Supreme Judicial Court of Massachusetts, Worcester
Argued: December 1, 2014
Indictments found and returned in the Superior Court Department on August 20, 2010.
The cases were tried before Richard T. Tucker, J.
The Supreme Judicial Court granted an application for direct appellate review.
Elizabeth Dembitzer for the defendant.
Brett F. Dillon, Assistant District Attorney ( Donna-Marie Haran, Assistant District Attorney, with him) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[25 N.E.3d 252] The defendant appeals from his convictions on two counts of " confin[ing] ... or put[ting] any person in fear, for the purpose of stealing from a building, bank, safe, vault or other depository of money." G. L. c. 265, § 21. Evidence was presented at trial that the defendant and another man intimidated victims into withdrawing funds from an automated teller machine (ATM) and handing those funds over to the defendant and the unidentified coventurer. The defendant argues that these facts do not support a finding that he had the purpose required by G. L. c. 265, § 21. We reject this argument. We agree, however, with the
defendant's alternative assertion that the trial judge erred by failing to inquire into credible information that one of the jurors had slept through important portions of the evidence. Because this was a structural error, we vacate the defendant's convictions and remand for a new trial.
The facts supported by the evidence at trial included the following. In May, 2010, the defendant and his coventurer accosted the victims, James Fletcher, Thomas Brown, and John Wentworth, [25 N.E.3d 253] as they were walking toward their vehicle in a Worcester parking lot. The defendant and his coventurer accused the victims, in a hostile and menacing manner, of being " up to trouble" and selling drugs. They then ordered the victims to get into the vehicle. The victims were frightened, and they cooperated with the defendant and his accomplice in the hope that they would not be hurt.
The defendant, who was aggressive and intermittently yelling, directed Fletcher to an ATM. The defendant told Fletcher to get out of the vehicle, led Fletcher to the ATM, and ordered Fletcher to withdraw $150 from it. Fletcher was scared; he withdrew $140 and gave it to the defendant, stating that was all the money he had. The defendant said, " [T]hat's good enough." The defendant and Fletcher returned to the vehicle. While they had been gone, the coventurer had told Brown and Wentworth that the defendant would shoot them if they did not cooperate.
The coventurer then instructed Brown to get out of the vehicle. He grabbed Brown's arm and forced Brown toward the ATM. Brown withdrew twenty dollars and gave it to the coventurer, who told Brown to " get back in there" and to give him one hundred dollars. Brown testified that he complied, overdrawing his account in so doing. Brown and the coventurer returned to the vehicle. The defendant again directed Fletcher where to drive, and at some point the defendant and the coventurer got out of the vehicle.
Fletcher telephoned the Worcester police department that night and reported the incident in person the next day. The three victims subsequently ...