Commonwealth v. Villalobos , 89 Mass. App. Ct. 432 ( 2016 )

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14-P-497 Appeals Court
COMMONWEALTH vs. ANTHONY VILLALOBOS.
No. 14-P-497.
Suffolk. September 10, 2015. - May 27, 2016.
Present: Green, Rubin, & Hanlon, JJ.
Homicide. Assault and Battery. Practice, Criminal, Required
finding, Voir dire, Jury and jurors, Conduct of juror,
Argument by prosecutor, New trial, Assistance of counsel,
Admissions and confessions, Motion to suppress. Evidence,
Joint venturer, Admissions and confessions.
Indictments found and returned in the Superior Court
Department on November 9, 2009.
The cases were tried before Patrick F. Brady, J., and a
motion for a new trial was heard by him.
Elda S. James for the defendant.
Amanda Teo, Assistant District Attorney (David J. Fredette,
Assistant District Attorney, with her) for the Commonwealth.
HANLON, J. After a joint jury trial,1 the defendant,
Anthony Villalobos, was convicted of the lesser included offense
1
The defendant was tried jointly with three codefendants,
one of whom pleaded guilty on the ninth day of trial. The
2
of involuntary manslaughter of Jose Alicea and two counts of
assault and battery, one on Gregory Pimental2 and one on Omar
Castillo.3 He appeals from the convictions and also from the
denial of his motion for a new trial, arguing that (1) the
evidence was insufficient to support his convictions; (2) the
judge erroneously failed to conduct a voir dire of allegedly
sleeping jurors; (3) the prosecutor made improper and
prejudicial statements during closing argument; and (4) trial
counsel was ineffective in attempting to exclude at trial
statements the defendant had made to the police, because counsel
failed to raise the issue of whether the defendant had invoked
his right to remain silent. We affirm.
Background. The jury could have found the following facts.
On August 20, 2009, the defendant and a large group of others
attended the funeral of a friend in Lynn; many of the funeral
attendees wore red and black tuxedos to honor the deceased.
Later that night, a group of the attendees went to Club 33 in
appeals of the two remaining codefendants were severed from
Villalobos's appeal.
2
We spell the victim's name as it appears in the parties'
briefs.
3
The defendant originally was charged with murder in the
second degree. The jury also found him not guilty of assault
and battery by means of a dangerous weapon on both Omar Castillo
and Gregory Pimental and not guilty of assault and battery on
Japhet Mendoza.
3
Boston, arriving in two limousines, a Porsche and a Cadillac,
with most still wearing the red and black tuxedos. The
defendant was part of this group but, instead of a tuxedo, he
was wearing a white T-shirt, a black button down shirt with a
picture of his deceased friend on the back, and black pants; the
defendant also had long braided (or corn-rowed) hair.
Also at Club 33 that night were the five victims.4 At
closing time, they left the club and walked by some of the
defendant's group standing by the Porsche limousine. Jose
Alicea yelled insults at the defendant's group, igniting a
violent altercation between the two groups. There was testimony
that between six and twenty men from the defendant's group were
involved in the fight; none were seen to be "holding back" from
the initial fray with Alicea, Castillo, and Pimental, nor did
anyone attempt to stop the fight in general, or the beating of
any particular individual. However, one of the limousine
drivers, Kevin Fulcher, and a member of Club 33's security team,
Joseph Cirino, unsuccessfully attempted to break up the brawl.
4
The victims were Jose Alicea (who later died from severe
head trauma), Omar Castillo (who suffered a perforated eardrum
and contusion to the left eye), Gregory Pimental (who suffered
multiple abrasions and a cut on the back of his head), Japhet
Mendoza (who suffered a cut to the face and minor swelling), and
Andres Sheppard (who suffered only a minor injury to his right
hand).
4
At some point after the assault on Alicea, the group
pursued Pimental, got him down on the ground, and, together,
proceeded to kick and beat him. Part of this assault on
Pimental was captured on Club 33's security cameras.
When the police arrived, some of the defendant's group
fled, while others ran to each of the two limousines. The
occupants of the Porsche limousine were identified and briefly
interviewed by the police, and then released. After Cirino
informed the police detectives that he could identify the
individuals involved in the fight, the eighteen occupants of the
Cadillac limousine, including the defendant, were subjected to
an impromptu identification procedure. Cirino identified the
defendant and three other men as the "more aggressive"
participants in the fight; the defendant and eleven others were
arrested at the scene.
Discussion. 1. Sufficiency of the evidence. The
defendant first argues that the evidence was insufficient to
prove his participation as a joint venturer in the charged
offenses and, therefore, the judge erred in declining to allow
his motion for a required finding of not guilty at the close of
the Commonwealth's case. The defendant contends that none of
the testifying witnesses specifically observed him participating
in the assaults; there was conflicting testimony as to whether
any member of the group that attacked the victims was "holding
5
back" from the brawl; and there was no physical evidence
connecting the defendant to any of the assaults.
"We review the denial of a motion for a required finding of
not guilty to determine 'whether the evidence viewed in the
light most favorable to the Commonwealth could have "satisfied a
rational trier of fact" of each element of the crimes charged
beyond a reasonable doubt.'" Commonwealth v. Deane, 458 Mass.
43, 50 (2010), quoting from Commonwealth v. Garuti, 454 Mass.
48, 54 (2009) (citation omitted). Under the theory of joint
venture, the Commonwealth was required to prove beyond a
reasonable doubt that the defendant "was present at the scene of
the [incident], with the knowledge that another intends to
commit a crime or with intent to commit the crime and by
agreement was willing and available to assist if necessary."
Deane, supra at 50. "However, the Commonwealth is not required
to prove exactly how a joint venturer participated." Ibid.
Based on the testimony of the witnesses who observed the
brawl, and from the surveillance video recording that the jury
viewed, the jury reasonably could have concluded that the
defendant actively participated in the victims' beatings.5 That
5
Specifically, Cirino had identified the defendant at the
scene as having been involved in the brawl and as being among
the "more aggressive" of the participants; his identification
was corroborated by the surveillance video as well as by other
eye witnesses. Another witness, Tracy Contreras, identified the
defendant from the surveillance video as the person wearing a
6
is, viewing the evidence in the light most favorable to the
Commonwealth, the jury could have found that the defendant "was
at least a participant [in the brawl], even if he was not the
sole perpetrator, and that he possessed the state of mind
required for guilt." Commonwealth v. Semedo, 456 Mass. 1, 8
(2010), quoting from Commonwealth v. Dyer, 389 Mass. 677, 683
(1983). As in Commonwealth v. Chhim, 447 Mass. 370, 380 (2006),
"[A] vicious beating of one man by several assailants creates an
inference of intent to do grievous bodily harm or, at least, to
do an act which would create a plain and strong likelihood of
death."
"The jury 'may consider circumstantial evidence of guilt
together with inferences drawn therefrom that appear reasonable
and not overly remote.'" Commonwealth v. Lao, 443 Mass. 770,
779 (2005), quoting from Commonwealth v. Andrews, 427 Mass. 434,
440 (1998). "If, from the evidence, conflicting inferences are
possible, it is for the jury to determine where the truth lies,
for the weight and credibility of the evidence is wholly within
long sleeve black shirt with a light-colored square on his back
standing behind the Cadillac limousine. Witness Johanna Pena
specifically placed the defendant in the midst of the red and
black-attired group approaching the victims; very shortly
afterwards, she saw Alicea on the ground. She went to him and
he spoke to her briefly before losing consciousness. Cirino,
Brian Jacobs and Dennis Lavita (other bouncers at Club 33), and
Ceol Miguel Soto each testified that the entire group charged
the victims, with none holding back or acting as peacemaker.
7
their province." Lao, supra. We are satisfied that there was
no error in the denial of the defendant's motion for a required
finding of not guilty.
2. Failure to conduct a voir dire. The defendant next
argues that the convictions should be reversed because "the
judge's failure to conduct a voir dire of two sleeping jurors
was error." On the eleventh day of trial, the prosecutor said
to the judge that one juror had fallen asleep "several times"
during the testimony. The judge promised to "keep an eye on
her" and to take action if necessary. None of the defense
counsel made any comment at all. At the end of the court day,
the judge raised the issue again, seeking clarification about
which juror the prosecutor had been describing. Once the
prosecutor described her more particularly, the judge stated
that he had watched the juror in question (and another) and
"they both appear to be alert and taking notes . . . . But if
you see anything like that, bring it to my attention, and I'll
pay special attention." The defendant's lawyer said nothing. A
codefendant's lawyer stated that he had paid attention to the
juror and "she seemed to be alert throughout the afternoon."
The judge responded, "Yes. She seems to be smiling. . . . So
I'll keep watching and we'll see."
The following day, the prosecutor spoke to the judge about
a different juror. "Front row, third from the left. He's got a
8
newborn baby. I mean, he was sound asleep during the cross-
examinations. I don't know what you want me to do, Judge. I'll
call the Court Officers [sic] attention to it." The judge
asked, "[W]hat do you want me to do about it?" The prosecutor
said, "I'm just raising the Court's attention to it." The judge
responded, "I'll do my best if I notice it to take a stretch
break or something." The prosecutor replied, "I think that both
sides deserve to have jurors that are able to stay awake," and
the judge stated, "Obviously, but I have to notice it." The
prosecutor stated, "If they can't stay awake, then I want them
excused. That's what I want." The judge responded, "Okay.
That gentleman I have not noticed at any time prior to today
falling asleep. I didn't notice it a half hour ago or hour
ago." None of the three defense counsel said anything at all.
Thereafter, the court took a break so that one of the defendants
could go to the bathroom.
At the end of the court day, the judge called counsel to
side bar, and said, "Okay. I was paying close attention to the
juror." The prosecutor responded, "Everybody was good this
afternoon, Judge, I agree. I think it helps with the window
open, too." The judge then said, "And if I do see something, I
will just take a stretch break." Again, all three defense
counsel were silent.
9
"'A judicial observation that a juror is asleep, or a
judge's receipt of reliable information to that effect, requires
prompt judicial intervention to protect the rights of the
defendant and the rights of the public, which for intrinsic and
instrumental reasons also has a right to decisions made by alert
and attentive jurors.' Commonwealth v. Dancy, 75 Mass. App. Ct.
175, 181 (2009). The judge has 'discretion regarding the nature
of the intervention,' id., and not every complaint regarding
juror attentiveness requires a voir dire, see Commonwealth v.
Braun, 74 Mass. App. Ct. 904, 905 (2009). The burden is on the
defendant to show that the judge's decision in the matter was
'arbitrary or unreasonable.' Commonwealth v. Brown, 364 Mass.
471, 476 (1973)." Commonwealth v. Beneche, 458 Mass. 61, 78
(2010).
The Supreme Judicial Court addressed this issue in three
recent cases.6 See Commonwealth v. McGhee, 470 Mass. 638 (2015);
Commonwealth v. The Ngoc Tran, 471 Mass. 179 (2015);
Commonwealth v. Vaughn, 471 Mass. 398 (2015).7 In McGhee, a
6
Both parties in this appeal filed their briefs before the
opinions in those cases were released.
7
In The Ngoc Tran, 471 Mass. at 189, both the prosecutor
and the judge noticed that a juror appeared to be sleeping "and
the defendant's trial counsel, deferring to the judge, requested
that the juror be made an alternate. The judge instructed the
clerk to do so. On appeal, the defendant argue[d] that this
decision violated the statute concerning alternate jurors, which
provides that 'the court shall direct the clerk to place the
10
juror reported to the court on the second day of trial that one
of the jurors had been sleeping the day before during the
testimony of two of the three victims in the case.8 Neither the
prosecutor nor defense counsel had seen the juror sleeping and
the judge "pointed out that '[s]ome people, when they
concentrate, they close their eyes.' The reporting juror
responded:
'I agree with that, and that's why I questioned it for a
while. But when the snoring came; and there was one other
thing that came after that. It was -- you know when you
wake up after a nap, the head nod, the bad breath. That's
what really hit me, was "Wow, he's really sleeping
there."'"
names of all of the available jurors except the foreperson into
a box . . . and to select at random the names of the appropriate
number of jurors necessary to reduce the jury to the proper
number of members required for deliberation in the particular
case.' G. L. c. 234A, § 68." The court ruled that the argument
was "unavailing. While it may have been better practice for the
judge to conduct a hearing to determine definitively whether the
juror had been asleep and to what extent the juror was no longer
capable of deliberating, see Commonwealth v. McGhee, 470 Mass.
[at] 643-646 . . . , the defendant did not object at trial, and
there is no indication that the designation of the sleeping
juror as an alternate amounted to a substantial likelihood of a
miscarriage of justice" (footnote omitted). The Ngoc Tran,
supra at 189-190.
8
The juror in McGhee told the judge, "My concern was [that]
through most of the morning proceedings I heard a lot of snoring
going on; and I looked at the person, and the person wasn't
paying any attention to the testimony going on. After lunch
when we came in, the snoring continued extremely loudly, to the
point where it was interrupting me listening. I kind of went
like this [indicating] to the person next to me to show the
person -- 'Look at this person,' and they were sound asleep
through most of the afternoon trial." McGhee, 470 Mass. at 642.
11
470 Mass. at 643. Both the prosecutor and defense counsel asked
the judge to "inquire" of the juror. Instead, the judge
determined that he would "'rather observe this individual now,
and see what happens. If he looks like he's not paying
attention, we can take steps right now.' Defense counsel asked
the defendant, who was present at this discussion, 'Are you okay
with that . . . ?' [and] the defendant responded, 'I'm good.'
At the end of the trial, the prosecutor stated that he had
observed the identified juror 'throughout the course of the
trial, and he appeared to be awake and paying attention, taking
notes.' The judge remarked that he had tried to watch the
identified juror but had not been able to because of the juror's
position in the jury box. The judge added for the record,
'[B]ecause of basically my failing to observe any sleepiness
during the evidence, we have done nothing with him in that
regard.'" Ibid.
On appeal, the defendant argued to the court that the
"judge's failure to inquire into the identified juror's ability
to deliberate and decide the case on the evidence was a
structural error that necessitate[d] a new trial." Ibid. The
court agreed, concluding that "[t]here was no apparent cause to
doubt the reliability of the account. The judge's reason for
taking no further action, except to 'observe [the identified
juror] now, and see what happens,' was essentially that he had
12
not himself seen the juror sleeping. But other reliable
information besides a judge's observations also 'requires prompt
judicial intervention.' Commonwealth v. Beneche, 458 Mass. at
78, quoting Commonwealth v. Dancy, 75 Mass. App. Ct. at 181."
(Footnotes omitted.) McGhee, supra at 645. In a footnote,
citing Dancy, supra, the McGhee court also observed that "[t]he
decision to observe the identified juror further was not an
effective response to information that the juror had been
sleeping. If the identified juror missed important testimony on
the first day of the trial, it is unlikely that, even if he was
fully alert thereafter, he would 'remain[ ] capable of
fulfilling his . . . obligation to render a verdict based on all
of the evidence.'" McGhee, supra at 645 n.5.
In Vaughn, 471 Mass. at 412, issued three months later,
"[d]efense counsel first reported during a bench conference that
he had observed a juror sleeping, including sleeping during the
judge's instructions. He also offered that the prosecutor had
seen it as well. Nothing in the record indicates the
prosecutor's observations of the juror or his agreement or
disagreement with defense counsel's observations. Defense
counsel offered no further description of why he thought the
juror was sleeping beyond the excuse that he had not brought up
the issue earlier in light of the possibility he may have
observed a 'nervous reaction.' . . . In his affidavit in
13
support of the defendant's motion for a new trial, defense
counsel did not elaborate any further on his report at trial."9
The Vaughn court concluded that "[t]he defendant has failed
to meet his burden. Although it is true that a judge must take
action when confronted with evidence of a sleeping juror, the
nature of that action is within the judge's discretion. . . .
Beneche, 458 Mass. [at] 78 . . . . The defendant must show that
the judge abused his discretion by making an arbitrary or
unreasonable decision. Id." Vaughn, 471 Mass. at 412. The
court noted that "counsel did not request any further action at
the time of the initial report. In response to defense
counsel's reports, the judge made his own observations of the
juror. The judge did not observe the juror sleeping. He
promised to continue his observations and to act should defense
counsel's concerns prove founded. The next day, defense counsel
revisited the issue, offering no further description of the
asserted fact that the juror was sleeping and offering no new
evidence that the juror had fallen asleep since the initial
9
In Vaughn, the issue of the "sleeping juror" was raised in
the context of a motion for a new trial on the grounds of
ineffective assistance of counsel. 471 Mass. at 411. Before
applying the standard in Commonwealth v. Saferian, 366 Mass. 89,
96 (1974), the Vaughn court first considered whether the trial
judge's response to counsel's report of a sleeping juror
constituted an abuse of discretion. Id. at 412-413. The issue
in our case is presented in the defendant's direct appeal, and
we apply the latter standard.
14
report. He asked that the juror be removed. The judge declined
to do so." Ibid. Compare Commonwealth v. Fritz, 472 Mass. 341,
353-354 (2015) (no abuse of discretion in declining to conduct
voir dire where "trial judge found that he had been watching the
jury and did not see any jurors sleeping").
Reading these cases together, along with Dancy and Beneche,
it is clear that the issue is whether the defendant has met his
burden of proving that the judge abused his "substantial
discretion" by responding in an "arbitrary or unreasonable" way
to a complaint that the juror was sleeping. McGhee, 470 Mass.
at 644. In McGhee, the court ruled: "[T]he judge must first
determine whether that information is 'reliable.' See
Commonwealth v. Beneche, supra [at 78], quoting Commonwealth v.
Dancy, 75 Mass. App. Ct. at 181. In making this determination,
the judge must consider the nature and source of the information
presented, as well as any relevant facts that the judge has
observed from the bench." McGhee, supra. In addition, the
substance of the report that the juror was sleeping is also
significant. As this court noted in Dancy, "If the sleeping is
observed at the outset or when the juror is beginning to 'nod
off,' it is likely that a break or a stretch will suffice."
Dancy, supra at 181.
Finally, we consider whether the parties asked the judge to
take any action and what response the judge gave. We recognize
15
that "[t]he serious possibility that a juror was asleep for a
significant portion of the trial is '[a] structural error . . .
that so infringes on a defendant's right to the basic components
of a fair trial that it can never be considered harmless'
(omission in original). Commonwealth v. Dancy, 75 Mass. App.
Ct. at 182, quoting Commonwealth v. Villanueva, 47 Mass. App.
Ct. 905, 906 (1999)." McGhee, 470 Mass. at 645-646.
Nonetheless, counsels' responses during the trial, based upon
their personal observations and conclusions, are at least some
indication of the seriousness of the possibility that the juror
in question was in fact asleep for a significant portion of the
trial. Cf. Commonwealth v. Miller, 457 Mass. 69, 80 (2010) (In
a prosecutor's closing argument, "while the statement should not
have been made, the defendant was not deprived of a fair trial.
. . . Again, there was no objection by the defendant's trial
counsel, suggesting that the tone of the remark was not a call
to arms").
On balance, we are persuaded that the defendant has failed
to meet his burden of showing that the judge abused his
substantial discretion. Specifically, the facts here fall
closer to those in Vaughn than those in McGhee, although the
allegation was made initially by the prosecutor, rather than
defense counsel. First, if the jurors in question did fall
asleep, it appears to have been short-lived, brought as it was
16
to the immediate attention of the court by an alert prosecutor.
Second, this defendant's lawyer said nothing at all about the
issue; one codefendant's lawyer said only that one of the two
jurors had appeared alert to him. Despite the judge's explicit
inquiry about what the prosecutor wanted him to do, no one
requested that the judge conduct a voir dire, or excuse either
juror -- or do anything other than monitor the situation.
Thereafter, the record is clear that the judge did monitor the
situation, as well as take at least one break, and offer to take
others.10 As in Beneche, 458 Mass. at 78-79, "[t]he judge
responded immediately to counsel's concerns, closely watched the
juror, and monitored the situation. Given the tentativeness of
the information that the juror was sleeping, the judge's
decision was reasonable."
3. Closing argument. The defendant also argues that the
prosecutor made several prejudicial misstatements of the
evidence during closing argument, improperly shifting the burden
of proof to the defendant. Because the defendant did not object
to the closing argument at trial, we review for a substantial
risk of a miscarriage of justice. Commonwealth v. Grandison,
433 Mass. 135, 142 (2001).
10
In addition, apparently, an open window may have helped
to keep the jurors alert during this very long trial.
17
The defendant claims that the prosecutor improperly argued
matters outside the scope of the evidence, claiming that the
defendant was part of "the entire group" that beat the victims,
when none of the testifying witnesses had observed the defendant
specifically hit, punch, or kick the victims. On the contrary,
several eye witnesses identified the defendant as a member of
the red and black-attired group that together participated in
beating the victims, and an employee of the club, Cirino,
identified the defendant as one of the three "more aggressive"
persons in the group. Video surveillance corroborated some of
this testimony.
"A 'prosecutor is entitled to argue the evidence and fair
inferences to be drawn therefrom.'" Commonwealth v. Deane, 458
Mass. at 55-56, quoting from Commmonwealth v. Paradise, 405
Mass. 141, 152 (1989). Based on the testimony, it was a fair
inference that the defendant was an active participant in the
crimes charged, and the prosecutor was permitted to "marshal the
evidence and suggest inferences that the jury may draw from it."
Commonwealth v. Roy, 464 Mass. 818, 829 (2013) (quotation
omitted). "Those inferences need only be reasonable and
possible." Ibid. Considering, as we must, the "context of the
whole argument, the evidence admitted at trial, and the judge's
instructions to the jury," Commonwealth v. Shanley, 455 Mass.
752, 773 (2010) (quotation omitted), we see no error and
18
certainly no substantial risk of a miscarriage of justice. See
Commonwealth v. Johnson, 461 Mass. 1, 3 (2011).
4. Motion for a new trial/ineffective assistance. The
defendant finally argues that the judge erred in denying his
motion for a new trial based on ineffective assistance of
counsel. The basis of his motion is that, during the hearing on
the motion to suppress, counsel failed to argue that, when the
defendant stated, "I just don't wanna talk about it because --,"
he was invoking his right to remain silent, yet the police
continued to question him. The defendant contends that counsel
instead argued that the defendant did not receive the full
Miranda warnings. It is clear, in the defendant's view, that
counsel did not listen to the audio tape of the defendant's
police interview, but, rather, relied on an incomplete
transcript in making his argument. In fact, the complete
transcript showed that the officer had given the full warnings
required.
The defendant's argument fails for several reasons. First,
in November, 2009, counsel was given a copy of the audio
recording of the police interview as part of the Commonwealth's
discovery, and the full audio recording was played at the voir
dire hearing on the defendant's midtrial motion to suppress. It
is clear that counsel had an opportunity to hear the recording
19
in its entirety at least at the time of the hearing.11 After
hearing the recording, the judge concluded that the defendant
had been advised of his rights and that "the statements that he
made were made voluntarily. The statements that he made were
essentially[,] from his perspective[,] exculpatory, which
reflect[ed] a mind that [was] aware of some self interest. He
clearly heard and understood his rights. The detective
explained them very clearly and made clear that he didn't have
to talk if he didn't want to."
Second, at the hearing on the motion for new trial, the
judge found that the statement in question was "in the context
of not wanting to put his initials on the Miranda form. That's
the way [the detective] understood it, it appears from the
transcript."12
11
The voir dire transcript also indicates that counsel did,
in fact, bring to the judge's attention the defendant's
statement at issue, albeit briefly. Counsel stated, "There was
a point in the interview where he says, 'I don't want to talk
about this,' . . . [a]nd that entreaty was completely ignored by
the police officer."
12
The transcript of the police interview with the defendant
included the following:
Q.: "Can you -- See a pen right there? See where it
says initials? Can you place your initials at the end of
that line?"
A.: "Do I have to?"
Q.: "You don't have to do anything."
20
To succeed on a claim of ineffective assistance in pursuing
a motion to suppress, the defendant "must demonstrate that the
evidence would have been suppressed if properly challenged, and
that counsel's failure to pursue such a challenge created a
substantial [risk] of a miscarriage of justice." Commonwealth
A.: "Mm-hmm. Well, --"
Q.: "If you prefer not to put your initials there,
you don't have to put your initials there."
A.: "No, I don't want to write it because it's -- I
just don't wanna talk about it because --"
Q.: "Okay. Well, I'11 read through and you don't
have to do -- do anything. [The detective then read the
defendant's Miranda rights, concluding,] Okay. With that
in mind, I'd like to talk about what happened last night.
You can talk to me if you want to, and you don't have to."
Thereafter, the detective explained that he wanted to tape the
interview.
Q.: "I prefer, as do the courts and the judges, that
everything get taped because then there's no -- no --"
A.: "Well, --"
Q.: "-- trickery involved --"
The defendant agreed, and a short conversation followed, with
the defendant denying being part of the fight.
Q.: "Now, are you saying that you weren't up in
that?"
A.: "No, I wasn't."
The defendant then said that he wanted to speak with a lawyer
and the detective ended the interview immediately.
21
v. Cavitt, 460 Mass. 617, 626 (2011). "A motion for a new trial
will be allowed 'if it appears that justice may not have been
done.'" Id. at 625, quoting from Mass.R.Crim.P. 30(b), as
appearing in 435 Mass. 1501 (2011).
After a hearing on the defendant's motion to exclude the
challenged statement, the judge found, based on the audio
recording, that the defendant was given the full Miranda
warnings and that he "clearly heard and understood his rights."
Shortly after the challenged statement was made, the defendant
exercised his right to speak with an attorney, and the interview
ended immediately; in the judge's opinion, this was "reflective
of a mind that is aware of what is going on, understands his
rights, [and] is able to make voluntary decisions."
"In reviewing a ruling on a motion to suppress evidence, we
accept the judge's subsidiary findings of fact absent clear
error. The weight and credibility to be given oral testimony is
for the judge." Commonwealth v. Murphy, 442 Mass. 485, 492
(2004). Here, the judge's findings are supported by the
evidence and he correctly applied the law to the facts.
Counsel's failure to pursue at the hearing the challenge the
defendant now puts forth on appeal did not create a substantial
risk of a miscarriage of justice. See Cavitt, 460 Mass. at 626.
In addition, based on the foregoing, counsel's behavior did not
fall "measurably below that which might be expected from an
22
ordinary fallible lawyer." Commonwealth v. Kolenovic, 471 Mass.
664, 673 (2015), quoting from Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). We see no error in the denial of the
defendant's motion for a new trial, and discern no abuse of
discretion. See Commonwealth v. Diaz, 75 Mass. App. Ct. 347,
350 (2009).
Judgments affirmed.
Order denying motion for
new trial affirmed.
RUBIN, J. (dissenting). With respect to the reports of
sleeping jurors, this case is controlled in all material
respects by Commonwealth v. McGhee, 470 Mass. 638 (2015), under
which it must be reversed or, at the very least, remanded for
further proceedings.
McGhee applied the rule that "a judge's receipt of reliable
information" to the effect that a juror is asleep "requires
prompt judicial intervention." Id. at 644 (emphasis added),
quoting from Commonwealth v. Beneche, 458 Mass. 61, 78 (2010),
in turn quoting from Commonwealth v. Dancy, 75 Mass. App. Ct.
175, 181 (2009). In McGhee, the judge received information from
a juror that another juror had been asleep during testimony.
Rather than taking "any . . . steps to determine if [the] juror
was fit to deliberate," id. at 645, the judge decided simply to
observe the juror going forward. The judge explained later that
"because of basically my failing to observe any sleepiness
during the evidence, we have done nothing with [the juror]" in
terms of addressing the report that he was asleep. Id. at 643.
The Supreme Judicial Court held that in the face of a
reliable account of a juror sleeping, "prompt judicial
intervention" was required, regardless whether the judge himself
had seen the juror sleeping. The court held that "[b]ecause the
judge conducted no further inquiry to determine whether and, if
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so, when the identified juror was sleeping, 'there is a serious
doubt that the defendant received the fair trial to which he is
constitutionally entitled.'" Id. at 645, quoting from
Commonwealth v. Braun, 74 Mass. App. Ct. 904, 906 (2009). The
court held that even though the defendant had acquiesced in the
procedure utilized by the judge, "[t]he serious possibility that
a juror was asleep for a significant portion of the trial is
'[a] structural error . . . that so infringes on a defendant's
right to the basic components of a fair trial that it can never
be considered harmless.'" McGhee, supra at 645-646, quoting
from Commonwealth v. Dancy, supra at 182. The court vacated the
convictions and remanded the case for a new trial.
This case presents essentially the same fact pattern. On
the eleventh day of trial, the prosecutor said to the judge that
one juror had fallen asleep several times during the testimony.
The judge said he would "keep an eye on her." Later the judge
said that he had watched the juror in question as well as
another one and "they both appear[ed] to be alert and taking
notes." The judge said he would "keep watching." The next day
the prosecutor spoke to the judge about a different juror
stating that "he was sound asleep during the cross-
examinations." The prosecutor said, "[B]oth sides deserve to
have jurors that are able to stay awake," which is correct.
3
Just like the judge in McGhee, the judge said, "Obviously, but I
have to notice it."
Assuming the prosecutor's reports were reliable, the
judge's failure to take any action with respect to the
prosecutor's reports of a sleeping juror amounts to precisely
the error that required a new trial in McGhee. Indeed, the
misunderstanding of the judge, who of course did not have the
benefit of McGhee, which was decided during the pendency of this
appeal, that he was not to take action unless he personally
observed a juror sleeping was exactly the same mistake that led
to the Supreme Judicial Court's decision in McGhee itself. See
McGhee, 470 Mass. at 645 ("The judge's reason for taking no
further action, except to 'observe [the identified juror] now,
and see what happens,' was essentially that he had not himself
seen the juror sleeping. But other reliable information besides
a judge's observations also requires prompt judicial
intervention" [quotation and citation omitted]).
The majority apparently concludes that the Supreme Judicial
Court's unanimous opinion in Commonwealth v. Vaughn, 471 Mass.
398 (2015), amounted to a modification of the unanimous opinion
in McGhee issued just three months earlier. The majority states
that Vaughn means that mere future observation of a juror by a
judge is an adequate response to reliable evidence of a juror
sleeping, and that the judge's decision simply to observe the
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juror going forward rather than taking any action to determine
whether the juror was asleep must be upheld unless it is an
abuse of discretion in the sense of an arbitrary or unreasonable
decision.
This is a misreading of Vaughn. In Vaughn, the Supreme
Judicial Court did not qualify its ruling in McGhee. Rather,
Vaughn was a case about determining whether a report about a
sleeping juror is sufficiently reliable that the rule requiring
intervention is triggered.
As the court explained in McGhee, "[I]f a judge receives a
complaint or other information suggesting that a juror was
asleep or otherwise inattentive, the judge must first determine
whether that information is 'reliable.'" McGhee, 470 Mass. at
644. In Vaughn, the report of a sleeping juror came from
defense counsel, who reported during a bench conference that he
had observed a juror sleeping. As the court described in
Vaughn, "Defense counsel offered no further description of why
he thought the juror was sleeping beyond the excuse that he had
not brought up the issue earlier in light of the possibility he
may have observed a 'nervous reaction.'" 471 Mass. at 412.
The Supreme Judicial Court understood the judge's actions
to mean that "the trial judge did not find defense counsel's
assertions reliable enough to warrant further action,
particularly where counsel said that the juror slept during the
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judge's instructions to the jury and the judge would necessarily
have been looking at the jury." Ibid. As the Supreme Judicial
Court explained, "Defense counsel's report gave no description
of the characteristics of the juror's alleged slumber beyond
likening it to a 'nervous reaction,' an empty illustration
explained by myriad possibilities. More importantly, defense
counsel did not ask for a voir dire. In fact, he initially
requested the judge do nothing at that time. The judge was
entitled to rely on his own observations to reach the conclusion
that the report of a sleeping juror was not sufficiently
reliable to warrant further action when made only by defense
counsel without a request for a voir dire." Id. at 412-413.
Because there was no error in finding the report insufficiently
reliable, there was no error in the failure to intervene.
In this case it was the prosecutor rather than defense
counsel who raised the issue. In McGhee, the Supreme Judicial
Court concluded that a report from another juror was
sufficiently reliable that no express finding with respect to
reliability was required. The court concluded that there was
"no apparent cause to doubt the reliability of this account" and
therefore the judge was required to intervene. 470 Mass. at
645.
The exact same thing could be said here. I can understand
an argument, however, that the correct course in this case might
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be to remand the case for a finding by the trial judge
concerning the reliability of the prosecutor's report. And in
order to ensure that justice is done, I could go along with such
a disposition of this case. The court majority, however,
concludes that the judge's failure to intervene in the face of a
reliable report of a sleeping juror was within his discretion.
It therefore simply affirms the defendant's convictions.
Although I agree with all other portions of the majority
opinion, because the disposition of the sleeping-juror claim
appears to me to contravene clear Supreme Judicial Court
precedent, I respectfully dissent.