Commonwealth v. Gonzalez , 86 Mass. App. Ct. 253 ( 2014 )

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11-P-1912 Appeals Court
COMMONWEALTH vs. LUIS GONZALEZ.
No. 11-P-1912.
Essex. January 15, 2014. - September 5, 2014.
Present: Cypher, Rubin, & Hines, JJ.1
Jury and Jurors. Practice, Criminal, Jury and jurors,
Deliberation of jury, Question by jury, Voir dire.
Constitutional Law, Delay in appeal. Robbery.
Intimidation of Witness.
Indictments found and returned in the Superior Court
Department on May 31, 2006.
The cases were tried before David Lowy, J., and a motion
for postconviction relief, filed on April 5, 2013, was heard by
him.
Sharon Fray-Witzer for the defendant.
Marcia H. Slingerland, Assistant District Attorney, for the
Commonwealth.
1
Justice Hines participated in the deliberation on this
case while an Associate Justice of this court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
2
RUBIN, J. Background. The defendant was convicted after a
jury trial of armed carjacking, armed robbery, and intimidation
of a witness. See G. L. c. 265, §§ 21A, 17; G. L. c. 268,
§ 13B. This is his direct appeal.
During deliberations, the jurors sent the judge a question
which read: "It has come to the group's attention that one
juror fell asleep during the presentation of evidence and is not
willing to accept others' recollection of what was missed. Is
this grounds to have the juror dismissed?"
Although the prosecutor sought a voir dire, the judge
declined to conduct one. He reasoned, "[I]f I were to voir dire
this issue the only way to voir dire it would be to ask
questions that get into the deliberative process." The judge
did say that he had "looked at the jury numerous times." And,
apparently assuming he knew which juror the question referred
to, he said, "Every time I looked over . . . he never had his
eyes shut for a significant period of time. And every time I
looked at him it seemed that he was alert [and] paying attention
. . . . I made a decision every time I looked over that he
didn't seem to me to be asleep. I gave it serious
[consideration] numerous times."
A subsequent jury question read, "We have a juror (#1) who
seems to be biased towards police in general. He laughs every
time the word police even comes up and refuses to even
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contemplate a witness's testimony because he believes the police
gave a deal. Is this grounds for an alternate juror to be
used?" The judge seems to have concluded that the juror
referred to in the first question was the same juror referred to
in the second question, although there is no basis in the record
for a conclusion that both notes refer to the same juror.
Nonetheless, the judge stated, "[I]f you read between the lines
here . . . the reason for the disagreement isn't that somebody
might be asleep but has a different [view] of the evidence."
Discussion. 1. The first jury question. We turn first to
the jury question about a sleeping juror. Our appellate courts
have had a substantial amount to say about this in the past
several years, and of course we recognize that the trial judge
in this case did not have the benefit of this teaching.
"[A] judge's receipt of reliable information" that a juror
was asleep during evidence requires a voir dire of the jurors.
Commonwealth v. Beneche, 458 Mass. 61, 78 (2010), quoting from
Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). See
Commonwealth v. Braun, 74 Mass. App. Ct. 904, 905 (2009). The
failure to conduct a voir dire in the face of a substantial
reason to think a juror is sleeping during trial is reversible
error because it prevents the judge from determining the extent
of the sleeping and so from having the ability to properly
exercise his or her discretion in handling the issue.
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Notwithstanding the judge's observations and his concerns
about juror disagreement, none of his conclusions amounts to a
finding that the juror was not asleep. In the face of a
question from the jury, of which the juror in question was a
member, reporting that a juror was in fact asleep during
evidence -- receipt of reliable information that a juror was
asleep -- the judge was required under Braun to conduct a voir
dire. "By not conducting a voir dire, the judge prevented
himself from obtaining the information necessary to a proper
exercise of discretion." Commonwealth v. Braun, 74 Mass. App.
Ct. at 905.
Indeed, part of the reason a voir dire has been held
necessary in circumstances such as these is that "[u]ncertainty
that a juror is asleep is not the equivalent of a finding that
the juror is awake." Ibid. The judge's concerns about juror
deliberations were appropriate, but, subsequent to the trial in
this case, we have explained how to conduct a "sensitive" voir
dire of the jurors about sleeping during trial without getting
into questions about deliberations. As we explained in
Commonwealth v. Dancy, 75 Mass. App. Ct. at 181, "the inquiry
must," of course, "stay clear of the juror's personal
recollections of the substance of the evidence he saw or
observed. Inquiry into that area would inevitably reveal
aspects of the juror's thought processes, thus entering an area
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where judicial exploration is prohibited. Instead, the inquiry
should focus on how much of the evidence the juror has heard and
witnessed and any impediments he or she may have to hearing and
seeing the rest." (Citation omitted.)
The Commonwealth puts forward an independent argument that
reversal is unwarranted because there was no objection from the
defendant to the failure to voir dire the jury. In Dancy, we
indicated that a sleeping juror was "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." 75 Mass.
App. Ct. at 182, quoting from Commonwealth v. Villanueva, 47 Mass.
App. Ct. 905, 906 (1999). And in Commonwealth v. Dyous, 79 Mass.
App. Ct. 508, 512-514 (2011), we reversed in a case where the
defendant did not object to the trial judge taking no action in
the face of a report of a possibly sleeping juror, and neither
party sought voir dire in the trial court. Although structural
rights may be waived -- even the right to a trial may be waived
through a guilty plea colloquy -- Dyous stands for the proposition
that, in the face of a judge's receipt of reliable information a
juror was asleep, failure to request a voir dire is not sufficient
to waive the protections that insure "the defendant's and the
public's right" to a conscious jury. Id. at 513.
Further, even if an objection were otherwise required, in
the circumstances of this case we would not insist upon it. The
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prosecutor asked for a voir dire, and the defendant did not
oppose the Commonwealth's motion. The judge ruled that he would
not conduct a voir dire because he concluded that he could not
do so without improperly invading the jury's deliberative
process. In light of that reasoning, a further objection by the
defendant would have been futile. At least in these
circumstances -- where the judge had an opportunity to consider
the question, the defendant did not oppose the voir dire, and
the judge explained that he did not believe he could properly
conduct a voir dire -- it would elevate form over substance to
require the defendant to interpose a futile objection in order
to preserve his rights. Cf. Commonwealth v. Vasquez, 456 Mass.
350, 357 n.9 & 358-359 (2010) (surveying futility jurisprudence
and holding that "because an objection to the admission of a
drug certificate would have been futile, the rationale for
denying the defendant a more favorable standard of review is not
applicable").
"Because there was no voir dire hearing and there were no
findings establishing that the juror had been attentive and was
capable of rendering a verdict based on all of the evidence, the
defendant is entitled to the benefit of the doubt as to the
juror's attentiveness and is therefore entitled to a new trial."
Commonwealth v. Dyous, 79 Mass. App. Ct. at 514.
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2. Other issues. a. Our conclusion obviates the need to
address most of the defendant's other claims. We must, however,
address the alleged insufficiency of the evidence to prove
intent permanently to deprive the victim of his car at the time
of the assault. The evidence included the following: The
defendant's car was a "fully loaded" 1995 beige Acura Integra,
described by the victim as a "high profile" car with custom
paint, rims, and exhaust. Prior to the alleged carjacking, the
defendant, a passenger in a red vehicle driven by Steve Kenney,
a friend of the victim in this case, left the red car,
approached the victim outside a convenience store, and asked
details about the car. When the victim drove away from the
convenience store, Kenney, at the defendant's instigation
followed him. And, immediately before the carjacking, when the
Acura stopped in front of the house of a friend of the victim,
the red car pulled up alongside it and Kenney asked the victim
details about the vehicle, if it was for sale, and how much it
was worth. Given these questions showing interest in the car,
the evidence with respect to intent permanently to deprive the
victim of his car was sufficient under the familiar Latimore
standard to support the defendant's conviction. See
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
b. As to the judge's allowing eighteen or nineteen prior
convictions to be introduced for impeachment should the
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defendant choose to testify, which the defendant asserts was an
abuse of discretion, we trust that should there be a retrial the
judge will be attentive to insure that convictions allowed for
impeachment purposes will not present a risk that the jury will
conclude that the defendant is of a criminal character,
warranting punishment because of that character rather than
because of the evidence at trial.
c. Finally, we must address an appeal from denial of a
motion by the defendant seeking relief on the basis of undue
delay in the appeal. The longest delay, from 2007 to 2010,
which was apparently related to the ordering and production of
transcripts, does not appear to have been the result of any
intentional act. Commonwealth v. Swenson, 368 Mass. 268, 279-
280 (1975) ("[D]eliberate blocking of appellate rights or
inordinate and prejudicial delay without a defendant's consent,
may rise to the level of constitutional error"). The defendant
focuses his challenge on a stay of appeal obtained by the
Commonwealth in 2013 to allow it to expand the record to include
a document that was before the judge during sentencing and that
was necessary to allow this court to understand the judge's
ruling with respect to the use of prior convictions for
impeachment. As to this delay, we cannot conclude, absent a
showing that the procedure undertaken by the Commonwealth was
designed deliberately to interpose a delay in the appeal, that,
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as the defendant suggests, the Commonwealth was required to
explain the relevance of the document to the defendant and to
seek a stipulation to its inclusion in the record, rather than
going through the formal procedure for expansion of the record.
Consequently, the denial of the motion is affirmed.
Judgments reversed.
Verdicts set aside.
Order denying motion to
vacate convictions due
to appellate delay
affirmed.