COMMONWEALTH v. ROBERT PERRO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted after a Superior Court jury trial of three counts of aggravated rape of a child, G. L. c. 265, § 23A; one count of witness intimidation, G. L. c. 268, § 13B; one count of reckless endangerment of a child, G. L. c. 265, § 13L; and one count of indecent exposure, G. L. c. 272, § 53.

In this direct appeal, he argues that the judge coerced a verdict, see Commonwealth v. O'Brien, 65 Mass. App. Ct. 291, 294 (2005), in violation of his rights under the Sixth Amendment to the United States Constitution and art. 12 and art. 29 of the Massachusetts Declaration of Rights, when the judge ordered a juror to return to deliberating, rather than giving the Tuey-Rodriquez charge to the entire jury. See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973); Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851).

The trial in this matter lasted less than three hours. After deliberating for approximately three hours, the foreperson sent out a note stating, “We cannot come to a unanimous decision on any count. How do we proceed? Please advise.” The prosecutor asked the judge not to give the Tuey-Rodriquez instruction yet and to instead direct the jurors to keep deliberating. Meanwhile, the defense attorney suggested that the Tuey-Rodriquez instruction “might be appropriate at this time.” The judge stated on the record that he was not sure that he could make the finding of due and thorough deliberations required to give the Tuey-Rodriquez charge. See Commonwealth v. Carnes, 457 Mass. 812, 827 (2010). Instead, he gave a what he called “mini-Tuey“ charge, which is approximately the same as the American Bar Association's (ABA's) standard jury instruction for a deadlocked jury. In Rodriquez, 364 Mass. at 101, the Supreme Judicial Court described the ABA's instruction as “less emphatic” and reprinted it in its Appendix B.

The jury returned to deliberate for a little over an hour, after which they adjourned for the day. They reconvened the next morning. During the morning, the judge received another note from the foreperson that stated, “We have a juror who would like to speak with the judge, please, Number 9.”

The judge had juror no. 9 brought into the courtroom and conducted a colloquy. The judge instructed the juror that he could not say anything about the deliberations or what was going on in the jury room. The judge asked the juror whether he was willing to maintain his oath to conscientiously try the charges and decide them according to the evidence. The juror said, “Yeah.” The judge asked the juror if the juror believed he could review the evidence impartially based on a fair consideration of the evidence and discuss the issues with his fellow jurors. The juror said, “Yes.” The judge then asked the juror to return to deliberations with his fellow jurors. The juror said he did not feel comfortable doing that.

The judge said, “So is the answer to your question, no, that you don't want to go back?” The juror said, “I don't want to go back.” The juror began saying, “They're better off --” and, though the judge told him not to say why or what, the judge did note that the juror had indicated that the juror did not want to go back.

The judge then asked whether the reason was something personal or had to do with the case. The juror said it had to do with the case. The judge said, “It has to do with the case [and] perhaps your relationship with your fellow juror[s]?” And the juror said, “Yes.” The judge explained that because the issues involved the juror's relationship with the other jurors in the case, the judge was not permitted to discharge the juror, who was required to go back and deliberate. There was a brief discussion with counsel and then the judge sent the juror back to deliberate.

The entire jury were brought into the courtroom and were instructed that the conversation with the individual juror had nothing to do with their role as the sole and exclusive judges of the facts of the case. The judge told them that they should find the facts after fair consideration of the evidence and apply those facts and the law as he had instructed them, and that the verdict had to be unanimous. The jury then was sent out to resume deliberations at around 11:30 A.M.

Twenty-seven minutes later, the jury reported that they had reached a verdict. The jury were polled, and all jurors, including juror no. 9, reported finding the defendant guilty on all counts.

The defendant's argument is that the judge coerced the verdict and, instead of sending the juror back to deliberate, should have given the Tuey-Rodriquez charge. The defendant made no such request at trial and made no objection to the mini-Tuey instruction given. Thus, because the claim of error was not preserved below, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. Abdul-Alim, 91 Mass. App. Ct. 165, 171 (2017).

We are not persuaded that there was error here. In the recent case of Commonwealth v. Chalue, 486 Mass. 847, 886-887 (2021), the Supreme Judicial Court gave detailed step-by-step guidance to trial judges for situations such as this. The judge in this case followed this guidance with extreme care.

The judge properly treated the juror's statement that he didn't “feel comfortable doing this no more” as a retraction of the affirmative answers he had given to the previous questions, and the judge followed the protocol set out by the Supreme Judicial Court. The judge asked the juror whether the reason he responded that way was personal to the juror or involved issues with the case or with the juror's relationship with his or her fellow jurors. See Chalue, 486 Mass. at 886-887.

Chalue, 486 Mass. at 886-887, says that if the reasons are personal, the juror may be excused. But Chalue also says,“[i]f on the other hand, the juror states that the reason he or she cannot continue deliberating is not a personal matter, the judge must simply inform the juror that the judge cannot discuss the issue and send the juror back to continue deliberating. If the juror continues to refuse, the judge could consider whether there has been due and thorough deliberation and whether it would be appropriate to give the traditional Tuey-Rodriguez charge to the entire jury.” Id. at 887. This is what happened in this case.

We do not read Chalue to have required the judge to give the Tuey-Rodriquez charge in these circumstances. Although the juror stated he did not want to go back, we see no abuse of discretion or other error of law in the judge following Chalue here by sending the juror back to deliberate. Because we see no error, we affirm.

Judgments affirmed.