Erroneous Jury Instruction Leads to Reversal of Defendant's First Degree Murder Conviction

May 26, 2014
By Parker Scheer LLP on May 26, 2014 11:33 AM |

Last week, the Massachusetts Supreme Judicial Court (SJC) reversed the conviction of a criminal defendant for first degree murder after finding that the trial judge had erred in instructing the jury as to their deliberations on first degree murder versus the lesser offense of second degree murder.

In Commonwealth v. Figueroa, the defendant did not deny that he shot and killed the victim. Instead, the issue was whether the defendant's killing was done with the intent to kill or deliberate premeditation. If the jury believed that the defendant had the requisite intent, then a verdict of first degree murder would have been appropriate. However, if the jury believed that the defendant was so intoxicated from alcohol and/or cocaine that he could not have formed the legal intent, then a conviction of second degree murder would have been appropriate.

The jury deliberated for approximately ten hours over three days, during which it sent the judge several notes, before it sent the judge a note asking the following: "If the [jury] cannot agree on first degree murder (i.e. some feel it is first degree, some feel it is second degree), are we a hung jury or do we move on to consideration re: second degree murder?" The judge responded, "[Y]ou are at this point a hung jury if on this issue of first degree murder you cannot agree," and explained that "a hung jury is when the jury [are] deadlocked after due and thorough deliberations." The judge then gave the jury what is known as a "Tuey-Rodriquez instruction" - an instruction given to deadlocked juries to remind them that it is desirable that the case be decided, and to encourage them to consider whether their individuals positions, whatever they may be, are properly based upon the presence or absence of a reasonable doubt. However, the judge gave that instruction only with respect to the jury's deliberations on the first degree murder charge, and then sent the jurors back to deliberate some more.

The SJC found this instruction to be improper, noting that "[a] reasonable jury listening to this instruction would have understood that, if they were unable to reach a verdict with respect to murder in the first degree, a mistrial would be declared, and the case would need to be retried before another jury." This would be a misunderstanding of Massachusetts law.

As the SJC explained, when a jury is permitted to consider lesser-included offenses, one of three rules may apply. Under the "acquittal first" rule, the jury is instructed that it must deliberate on the most serious charge first, and only if the jurors unanimously find the defendant not guilty of the greater charge may they move on to deliberate on a lesser charge. Under the "soft transition" rule, a jury is instructed that it may consider the lesser offense if they do not find the defendant guilty of the greater offense. This seemingly subtle distinction is nevertheless significant, as under the "acquittal first" rule, the jury must come to a unanimous finding of not guilty as to the greater offense, whereas under the "soft transition" rule, the jury simply must not come to a unanimous verdict of guilty as to the greater offense. The third rule - the "reasonable efforts" rule - is a variation on the "soft transition" rule, and typically involves an instruction reserved for a seemingly deadlocked jury. Under that rule, a jury is instructed to move on to consider the lesser offense if, after all reasonable efforts, the jurors are unable to reach agreement on the greater offense.

Massachusetts rejects the "acquittal first" rule as one that significantly increases the risk of a mistrial, because "a jury unable to either convict or acquit on the greater charge will not be able to reach a lesser charge on which it might have been able to agree." Additionally, instructing a jury under that rule might lead dissenting jurors to agree to convict on the greater charge, because they recognize that not convicting on that charge will prevent them from convicting the defendant of any lesser charge, and require a retrial.

Instead, Massachusetts follows the "soft transition" rule, with that instruction to be delivered to the jury at the commencement of deliberations, and permits a "reasonable efforts" rule instruction when the jury appears to be deadlocked as to the greater offense. In this case, the SJC found that the trial judge's instruction essentially equated with the "acquittal first" rule. Instead, the jury should have been instructed pursuant to the "soft transition" and "reasonable efforts" rules.

The SJC concluded, "[i]f the jury had received the correct instruction, it is reasonably likely that they would have moved on to consider murder in the second degree, believing that they had exhausted all reasonable efforts to reach agreement as to murder in the first degree. Nor can we be substantially confident that the judge's erroneous instruction did not cause the hold-out juror or jurors to 'throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all,' especially where the defendant admitted that he shot the victim. Therefore, we reverse the defendant's conviction of murder in the first degree." The SJC remanded the case to the superior court, allowing the Commonwealth to choose between entry of a verdict of murder in the second degree, or retrial of the defendant on the charge of first degree murder.