unanimity instruction in Massachusetts

2025Contrary to the defendant's claim, this case is unlike Commonwealth v. Conefrey, 420 Mass. 508, 516 (1995), where the Supreme Judicial Court determined that a specific unanimity instruction should have been given.

2025The defendant was found not guilty of that assault charge. 4 During the exchange following the Commonwealth's closing, defense counsel failed to articulate a specific request or 7 A specific unanimity instruction informs the "jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987).

2025A specific unanimity instruction "indicates to the jury they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Keevan, 400 Mass. 557, 567 (1987).

2025The defendant was found not guilty of that assault charge. 4 During the exchange following the Commonwealth's closing, defense counsel failed to articulate a specific request or 7 A specific unanimity instruction informs the "jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987).

2026A judge must give a specific unanimity instruction where "there are separate events or episodes and the jurors could otherwise disagree concerning which act a defendant committed and yet convict him of the crime charged." Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 904 (1995).

2025A specific unanimity instruction "is required only if there are separate events or episodes and the jurors could otherwise disagree concerning which act a defendant committed and yet convict him of the crime charged." Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 904 (1995).

2026We therefore concluded that the judge did not err in declining to give a specific unanimity instruction because the two forms of assault and battery "are not 'separate, distinct, and essentially unrelated ways in which the same crime can be committed.'" Id., quoting Commonwealth v. Santos, 440 Mass. 281, 288 (2003).

2025The defendant contends that the judge erred by failing to give a specific unanimity instruction as to "which particular constitutional right [was] implicated." Because trial counsel 1The defendant was found not guilty of assault and battery by means of a dangerous weapon (ABDW). did not request such an instruction or object to its not being given, we review to determine whether any error created a substantial risk of a miscarriage of justice.2 See Commonwealth v. Gaughan, 99 Mass. App. Ct. 74 , 81 (2021). "[A] defendant is entitled to a specific unanimity instruction 'when the Commonwealth has

2001See, e.g., Commonwealth v. Comtois, 399 Mass. 668, 675-677 [1987]; Commonwealth v. Lemar, 22 Mass. App. Ct. 170 [1986]; Commonwealth v. Liberty, 27 Mass. App. Ct. 1, 9-10 [1989].) In Conefrey , the court determined that “a judge should give a specific unanimity instruction if a defendant requests] it in accordance with the normal procedure of Mass. R.Crim.P. 24(b), 378 Mass. 895 (1979).” Id. at 513.

1995Similarly, in Commonwealth v. Lemar, 22 Mass. App. Ct. 170 (1986), the Appeals Court addressed the need for a specific unanimity instruction where the defendant, like the defendant in this case, had been charged with indecent assault and battery on a child under fourteen years of age “on divers dates and times.” The evidence at trial showed that criminal incidents had occurred on three separate dates.

2001See, e.g., Commonwealth v. Comtois, 399 Mass. 668, 675-677 [1987]; Commonwealth v. Lemar, 22 Mass. App. Ct. 170 [1986]; Commonwealth v. Liberty, 27 Mass. App. Ct. 1, 9-10 [1989].) In Conefrey , the court determined that “a judge should give a specific unanimity instruction if a defendant requests] it in accordance with the normal procedure of Mass. R.Crim.P. 24(b), 378 Mass. 895 (1979).” Id. at 513.

2001General Laws c. 268, § 32B, reads in pertinent part: “(a) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Where, as here, a defendant does not request a specific unanimity instruction nor timely object to its absen

2002See Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 366-367 (1991), in which the point is discussed.

1995In Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 367 (1991), the Appeals Court recognized the distinction stating that “[ujnlike those cases in which evidence of separate occurrences came before the jury, and a specific unanimity instruction was, therefore, indicated, in this case there was evidence of but one event.

2018The defendant further asserts that he was entitled to a specific unanimity instruction on his indictment for assault and battery on a pregnant person, one of the two indictments on which he was convicted. "[A] specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Commonwealth v. Shea , 467 Mass. 788 , 798 (2014), quoting from Commonwealth v. Conefrey , 420 Mass. 508 , 512 (1995).

2018"However, '[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.' " Shea , supra , quoting from Santos , supra at 285 .

2001Commonwealth v. Berry, 420 Mass. 95, 111 (1995), quoting Commonwealth v. Devlin, 335 Mass. 555, 567-568 (1957). 2 But where a defendant is accused of committing a number of acts, alleged to have occurred at different times or places, each of which could support a conviction, a specific unanimity instruction is required to assure agreement as to which particular act the defendant had committed.

1997The cases the defendant cites, Commonwealth v. Berry, 420 Mass. 95, 112 (1995), which concerned the need to give a specific unanimity instruction where a defendant has been charged with murder in the first degree, and Commonwealth v. Hebert, 379 Mass. 752, 754-755 (1980), which involved a judge’s improper dialogue with a juror to achieve a unanimous verdict, are inapt.

2005The judge based her decision to give a specific unanimity instruction on Commonwealth v. Accetta, 422 Mass. 642, 646-647 (1996), where this court said “in a case where the evidence would warrant a guilty verdict of manslaughter or some other crime on more than one theory, a guilty verdict should state[,] [when requested,] the theory on which guilt was found.” That case involved voluntary and involuntary manslaughter, mutually exclusive crimes with respect to the element of intent.

2003The defendant seeks to avoid this analysis by pointing to the requirement that a specific unanimity instruction be given and special verdict forms be submitted to the jury whenever the evidence would warrant a guilty verdict on “more than one theory.” Commonwealth v. Accetta, 422 Mass. 642, 647 (1996).

2001The Commonwealth claims that counsel was not ineffective because the defendant was not entitled to such a charge. “ ‘[I]t is beyond dispute that the jury verdict in a criminal trial . . . must be unanimous.’ ” Commonwealth v. Berry, 420 Mass. 95, 111 (1995), quoting from Commonwealth v. Hebert, 379 Mass. 752, 754 (1980). “[Wjhen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996).

1997The cases the defendant cites, Commonwealth v. Berry, 420 Mass. 95, 112 (1995), which concerned the need to give a specific unanimity instruction where a defendant has been charged with murder in the first degree, and Commonwealth v. Hebert, 379 Mass. 752, 754-755 (1980), which involved a judge’s improper dialogue with a juror to achieve a unanimous verdict, are inapt.

2018Repeatedly, in cases involving sexual assaults on children, the cases have held that a specific unanimity instruction was not required, where a victim testified to repeated assaults over a period of time and was able to provide "reasonably detailed descriptions of various distinguishable forms of abuse," even though the victim "did not identify discrete instances when particular acts took place, much less supply a list of dates and times." Commonwealth v. Sanchez , 423 Mass. 591 , 599-600, 670 N.E.2d 377 (1996), quoting Commonwealth v. Kirkpatrick , 423 Mass. 436 , 443, 668 N.E.2d 790 , cert.

2018Repeatedly, in cases involving sexual assaults on children, the cases have held that a specific unanimity instruction was not required, where a victim testified to repeated assaults over a period of time and was able to provide "reasonably detailed descriptions of various distinguishable forms of abuse," even though the victim "did not identify discrete instances when particular acts took place, much less supply a list of dates and times." Commonwealth v. Sanchez , 423 Mass. 591 , 599-600, 670 N.E.2d 377 (1996), quoting Commonwealth v. Kirkpatrick , 423 Mass. 436 , 443, 668 N.E.2d 790 , cert.

2025"The purpose of a specific unanimity instruction is to ensure that where the jury are presented with evidence of 'separate, distinct, and essentially unrelated ways in which the same crime can be committed,' the jurors do not conclude that they may convict the defendant without unanimous agreement on which distinct theory of the crime applies." Commonwealth v. Gaughan, 99 Mass. App. Ct. 74 , 81 (2021), quoting Commonwealth v. Arias, 78 Mass. App. Ct. 429 , 432 13 (2010).

2025The defendant contends that the judge erred by failing to give a specific unanimity instruction as to "which particular constitutional right [was] implicated." Because trial counsel 1The defendant was found not guilty of assault and battery by means of a dangerous weapon (ABDW). did not request such an instruction or object to its not being given, we review to determine whether any error created a substantial risk of a miscarriage of justice.2 See Commonwealth v. Gaughan, 99 Mass. App. Ct. 74 , 81 (2021). "[A] defendant is entitled to a specific unanimity instruction 'when the Commonwealth has

2023"A specific unanimity instruction is required where an 'indictment alleges in statutory terms a criminal offense occurring during a period of several months and, at trial, there is evidence that the defendant committed several such offenses 2 The defendant objected to the judge providing a lesser included offense instruction and a prior bad acts instruction. 6 within that period.'" Commonwealth v. Rios, 96 Mass. App. Ct. 463 , 475 (2019), quoting Commonwealth v. Sanchez, 423 Mass. 591, 598 (1996).

2019A specific unanimity instruction is required where an "indictment alleges in statutory terms a criminal offense occurring during a period of several months and, at trial, there is evidence that the defendant committed several such offenses within that period . . . ." Commonwealth v. Sanchez, 423 Mass. 591, 598 (1996).

2026See Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 571 (2009).

2011“Generally, a defendant is entitled to a specific unanimity instruction only ‘when the Commonwealth has proceeded on “alternate theories” ’ of guilt, defined as ‘separate, distinct, and essentially unrelated ways in which the same crime can be committed.’ ” Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 571 (2009), quoting from Commonwealth v. Santos, 440 Mass. 281, 287-288 (2003).

2024The absence of an additional, explicit instruction -- requiring unanimity as to at least one of the five incidents -- did not create a substantial risk of a miscarriage of justice. "[W]hen a defendant does not request a specific unanimity instruction nor timely object to its absence, 'no substantial risk of a miscarriage of justice' exists where 'the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty.'" Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003), quoting Commonwealth v. Keevan, 400 Mass. 557, 567 (1987).

2016Again, there was no request for such an instruction, and this case therefore is controlled by Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003), which holds that, in these circumstances, the failure of a judge sua sponte to give a specific unanimity instruction does not create a substantial risk of a miscarriage of justice.

2003See Commonwealth v. Grandison, 433 Mass. 135, 147 (2001); Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 904-905 (1995); Commonwealth v. Black, 50 Mass. App. Ct. 477, 479 (2000); Commonwealth v. Frank, 51 Mass. App. Ct. 19, 25 (2001).

2001See Commonwealth v. Grandison, 433 Mass. 135 , 145 n.19 (2001).

2026This, however, is not a case like Commonwealth v. Barbosa, 421 Mass. 547 (1995), in which the grand jury were presented with evidence of two separate, distinct transactions on one date that constituted distribution of cocaine, but only returned an indictment for one count of distribution of cocaine.

2023Barbosa, supra. The jurors at trial "may have reached unanimity only on a transaction for which the defendant was not indicted," so "the defendant still may have been 'held to answer' for a crime not set forth in the indictment." Id.

2024We discern no "substantial risk of a miscarriage of justice." Freeman, 352 Mass. at 564 .

2001General Laws c. 268, § 32B, reads in pertinent part: “(a) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by: (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Where, as here, a defendant does not request a specific unanimity instruction nor timely object to its absen

2026See Commonwealth v. Duncan, 100 Mass. App. Ct. 635, 640 (2022). 5 A judge's "failure to give a specific unanimity instruction sua sponte does not automatically give rise to a substantial risk of a miscarriage of justice where . . . the Commonwealth presented evidence sufficient to withstand a motion for a required finding of not guilty on each of the charged offenses." Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719-720 (2007).2 To prove witness intimidation, the Commonwealth must prove that the defendant "(1) willfully; (2) threatened, intimidated, or harassed; (3) a witness in a crimina

2018While it is generally true that "a specific unanimity instruction is appropriate when there is evidence of alternate incidents that could support the charge," Commonwealth v. Federico , 70 Mass. App. Ct. 711 , 719 (2007) (quotation omitted), the defendant is mistaken that one was required here.

2026We therefore concluded that the judge did not err in declining to give a specific unanimity instruction because the two forms of assault and battery "are not 'separate, distinct, and essentially unrelated ways in which the same crime can be committed.'" Id., quoting Commonwealth v. Santos, 440 Mass. 281, 288 (2003).

2025See Commonwealth v. Mistretta, 84 Mass. App. Ct. 906, 907 (2013). 2 (2003).

2025Such an instruction is not warranted "where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents." Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 329 (2002).

2003Commonwealth v. Pimental, 54 Mass. App. Ct. 325 , 329-330 n.4 (2002), quoting from Commonwealth v. Conefrey, 420 Mass. 508, 513 (1995).

2001The possibility of disagreement exists where the defendant is accused of a number of unrelated incidents, such as alleged rapes at different times or places, leaving the jurors free to believe different parts of the testimony and yet convict the defendant.” Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 366-367 (1991), quoting from People v. Burns, 196 Cal. App. 3d 1440, 1458 (1987).

1991People v. Burns, 196 Cal. App. 3d 1440, 1458 (1987), in which the court observed that “a unanimity instruction is required only if the jurors could otherwise disagree which act a defendant commit *367 ted and yet convict him of the crime charged ....

1995In the context of that event the jury had alternative theories upon which to find the defendant guilty . . . .” See Commonwealth v. Comtois, 399 Mass. 668, 676-677 (1987) (defendant entitled to instruction on specific unanimity where criminal conduct occurred on divers dates); Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 294 , further appellate review granted, 418 Mass. 1110 (1994) (jurors must agree unanimously on which specific act constitutes offense charged); Commonwealth v. Lemar, 22 Mass. App. Ct. 170, 172 (1986) (considering necessity of specific unanimity instruction where Commonwe

1995To support this contention, the defendant cites Commonwealth v. Conefrey, 37 Mass. App. Ct. 290, 297-298 (1994), S.C., 420 Mass. 508 (1995), which held that it was error for a judge to refuse to give a specific unanimity instruction if properly requested.

2026See Commonwealth v. Duncan, 100 Mass. App. Ct. 635, 640 (2022). 5 A judge's "failure to give a specific unanimity instruction sua sponte does not automatically give rise to a substantial risk of a miscarriage of justice where . . . the Commonwealth presented evidence sufficient to withstand a motion for a required finding of not guilty on each of the charged offenses." Commonwealth v. Federico, 70 Mass. App. Ct. 711, 719-720 (2007).2 To prove witness intimidation, the Commonwealth must prove that the defendant "(1) willfully; (2) threatened, intimidated, or harassed; (3) a witness in a crimina

2026See Commonwealth v. Palermo, 482 Mass. 620, 629-631 (2019).

2025"Such a risk will not occur if the evidence is sufficient to meet the statutory elements and withstand a directed verdict motion." Commonwealth v. Erazo, 63 Mass. App. Ct. 624, 630 (2005).

2025See Commonwealth v. Casbohm, 94 Mass. App. Ct. 613, 620 (2018).