Commonwealth v. McGhee, 25 N.E.3d 251

Background

In May 2010 the defendant and an unidentified coventurer threatened three men in a Worcester parking lot, forced them into a vehicle, and compelled two of them to withdraw cash from an ATM and hand it over.
Victims identified the defendant from a photographic array; defendant was tried on multiple charges and convicted only on two counts under G. L. c. 265, § 21 (confining or putting in fear for purpose of stealing from a bank/building/safe/vault/other depository).
At trial the Commonwealth requested and the judge gave instructions based on the first paragraph of G. L. c. 265, § 21 (offense for confining/putting in fear for the purpose of stealing from enumerated depositories).
Defendant argued on appeal that the evidence did not show the requisite statutory “purpose of stealing” from a depository because the theft targeted money on the victims’ persons after withdrawal rather than property of the ATM/bank.
During trial a juror (juror no. 6) reported that another juror (juror no. 7) had been sleeping and snoring through significant testimony; the judge declined to conduct a voir dire or otherwise investigate, relying on his own lack of observation.
The court held the evidence was sufficient to show defendant intended to steal money that was located in the ATM (he forced the victims to withdraw it) but vacated the convictions and remanded for a new trial because the trial judge erred in failing to investigate reliable reports that a juror slept through important evidence (a structural error).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the evidence established the § 21 “purpose of stealing” from a bank/safe/ATM/depository	Commonwealth: Forcing victims to withdraw ATM funds shows intent to steal money located in the ATM (victim became robber's unwilling agent).	McGhee: § 21 requires theft "from" the depository; here defendant intended to take money from victims after withdrawal, not from the ATM/bank itself.	Court: Affirmed sufficiency — compelling a victim to withdraw cash satisfies the statute because the money was located in the ATM when the plan was formed.
Whether the trial judge erred by failing to investigate credible reports that a juror slept during testimony	Commonwealth: (On appeal) argued reliability of report was disputable; trial court observation sufficed.	McGhee: Reporting juror provided reliable information that another juror slept through key testimony; judge should have inquired; failure is structural error.	Court: Held judge erred in not investigating reliable reports of juror sleeping; error is structural and requires a new trial.

Key Cases Cited

Commonwealth v. Perella, 464 Mass. 274 (statutory interpretation reviewed de novo)
Commonwealth v. Ruiz, 426 Mass. 391 (criminal statutes construed strictly against the Commonwealth; ambiguity resolved for defendant)
Commonwealth v. Devlin, 335 Mass. 555 (definition of building/dwelling in related contexts)
United States v. McCarter, 406 F.3d 460 (7th Cir.) (holding that forcing a bank customer to withdraw funds makes the customer an unwilling agent of the robber)
Commonwealth v. Beneche, 458 Mass. 61 (judge must intervene on reliable information that juror was asleep)