Lead Opinion
After a joint jury trial,
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 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.
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 detechves 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 whether any member of the group that attacked the victims was “holding 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,
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.
‘“The jury ‘may consider circumstantial evidence of guilt together with inferences drawn therefrom that appear reasonable and not overly remote.’ ” Commonwealth v. Lao,
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
The following day, the prosecutor spoke to the judge about a different juror. “Front row, third from the left. He’s got a 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, “[Wjhat 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.
“ ‘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.’
The Supreme Judicial Court addressed this issue in three recent cases.
‘T agree with that, and that’s why I questioned it for a while.*438 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.’ ”
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 not himself seen the juror sleeping. But other reliable information besides a judge’s observations also ‘requires prompt judicial intervention.’ Commonwealth v. Beneche,
In Vaughn,
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,
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
Finally, we consider whether the parties asked the judge to take any action and what response the judge gave. We recognize 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,
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 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
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,
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 eyewitnesses 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,
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 in its entirety at least at the time of the hearing.
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.”
To succeed on a claim of ineffective assistance in pursuing a
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
“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,
Judgments affirmed.
Order denying motion for new trial affirmed.
Notes
Tlie defendant was tried jointly with three codefendants, one of whom pleaded guilty on the ninth day of trial. The appeals of the two remaining codefend-ants were severed from Villalobos’s appeal.
We spell the victim’s name as it appears in the parties’ briefs.
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.
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).
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 eyewitnesses. Another witness, Tracy Contreras, identified the defendant from the surveillance video as the person wearing a long-sleeved 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 after-wards, 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.
Both parties in this appeal filed their briefs before the opinions in those cases were released.
In The Ngoc Tran,
The juror in McGhee told the judge, “My concern was [that] through most of the morning proceedings I heal'd 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,
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.
In addition, apparently, an open window may have helped to keep the jurors alert during this very long trial.
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, T don’t want to talk about this,’ . . . [a]nd that entreaty was completely ignored by the police officer.”
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?”
*443 A.: “Do I have to?”
Q.: “You don’t have to do anything.”
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’ll 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.
Dissenting Opinion
(dissenting). With respect to the reports of sleeping jurors, this case is controlled in all material respects by Commonwealth v. McGhee,
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,
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 that 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 that 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, “[Bjoth sides deserve to have jurors that are able to stay awake,” which is correct. 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,
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,
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 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.
The exact same thing could be said here. I can understand an argument, however, that the correct course in this case might 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.