Commonwealth v. Ralph R.

100 Mass.App.Ct. 150

176 N.E.3d 637

COMMONWEALTH

v.RALPH R., a juvenile.

No. 19-P-47.

Appeals Court of Massachusetts, Suffolk.

Argued January 21, 2021.

Decided August 23, 2021.

Lisa Lana, Committee for Public Counsel Services, for the juvenile.

Monica J. DeLateur, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Rubin, Sullivan, Kinder, & Singh, JJ.¹

SULLIVAN, J.

In this case we are asked to decide whether, in the face of questions as to the attentiveness of one juror and the possible racial bias of others, the trial judge had an affirmative obligation to conduct a voir dire to ensure that the juvenile's right to a fair trial by an attentive and impartial jury was compromised. The juvenile contends that the judge erred in his response to reports of sleeping jurors and to a report that jurors were making "discriminating comments" during deliberations. We conclude that the judge conducted a proper inquiry of one of the sleeping jurors but that a similar inquiry into the report of a second sleeping juror should have been conducted. We also conclude that further inquiry into the report of "discriminating comments" in the jury room should have been made.² Accordingly, we vacate the judgment and the adjudications of delinquency.

The juvenile also challenges the sufficiency of the evidence offered to prove that he possessed a loaded firearm, a large capacity feeding device, and ammunition without a firearm identification (FID) card.³ We conclude that the evidence was sufficient to support the jury verdicts.

Discussion. We discuss each of the claims of error below, reciting those facts relevant to each, followed by an analysis of the legal issues presented.

1. Sleeping jurors. Two jurors were observed sleeping during trial. The background facts are uncontested.

The evidentiary portion of the trial lasted two days, during which the Commonwealth called five witnesses. On the first day, the judge stopped the direct examination of the first witness after he noticed that the juror in seat number eight (juror 8), who was in the judge's line of sight, appeared to be sleeping for "really a fleeting ... moment."

The judge called juror 8 to the bench and explained what he observed in the presence of counsel. The juror acknowledged that her asthma and bronchitis were bothering her and that her eyes were getting heavy. When asked directly if she was sleeping, the juror appeared to answer in the affirmative but indicated that she did not sleep through all the testimony; instead, she reported that her "eyes just went." The following exchange then occurred:

THE JUDGE : "I -- this is so important --"

JUROR 8 : "Um hmm."

THE JUDGE : "-- that we have your total, undivided attention and that you sit up and listen carefully to all the evidence."

JUROR 8 : "Um hmm."

THE JUDGE : "If there's a medical issue, a medical reason you need to bring to my attention, --"

JUROR 8 : "Well, I don't have a hypercola [phonetic] bronchitis. I don't feel good."

THE JUDGE : "You don't feel good? Is that going to prevent you from sitting on this jury?"

JUROR 8 : "I think so. Yeah."

THE JUDGE : "I'm sorry. What?"

JUROR 8 : "Yes."

THE JUDGE : "You -- and you didn't -- this didn't come up before?"

JUROR 8 : "No, it just start[ed] [to] bother me."

After asking juror 8 to step back, the judge requested counsels’ input. The prosecutor indicated that he could "hear [juror 8] sleeping," and that she was a distraction to the rest of the jury. Defense counsel expressed concern that there were two other jurors who might need to be discharged for health reasons. The judge interjected and explained that he was going to continue with the morning session, but that the subject of the sleeping juror would remain a "live, fluid issue."

At the end of the first day of trial, the judge revisited the issue with counsel. The prosecutor indicated that he had not noticed any issue with juror 8 since the earlier sidebar conference, and defense counsel stated, "That was brief. She was awake the rest of the time." The judge explained that he was satisfied and that he had been watching juror 8 very closely throughout the rest of the day. Based on his observations, the judge expressed his intent to proceed with all fourteen jurors but stated, "If counsel has anything different than that, please let me know." Neither the prosecutor nor defense counsel commented further on the issue.

Before the jury were brought into the court room the next morning, the judge, a court officer, and counsel discussed unrelated issues involving two other jurors. During that discussion, defense counsel explained that excusing those two jurors would be difficult because "then we have two other jurors sitting there intermittently falling asleep because the gentleman with the white hair at times he'll just be asleep; yesterday, he was snoring." This was the first mention of a second sleeping juror.

The prosecutor said that he had not noticed the male juror sleeping; however, the judge explained that when the prosecutor presented a video recording (video) during examination of his first witness, the judge had observed the juror in seat number three (juror 3) with his eyes closed and his head down. The judge then asked if all the jurors could see the video, and juror 3 was the only one who did not respond. The judge told counsel,

"And then within seconds of that, though, he was then looking at the screen. So, in my mind, was this someone that was just kind of putting their head down and kind of concentrating and then looking up? So that's what I observed. Now, if you think that's worth inquiry?"

Defense counsel responded, "Yeah, [indiscernible] but I think that happened twice." When the judge indicated that he did not see the second incident and asked for an offer of proof, defense counsel stated, "Same thing that you just described.... I don't remember exactly but I do remember you were trying to wake him up ... I assume that's what you were trying to do."⁴ To which the judge responded, "That obvious, huh?" When the court officer then offered to stand near the jury and intervene if she noticed any juror sleeping, the judge asked the court officer to bring any such incidents to his attention. The judge also decided to inform the jury when they could anticipate the close of evidence, because the judge was concerned that there was "snoring ... at that decibel" the day before.⁵

"[A] judicial observation that a juror is asleep, or a judge's receipt of reliable information to that effect, requires prompt judicial intervention." Commonwealth v. Villalobos, 478 Mass. 1007, 1007, 84 N.E.3d 841 (2017), quoting Commonwealth v. McGhee, 470 Mass. 638, 643-644, 25 N.E.3d 251 (2015). If a judge receives a reliable report of a sleeping or inattentive juror, "he or she ‘must take further steps to determine the appropriate intervention.’ " Villalobos, supra at 1008, 84 N.E.3d 841, quoting McGhee, supra at 644, 25 N.E.3d 251. "Typically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror ‘remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence.’ " Villalobos, supra, quoting McGhee, supra. The burden is on the juvenile to show error. See Villalobos, supra at 1008, 84 N.E.3d 841.

With respect to juror 8, the juvenile has not met that burden. The judge promptly questioned juror 8 based on his personal observation that the juror appeared to nod off, as well as reports that she was sleeping loudly, and verified that she had not missed any significant portion of the testimony. Following this inquiry, the judge continued to watch juror 8 before deciding what additional action, if any, was necessary. This approach was reasonable. See Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181, 912 N.E.2d 525 (2009) (break or stretch likely to suffice "[i]f the sleeping is observed at the outset or when the juror is beginning to ‘nod off’ "). While juror 8 expressed concern about her ability to maintain her attention moving forward, we discern no error in the judge's decision to monitor the situation and seek further input from counsel thereafter. Indeed, after observing juror 8 for the remainder of the day, the judge and counsel were all satisfied with the juror's ability to serve. The judge's response to the observations of juror 8 was a proper exercise of his discretion and was not arbitrary or unreasonable. See Villalobos, 478 Mass. at 1008, 84 N.E.3d 841.

The judge did not conduct a similar inquiry of juror 3, however, and this was error. The judge received a report, albeit belated, from defense counsel that the white-haired man, juror 3, was asleep and snoring.⁶ When asked if further inquiry should be made, defense counsel said, "Yeah, [indiscernible] but I think that happened twice." The judge also saw juror 3 with his head down while a video was playing, and questioned whether he was asleep or merely lowering his head to concentrate, although how the juror could be concentrating on a video while looking down was not explained. The judge was sufficiently concerned as to inquire in a loud voice whether everyone could see the video. Juror 3 did not respond, but seconds later the judge saw him looking at the screen. When asked for an offer of proof, defense counsel said that he saw what the judge saw and went on to remark that the judge had tried to wake up juror 3.

The report met the threshold test of reliability. The judge made no finding that juror 3 was awake, or that the report was unreliable. Defense counsel told the judge that juror 3 had been asleep on two occasions, and not just asleep, but snoring. The judge also saw juror 3 in apparent slumber and was sufficiently concerned that he made an attempt, initially unsuccessful, to rouse him.

Moreover, the judge was not well positioned to evaluate defense counsel's observations regarding juror 3 based on his own observations. Mindful of the previous day's incident...