COMMONWEALTH v. LEWIS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury found the defendant, Jessica Lewis, guilty of larceny by single scheme, G. L. c. 266, § 30, public assistance fraud, G. L. c. 18, § 5B, and making a false statement for medical assistance, G. L. c. 118E, § 39. The defendant argues on appeal that she is entitled to a new trial because the judge did not adequately answer a question from the deliberating jurors. Concluding that the judge did not abuse her discretion in responding to the question, we affirm.

Background. The Commonwealth presented strong evidence from which the jury could infer that the defendant lived with her three children and Jerome Allen, Jr., who was the father of the two youngest, from 2010 through 2014. For example, the defendant's addresses appeared on Allen's tax forms and pay stubs, and he claimed all three of her children as dependents. During that period, the defendant applied for and received Supplemental Nutritional Assistance Program (SNAP) and Transitional Assistance for Families with Dependent Children (TAFDC) benefits from the Department of Transitional Assistance (DTA), as well as medical benefits from MassHealth. On her applications, however, the defendant did not list Allen as a household member, did not report Allen's income, and certified under penalties of perjury that she alone was the children's custodial parent and that Allen had been continuously absent.

Witnesses from DTA and MassHealth testified that applicants for benefits must report when a spouse or other parent lives in the same home as the applicant and earns income, but need not report the other parent's income if the other parent did not live with the applicant. The witnesses further testified that if Allen's income had been taken into account over that four-year period, the defendant's TAFDC benefits would have been reduced by $ 15,115, her SNAP benefits by $ 16,912, and her MassHealth benefits by $ 5,000.

Both Allen and the defendant testified for the defense. Each testified that they never lived together. Allen explained that he used the defendant's address to avoid being confused with his father, Jerome Allen, Sr. They testified that Allen did not give the defendant money or pay child support, but that he would purchase clothing and other items, such as a television, for the children. He allowed the defendant to use his car on a daily basis and carried her on his insurance policy.

In opening statements and closing arguments, both the prosecutor and defense counsel told the jury that the defendant was required to report Allen's income if he lived with her, but that she was not required to do so if he did not. Defense counsel stressed in closing argument, “[The defendant] did not live with Jerome Allen. Jerome Allen did not live with [the defendant]. ․ She's not guilty of fraud or for stealing because she didn't live with Jerome.”

The judge gave the jury the model instruction on larceny. The judge asked counsel to supply the instructions for public assistance fraud and making a false statement for medical assistance; she charged the jury in accordance with the instructions upon which counsel had agreed. The instructions for both these crimes were phrased in terms of just two elements the Commonwealth was required to prove: (1) that the defendant knowingly failed to disclose material facts affecting eligibility ² and (2) that, as a result, she received more benefits than she would have received had she disclosed the material facts.

After they retired to deliberate, the jury sent the judge a note asking the following question: “If Mr. Allen doesn't live with Ms. Lewis but he does provide for the children in a significant way on a regular basis is that a crime for Ms. Lewis if she doesn't report it?” The prosecutor suggested that the judge direct the jurors' attention to the elements of the crime, particularly regarding the defendant's knowledge. Defense counsel asked the judge not to repeat the elements of the crime, but just to reiterate what the charges were. The judge decided to instruct the jury to rely on their collective recollection of the evidence.

The jury returned to the court room, and the judge instructed simply, “It is your collective memory of what is, it's your collective memory about these issues that is going to prevail.” The judge then briefly reminded the jurors of the three charges, as defense counsel had requested, and asked them “to go back and use your collective memory as to what is important and relevant ․ in addressing these charges.” The defendant did not object.

Discussion. A trial judge possesses broad discretion in deciding how to respond to questions from the jury during the course of their deliberations. See Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998). “The necessity, extent, and character of supplemental instructions in response to a jury request are matters within a trial judge's discretion.” Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990).

The way the parties presented the case made the issues of what the defendant had to disclose on her applications, and whether her failure to disclose such information was material, factual questions for the jury. As the defendant recognizes, the judge had to be cautious in answering the jury's question because her response carried the risk of usurping the jury's fact-finding function. See Commonwealth v. Marangiello, 410 Mass. 452, 462 (1991) (“Ordinarily, a judge should not usurp the jury's function by instructing them with respect to how particular testimony should be construed”); Commonwealth v. Cote, 5 Mass. App. Ct. 365, 369 (1977) (improper for judge “to direct what inferences the jury should draw from certain evidence”). Thus, the defendant does not contend that the judge should have answered the question “no.” (In her reply brief, the defendant explains, “To be clear, the trial judge should not have said whether Mr. Allen's contribution should or should not have been reported by Ms. Lewis, as that decision is clearly within the province of the jury.”)

Rather, the defendant suggests, for the first time on appeal, that the judge should have taken judicial notice of the governing regulations, which she had the power to do, and fashioned an instruction explaining the reporting requirements and calculations of TAFDC, SNAP, and MassHealth benefits. Thus, the defendant contends, the judge should have explained the definitions and composition of an “assistance unit,” a “filing unit,” and a “household” for the purposes of the TAFDC program under 106 Code Mass. Regs. §§ 204.300, 204.205, and 204.310; the concept of a “household” for SNAP purposes, see 106 Code Mass. Regs. § 361.200; and the composition of a “household” for determining MassHealth eligibility, see 130 Code Mass. Regs. § 506.002 (2014).³

We discern no abuse of discretion in the trial judge's refusal to craft such an instruction, especially without any suggestion from counsel that she do so. Instructing the jury on the contents of the regulations would have been a sharp departure from the way the parties had tried the case. The regulations were not in evidence, and suddenly instructing the jurors on the content of the regulations in the middle of deliberations would have been as likely to confuse the jurors as to enlighten them.

In any event, the judge's response to the jury's question -- which the defendant contends was incomplete, but not in any way erroneous -- did not leave the jurors “to speculate about whether DTA and MassHealth required Ms. Lewis to report Mr. Allen's contributions.” To the contrary, as defense counsel aptly observed, “The issue by every single witness was if they lived together the income counts. If they don't live together, the income doesn't count.” The judge's supplemental instruction referred the jury to the evidence presented, which provided the answer to their question.

We are not persuaded by the defendant's argument that the lack of a supplemental instruction on the contents of the regulations created a risk that the jury convicted the defendant based on conduct that was not criminal. The premise of the defendant's contention is that “the jury's question clearly indicated to the judge that they did not believe Ms. Lewis and Mr. Allen were living together.” We do not believe this was the only, or even the most likely, interpretation of the jury's question. The evidence was uncontested that Allen made significant and regular contributions to the defendant's household -- both the defendant and Allen testified as much. The jury's question could also suggest that they were as yet undecided about Allen's living situation, and were looking for a way to avoid deciding that issue. The judge's response did not mislead the jury; rather, it properly required them to resolve a question of fact. The judge did not abuse her discretion by answering the jury's question in this manner.

Judgments affirmed.

FOOTNOTES

2.   The first element could be considered three separate elements: knowledge, failure to disclose, and materiality. The instructions further defined both materiality and knowledge.

3.   We refer to the versions of the regulations attached to the defendant's brief. Some of these sections have since been renumbered. For example, the regulations regarding composition of assistance units, filing units, and households for TAFDC purposes are now found at 106 Code Mass. Regs. §§ 704.300 and 704.305.