MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, and pursuant to G. L. c. 123A, § 12, the defendant, Benjamin Turner, was adjudged a sexually dangerous person (SDP) and committed to the Massachusetts Treatment Center for an indeterminate period of from one day to life. Concluding that we cannot use the jurys postverdict statement to impeach the verdict and that, even if we could, the statement does not in any way prove that the jury believed it was the defendants burden to prove he was not sexually dangerous, we affirm.
Background. The procedural history of the case is not disputed, and there is no disagreement about the state of the evidence or the substance of the judges jury instructions. On the final day of deliberations, the jury sent the judge a note stating in pertinent part, “We would like to add a comment on the verdict either as noted on the verdict slip or for you to read aloud to the Court.” After hearing from the Commonwealth and the defendant, the judge responded in writing to the jury, “Dear jurors: No. The rules of Court limit the jurys speaking to a simple announcement of the verdict and no more. After you deliver your verdict, pursuant to my usual practice, I will meet with the jurors. If you wish after speaking with me to speak with the lawyers, I will make them available to you for that purpose, and also will be happy to discuss with you what other options you may have.” The defendant did not object to the judges written response. The jury subsequently found the defendant to be an SDP. The judge imposed the statutorily mandated commitment of one day to life.
Thereafter, the clerk, the judge, and the attorneys went to the jury room and the foreperson informed them that they had written a statement down on a piece of paper. The note read in pertinent part, “We agree that during his incarceration Mr. Turner has not learned to adequately manage his antisocial personality disorder. We believe that with this civil commitment to a treatment center Mr. Turner is being given an opportunity and additional time to learn the skills to manage his personality disorder, as well as the strategies necessary to make him sexually safe in society.”
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Discussion. After a verdict has been affirmed by a jury and recorded by the clerk, it is final. See Commonwealth v. DiBenedetto, 94 Mass. App. Ct. 682, 685 (2019). A verdict cannot be vacated based on a “jurors change of heart nor a jurors subsequent disclosure of a subjective disagreement with her apparent vote.” Commonwealth v. Dias, 419 Mass. 698, 703 (1995). “Impeaching a duly recorded verdict by subsequent inquiry into the jurors deliberations has long been prohibited.” DiBenedetto, supra at 685.
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“[I]t is essential to the freedom and independence of their deliberations that their discussions in the jury room should be kept secret and inviolable; and to admit the testimony of jurors to what took place there would create distrust, embarrassment and uncertainty.” Commonwealth v. Fidler, 377 Mass. 192, 196 (1979), quoting Woodward v. Leavitt, 107 Mass. 453, 460 (1871).
The defendant asks us to infer from the postverdict statement that the jury misunderstood the judges clear instructions regarding the Commonwealths burden of proof. We could not make such an inquiry even if there had been a clear statement by the jury that they believed it was the defendants burden. See DiBenedetto, 94 Mass. App. Ct. at 688 (juror testimony that they misunderstood instruction incompetent to impeach verdict duly affirmed and recorded).
However, even if we could consider the jurys postverdict statement in that way, we do not agree that it can be inferred that the jury erroneously shifted the burden of proof to the defendant to prove that he was not an SDP. If anything, the note indicates that the jury understood the elements that the Commonwealth had to prove beyond a reasonable doubt: (1) that he was a convicted sex offender, (2) that he had a mental abnormality or personality disorder, and (3) that the mental abnormality or personality disorder made it likely that he would engage in sexual offenses if not confined to a secure facility. The note does not contain any language to suggest that the jurors expected the defendant to show or prove anything. Accordingly, we affirm.
Judgment of commitment affirmed.
FOOTNOTES
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. As the letter was not made part of the record, the defendant has filed a motion in this court to expand the record to include the letter. The defendant should have filed a motion in the Superior Court to include the letter in the record. See Mass. R. A. P. 8 (e) (1), as appearing in 481 Mass. 1611 (2019). Nevertheless, we allow the motion.
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. Exceptions to this strict rule only apply where there is evidence of the existence of extraneous influences on the verdict or allegations that the verdict was infected by racial or ethnic bias. See Commonwealth v. McCowen, 458 Mass. 461, 497 (2010); Commonwealth v. Martell, 407 Mass. 288, 294-295 (1990); Cassamasse v. J.G. Lamotte & Son, Inc., 391 Mass. 315, 317-318 (1984); Commonwealth v. Fidler, 377 Mass. 192, 197 (1979).