Appellant McCowen Brief - Mass Cases

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The Court: I gather from materials that f have read and from representations . made to me that there was an incident at your home over the weekend. Is that fair to say? nuffman: Yes, sir. The Court: And I'm not asking you to describe it ox to assess it or to make any statement in that regard. But obviously I am quite concerned as to whether you can continue to serve as a juror in this case* Based on everything that's occurred over the weekend and this morning, can you fairly and impartially continue to serve as a deliberating juror in this case? Huffman: I - I think I can. I feel that f can. I mean, it had nothing to do with this case. The Court: Axe you confident of that? Huffman: Yes. The Court: As a result of the events of the weekend, have you formed any prejudice or bias toward either the Comnwealth or toward individuals who are arrested or involved with the criminal law in any way? nuffman: NO. The Court: Are you as fair and impartial and unbiased as you were when you were first seated. .? Huffman: Yes. ... The Court: Juror Buffman, I am going to have you continue to serve us as a juror. Ruffman: Thank you. TX, 3740-41. McCowen then renewed his motion to sequester. Tr. 3742-43. Later that day, the court received a note from the jury that they were deadlocked. Tr. 3755. At defense -13-
counsel's request, the trial court gave the Tuey- Rodriguez charge, Tr. 3756-59, and belatedly granted McCowen's sequestration motion. Tr. 3767-69. The court allowed jurors, including Auffman, to "call home and arrange for belongings to be brought to the hotel,," Tr. 3773. The next day, the Commonwealth produced two recorded calls Hicks made to Huffman's cell phone, just after sequestration, while jurors made such arrangements. The calls came from a secure line at the Barnstable House of Correction. Tr. 3787-88. In the calls, Auffman referred to Courtm, legal fees and to police harassing her neighbors, but there was no discussion of the case ox deliberations. Tr. 3793. The Commonwealth moved to remove her pursuant to Commonwealth v. Earrey, 436 Mass. 422 (2002) and G.L. c. 234, $268. Over MCCOwen'B strenuous objection, the trial court dismissed Huffman and replaced her with an alternate. Tr. 3798-3802, 3808. The court said it: would "follow the protocols" set forth in Commonwealth v. Connor, 392 Mass. 838 (1984) and Commonwealth v. Haywood, 377 Mass. 755 (1979), but held no voir dire hearing before the discharge. TT. 3812-13. On November 16, 2006, the altered jury convicted McCowen of all charges. Tr. 3855-58. The trial court -14-
Page 1 and 2: COMMONWEAITH OF MASSACHUSETTS SUPRE
Page 3 and 4: TABLE OF CASES Commonwealth v. DiGi
Page 5 and 6: Commonwealth v. Laguer 410 Mass. 89
Page 7 and 8: Commonwealth v. Freeman 407 Mass. 2
Page 9 and 10: Turner v . Safley 482 U.S. 78 (1987
Page 11 and 12: on November 16, 2006 App. 52. That
Page 13 and 14: inquired about Arnold's leering at
Page 15 and 16: something and another witness descr
Page 17 and 18: ejected that argument. App. 20-22.
Page 19 and 20: Lemire: We ran two. One standard wa
Page 21: instant case. Tr. 3427-29. The tria
Page 25 and 26: people, referring to African-Americ
Page 27 and 28: factual findings of the unavailable
Page 29 and 30: time-of-death evidence and competin
Page 31 and 32: Diaz, the U.S. Supreme Court overru
Page 33 and 34: 13, 2006, the trial court conferred
Page 35 and 36: necessary "good cause," was reversi
Page 37 and 38: perfunctory dismissal was error. "A
Page 39 and 40: the trial judge's reasons fox refus
Page 41 and 42: judge. Kamara, 422 Mass. at 620; Te
Page 43 and 44: (whether the defendant or the polic
Page 45 and 46: interrogators less likely to use co
Page 47 and 48: a a 0 a 0 1) 0 0 poverty, inebriati
Page 49 and 50: counsel in opening, questioning, an
Page 51 and 52: post-verdict dinner with the prosec
Page 53 and 54: L D D D D B D D I I find ,. [an] af
Page 55 and 56: she "misled the court," was cast in
Page 57 and 58: juvenile, probation, arrest and cri
Page 59 and 60: trial. Despite repeated requests, t
Page 61 and 62: Worthington when he attacked two to
Page 63 and 64: e a 0 The trial court's denial of t
Page 65 and 66: 0 e 0 0 0 Q Q D B other; if with on
Page 67 and 68: (1983). The trial court‘s media p
Page 69 and 70: These questions opened the door to
Page 71 and 72: fX. THESE VERDICTS c. 278, §33E. S
Page 73 and 74:
job was to help jurors understand i
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Appellant McCowen Brief - Mass Cases

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