-: SJC-12496, Commonwealth v. Jameson Phuon.
-: Mr. Reardon, good morning.
-: Good morning, your honors.
Attorney Theodore Reardon for the defendant, Jameson Phuon.
With me today is attorney Deborah Reordon.
Mr. Phuon's first degree murder conviction
must be reversed because the jury was instructed
that they must convict for the highest degree of murder
proven by the commonwealth.
The jury returned two verdicts in this case,
that the defendant was guilty of murder one,
and guilty of murder two.
By convicting him of murder two,
there is an ambiguity as to whether murder two
was the hightest degree proven by the commonwealth.
The following facts and circumstances support
that there is an ambiguity in the verdict.
Number one, the jury was not instructed
to consider murder two,
only if the commonwealth had not proven murder one.
Number two, the prosecutor stated
that the jury had returned quote, "Both verdicts."
And requested further inquiry to, quote,
"Make sure everyone was on agreement on the first."
The fact that the prosecutor made this request
supports that she thought
there was an ambiguity in the verdict.
And likewise the prosecutor also mentioned
that she had past experiences that juries did not understand
that it's either murder one or murder two,
but you can't convict for both.
The most helpful case that I've been able to find
to support Mr. Phuon's position is the Dunn case
where the jury was instructed,
Mr. Dunn was charged with armed assault
with intent to murder.
There was no lesser offense instruction
but the verdict slip stated that the offense
was the lesser offense of assault with intent to murder.
The court held that whereas there was no instruction
on the lesser offense,
there was no doubt that the jury intended to convict
for the charged offense.
But the court noted
that if there was any reasonable doubt
about whether or not the jury
intended to convict for the lesser
the court would have given the defendants
the benefit of that doubt.
And in this case, that's exactly what we have.
The jury was instructed on the lesser offense of murder two,
the jury did convict for murder two,
and thus there is an ambiguity as to whether or not
murder two is the highest offense charged.
For all these reasons, Mr. Phuon contends
that his murder one conviction must be reversed.
If the court has any questions,
I'd be glad to entertain them.
-: Okay, Justice Lenk, do you wish to go first or last?
-: I think I'd like to go last, thank you.
-: Okay, then Justice Gaziano, you're up.
-: Thank you, good morning Mr. Reardon.
-: Good morning.
-: So the defense council did not object to the procedure
used by the judge, right?
-: Well what happened was
he initially asked for the jury to be polled,
as to the murder conviction.
And when the clerk started to do so,
the clerk became aware that murder two and murder one
were both checked off on the verdict slip.
That's when a side bar was held,
and the defense council consulted with the defendant
and decided not to pursue further polling of the jury.
But at a later point,
the prosecutor stated that she wanted to make sure
that there was further inquiry
to make sure that everyone was in agreement on the first.
So even though the defense waived the further polling,
the commonwealth still wanted further inquiry
to make sure that everyone was in agreement
on the first degree.
-: And tell me what you think the judge should have done?
-: I think the judge should have made further inquiry
as the prosecutor had requested.
-: Send them back to the jury room and say,
you can't have two verdicts.
The verdict is whatever's proven by the commonwealth
beyond a reasonable doubt, please clarify.
-: Yes.
And actually the suggestion made by the prosecutor
was that in past instances where this had happened,
the jury had been sent back with a clean verdict slip
and said choose one or the other but not both.
A redo on the verdict slip would have been appropriate.
-: In this case, the judge basically, did not-
Not trying to say didn't do anything,
but the judge basically said, well, one's a lesser included,
so it's a murder one, correct?
-: Correct, that essentially what she did.
Yes.
-: Thank you, Mr. Reardon.
-: Thank you.
-: Justice Lowy.
-: Good morning, Mr. Reardon.
-: Good morning.
-: So the waiver issue is not the issue
I really want to address
because we are looking at this
under substantial likelihood.
One of the issues here is that
the verdict slip's don't control.
But what controls is what happens in open court,
do you agree with that?
-: Yes.
-: And am I correct
that when the foreperson was asked
about first degree murder that the foreperson
actually indicated what theory or theories
that they were finding him guilty of,
of first degree murder,
and that in fact they didn't find
beyond reasonable doubt on one of them?
-: That's, well, yes.
They did state the two theories
that they found him guilty on.
I don't think they explicitly said
that they did not find him guilty on the third theory.
-: Okay.
My memory may be wrong about that.
Okay, thank you.
-: You're welcome.
-: Justice Budd.
-: Hi, good morning.
-: Good morning.
-: You said that there were,
maybe I misunderstood.
You said that there were three murder convictions?
-: No, I think the last question pertained
to the three theories of murder.
-: Oh, okay when you gave your presentation
I had noted here three murder convictions.
I must have misunderstood.
-: Oh I'm sorry.
-: No, no, no, no problem.
Okay, so I'm just trying to understand your theory,
why does finding the defendant guilty
of both first degree murder
and second degree murder suggest
that the highest offense proven is second degree murder?
-: Well when the jury was instructed,
you are to find the defendant guilty
for the highest degree proven by the commonwealth,
and the jury checks off murder two,
there's a suggestion that murder two
is the highest degree proven by the commonwealth.
And in some cases, juries are charged,
especially when going over the verdict slip,
that you don't need to get the murder two
if the commonwealth has proven murder one.
Juts skip over the rest of the verdict slip.
But that wasn't given in this case.
So the omission of that instruction about,
you don't need to get to murder two
if murder one was proven,
coupled with the fact that they were instructed
that you must convict for the highest degree
proven by the commonwealth led to an ambiguity
as to whether or not murder two
was the highest degree proven.
-: Yeah, I'm really having trouble with that
because I'm looking at the verdict slip,
and it clearly has marked murder first degree,
guilty of offenses charged.
And I see further down it also has
marked guilty of lesser included offenses,
murder second degree.
But that doesn't negate the fact that it says above,
guilty of murder first degree.
-: Well not necessarily negated,
but it creates an ambiguity as to whether or not
which is the highest offense proven.
And I think the prosecutor herself
felt that there was an ambiguity,
and she wanted further inquiry because she believed
that there was a question
of what was the highest degree proven.
-: She probably wanted clarification
so that something like this wouldn't happen, huh?
Well at any rate.
Just tying very briefly to the second issue.
The fact that there were convictions
of both possession of ammunition,
and convictions for possession of a loaded firearm.
What should have happened here?
-: Well, what should have happened
was after the jury returned its verdict,
the counts for 24 and 25 for possession of the ammunition
should have been dismissed as lesser included of 22 and 23.
They should have just been dismissed.
-: Okay, and that's what you're asking for?
-: Yes, please.
-: Okay.
Thanks, I have no further questions.
-: Thank you.
-: This is Chief Justice Gants.
The verdict slip which I'm looking at
has some printed names on the side.
Were those printed by the clerk,
or were those printed by the foreperson of the jury?
As to the names of the individuals.
-: They were printed by the foreperson I believe.
-: And I've never seen a verdict which says,
by what weapon.
So this was also a special verdict,
they were supposed to.
What was the felony murder theory?
-: The felony murder, I believe,
the home invasion.
-: Oh I see, okay.
So it was a home invasion
and then...
Were they asked to, I mean,
I have to go back, I guess, to the judge's instructions.
Did she ask to identify who the victims were
of the home invasion?
These names and then was asked
specifically to identify by what weapon,
was that because only a firearm?
Trying to think would it matter
as to whether it was a life felony?
-: So each one of these individuals,
they were shot.
And so the other indictments all pertain
to offenses as to these individuals.
-: I see, okay.
I mean looking at it, I think my own guess
is that what the jury did was they said,
we find him guilty of first degree as to two theories,
and we don't find him guilty as to the theory
of extreme atrocity of cruelty.
And as to that theory, we find him guilty of second degree.
But of course we don't positively know that.
Taking the point, I think I wrote it down,
so I'm not departing from it.
Where a jury finds the person guilty
on a theory of premeditation,
is there any uncertainty that the jury intended
at least as to that theory that it be first degree?
-: Yeah.
I don't think,
I think that there was an ambiguity
as to whether or not murder two was the highest degree
proven by the commonwealth under any version,
under any theory.
And by the fact that they checked off
that murder two was the highest degree,
well they were instructed to find the defendant guilty
of the highest degree proven.
And they checked off murder two.
So it would be our position that murder two was the highest,
at least for some jurors,
murder two was the highest degree
proven by the commonwealth.
-: I have no further questions.
Justice Lenk?
-: Yeah, I'd like to explore the whole notion
of having the ambiguity created
by a document that doesn't matter.
The verdict slip doesn't matter,
it was said in open court, right?
-: It is.
But that lends to the next problem
that the jury,
the court received a partial amount of the jury's verdict.
Under the Lawrence versus Stern's case,
it's supposed to receive the complete and valid verdict.
-: Well tell me, could you tell me what was said?
I am looking for it, I can't find what was said
by the, when the clerk said the jury verdict in open court
then asked the jurors, jury foreperson,
to affirm that this was the verdict of the entire court.
Oh I'm sorry, of the entire jury.
What were the words used,
could you explore that with me, please?
-: Sure.
And this is on pages 16 and 17 of my brief.
-: Okay.
-: I can read the transcript if you like.
-: Please.
-: Okay.
The clerk says, "Madame foreperson, has your jury agreed
"upon its verdict?"
Foreperson says, "Yes, we have."
Clerk says, "Pass the verdict foreword please."
The court says, "All right, they are in order
"and may be recorded."
Clerk, "Madam foreperson,
"on indictment number 2011137 number one,
"charging the defendant, Jameson Phuan
"with the offense of murder, what say you?
"Is the defendant guilty, or not guilty."
Foreperson, "Guilty."
Clerk, "Guilty of what?"
Foreperson, "Guilty of offense as charged.
"Theory of premeditation, guilty.
"Theory of extreme atrocity, not guilty.
"Theory of felony murder, person other than Kareem-"
I'm not sure how to say the name.
"...Ower, guilty.
The clerk, "Members of the jury,
"you will harken to the verdict
"as it is recorded by the court?
"Jurors, on their oath, find the defendant guilty
"of murder in the first degree
"as to the theory of premeditation,
"and as to the theory of felony murder.
"So say you, madame foreperson?"
Foreperson, "Yes."
The clerk, "So say you all, members of the jury?"
The jurors, "Yes."
-: Okay, and they didn't inquire to the jury
as to the verdict
as they were reading the indictments, right?
-: Correct.
-: And did they inquire as to the indictment as to,
was there an indictment for murder two?
-: No.
-: So the jury expected to read down the last indictments
and the request was that the jury be polled
as to its verdict on the first indictments.
And in doing so, and noticed the jury slip,
I'm sorry, then the clerk, she asked for a moment.
At which point she told the judge,
and the judge expressed her view the verdicts
were not inconsistent.
And so on and so forth.
And you're saying that the document that did not matter,
that was never read in open court,
is the one that is somehow gonna tell us what to do?
Like I don't understand that.
I don't understand, when you've got something,
all was said in court
and never contradicted by anybody else,
why it is that that would not be the governing thing
under our cases?
I mean suppose there was no verdict slip.
Suppose the verdict slip was destroyed inadvertently,
or deliberately.
Would that have changed the verdict in this case?
-: Well I don't think the verdict slip
is completely irrelevant.
There are several cases I cited in my brief
that discuss how it's a good indication
of what the jury intended
in reaching its conclusion.
And while the portion I just read
is what happened in court
I'm citing to the Lawrence versus Stern case
from 1832 where it's put that the trial judge
must receive the complete, quote,
"Complete and valid verdict."
And its opposition that by not inquiring as to murder two,
the court did not receive the complete and valid verdict.
-: Why not?
-: Well because we have an indication-
-: I understand the verdict.
We were listening to what was being said in open court.
What was the decision she, the clerk,
should have done that she didn't do?
Was there an indictment for murder two?
-: Well there was in instruction on murder two.
And I think the clerk should have inquired,
given that there was in indication on the slip,
what did you find as to murder two?
-: Okay, thanks.
-: Thank you.
-: I don't have anything else.
-: Any further questions of the justices?
Hearing none, Mr. Reardon, thank you.
And Mr. Farider you may commence.
-: Thank you, your honor.
-: Thank you, your honors.
Timothy Farider, assistant district attorney
for the commonwealth, for Middlesex.
I first want to start with the Dunn case
and the language that was used in that case.
If there's any reasonable possibility
that the jury intended the lesser verdict,
we would have given the defendant
the benefit of that lesser conviction.
I think it's important to point out that the Dunn case
is the exception to the normal rule.
In that case, both the verdict slip and the clerk
when he inquired of the jury
used the language assault to murder,
instead of armed assault with intent to murder.
The trial judge, chalking it up to a scrivener's error,
recorded the verdict as armed assault to murder.
And this court, finding that there was no possibility
that the jury intended the lesser included offense,
allowed the exception to the rule in that case,
and allowed the armed assault
with intent to murder conviction to stand.
Here the commonwealth is asking this court
to apply the normal rule, not the exception,
normal rule being nearly 200 years old
from Lawrence v. Stern where the only verdict
which was be received and regarded as a complete
and valid verdict of a jury
upon which judgment can be rendered is an open
and public verdict affirmed in open court.
Meanwhile, the verdict slip that's been held
is of no binding legal significance.
In this case, the jury who was properly instructed
on the elements of murder,
instructed that they must be unanimous
as to each theory of murder,
and on their duty to return a verdict
of the most serious offense as proven by the commonwealth,
returned the verdict of first degree murder in open court.
Which was affirmed by the entire panel.
And I think there are other cases
that are in stark contrast to this,
particularly the Powers case from the appeals court
where the verdict indicated the exact opposite
of what was announced in open court,
but the open court verdict is what stood.
And if there are any questions,
I'd be happy to take them.
-: Okay, Justice Gaziano.
-: No questions, thank you.
-: Justice Lowy.
-: Hello?
Hello?
-: Justice Lowy?
-: Yes, no questions.
Thank you.
-: Justice Budd?
-: I'm all set, thank you.
-: The better course would have been to go back to the jury,
wouldn't it?
-: The judge suggested that the polling continue
and it was the defense attorney who,
after consulting with his client,
explicitly waived polling.
So I think it certainly would have eliminated this issue,
but the defendant explicitly waived polling
which is why we're here under 33E review.
I think he's trying,
I think most likely try to preserve his error
to have something in a case with overwhelming evidence
to have something to present on appeal.
-: Right, and therefor isn't it the better course
for the judge to have done what I think
what the prosecutor suggested,
was proposed by at least another, I believe,
quite experienced prosecutor?
Which is to instruct the jury
and make sure that there is,
you eliminate even this issue?
-: Yes.
I agree, it probably would have.
The judge, actually, when she noticed the error,
brought it onto side bar to suggest that polling continue
in order to eliminate this issue.
It was the defense attorney who explicitly waived polling.
The prosecutor's comment that's being referred to
unfortunately wasn't made until after
the jury was already discharged.
I think by then it was too late.
It would have been the better course, but it didn't happen.
So we are where we are.
But there's no substantial likelihood
of a miscarriage of justice.
-: I have no further questions.
Justice Lenk?
-: I have nothing, thank you.
-: Okay, thank you.
That will conclude then this.
Thank you both.
Take care.
-: Now exiting.