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SJC-12629

COMMONWEALTH vs. VINCENT A. TISCIONE, THIRD.

Worcester. March 4, 2019. - June 25, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & 

Kafker, JJ.

Firearms. Jury and Jurors. Practice, Criminal, Jury and 

jurors, Deliberation of jury, Fair trial, Harmless error.

Constitutional Law, Jury, Fair trial, Harmless error. Fair 

Trial. Error, Harmless. Evidence, Constructive 

possession, Firearm.

Indictments found and returned in the Superior Court 

Department on September 5, 2014.

The cases were tried before Daniel M. Wrenn, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Sara A. Laroche for the defendant.

Susan M. Oftring, Assistant District Attorney, for the 

Commonwealth.

BUDD, J. In December 2015, the defendant, Vincent A. 

Tiscione, was tried on multiple charges relating to the illegal 

possession and improper storage of firearms and ammunition. 
2

During deliberations, a juror informed a court officer that she 

"could not continue" to deliberate. Subsequently, in a colloquy 

with the judge, the juror stated that she was "upset" by other 

jurors "being argumentative," and that she was "emotional" 

because of the health issues of various family members. After 

the colloquy, the judge discharged the deliberating juror and 

replaced her with an alternate juror. Ninety minutes later, the 

jury found the defendant guilty. The Appeals Court affirmed the 

judgments. Commonwealth v. Tiscione, 93 Mass. App. Ct. 1118 

(2018). We conclude that the juror was discharged for reasons 

that were not purely personal to the juror and that her 

dismissal was prejudicial error, and therefore we vacate the 

judgments entered against the defendant. Because we also 

conclude that there was sufficient evidence to survive the 

defendant's motion for required findings of not guilty, we

remand this case to the Superior Court for further proceedings 

consistent with this opinion.1

 

1 As we vacate the defendant's convictions based on the 

erroneous discharge of a deliberating juror, we need not reach 

the remaining issues raised on further appellate review, i.e., 

the admission of prior bad acts evidence and the prosecutor's 

closing argument. See Commonwealth v. Tiscione, 93 Mass. App. 

Ct. 1118 (2018). However, to the extent that these issues 

reemerge in a retrial, we reject the defendant's arguments for 

substantially the same reasons stated by the Appeals Court.
3

Background. 1. Evidence at trial. The defendant was

tried on several firearm-related offenses.2 Before his arrest, 

the defendant was living in an apartment with his girlfriend and 

his girlfriend's family. The Commonwealth's main witness -- the 

mother of the defendant's girlfriend -- testified that the 

defendant pointed a shotgun at someone in the apartment before 

placing the shotgun under his bed. In another incident, the 

witness also saw the defendant placing a handgun in his bedroom 

closet. When the defendant was away, the witness took the 

handgun and hid it in a hole in the wall of the apartment. The 

defendant later discovered that the handgun was missing; he 

stated, "Where's my gun? Where's my F-ing gun?" and "I'll be 

back, and you better find my F-ing gun."

The witness telephoned the police and directed them to the 

hidden handgun in the wall; she also informed the police that 

there might have been other guns in that bedroom. The police 

were thus able to recover a pistol and a shotgun from the 

apartment, both with ammunition. The theory of the defense at 

 

2 The defendant was convicted by a jury of two counts of 

possession of a firearm without a firearm identification card 

(G. L. c. 269, § 10 [h]), two counts of possession of ammunition 

without a firearm identification card (G. L. c. 269, § 10 [h]), 

and two counts of improper storage of a firearm (G. L. c. 140, 

§ 131L [a], [b]). He thereafter was convicted at a bench trial 

of two counts each of possession of a firearm and possession of 

ammunition while previously having been convicted of a violent 

crime or serious drug offense (G. L. c. 269, § 10G [a]).
4

trial was that the Commonwealth had not adequately proved that 

the defendant possessed the firearms and ammunition; in his 

motion for required findings of not guilty, the defendant also 

argued that there was no evidence that the ammunition was, in 

fact, capable of being fired. The judge denied the motion.

2. Jury deliberations. The jury began their deliberations 

late in the day on December 9. Approximately one and one-half

hours after resuming their deliberations on the morning of 

December 10, the jury submitted a note to the trial judge

asking, "If we cannot get 12-0, must we vote 'not guilty'?"3 The 

judge brought the jury into the court room and instructed them

that all verdicts must be unanimous.

During the lunch break, a court officer informed the judge 

that juror no. 44 had removed herself from the jury room, that 

she was "visibly upset, visibly shaken," and that she stated 

that "she could not continue as a juror." The court officer 

further stated that when he asked the juror to return to 

deliberations, she refused, at which point deliberations were 

halted. The judge conferred with the parties, and the juror 

then was brought before the court for a colloquy.

 

3 A second note, submitted with the first, asked whether the 

jury could consider the counts out of order. In response, the 

judge told the jury that they could address the counts in any 

order.
5

When the judge asked the juror why she would not go back 

into the deliberation room, she told the judge that "a couple 

people [were] being argumentative," that another juror accused 

her of "putting words in [his] mouth," and that "it was just 

enough to upset [her]." She acknowledged, however, that she did 

not feel threatened. The judge spoke with the parties outside 

the juror's presence and indicated that, based on her responses, 

it appeared that the juror's distress stemmed from her views on 

the case.4

When the juror returned, the judge made further inquiry. 

He noted that the juror was "emotional," and asked her about it. 

The juror responded by listing several family members and the 

health issues each was experiencing, including her father who 

had dementia, her sister's husband who had Alzheimer's disease, 

her husband who had undergone hip surgery one month prior, and 

her daughter's father-in-law who was recovering from open-heart 

surgery. She stated that she "[felt] like [she] should be with 

family."

The two then had the following exchange:

The judge: "So if I could summarize, you've got a lot on 

your plate separate and apart from your jury service; is 

that right?"

The juror: "Yes."

 

4 The judge stated: "At least preliminarily, it sounds like 

this is not a personal problem, but it relates to [the juror's] 

views on the case, or at least that's what I've heard so far."
6

The judge: "And the process of being put in a deliberation 

room and going back and forth was something that 

emotionally kind of tipped the balance for you?"

The juror: "Yes."

The judge: "And all of your life experiences and the loads 

of life, if you will, has reached a tipping point for you. 

Is that fair?"

The juror: "Yes."

The judge: "All right. I don't want to put words in your 

mouth. If what I've said isn't -- "

The juror: "No; I just -- I didn't think we would be here 

this long. I feel like I should be with my family; and the 

people in there -- it's just arguing, and I'm 

uncomfortable."

Ultimately, the judge concluded that there was "good cause" 

to discharge the juror, finding at that time that she had "a 

personal issue," that "the burdens in her life" were 

"significant," that "her personal emotional state . . . ha[d]

overwhelmed her," and that "she no longer [had] an ability to 

participate as a juror in this case." The defendant requested 

that the judge inquire of the other jurors to ensure that they 

were not "bullying" the juror for her views. The judge 

disagreed, stating that such an inquiry would impermissibly 

reveal the substance of the deliberations. Over the defendant's 

objection, the judge discharged the juror and replaced her with 

an alternate juror.
7

The judge instructed the remaining jurors to "begin 

deliberations anew" with the alternate juror. At some point 

during the renewed deliberations, the court belatedly received a 

note generated at 11:35 A.M. -- that is, after the jury had 

received their supplementary instruction that all verdicts had 

to be unanimous but before juror no. 44 was dismissed. This 

note indicated that, despite the judge's supplementary 

instruction, the jury had remained deadlocked for the remainder

of the morning.

Approximately ninety minutes after the alternate juror 

joined the jury, they returned guilty verdicts on all charges 

before them.

Discussion. 1. Discharge of deliberating juror. a. 

Standard. "The discharge of a deliberating juror is a sensitive 

undertaking and is fraught with potential for error. It is to 

be done only in special circumstances, and with special 

precautions." Commonwealth v. Connor, 392 Mass. 838, 843 

(1984). Discharging a juror during deliberations is governed by 

G. L. c. 234A, § 39, which states in pertinent part:

"The court shall have the discretionary authority to 

dismiss a juror at any time in the best interests of 

justice. . . . The court shall have authority to excuse 

and discharge a juror participating in jury deliberations 
8

after a hearing only upon a finding of an emergency or 

other compelling reason."5

The rules of criminal procedure similarly provide:

"If, at any time after the final submission of the case by 

the court to the jury but before the jury has agreed on a 

verdict, a juror dies, becomes ill, or is unable to perform 

his duty for any other cause, the judge may order him to be 

discharged and shall direct the clerk to place the names of 

all the remaining alternate jurors in a box and draw the 

name of an alternate who shall take the place of the 

discharged juror on the jury, which shall renew its 

deliberations with the alternate juror."

Mass. R. Crim. P. 20 (d) (3), 378 Mass. 889 (1979).

During deliberations, a juror properly may be discharged 

"only [for] reasons personal to [that] juror, having nothing 

whatever to do with the issues of the case or with the juror's 

relationship with his [or her] fellow jurors." Connor, 392 

Mass. at 844-845. "Allowing discharge only for personal reasons 

ensures that such action will not 'affect the substance or the 

course of the deliberations.'" Commonwealth v. Swafford, 441 

Mass. 329, 336 (2004), quoting Connor, supra at 845 n.4.

 

5 General Laws c. 234, § 26B, as amended through St. 1979, 

c. 344, § 9A, similarly provided that if a deliberating juror 

"dies, or becomes ill, or is unable to perform his duty for any 

other good cause shown to the court, the court may order him to 

be discharged," but was repealed in 2016. St. 2016, c. 36, § 1. 

The trial here occurred before the repeal of this statute; but, 

in any case, we have treated the "good cause" standard of § 26B 

as synonymous with the "best interests of justice" and 

"compelling reason" standards of G. L. c. 234A, § 39. See 

Commonwealth v. Cousin, 449 Mass. 809, 821 n.19 (2007), cert. 

denied, 553 U.S. 1007 (2008).
9

To make this determination, a judge must hold a hearing 

with the juror in question. Connor, 392 Mass. at 843-844. 

"[B]ecause the inquiry may well lead to a conclusion that the 

juror cannot be discharged, the judge must scrupulously avoid 

any questioning that may affect the juror's judgment." Id. at 

844, citing Commonwealth v. Webster, 391 Mass. 271, 275-276 

(1984). We defer to a judge's factual findings where they are 

not clearly erroneous. See Swafford, 441 Mass. at 337, citing 

Commonwealth v. Tennison, 440 Mass. 553, 560 (2003).

b. Application. Here, the judge properly held a hearing 

to question the juror in the presence of both parties to find 

out why the juror would not continue to deliberate and to 

determine whether removal of the juror was warranted. During 

the colloquy, the juror told the judge that she did not want to 

return to deliberate because members of the jury were "being 

argumentative," that another juror accused her of "putting words 

in [his] mouth," and that it "upset" her. Although the judge 

initially concluded that the juror's problem stemmed from her 

"views on the case" rather than a "personal problem," after the 

juror additionally expressed concern about her family members, 
10

the judge concluded that there was "good cause" to discharge 

her.6

Because the juror stated during the colloquy that her 

distress was based not on personal issues alone, but also on 

events that took place in the jury room with her fellow jurors, 

it was error to discharge her. See Connor, 392 Mass. at 844-

845. The Commonwealth points to Swafford, 441 Mass. 329, and 

Commonwealth v. Leftwich, 430 Mass. 865 (2000), two cases in 

which we upheld the discharge of a deliberating juror, arguing 

that the circumstances here were comparable. We disagree.

In Leftwich, 430 Mass. at 873-874, we concluded that the 

juror was discharged properly where the judge based the decision

to discharge on "the juror's statement that she could not 

continue to deliberate in a fair manner and because of the 

physical manifestations of stress that the judge had observed." 

The judge found that "the juror was very emotionally distraught, 

was shaking 'from head to toe,' and was clearly under 

extraordinary stress." Id. at 873. Although the juror's

"extreme emotional distress" was connected, in part, to 

deliberations, we concluded that "[i]f a deliberating juror is 

 

6 In finding that the juror's "personal life experiences" 

had "overwhelmed her, and [that] she no longer [had] an ability 

to participate as a juror," the judge did not explicitly find 

that the reasons for discharge were purely personal. However, 

to the extent that he implicitly so found, the finding was 

clearly erroneous.
11

determined to be experiencing severe emotional or mental 

distress, well beyond that level of distress that often 

accompanies deliberations, it is within the trial judge's 

discretion to discharge that juror after consideration of all 

the circumstances," because "[w]e do not . . . require jurors to 

serve at their peril." Id. at 874. In contrast, here, the 

judge noted that the juror was "visibly upset" and "emotional,"

but there was no finding that the juror was incapacitated by

"extreme emotional distress." See id. at 872-874 (deliberating 

juror was "having difficulty breathing," among other issues, due 

to stress of deliberations).

Nor are the circumstances in this case akin to those in 

Swafford, 441 Mass. at 337, where we held that a judge properly 

discharged a juror who "physically separated herself from the 

jury, took leave from participation in their deliberations, and 

told the judge four times that she could no longer be fair and 

impartial." We concluded that although the juror's behavior 

appeared to stem from a perceived slight by another juror, "the 

judge's finding that the juror's reclusive and abdicatory 

behavior was a problem personal to her, and not in any normal 

sense the product of her relationship to her fellow jurors, was 

not clearly erroneous." See id. Here, the juror did not tell 

the judge that she could not be fair, nor was there any 

indication that the juror's behavior was aberrant in any way.
12

We also note that, although the issue goes to the question 

of prejudice, there was no concern in either Leftwich or 

Swafford that the discharged juror held a minority view or that 

the jury were at an impasse. See Swafford, 441 Mass. at 337; 

Leftwich, 430 Mass. at 874. In contrast, here, as discussed in 

more detail infra, there were indications that the jury were

deadlocked at the time the juror refused to continue to 

deliberate.

We do understand that the judge here was in a difficult 

position: he was confronted with an emotional juror who had 

removed herself from the jury room and said that she would not

continue to deliberate. However, the judge had options 

available to him rather than dismissing the juror at that point.

For example, a judge in this situation might express 

sympathy for the juror's personal situation, but also remind the 

reluctant juror of the defendant's right to a fair trial, and of 

the oath the juror took at the beginning of the trial to "well 

and truly try the issue between the commonwealth and the 

defendant . . . according to [the] evidence." G. L. c. 278, 

§ 4. If, as in this case, it appears that emotions in the jury 

room are heated, a judge might direct the jury to take a break 

to allow for a cooling off period. See Mass. R. Crim. P. 20 (e)

(3), 378 Mass. 889 (1979). Indeed, depending on the time of 

day, a judge might even suspend deliberations until the 
13

following business day. In our view, a juror expressing 

reluctance (or an outright refusal) to continue to deliberate is 

an invitation to the judge to discuss the juror's concerns

generally -- that is, without delving into deliberations. See,

e.g., Commonwealth v. McCowen, 458 Mass. 461, 487-489 (2010) 

(member of deadlocked jury properly discharged where father of 

juror's child was being prosecuted by same district attorney). 

It is also an opportunity for the judge to explain the 

importance of that juror's participation in the process to 

ensure that the defendant receives a fair trial. See 

Commonwealth v. Torres, 453 Mass. 722, 731-737 (2009) (due to 

problem juror, "the deliberations took several sharp turns, but 

the judge, with a responsive and steady hand, kept the jury on 

course by continually focusing them on their duties to 

deliberate fairly").

We acknowledge that, had the juror rejoined the 

deliberations, the end result well might have been a mistrial. 

Although it is not the ideal outcome, mistrials do occur. If,

after "due and thorough deliberation," the jury report to the 

judge twice that they are deadlocked, "they shall not be sent 

out again without their own consent, unless they ask from the 

court some further explanation of the law." See G. L. c. 234A, 

§ 68C. Nevertheless, in these circumstances, an attempt must

first be made to determine whether the juror's purported 
14

inability to continue deliberations is a "demonstrable reality"

(citation omitted). See Connor, 392 Mass. at 846-847.

c. Prejudice. Having concluded that the discharge of the 

juror during deliberations was error, we turn to the question 

whether the error was prejudicial to the defendant. See G. L. 

c. 234A, § 74, which provides that any "irregularity" with 

respect to discharging or managing jurors, among other things, 

will not lead to reversal unless the error is preserved by 

objection and the "objecting party has been specially injured or 

prejudiced thereby."7

We begin by noting that the error was of constitutional 

dimension. Article 12 of the Massachusetts Declaration of 

Rights affords each criminal defendant the right to a fair jury 

trial. That right has the potential to be infringed upon when a 

juror is discharged during deliberations. Swafford, 441 Mass. 

at 336, quoting Connor, 392 Mass. at 845 n.4 (allowing 

"discharge only for personal reasons ensures that such action 

will not 'affect the substance or the course of the 

deliberations'"). See United States v. Brown, 823 F.2d 591,

596-597 (D.C. Cir. 1987) (discharging deliberating juror for 

 

7 We note that requiring that an objection be preserved 

under this statute could be in some cases "incompatible with the 

constitutional right to trial by jury." Commonwealth v. Sheehy, 

412 Mass. 235, 240 (1992); however, here the defendant made a 

timely objection to the juror's dismissal.
15

reasons related to his or her doubts about government's evidence 

is "unacceptable under the [United States] Constitution"). "In 

order to safeguard a defendant's right to trial by a fair and 

impartial jury, the judge must carefully scrutinize the reasons 

offered for discharging a juror at this critical stage of trial 

'to ensure that a lone dissenting juror is not permitted to 

evade [the] responsibilities' of his oath or to avoid the stress 

associated with persistently asserting a minority position in 

deliberations." Commonwealth v. Francis, 432 Mass. 353, 368 

(2000), quoting Connor, supra at 843.

A constitutional error preserved by a timely objection, as 

this one was, is reviewed to determine whether it was harmless 

beyond a reasonable doubt. Commonwealth v. Vinnie, 428 Mass. 

161, 163, cert. denied, 525 U.S. 1007 (1998), citing Chapman v. 

California, 386 U.S. 18, 23 (1967). Upon review, we conclude 

that, given the events that took place before and after the 

juror's replacement, and considering the substance of the 

colloquy with the juror, discharging the juror was not harmless 

beyond a reasonable doubt.

Prior to the colloquy with the juror, the jury sent a note 

to the judge asking, "If we cannot get 12-0, must we vote 'not 

guilty'?" During the colloquy, the juror indicated that people 

were arguing and that it upset her. An additional note, which 

was generated in the morning but did not reach the court until 
16

after the juror had been dismissed and replaced, indicated that 

the jury were deadlocked on two counts. Finally, approximately 

ninety minutes after the juror was replaced and the jury were

instructed to begin their deliberations anew, the defendant was 

convicted on all counts. Together, these facts allow for the 

inference that the removal of the juror had an impact on the 

outcome of the case. In the circumstances, the Commonwealth 

cannot meet its burden to show that the error was not harmless 

beyond a reasonable doubt. See Chapman, 386 U.S. at 24 (burden 

is on "beneficiary of a constitutional error to prove beyond a 

reasonable doubt that the error complained of did not contribute 

to the verdict obtained"). See also Commonwealth v. Marini, 375 

Mass. 510, 520 (1978) (same).

Jury trials often, if not always, require the balancing of 

countervailing concerns. It appears that in this case jury 

deliberations became contentious, and when combined with the 

juror's personal circumstances, this contentiousness resulted in 

the juror's reluctance to continue her involvement. However, 

ensuring a fair trial in which the outcome is a unanimous 

verdict or, if need be, a mistrial is the reason for the rule 

articulated in Connor, 392 Mass. at 844, which allows a 

deliberating juror to be discharged "only [for] reasons personal 

to [the] juror" (emphasis added). Thus, as "uncomfortable" as 

the juror may have felt in the jury room, our law does not allow 
17

for the removal of a dissenting juror to resolve an impasse in 

deliberations. See id. at 843, citing United States v. Lamb, 

529 F.2d 1153, 1156 (9th Cir. 1975). Here, reversal is 

required.

2. Sufficiency of the evidence. The defendant argues that 

the trial judge erred in denying his motion for required 

findings of not guilty on the counts relating to the possession 

of a shotgun because the Commonwealth failed to present 

sufficient evidence from which the jury could infer that the 

defendant had constructive possession of the shotgun recovered 

as a result of the search. We disagree.

In reviewing evidence presented at trial for sufficiency, 

we view it in the light most favorable to the prosecution. 

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979). Showing the 

defendant's constructive possession of the firearms and 

ammunition requires only "proof of 'knowledge coupled with the 

ability and intention to exercise dominion and control.'" 

Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015), 

quoting Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). 

"This proof 'may be established by circumstantial evidence, and 

the inferences that can be drawn therefrom.'" Dagraca-Teixeira, 

supra, quoting Brzezinski, supra.
18

Here, there was testimony that the defendant occupied the 

apartment where the firearms and ammunition were found. The 

defendant was also seen handling and storing the guns while in 

the apartment. The defendant had numerous personal belongings 

in the same closet as the shotgun. Finally, the guns and 

ammunition themselves were available to the jury as exhibits for 

inspection. The defendant does not dispute that he lacked the 

requisite firearm identification card under G. L. c. 269, 

§ 10 (h), or that the firearms were improperly stored under 

G. L. c. 140, § 131L (a) and (b). Thus, based on the evidence 

at trial, the defendant was not entitled to a required finding 

of not guilty on the charges pertaining to the shotgun.

Conclusion. We hereby vacate the judgments entered against 

the defendant on December 10, 2015, following the jury trial,

and on January 8, 2016,8 following the bench trial, and remand 

this case to the Superior Court for further proceedings 

consistent with this opinion.

So ordered.

 

8 Because the charges at issue during the bench trial were 

under G. L. c. 269, § 10G (a), they necessarily depended on the 

jury's guilty findings as to the various alleged violations of 

G. L. c. 269, § 10.