this case, is to take and

carry away unlawfully the personal property of another

with intent to deprive him of its permanent nse.

Now, you will note that ordinary stealing and larceny

ean be accomplished without violence or putting the victim

in fear. But, for robbery, the essence of the crime is the

exertion of force either by actual violence by assaulting

the person from whom the property is taken or by means

of an assault on such person and putting him in fear.

The next element for consideration for the crime of rob-

bery being armed is that the things taken must be ‘‘money

or other property that may be the subject of larceny’’.

Robbery may be committed by an offender in order to take

property of any value whatsoever, great or small. It might

be a huge amount or it could be pennies.

The next element of robbery is that the property shall be

taken from the person or the body of the clothing of the

person robbed or from the protection which the person of

the other one affords.

Of course, if an offender, after an assault, reaches into

the pockets of the clothing of the one he assaults and takes

and carries away cash, property, that is one way to prove

this element of robbery.

. Robbery may be committed without taking any property

away from the body of the owner. It may be committed

without showing that the offender even touched the body

or the person of the one robbed.

If property is taken and carried away by an offender and

that property was within the control and the protection of

the owner or one actually in rightful possession of it, and

if, by assault and threat, such person was put in fear and

was compelled to surrender it, that would be enough to

establish this element of the crime of robbery.

A thing is in the presence of a person, in respect to rob-

bery, which is so within his reach, inspection, observation

and control, that he could, if not overcome by violence or

prevented by fear, retain possession of it.

Now, the next element of the crime of robbery that must

be proven by the Commonwealth is that the money or prop-

erty taken from the victim must be taken and earried away

by the offender, and that the money or property taken was

taken against the will of the owner, and, further, that the

taking and carrying away of the money or property was

done by the offender with intent to steal.

Now, as I have already told you, the essence of robbery

is the exertion of force, either actual or constructive, against

another in order to take property of any value whatsoever,

with the intention of stealing it, from the protection which

the person of the other affords.

The exertion of foree may be either actual or construc-

tive. Actual force is foree when applied to the body of the

victim. Constructive force is accomplished by threatening

words or gestures which operate on the mind and put the

victim in fear, as a result of which the actual unlawful tak-

ing of money or property is effected.

‘As I have already told you, robbery requires that force

be exerted, either actual or constructive. Either kind fills

the requirements of the law; but if putting in fear or cob

structive force is the element proved, the victim must be

put in fear and be fearful or frightened at the time the

money or the property alleged to have been taken was taken

from his custody.

The state of fear or fright must be a factor in the taking

of the property from his possession. Fear, terror, or ap-

prehension of harm on the part of the victim is an essen-

tial ingredient of the crime of robbery by constructive

force.

Now, Mr. Foreman, members of the jury, the defendant

doesn’t have to prove anything. The burden is upon the

Commonwealth to prove this defendant guilty and prove it

beyond a reasonable doubt. The defendant does not have

the burden of proving that he is innocent.

Now, you will recall that during the course of this trial

this defendant did not take the stand and testify in his own

behalf. I call to your attention the provisions of one of the

laws of our Commonwealth, namely, Chapter 233, Section

20, Clause 3, which reads as follows — I am now quoting

from this particular clause — ‘‘The defendant in the trial

of an indictment, complaint or other criminal proceeding

shall, at his own request, but not otherwise, be allowed to

testify ; but his neglect or refusal to testify shall not create

any presumption against him.’’ That is the end of the quote

of that particular clause.

Mr. Foreman, members of the jury, silence can not be

taken into consideration by you in determining whether a

defendant is or is not guilty. If a defendant remains silent,

the law jealously guards and preserves his rights, cuts off

injurious comments, and as far as possible protects him

from unfavorable inferences.

A defendant has the right to simply deny his guilt and

rely on the legal presumption of his innocence, and no

presumption or inference against him shall be drawn by

you, the jury, because of his neglect or refusal to testify.

That means, Mr. Foreman, members of the jury, that a

34°

defendant.in a criminal case is not required to produce any

evidence in his own favor or testify upon the stand. He is

not bound to furnish any evidence. He is under no obliga-

tion to speak. The burden is upon the Commonwealth to

prove that he is guilty of this particular offense and prove

it beyond a reasonable doubt.

Now, Mr. Foreman, members of the jury, you heard testi-

mony during the course of this trial that the defendant at

the time of this alleged offense was some miles away in the

Villa Nova Lounge, and this is what is called an alibi, that

this accused was elsewhere at the time that this alleged

offense took place.

If this is true, — it being impossible that the accused

should be in two places at the same time — it is a fact in-

consistent with that sought to be proved and excludes its

possibility.

In the famous case of Commonwealth versus Webster,

Volume 59 of the Massachusetts Reports, the then Chief

Justice, Chief Justice Shaw, one of the great Chief Justices

of the Supreme Judicial Court of this Commonwealth, had

this to say about the defense of alibi, and I am now reading

from this particular decision.

‘‘This is a defense often attempted by contrivance, sub-

ornation, and perjury. The proof, therefore, offered to sus-

tain it is to be subjected to-a rigid scrutiny because, without

attempting to control or rebut the evidence of facts sustain-

ing the charge, it attempts to prove affirmatively another

fact wholly inconsistent with it; and this defense is equally

available, if satisfactorily established, to avoid the force of

positive, as of circumstantial evidence. In considering the

strength of the evidence necessary to sustain this defense, it

is obvious that all testimony tending to show that the ac-

cused was in another place at the time of the offense, is in

direct conflict with that which tends to prove that he was at

the place where the crime was committed and actually

committed it. In this conflict of evidence, whatever tends to

support the one tends in the same degree to rebut and over-

throw the other; and it is for the jury to decide where the

truth lies.’’

Now, Mr. Foreman, members of the jury, from the very

beginning of this trial until the very end, the burden is upon

the Commonwealth to prove this defendant guilty and prove

it beyond a reasonable doubt. The burden is also upon the

Commonwealth not only to prove beyond a reasonable doubt

that this defendant is guilty of this particular offense, but

the burden is upon the Commonwealth to prove and to prove

beyond a reasonable doubt each and every fact essential

to the guilt of this defendant on this particular charge.

Now, what do we mean by a reasonable doubt? Mr. Fore-

man, members of the jury, proof beyond a reasonable doubt

does not mean proof beyond all doubt, nor beyond a whimsi-

cal or fanciful doubt, nor proof beyond the possibility of

innocence. A reasonable doubt does not mean such doubt as

may exist in the mind of a man who is earnestly seeking

doubt or an excuse in which to acquit a defendant. But it

does, however, mean such doubt as remains in the minds of

reasonable men and women who are earnestly seeking the

truth.

A fact is proved beyond a reasonable doubt when it is

proved to a moral certainty, when it is proved to a degree

of certainty that satisfies the judgment and conscience of

you, the jury, as reasonable men ard women and leaves in

your minds as reasonable men and women a clear and settled

conviction of guilt.

But if there remains in your minds any doubt as to the

existence of any fact which is essential to the guilt of this

defendant on this particular charge, the defendant must

have the benefit of that and he can not be found guilty of

this particular charge.

Now, Mr. Foreman, members of the jury, an indictment

for armed robbery necessarily includes the lesser offenses

of robbery not being armed, assault, and larceny. When

you retire to your jury room and consider your verdict, you

should first consider the charge set forth in this indictment,

robbery while armed with a dangerous weapon.

If you, the jury, find that the Commonwealth has proved

its charge beyond a reasonable doubt, then when you return

to the courtroom and when you have been inquired of by the

Clerk, then, Mr. Foreman, you will simply reply: Guilty.

And the other jurors will be asked the usual question of

affirmation.

However, if you, the jury, find the Commonwealth has not

proven this charge of robbery while armed beyond a rea-

sonable doubt, then you will consider the issue of whether

or not this defendant is guilty of robbery not being armed.

If you, the jury, find the Commonwealth has proven be-

yond a reasonable doubt that this defendant is guilty of

robbery not being armed with a dangerous weapon, you, Mr.

Foreman, when being inquired of by the Clerk, will simply

reply: Guilty of robbery not being armed with a dangerous

weapon. ;

If you, the jury find that the Commonwealth has not

proven this charge beyond a reasonable doubt, then you

will consider the offense of assault and larceny.

If you, the jury, find that the Commonwealth has proved

beyond a reasonable doubt either an assault or larceny,

then when you return to the courtroom, when you are in-

quired of, Mr. Foreman, by the Clerk, you will announce him

guilty of the offense that you find him guilty of.

If you, the jury find that the Commonwealth has not

proven beyond a reasonable doubt each and every fact es-

sential to the guilt of this defendant in any one of these

four offenses, then when you, the jury, return to this court-

room and you, Mr. Foreman, are inquired of by the Clerk,

you will simply announce : Not Guilty.

So, Mr. Foreman, and members of the jury, there are five

possible verdicts in this case for your consideration.

First, guilty, which will mean guilty of robbery while

armed with a dangerous weapon. That is guilty of the whole

offense.

Secondly, guilty of robbery not being armed.

‘Thirdly, guilty of assault.

Fourth, guilty of larceny.

Fifth, not guilty.

Now, the verdict arrived at by you, the jury, must be

unanimous no matter how great the majority, it will not

satisfy that requirement of the law.

I am submitting this case to you, the jury, for your deter-

mination. I am submitting it to you in the confidence that

you will approach the task allotted to you fairly and im-

partially. At the ouset of this trial you took solemn oaths to

try the issues between the Commonwealth and this defen-

dant fairly and impartially as people of conscience, realiz-

ing the solemnity of that oath and its meaning.

Approach the performance of your duty with courage and

with a firm desire to accord to each side that measure of

justice to which each is entitled.

As I have already told you, the defendant’s rights require

the Commonwealth to prove and prove beyond a reasonable

doubt that he is guilty, and this is an absolute right.

It is equally the right of the Commonwealth to a convic-

tion if and so far as you, the jury, find that this charge has

been sustained.

Mr. Foreman, members of the jury, this case is now in

your hands. Speak the truth in your verdict.

THE CLERK. Officers to be sworn.

You solemnly swear that you will keep this and all other

juries committed to you at this sitting of the Court in some

convenient place until they have agreed. You are to suffer no

person to speak to them nor speak to them yourselves unless

by order of the Court. You will not suffer them to be dis-

persed until they have been discharged of their verdict.

So help you God. -

ogg

‘ APPENDIX B

Stenographic Transcript of Trial Court Clerk's

'* -Qéllective Inquiry to Jury

THE CLERK. Members of the jury, you will hearken

to your verdict as recorded by the-Court.

The jurors upon their oath do say that the defendant is

guilty of armed robbery.

So say you, Mr. Foreman — members of the jury, you

will hearken to the verdict as recorded by the Court. The

jurors, upon their oath, do find that the defendant is guilty

of armed robbery while being armed with a dangerous

weapon. —

So say you, Mr. Foreman?

THE FOREMAN: Yes.

THE CLERK. So say you all, members of the jury!

(General ‘‘yes’’.)

_ THE COURT. Mr. Foreman, ladies and gentlemen of

the jury, thank you very much for your service here as

jurors. You are to-return to the jury pool tomorrow morn-

ing.

+4339

5 APPENDIX C

-i>, Sixcerpt from Brief for Defendant,

Commonwealth v.- Richardson, 354 Mass. 773 (1968),

Concerning Denial. 6f Petitioner's Motion to Poll the Jury

: IL. -

THE COURT ERRED IN DENYING DEFENDAN TS

MOTION TO POLL THE JURY.

In the case of Costley v. Commonwealth, 118 Mass. 1,

28, the court stated that ‘‘In Massachusetts, it has never

been the right of a party, in any case, civil or criminal, to

have the jury polled.’’ This does not preclude the opportun-

ity to poll the jury, but instead, it is discretionary with the

trial court. ;

In 1959, in answer to this question, the Massachusetts

court replied :

‘* After the verdicts were read the defendant moved to

poll the jury. This motion was denied and an exception

was saved. There is no merit in the exception. The

point raised was decided adversely to the defendant’s

contention in Commonwealth v. Costley.’’

Commonwealth v. Goldenberg (1959), 338 Mass. 377,

386.

This also should not preclude the right to poll the jury,

but rather should make it discretionary with the trial court.

Although the authorities differ on the requirement of the

right to poll, none preclude the right.

‘The authorities treating of the question are divided

as to whether the polling of the jury is an absolute right

of a party in-a-eriminal-proceeding. It has been held

that neither side has a right to have the jury polled,

but whether this shall be done rests in the discretion of

the court.’’

23A Corpus Juris Secundum 1048.

Among the cases cited for the latter statement is the above

cited Commonwealth v. Goldenberg.

‘‘The object of polling the jury is to give each juror an

opportunity to declare in open court his assent to the

verdict as returned, and to ascertain for a certainty

that each juror approves of such verdict and that no

one has been coerced or induced to agree to a verdict

to which he does not fully assent.”’

23A Corpus Juris Secundum 1047.

As time has gone by, the courts have become more aware

of the importance of polling a jury. The Federal Rules of

Criminal Procedure state that:

‘“When a verdict is returned and before it is recorded

the jury shall be polled at the request of any party or

upon the court’s own motion.”’

Federal Rules of Criminal Procedure, Rule 31D.

‘‘In some jurisdictions, however, either of the parties

may claim as of right to have the jury polled, and the

action of the court in denying this right is reversible

error.”’

23A Corpus Juris Secundum 1048.

and fourteen jurisdictions are cited for authority.

‘<The right of the defendant to have the jury polled as

thus recognized and established by Federal Rule 31(D)

is of ancient origin and of basic importance.”

Miranda v. United States, 255 F.2d 9, 17 (1st Cir.)

Although the Supreme Court has never passed on the ques-

tion directly, it has indicated an awareness of the im-

portance of polling a jury. ‘The right to poll a jury is

certainly no more sacred than the right ‘to have a jury.”’

Humphries v. District of Columbia, 174 U.S. 190, 195 (1899).

‘In the instant ease, a mistrial-was declared by the court

on September 13, 1967, because of a hung jury. At the new

trial on November 8, 1967, the jury retired to deliberate at

11:10-A.M. and returned at 11:14 P.M. unable to- reach &

decision.

-The jury was instructed that ‘* Although the verdict to

which a juror agrees must, of course, be his own. verdict,

the result of his own convictions, and not a meve acquies-

cence in the conclusion of his fellows, yet, in order to bring

twelve minds to a unanimous result, you must examine the

questions submitted to you with candor and with a proper

regard and deference to the opinions of each other. You

should consider that the case must at some time be decided ;

that you are selected in the same manner, and from the

same source, from which any future jury must be; and

there is no reason to suppose that the case will ever be sub-

mitted to twelve men or women more intelligent, more im-

partial, or more competent to decide it, or that more or

clearer evidence will be produced on the one side or the

other. And with this view, it is your duty to decide the case,

if you can conscientiously do so. In conferring together,

you ought to pay proper respect to each other’s opinions

and listen, with a disposition to be convinced, to each

other’s arguments.

A proper regard for the judgment of other men will often

greatly aid us in forming our own. In many of the relations

of life, it becomes a duty to yield and conform to the

opinions of others, when it can be done without a sacrifice

of conscientious convictions, more especially is this a duty

when we are called on to act with others, and when dissent

on our part may defeat all action.

The jury room is, surely, no place for pride of opinion

or for espousing and maintaining in the spirit of contro-

versy either side of a cause. The single object to be there

affected is to arrive at a true verdict and this can only be

done by deliberation, mutual concession, and a due defer-

ence to the opinions of each other. By such means and such

only, in a body where unanimous ‘agreement is required,

can safe and just results be attained, and without them, the

trial by jury, instead of being an essential aid in the ad-

43°

mitiisttation of | justice, ‘would become : a most anne

obstacle to it.’’

‘This is nothing but an siseiel for the jury to go ‘done

with the majority view. In effect, it is a request fér.a few

jurors to finc ihe defendant guilty by changing their mirids.

This brings up the question as to whether or not the

individual jurors ‘‘sacrificed their conscientious convic-

tions’’ in yielding to the majority. The opinions expressed

must be the true opinions of the jurors and not an opinion

molded to conform with a desire not to ‘‘defeat all action”’

and not to become ‘‘a most effectual obstacle to it (the

administration of justice). To allow this instruction to

stand is to encourage trial judges to devise subtle means

of coercing minority jurors to give in to the majority.

The jury retired to deliberate at 11:20 P.M. and returned

at 12:20 A.M. The jury had been out now for a total of

thirteen hours. It is clear that there was some doubt in

someone’s mind.

The jury consisted of two women, a male juror with a

physical disability, and several other older jurors. These

people had been deliberating for thirteen hours and there

was no apparent end in sight. Either they came back with

a decision or they remained out.

Given the physical makeup of the jury and the time ele-

ment involved, it is clear that there was physical duress

involved. The jurors were thus highly susceptible to as-

senting to a decision in which some of them did not agree.

As stated previously, there was a disagreement between

the jurors and then there was an agreement, which given

the totality of the circumstances is highly suspect.

_-It is this danger which the polling of a jury is designed to

prevent. It is to ‘‘ascertain for certainty that each juror

approves. of such verdict and that no one has been coerced

or induced to agree to. a verdict to which he does not fully

assent.’’ 234. Corpus Juris Secundum 1047.

Keeping the facts of this case in mind, the dangers are

so apparent and so great, that a denial of the right to poll

the jury, although not an absolute right, constituted an

abuse of discretion in the instant case and is thus reversible

error.

APPENDIX D

Excerpt from Brief for Defendant,

Commonwealth v. Richardson, 1972 Mass. Adv. Sh. 869,

Concerning Denial of Petitioner’s Motion to Poll the Jury

B. The Refusal to Poll the Jury Constituted An Abuse of

Discretion.

One trial involving virtual identity of witnesses in this

matter resulted in a hung jury (Ex. B). The verdict of

guilty in the second trial was returned after the jury had

deliberated for some 12 hours from 11:10 A.M. to 11:14

P.M. (Ex. A, p. 151), been given the Tuey or ‘‘dynamite”’

charge and sent back out at 11:20 P.M. (Ex. A, p. 153) and

returned 1 hour later at 12:20 in the morning (id.). It is

entirely conceivable that one or more jurors were coerced by

their fellows into their verdict because of the lateness of

the hour and the giving of the Tuey charge and might have

so stated if polled .We respectfully submit that under these

circumstances an abuse of discretion occurred when the

court below denied the motion to poll the jury. Indeed, one

is hard put to discern any reason why the court below

should have denied the motion. No legitimate interest of

The Commonwealth or the courts thereof is furthered by

denial of such a motion. And the facts referred to immed-

iately above indicate that if ever a poll was appropriate,

this was the case. Indeed, if the denial of a poll did not

constitute an abuse of discretion here, then we respectfully

submit there is virtually no case where it would.

AUG 30 if?

MICHAEL RODMK, JR.,CLERK

in the

Supreme Court of the United States

Octoser Term, 1972

No.. 72-5115

JAMES W. RICHARDSON,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

ERRATA TO BRIEF FOR THE

COMMONWEALTH OF MASSACHUSETTS

IN OPPOSITION

Roszert H. Quinn,

Attorney General,

Joun J. Irwin, Jr.,

On the brief: Assistant Attorney General,

Wiis C. Hotes, Chief, Criminal Division.

Francis J. Tzacve, Davy A. Mitts,

Legal Interns to Assistant Attorney General,

the Department Chief, Appellate Section.

Blanchard Press. Inc., Boston. Mass. — Law Printers

P. 10, line 29:

P. 10, line 32:

P. 19, line 16:

P. 20, line 15:

P. 20, bottom line:

ERRATA

“*1, 4, 10, 11, 12, 13 and 14’ should

read ‘‘24, 27, 33, 34, 35, 36 and 37.”’

**12-13”’ should read ‘‘36-37.”?

**15”’ should read ‘‘38.”?

**16-20’’ should read ‘‘39-43.””

‘*Appendix E”’ should read ‘* Appen-

dix at 44,”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.