Commonwealth v. Delacruz

99 Mass.App.Ct. 189

163 N.E.3d 428

COMMONWEALTH

v.Yeffrey DELACRUZ.¹

No. 20-P-160

Appeals Court of Massachusetts, Essex..

Argued November 12, 2020.

Decided February 9, 2021.

Kathleen J. Hill, Boston, for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Desmond, & Lemire, JJ.

DESMOND, J.

Following a jury trial in the Lynn Division of the District Court Department (Lynn District Court), the defendant was convicted of possession with intent to distribute a class A substance, in violation of G. L. c. 94C, § 32 (a ), and refusing to stop for a police officer, in violation of G. L. c. 90, § 25. In this consolidated appeal, the defendant appeals from his convictions and from an order on his postjudgment supplemental motion to reconstruct the record. The defendant argues that his convictions should be reversed because a biased juror was permitted to sit on the jury. He also seeks a new trial, arguing that the reconstructed trial record is insufficient for adequate appellate review of his claims. The Commonwealth cross-appeals from an order denying its motion to correct the record. In addition, the Commonwealth has filed, in this court, a motion to correct the record, pursuant to the authority granted to us by Mass. R. A. P. 8 (e) (2), as appearing in 481 Mass. 1611 (2019). For the reasons that follow, we allow the Commonwealth's motion to correct the record, affirm the order on the defendant's supplemental motion to reconstruct the record, and affirm the defendant's convictions.

Background. As the defendant's and the Commonwealth's appeals pertain primarily to jury voir dire and sidebar discussions at trial, we need not recite the facts underlying the defendant's convictions in detail. It suffices to say that the defendant initially failed to stop his vehicle for a State trooper who attempted to conduct a traffic stop by activating his emergency lights. When the defendant stopped his vehicle, the trooper observed the defendant swallow seven to ten "twists," and the trooper subsequently discovered several additional twists of heroin on the defendant's person and in his vehicle.

The defendant was ultimately convicted of possession with intent to distribute a class A substance and refusing to stop for a police officer.² The defendant appealed from these convictions. After it was learned that the court's recording system failed to record several material sidebar discussions at trial, the defendant's appeal was stayed pending reconstruction of the transcript. Pursuant to Mass. R. A. P. 8 (e) (3), the defendant and the Commonwealth jointly stipulated to many portions of the transcript that were deemed inaudible. They, however, could not agree on four inaudible portions of the transcript, and the defendant filed a motion in the District Court seeking approval of the joint stipulations and requesting that the trial judge settle the portions of the transcript that remained in dispute. Because the trial judge retired after the trial, the First Justice of the Lynn District Court presided over the defendant's motion. The First Justice initially did not act on the defendant's motion, but instead stated that the trial judge had no memory of the case.³ The defendant then filed a supplemental motion to reconstruct the record. The First Justice approved the joint stipulations concerning the inaudible portions of the transcript, but he made no findings regarding the disputed inaudible portions.⁴ The defendant appealed from that order, and the appeal was consolidated with the appeal from his convictions.

The defendant filed his appellate brief, which asserted that his convictions should be reversed based on a juror's transcribed response to a voir dire question during jury empanelment. Believing that the transcript did not accurately reflect the juror's response during the voir dire, the Commonwealth moved to stay the appellate proceedings to correct the record. A stay was granted, and the Commonwealth filed a motion in the Lynn District Court, pursuant to Mass. R. A. P. 8 (e) (2) (rule 8 [e] [2]), to correct a portion of the record. At a hearing on the motion, the Commonwealth presented the audio recording of the voir dire, as well as a second transcript of the voir dire created by a second transcriptionist. Following the hearing, the First Justice declined to reach the merits of the Commonwealth's motion because he was not the trial judge, and he denied the motion. The Commonwealth filed a motion for reconsideration, which was also denied, and then filed an appeal, which was consolidated with the defendant's appeals.⁵

Discussion. 1. Motions to correct the record. We first address the Commonwealth's appeal from the District Court order denying its motion to correct the record, then we address the motion to correct the record that was filed in this court. The purported error in the record lies in an answer given by a prospective juror to a voir dire question asked by the trial judge during jury empanelment.

Because the defendant required the assistance of a Spanish interpreter during the trial, the judge asked each prospective juror whether the defendant's use of an interpreter would have any effect on the prospective juror's ability to decide the case. The judge asked this question to juror no. 12, and the original transcript reflects that the juror answered "Yes" to this question, indicating that she would in fact be affected by the defendant's use of an interpreter. Due to the juror's transcribed response, the defendant asserted in his appellate brief that the juror was biased and should not have been seated on the jury.

As noted, the Commonwealth believed that the juror's transcribed response was the result of a scrivener's error, so it sought a stay of appellate proceedings and obtained the District Court's audio recording of the voir dire of juror no. 12. The Commonwealth requested that the original transcriptionist listen to the audio recording and review the transcript, but because she had retired, she declined to do so. The Commonwealth then submitted the audio recording to the Office of Transcription Services to be transcribed by a second transcriptionist. In the second transcript, the juror's response to whether she would be affected by the defendant's use of the interpreter was transcribed as "No, sir."

Under rule 8 (e) (2), "[i]f any part of the record on appeal fails to accord with what occurred in the lower court," and the parties are unable to agree on what the appropriate correction is, "the lower court on motion shall settle any disputes and conform the record to the truth." Here, however, the First Justice of the Lynn District Court declined to reach the merits of the Commonwealth's motion because he "was not the trial judge and ha[d] no more idea of what the tape [said] than the parties." The Commonwealth filed a motion for reconsideration and the First Justice stated,

"If I were, in fact, the trial judge I would of course listen to the transcript and make a determination as to what I had said. But I wasn't. I am a co-equal with the trial judge. Given that the trial judge is retired and no longer able to make any determination I find that the appeals court should make that determination not a judge who is essentially co-equal of the original trial judge."

Notwithstanding the First Justice's reasoning, the proper course for him to have taken would have been to correct the record on the Commonwealth's motion. See Mass. R. A. P. 8 (e) (2) ("If the parties are unable to agree, the lower court on motion shall settle any disputes and conform the record to the truth" [emphasis added]). Our Rules of Appellate Procedure also provide an avenue for the Appeals Court to correct the record. Rule 8 (e) (2) states that "[o]n motion of the parties or on its own motion, the appellate court or a single justice may direct that any part of the record be corrected." Although we believe that the best place to correct a lower court record is in the lower court, because numerous attempts by the Commonwealth to correct the record in the District Court have been unsuccessful, we exercise our discretion to correct the record in this case.

We have listened to the recording of the judge's voir dire of juror no. 12, and we are confident the juror responded, "No, sir," rather than "Yes" when the judge asked her whether her ability to decide the case would be affected by the defendant using the assistance of a Spanish interpreter. We are further convinced by the circumstances surrounding this answer. After the juror responded, all parties involved acted as if the answer was proper and did not raise an issue of partiality. The judge, who had already excused several jurors for cause sua sponte, did not ask the juror any follow-up questions and did not excuse juror no. 12. Neither defense counsel nor the Commonwealth requested that additional questions be asked, and the juror was not challenged for cause. Additionally, it is of note that no objection was leveled when the juror was seated. Further, the defendant had one peremptory challenge remaining at the conclusion of the empanelment process and expressed his contentment with the seated jurors, including juror no. 12 at that time.

Accordingly, we allow the Commonwealth's motion to correct the record to reflect that juror no. 12 responded, "No, sir," when the judge inquired as to whether the defendant's use of the interpreter would affect her ability to decide the case. We therefore do not address the Commonwealth's appeal from the District Court order.

2. Juror bias. We turn next to the defendant's claim of juror bias. The defendant argues that, as a result of juror no. 12's indication that her deliberations would be affected by the defendant's use of a Spanish interpreter, juror no. 12 was biased against him and therefore should not have been permitted to sit on the jury. Given our disposition of the Commonwealth's motion to correct the...