MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of two counts of murder in the second degree and one count of unlawfully possessing a firearm. After the defendant learned that one juror (juror A) had posted about the trial on Facebook, the defendant filed a motion for postverdict inquiry to investigate whether the jury had been subjected to extraneous information or influence. The trial judge denied that motion. On appeal, the court affirmed the defendants convictions, but reversed the denial of his motion for postverdict inquiry and remanded for further proceedings. See Commonwealth v. Morrison, 97 Mass. App. Ct. 731, 743-744 (2020).
On remand, the trial court judge found that juror A did not “receive any extraneous information, did not learn any extraneous information, was not subject to any extraneous influence during the trial of this case or during the jurys deliberations, and did not expose any other juror to extraneous information or influence.” As a result, the judge ruled that further inquiry was not warranted.
2
On the defendants further appeal, we affirm.
We begin by noting that, “[w]ith few exceptions ․, ‘it is essential to the freedom and independence of [jury] deliberations that their discussions in the jury room should be kept secret and inviolable.’ ” Commonwealth v. Heang, 458 Mass. 827, 858 (2011), quoting Commonwealth v. Fidler, 377 Mass. 192, 196 (1979). “A trial judge has broad discretion in determining whether a postverdict inquiry of a juror is warranted and is under no duty to conduct such an inquiry unless the defendant makes a ‘colorable showing’ that extraneous matters may have affected a jurors impartiality.” Commonwealth v. Murphy, 86 Mass. App. Ct. 118, 122 (2014), quoting Commonwealth v. Guisti, 434 Mass. 245, 251 (2001), S.C., 449 Mass. 1018 (2007).
Juror A made his Facebook posts both during and after the trial. The defendant submitted copies of these posts in support of his initial motion for further inquiry, and they therefore were part of the appellate record before the previous panel. See Morrison, 97 Mass. App. Ct. at 740-741 (discussing posts made “during the trial and the jurys deliberations” as well as “after the jury returned their verdict”). In that earlier appeal, the courts principal concern was whether any potential responses to juror As posts had resulted in his, or other jurors’, exposure to extraneous information or influence from third parties. See Morrison, supra at 741-743, citing Guisti, 434 Mass. at 249-253. For this reason, the court indicated that the judges focus on remand should be on juror As preverdict posts, and that his “inquiry need not extend to the jurors postverdict posts.”
3
Morrison, supra at 743. After all, what outside parties might have communicated to juror A after the verdict had been reached was essentially beside the point.
On remand, the judge conducted an evidentiary hearing during which he examined juror A. Because that hearing revealed that the only responses that third parties had made to juror As Facebook posts lacked any real substance (amounting instead to mere thumbs-up “likes” or reaction emojis), the judge found that the jurys deliberations were untainted by extraneous information or influences from outside parties. In the current appeal, the defendant makes no challenge to those findings or rulings. Instead, he argues that the record reveals other improprieties in the jurys deliberations. First, he argues that juror A improperly injected into the jurys deliberations his own specialized knowledge about whether night vision video surveillance recordings depicted the true colors of objects being recorded.
4
Second, he argues that jurors improperly used an unspecified mathematical formula to synchronize the timing of various video recordings and phone calls.
As the Commonwealth argues, there is at least some doubt whether these arguments are properly before us. That is because the court arguably rejected such arguments in the earlier appeal, and, regardless, the defendants contentions fall outside the scope of remand that the court ordered. See Morrison, 97 Mass. App. Ct. at 741-744. At the same time, as the defendant points out, the court did not prohibit the judge from considering issues raised by the postverdict posts, and in any event, an appellate court can in “rare instances” necessary to “prevent manifest injustice,” revisit the holding of an earlier appeal in the same case. See Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394, 397-398 (2012), and cases cited. Without resolving whether the courts earlier opinion answered the questions the defendant now seeks to raise, we turn to the merits.
It is axiomatic that jurors are entitled to evaluate the evidence adduced at trial in light of their own life experiences. Commonwealth v. Watt, 484 Mass. 742, 758-760 (2020). That principle continues to apply where the relevant life experiences impart specialized knowledge. Id. at 757 n.19 (jurors’ own knowledge about gang signs from career as journalist and from watching television did not constitute extraneous information). See Commonwealth v. Caruso, 476 Mass. 275, 289 (2017) (jurors entitled to rely on accuracy of computer time-keeping function, “[e]ven in the year 2000,” based on “their own common sense and life experience”). There was no impropriety in juror As applying knowledge he had gained from previously working with surveillance cameras, or in sharing his perspective with other jurors.
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The defendants second argument also fails, because he has not established any impropriety in the jurors attempting their own methods to synchronize the times shown on the various video recordings and phone records. In testimony that the judge on remand credited, juror A made it clear he did not conduct any outside research or otherwise consult any outside sources about this synchronization issue. Nor has the defendant made any colorable showing that other jurors did so either.
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Absent that showing, the judge was not required to examine other jurors, and he did not abuse his discretion in ruling that no further inquiry was required. See Murphy, 86 Mass. App. Ct. at 122 (requiring defendant show “more than mere speculation” [quotation and citation omitted]). We therefore affirm the judges order, dated August 2, 2021.
So ordered.
Affirmed
FOOTNOTES
2
. Through a supplemental motion, the defendant specifically sought to have juror As computers and cell phones examined, and for the Commonwealth to request juror As Facebook records.
3
. The court explained that the postverdict “posts largely described the jurys evaluation of the evidence, along with the jurors opinions of the conduct of the attorneys in the case. There is no indication in the posts of any intrusion of extraneous information into the jurys deliberations and, unlike the jurors preverdict posts, there is no risk that responses by third parties to his postverdict posts could bring extraneous information or influence to bear on the jurys deliberations.” Morrison, supra at 743-744.
4
. Juror A referenced this issue in two of his postverdict Facebook posts. In addition, at the evidentiary hearing held on remand, juror A testified that, based on his “experience [ ] at work [for a security company] ․ where [there is] ․ over 500 cameras,” he told other jurors that, “sometimes night vision cameras could change color of clothing.”
5
. We additionally note that the phenomenon that night vision video cameras may not portray the true colors of objects being recorded is well known, and the court recently observed that the scientific principles underlying the phenomenon are indisputable. See Commonwealth v. Shiner, 101 Mass. App. Ct. 206, 215-223 (2022), petition for further appellate review pending (finding no error in judges allowing in evidence lay demonstration of this phenomenon). The court further commented there, albeit in dicta, that “in light of the ubiquity of such [night vision] technology, the phenomenon that surveillance systems may not show an objects true colors may well have lain within the common knowledge possessed by the jury, even if individual jurors may not have been able to articulate what explained that phenomenon.” Id. at 220-221, citing Commonwealth v. Junta, 62 Mass. App. Ct. 120, 127-128 (2004) (no medical testimony needed to support argument to jury “that bruises are not immediately visible but may take a day or two to appear”).
6
. The defendant points to juror As testimony that other jurors “may have” consulted outside sources about how to synchronize the timeframes. However, upon further examination, juror A clarified that no one “indicate[d] that they read something, looked at something, [or] considered something outside the evidence to do that.” Viewed in context, juror As testimony that other jurors “may have” considered outside sources signifies only that he could not speak from personal knowledge as to what other jurors “may have” done outside his presence.