COMMONWEALTH v. JIMMY DIXON (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a Superior Court jury trial, the defendant was convicted of one count of possession of marijuana with intent to distribute, and acquitted of two counts of unlawful possession of a large capacity feeding device (firearm counts). The defendant's strategy at trial was to concede guilt as to the marijuana count given what his own counsel characterized as the “overwhelming” evidence against him, and instead to focus on the firearm counts. Without objection, the judge instructed the jury that they were to apply the law as he had given it to them, and that they should not concern themselves with “the issue of punishment.” On appeal, the defendant argues that by divesting the jury of their power of nullification, the instructions constituted reversible error. We affirm.

Discussion. The defendant points out that in the early years of the United States, juries had a role in determining the law, not just the facts. He also notes that this remains true in four states other than Massachusetts. Nevertheless, it could not be clearer under current Massachusetts law that determining the law is the exclusive province of the judge. See, e.g., Commonwealth v. Firmin, 89 Mass. App. Ct. 62, 64 (2016) (“jurors must apply the law as interpreted by the court” [quotation and citation omitted]). The law is equally clear that the jury is to disregard the consequences of its verdict. See Commonwealth v. Sanchez, 70 Mass. App. Ct. 699, 701 (2007) (“Massachusetts courts 'have long held it improper for a judge to place the issue of punishment before the finder of fact'” [citation omitted]).¹

There was no error in the judge so instructing the jury, much less a substantial risk of a miscarriage of justice.²

Judgment affirmed.

FOOTNOTES

1.   To be sure, as the defendant contends, a jury retains the practical ability to nullify the law in light of the fact that a not guilty verdict is essentially unreviewable. However, this is different from a recognized right to nullify the law (about which the jury must be instructed). See Commonwealth v. Kirwan, 448 Mass. 304, 319 (2007) (“Jury nullification is inconsistent with a jury's duty to return a guilty verdict of the highest crime proved beyond a reasonable doubt”). Failure to instruct a jury on nullification does not deprive jurors of the opportunity to vote their consciences. See Commonwealth v. Carleton, 36 Mass. App. Ct. 137, 145 (1994), S.C., 418 Mass. 773 (1994).

2.   Although we need not reach the issue of prejudice, we note that the defendant got exactly what he requested: acquittals of the firearm counts.